Stokes v. Matranga

Case: 21-30129 Document: 00516284570 Page: 1 Date Filed: 04/19/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 19, 2022

No. 21-30129

Lyle W. Cayce

Clerk

Crystal Stokes; Lennon Betancourt,

Plaintiffs—Appellants,

versus

Billy Matranga; David Malveaux; Joseph P. Lopinto,

in his Official Capacity as Jefferson Parish Sheriff,

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:19-CV-1642

Before Jones, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Sergeant Billy Matranga arrested Lennon Betancourt after

photographs surfaced on social media showing Betancourt posing with a

caricature of himself labeled “Future School Shooter.” Crystal Stokes,

Betancourt’s mother, sued Sergeant Matranga on Betancourt’s behalf under

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

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42 U.S.C. § 1983 for arresting him without probable cause. The district

court granted summary judgment for Sergeant Matranga on various grounds,

including that he is entitled to qualified immunity. For the following reasons,

we AFFIRM.

Background

Sergeant Billy Matranga worked as the campus police officer for Grace

King High School. On the morning of February 22, 2018, the school principal

called Sergeant Matranga to her office and showed him photographs of

Lennon Betancourt posing with a caricature of himself drawn on a

whiteboard with the words “Future School Shooter” written above it. The

principal also told Sergeant Matranga that someone had posted the

photograph on social media. Unsurprisingly, the photograph sparked

concern in the community and many parents called the school about taking

their kids out of school. Moreover, at some point, the media developed

interest in the photographs.

Another school administrator had summoned Betancourt to the

principal’s office. Shortly after conferring with the principal, Sergeant

Matranga restrained Betancourt with handcuffs and took him to the police

station to interview him about the photographs. Sergeant Matranga placed

Betancourt in a holding cell while another officer contacted Betancourt’s

mother, Crystal Stokes. With Stokes present, Sergeant Matranga questioned

Betancourt about the photographs.

During the interview, Betancourt told Sergeant Matranga about the

circumstances behind the photograph. The day before, Betancourt’s health

teacher had led a discussion about a series of school shootings. At one point,

the teacher told students that the stereotypical school shooter was a white

male. Other students started making jokes about Betancourt being the only

student in the class that fit the teacher’s description. For example, some

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students, in jest, asked Betancourt to spare them from being shot. Another

student went to the front of the classroom and sketched a caricature of

Betancourt on the whiteboard and wrote the words “Future School Shooter”

above it. Acquiescing in the other students’ jokes, Betancourt went around

the room giving fist bumps to students in response to their pretend pleas to

spare them and also posed for a photograph with the caricature. Sergeant

Matranga also interviewed the student that drew the caricature and that

student largely confirmed Betancourt’s description of what happened.

Notwithstanding Betancourt’s explanation, Sergeant Matranga

formally arrested Betancourt for violating Louisiana’s criminal terrorizing

statute. 1 Sergeant Matranga then transported Betancourt to a juvenile

detention facility, where Betancourt spent the night. In the report describing

the reasons for arresting Betancourt, Sergeant Matranga noted that

Betancourt had given “a voluntary statement with his mother’s presence

admitting to knowing he was being photographed and posted to social media,

creating terror in the school, students, faculty, staff and parents.”

The next day, the juvenile court released Betancourt, but only on the

condition that he remain in his home and wear an electronic ankle bracelet

monitoring device. The district attorney filed a petition in juvenile court

charging Betancourt with committing the crime of terrorizing, but it was later

dismissed.

1

La. R.S. § 14:10.1 (“Terrorizing is the intentional communication of information

that the commission of a crime of violence is imminent or in progress or that a circumstance

dangerous to human life exists or is about to exist, with the intent of causing members of

the general public to be in sustained fear for their safety; or causing evacuation of a building,

a public structure, or a facility of transportation; or causing other serious disruption to the

general public.”).

3

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Stokes, on Betancourt’s behalf, brought this lawsuit raising claims

under 42 U.S.C. § 1983 for alleged violations of the First, Fourth, Fifth,

Eighth, and Fourteenth Amendments, as well as a host of state law claims,

against a variety of defendants. 2 During the course of litigation, Stokes

settled all claims except those against Sergeant Matranga, his supervisor, and

his employer.

At the summary judgment stage, the district court dismissed all

remaining claims. Regarding the Fourth Amendment claim against Sergeant

Matranga, the district court concluded that Sergeant Matranga had probable

cause for both arrests and that, even so, he is entitled to qualified immunity.

As to the malicious prosecution claim against Sergeant Matranga, the district

court concluded that Betancourt could not show any malice on Sergeant

Matranga’s part and that, as a result, the claim failed. Betancourt appealed,

challenging the district court’s order only insofar as it granted summary

judgment on the claims against Sergeant Matranga.

Standard of Review

This court reviews the district court’s decision to grant summary

judgment de novo. Hyatt v. Thomas, 843 F.3d 172, 176-77 (5th Cir. 2016)

(citation omitted). A court grants summary judgment if “the movant shows

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

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists when “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). In determining

2

After Betancourt turned eighteen, he formally joined this lawsuit as a co-plaintiff

to pursue his own claims. As a result, Stokes likely does not retain any independent interest

in the litigation.

4

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whether a genuine dispute of material fact exists, the court views “all facts

and evidence in the light most favorable to [the nonmovant] and draw[s] all

reasonable inferences in [the nonmovant’s] favor.” Voss v. Goode, 954 F.3d

234, 237 (5th Cir. 2020) (citation omitted).

Discussion

On appeal, Betancourt advances two arguments. 3 First, he argues that

Sergeant Matranga violated his Fourth Amendment rights by twice arresting

him without probable cause. 4 Second, he argues that Sergeant Matranga is

not entitled to qualified immunity. We need not determine whether Sergeant

Matranga had probable cause to arrest Betancourt because we conclude that

Sergeant Matranga is nevertheless entitled to qualified immunity.

To overcome Sergeant Matranga’s qualified immunity defense,

Betancourt must show that Sergeant Matranga’s conduct (1) violated a

constitutional right and (2) that “the right at issue was ‘clearly established’

at the time of [the] alleged misconduct.” Pearson v. Callahan, 555 U.S. 223,

232, 129 S. Ct. 808, 816 (2009) (quotation omitted). Courts may address

either prong in the qualified immunity analysis or both. Id. at 236. Here, we

conclude that Sergeant Matranga is entitled to qualified immunity because

his actions did not violate “clearly established” law.

The Fourth Amendment protects the “right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches

and seizures.” U.S. Const. amend. IV. “[A]rrests are ‘seizures’ of

3

Betancourt also appears to argue that the district court erred in dismissing his

malicious prosecution claim, but he does not explain his position and does not cite a single

legal authority. Thus, that argument is waived for inadequate briefing. Fed. R. App.

P. 28(a)(8)(A); United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir. 2009).

4

The court assumes, without deciding, that Sergeant Matranga did in fact “arrest”

Betancourt when Sergeant Matranga restrained him and took him to the police station.

5

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‘persons’” and, therefore, “must be reasonable under the circumstances” to

comply with the Fourth Amendment. District of Columbia v. Wesby, --- U.S. -

---, 138 S. Ct. 577, 585 (2018). A warrantless arrest is reasonable if the officer

has “probable cause to believe that a criminal offense has been . . .

committed.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593

(2004) (citations omitted).

Even if an officer makes a warrantless arrest without probable cause,

qualified immunity immunizes the officer from suit unless that “officer had

fair notice that [his] conduct was unlawful.” Brosseau v. Haugen, 543 U.S.

194, 198, 125 S. Ct. 596, 599 (per curiam). “Fair notice requires clearly

established law.” Nerio v. Evans, 974 F.3d 571, 575 (5th Cir. 2020). The

plaintiff must show that the law is so clearly established that “every

reasonable official” in defendant-official’s shoes would know not to engage

in the complained-of conduct. Wesby, 138 S. Ct. at 590. To do that here,

Betancourt needs to “identify a case where an officer acting under similar

circumstances . . . was held to have violated the Fourth Amendment” by

arresting someone without probable cause. Id. at 590 (quotation omitted).

Betancourt has not shown that Sergeant Matranga violated clearly

established law. Louisiana’s Terrorizing statute prohibits the

(1) “intentional communication” of (2) “information that the commission of

a crime of violence is imminent” with the (3) “intent of causing members of

the general public to be in sustained fear for their safety; or causing

evacuation of a building . . . ; or causing other serious disruption to the

general public.” La. R.S. § 14:10.1. At the time of the first arrest, Sergeant

Matranga had seen a photo of Betancourt posing next to a caricature of

himself labeled “Future School Shooter.” Sergeant Matranga also knew that

someone had posted the photo to social media and that parents of other

students had called the school to express concerns or to ask about taking their

kids out of school. Even assuming that Sergeant Matranga lacked actual

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probable cause, the court cannot conclude that every reasonable officer in his

shoes would know that arresting Betancourt based on that information would

violate the Fourth Amendment.

So, too, with the second arrest. At that time, Sergeant Matranga had

interviewed both Betancourt and the student who drew the caricature. In his

interview, Betancourt told Sergeant Matranga about the circumstances of the

photo and insisted that it was all just a joke. Betancourt argues that Sergeant

Matranga had no evidence of criminal intent and therefore lacked probable

cause. But even so, the court cannot conclude that every reasonable officer

with that information would so conclude.

More importantly, Betancourt does not even attempt to identify a

single case where a court found that an officer violated the Fourth

Amendment in similar circumstances. Nor has this court’s research revealed

any such case. It is not enough to merely invoke the general prohibition on

arrests without probable cause. 5 See Vincent v. City of Sulphur, 805 F.3d 543,

547 (5th Cir. 2015) (“Abstract or general statements of legal principle

untethered to analogous or near-analogous facts are not sufficient to establish

a right ‘clearly’ in a given context; rather, the inquiry must focus on whether

5

The dissent attempts to identify relevant “clearly established” law in Bigford v.

Taylor, 834 F.2d 1213 (5th Cir. 1988), and Davidson v. City of Stafford, Tex., 848 F.3d 384

(5th Cir. 2017), two cases Betancourt’s brief does not even cite. From those cases, the

dissent extracts the principle that an officer “may not disregard facts tending to dissipate

probable cause.” Bigford, 834 F.2d at 1218. But neither case bears any resemblance to the

circumstances Sergeant Matranga faced here. Thus, in relying on those cases to support

its conclusion that Sergeant Matranga violated “clearly established” law, the dissent

disregards the Supreme Court’s repeated and unequivocal admonition that to show a

violation of “clearly established” law requires “identify[ing] a case where an officer acting

under similar circumstances . . . was held to have violated the Fourth Amendment.” White

v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (emphasis added); see also Wesby, 138 S. Ct.

at 590 (invoking the same principle in case involving allegation that officer arrested person

without probable cause).

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a right is clearly established as to the specific facts of the case.”) (citation

omitted). Thus, Betancourt has not satisfied his burden to overcome the

qualified immunity defense. We AFFIRM.

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Stuart Kyle Duncan, Circuit Judge, dissenting:

I respectfully dissent. No reasonable officer, knowing what Sergeant

Matranga knew, would have thought Lennon Betancourt was guilty of

anything. Lennon’s arrest was based on an obviously satiric photo (1) that

Lennon didn’t take, (2) that Lennon didn’t post online, and (3) that grew out

of a classroom prank Lennon’s own teacher was in on. Matranga knew all

that—and yet he arrested Lennon, clapped him in jail, and misled the district

attorney into charging him with “terrorizing,” a crime punishable by a

$15,000 fine and 15 years in prison. Before these absurd charges were

dropped, Lennon’s mother had to hire a lawyer and Lennon was expelled

from school. Qualified immunity does not protect the officer who

orchestrated this outrageous clown show.

I.

Probable cause to arrest 1 turns on what the officer knew. Devenpeck v.

Alford, 543 U.S. 146, 152 (2004). At first, Matranga knew only that parents

were concerned about these online photos:

1

The majority does not address whether Matranga had probable cause to arrest

Lennon because it agrees with the district court that neither arrest was objectively

unreasonable under clearly established law. See ante at 7.

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Lennon stands beside a drawing labeled “Future School Shooter.” Scrawled

nearby are some math problems and the mysterious couplet, “Drugs are

my Chicken / Chicken is my Drug.” At this point, Matranga “had

nothing more than a photograph” and “did not know who drew the picture,

who labeled it, who posted the photographs on social media, or what Lennon

meant to communicate by the pictures, if anything.” Stokes v. Faber, 522 F.

Supp. 3d 225, 235 (E.D. La. 2021). No matter. Matranga handcuffed Lennon,

put him in the back of a patrol car, and drove him to the police station.

There, Lennon and another student, Wesley Marino, told Matranga

the incident was a “joke.” Their teacher, Guy Farber, had remarked that the

“typical” school shooter was a “white male.” Tasteless hilarity ensued

because Lennon was the only white male in class. Students begged Lennon

to “spare them,” and he promised he would. Wesley then drew the

caricature and labeled it “Future School Shooter.” When students urged

Lennon to pose for a photo, Farber told Lennon to “get it over with.”

Although Lennon didn’t take the photos or post them, he told Matranga he

knew they’d be put online.

Instead of investigating further (say, by interviewing the teacher),

Matranga arrested Lennon for “terrorizing”:

Terrorizing is the intentional communication of information that the

commission of a crime of violence is imminent or in progress or that a

circumstance dangerous to human life exists or is about to exist, with

the intent of causing members of the general public to be in sustained

fear for their safety; or causing evacuation of a building, a public

structure, or a facility of transportation; or causing other serious

disruption to the general public.

La. Rev. Stat. § 14.40.1(A). Matranga also wrote a highly abridged

account of the incident in his probable cause report:

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After spending the night in jail, Lennon was brought to juvenile court.

He was released under house arrest and made to wear an electronic ankle

bracelet. Based on Matranga’s report, the district attorney charged Lennon

with terrorizing. His mother hired a lawyer. Lennon was suspended from

school and then expelled. A month later, the charges were dropped.

Matranga never had probable cause to arrest Lennon for terrorizing.

“Probable cause [for a warrantless arrest] exists when all of the facts known

by a police officer are sufficient for a reasonable person to conclude that the

suspect had committed, or was in the process of committing, an offense.”

Sam v. Richard, 887 F.3d 710, 715 (5th Cir. 2018) (citation and internal

quotation marks omitted). Before the first arrest, Matranga knew only that

the photo was online. Maybe that gave Matranga reason to question Lennon.

But arrest him for terrorizing? That offense requires (1) the “intentional

communication” (2) “of information that the commission of a crime of

violence is imminent or in progress,” (3) “with the intent” of causing public

fear or disruption. La. Rev. Stat. § 14.40.1(A).

Matranga knew nothing to suggest Lennon had committed that crime.

He didn’t know who took the photo, who posted it, nor the first thing about

why it was taken. So, he had no basis to believe Lennon had “intentionally

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communicat[ed]” anything. Ibid. 2 And consider the photo’s content—

Lennon in a classroom standing beside a caricature labeled “Future School

Shooter” next to math problems and “Drugs are my Chicken /

Chicken is my Drug.” Does that tableau of absurdity suggest “the

commission of a crime of violence [was] imminent or in progress”? Ibid. 3

Does it show “intent of causing members of the general public to be in

sustained fear for their safety”? Ibid. 4 No and no.

Probable cause for the second arrest is even weaker because officers

“may not disregard facts tending to dissipate probable cause.” Bigford v.

Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988). After interviewing Lennon and

Wesley, Matranga learned: (1) Lennon didn’t draw or label the caricature;

(2) Lennon didn’t post the photo, but only knew someone might; (3) the

photo arose out of a class joke fomented by other students; and (4) Lennon’s

teacher encouraged him to pose for the photo. These facts dissolved any

notion that Lennon had committed terrorizing. They confirmed that Lennon

did nothing but pose for the photo; that no violence, imminent or otherwise,

was being communicated; and that the whole thing was a joke in which no

one had the “specific intent . . . to cause members of the general public to be

in sustained fear for their safety.” State v. Lewis, 2009-783 (La. App. 5 Cir.

5/28/10), 43 So.3d 973, 984.

2

Cf. State v. Jason, 2008-1319 (La. App. 3 Cir. 5/6/09), 9 So. 3d 336, 340 (sufficient

evidence of “intentional communication” under § 14.40.1 where defendant “ma[de] loud

verbal threats and . . . scream[ed] and holler[ed] at several individuals”).

3

Cf. State ex rel. RT, 2000-0205 (La. 2/21/02), 781 So.2d 1239, 1242 (student’s

“discussion of hypothetical conduct” in describing a shooting scenario to classmate failed

the imminence prong, which “is clearly an essential element of this part of the statute”).

4

Cf. State v. Lewis, 2009-783 (La. App. 5 Cir. 5/28/10), 43 So.3d 973, 985

(explaining that § 14.40.1 “requires specific intent, because the statutory definition of the

crime of terrorizing includes the intent to accomplish a particular consequence”).

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But maybe Matranga is saved by the “independent intermediary”

doctrine. “[I]f facts supporting an arrest are placed before an independent

intermediary such as a magistrate or grand jury, the intermediary’s decision

breaks the chain of causation for false arrest, insulating the initiating party.”

McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017) (citation omitted). Can

Matranga use this escape hatch? I think not. The doctrine doesn’t apply “if

. . . the deliberations of the intermediary were in some way tainted by the

actions of the defendant.” Arizmendi v. Gabbert, 919 F.3d 891, 897 (5th Cir.

2019) (quoting McLin, 866 F.3d at 689). Here, the district attorney’s decision

to charge Lennon was “tainted” by Matranga’s report, which omitted the

glaring fact that the photo arose from a class joke egged on by the teacher. 5

What’s more, the report falsely implied that Lennon admitted to the crime:

Arrestee gave officer a voluntary statement with [sic] his

mother’s presence admitting to knowing he was being

photographed and posted to social media, creating terror in the

school, students, faculty, staff and parents.

The clumsy phrasing suggests Lennon “admitt[ed] to knowing” the posting

would “creat[e] terror.” But Lennon never did anything of the sort. 6

In sum, Matranga lacked probable cause to arrest Lennon for

terrorizing.

5

Winfrey v. Rogers, 901 F.3d 483, 497 (5th Cir. 2018) (where, “at best, it is not clear

whether all the facts [were] presented to the grand jury, we [have held] that the

independent-intermediary doctrine does not apply” (citation and internal quotation marks

omitted); Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990) (“If the facts omitted from an

affidavit are ‘clearly critical’ to a finding of probable cause, then recklessness may be

inferred from the proof of the omission itself.”) (citation omitted).

6

See Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988) (“Any misdirection of the

magistrate or the grand jury by omission or commission perpetuates the taint of the original

official behavior.”).

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II.

Matranga would still enjoy qualified immunity, though, if he

“reasonably but mistakenly” thought he had probable cause. Sam, 887 F.3d

at 715 (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018)). His

conduct must be measured by “the state of the law at the time of the

incident.” Voss v. Goode, 954 F.3d 234, 239 (5th Cir.), cert denied, 141 S. Ct.

662 (2020). While a directly-on-point case isn’t necessary to find Matranga

acted unreasonably, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ibid. (quoting Kisela v. Hughes, 138

S. Ct. 1148, 1152 (2018)). The pertinent rule must be “well defined,” must

make it “clear to a reasonable officer that his conduct was unlawful in the

situation he confronted,” and must not be defined “at a high level of

generality.” Wesby, 138 S. Ct. at 590 (citations omitted).

The majority concludes neither arrest was objectively unreasonable.

Ante at 7. Regrettably, I must part ways as to the second arrest—the one after

Matranga interviewed Lennon. It is “axiomatic” that “officers must know

the factual predicate for probable cause prior to arrest.” Club Retro L.L.C. v.

Hilton, 568 F.3d 181, 207 (5th Cir. 2009) (citing Sibron v. New York, 392 U.S.

40, 62–63 (1968); Henry v. United States, 361 U.S. 98, 102 (1959)). 7 As

discussed, initially Matranga knew only that someone had posted a satiric

photo labeled “Future School Shooter.” Even assuming that justified the

7

See also Hunter v. Bryant, 502 U.S. 224, 228 (1991) (probable cause existed at the

moment of arrest when officers “possessed trustworthy information” sufficient to warrant

a prudent man in believing the arrestee had violated the underlying statute); Beck v. Ohio,

379 U.S. 89, 93–95 (1964) (finding no probable cause when the record showed only a photo

and “[did] not contain a single objective fact to support a belief by the officers that the

petitioner was engaged in criminal activity at the time they arrested him”).

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first arrest, by the time of the second arrest any basis for probable cause had

evaporated. And yet Matranga bulldozed ahead and arrested Lennon again.

An officer violates the Fourth Amendment if he makes a warrantless

arrest while knowing facts negating any possibility the arrestee committed a

crime. Officers “may not disregard facts tending to dissipate probable

cause.” Bigford, 834 F.2d at 1218. 8 All officers are charged with knowing that

basic principle, which is a “corollary . . . of the rule that the police may rely

on the totality of facts available to them in establishing probable cause.” Ibid.

(citations omitted). No decision by any court contradicts it. The principle is

therefore “settled law” for qualified immunity purposes. See Wesby, 138 S.

Ct. at 589–90 (rule is “settled” if established by “a robust ‘consensus of

cases of persuasive authority’”) (citations omitted).

We recently applied this rule in Davidson v. City of Stafford, Tex., 848

F.3d 384, 393–94 (5th Cir 2017). Officers arrested Davidson for making entry

to an abortion clinic “impassable” or “unreasonably inconvenient or

hazardous” under a Texas criminal statute. Id. at 392–93 (quoting Tex.

Penal Code § 42.03). But the officers already knew that Davidson was

merely stopping clinic patrons to offer them information, an action no

“objectively reasonable officer” could have thought violated the statute. Id.

at 393. We concluded the arrest “violated Davidson’s clearly established

8

See Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) (“[a]n officer contemplating

an arrest is not free to disregard plainly exculpatory evidence, even if substantial

inculpatory evidence (standing by itself) suggests that probable cause exists”);

Garcia v. Does, 779 F.3d 84, 93 (2d Cir. 2015) (citation omitted) (“probable cause may be

defeated if the officer deliberately disregards facts known to him which establish

justification”); Ramirez v. City of Buena Park, 560 F.3d 1012, 1023–24 (9th Cir. 2009)

(courts cannot ignore “facts tending to dissipate probable cause” because probable cause

is a totality-of-the-circumstances determination).

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rights,” inter alia, “to be free from false arrest.” Ibid. (quoting Club Retro,

568 F.3d at 206.” 9

So too here. Given what Matranga knew before the second arrest, no

“objectively reasonable officer in [his] position” could have believed Lennon

had violated the terrorizing statute. Ibid. And, like the officers in Davidson,

Matranga showed no familiarity with the state law supposedly justifying the

arrest. Cf. ibid. (“A review of Texas state court decisions applying § 42.03

further supports our holding that no reasonable officer would conclude that

probable cause existed to arrest Davidson.”). Contrary to the district court’s

suggestion, see Stokes, 522 F. Supp. 3d at 236, our cases routinely assess

probable cause to arrest by reference to state law. 10 Nothing in the statute or

the caselaw justified Matranga’s belief that Lennon had committed

terrorizing by allowing his photo to be taken in front a caricature of himself

labeled “Future School Shooter,” especially after he learned about the

innocuous origins of the photo. 11

In short, no reasonable officer would have concluded there was

probable cause to arrest Lennon for terrorizing or for any other crime,

especially after the officer learned facts dissipating any probable cause. I

9

We held the arrest “also” violated Davidson’s First Amendment rights. Id. at 394

(citations omitted).

10

See Davidson, 848 F.3d at 393 (referring to Texas decisions); see also, e.g., Voss,

954 F.3d at 239 (judging probable cause by reference to interpretations of Texas Penal

Code); Club Retro, 586 F.3d at 204 (judging probable cause by reference to various

Louisiana statutes and Parish ordinances); Bigford, 834 F.3d at 1218 (judging probable

cause in part by reference to meaning of Texas Certificate of Title Act).

11

See, e.g., Lewis, 43 So.3d at 985 (“[T]errorizing requires specific intent, because

the statutory definition of the crime of terrorizing includes the intent to accomplish a

particular consequence, i.e., the intent to cause members of the general public to be in

sustained fear for their safety, or to cause evacuation of a public building, a public structure,

or a facility of transportation, or to cause other serious disruption to the general public.”).

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therefore respectfully dissent from the majority’s holding that Sergeant

Matranga is entitled to qualified immunity.

17