Perkins v. Hart

Case: 22-30456 Document: 00516985624 Page: 1 Date Filed: 11/30/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

November 30, 2023

No. 22-30456 Lyle W. Cayce

____________ Clerk

Teliah C. Perkins, individually and as parent and natural guardian of

D.J., a minor,

Plaintiff—Appellee,

versus

Kyle Hart; Ryan Moring,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:21-CV-879

______________________________

Before Elrod, Ho, and Wilson, Circuit Judges.

Per Curiam: *

Teliah C. Perkins was arrested by two St. Tammany Parish Sheriff’s

Deputies, Kyle Hart and Ryan Moring, after the Deputies responded to

reports of a person driving a dirt bike recklessly and without a helmet. The

Deputies approached Perkins in her driveway and asked for her license,

registration, and proof of insurance. The situation escalated quickly. The

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 22-30456

Deputies initiated an arrest; Perkins resisted but was eventually taken to the

ground and handcuffed. Perkins’s minor son D.J. and her nephew recorded

the altercation with their cell phones. At one point, the videos briefly show

Deputy Hart’s hand on Perkins’s throat as he struggled to get up off the

ground. Perkins sued, alleging claims of excessive force used against her and

D.J. She also alleged a First Amendment retaliation claim on behalf of D.J.

The Deputies moved for summary judgment, raising qualified

immunity as a defense to the claims. The district court largely denied the

Deputies’ motion. On appeal, we dismiss in part, reverse and render in part,

and remand for further proceedings.

I.

A.

Perkins is a resident of Slidell, Louisiana. 1 On May 5, 2020, she

observed the Deputies riding down the street on police motorcycles. The

Deputies turned their motorcycles around, drove to her driveway, and

shouted for her to come to them. The Deputies asked for her driver’s license,

registration, and proof of insurance, as they were investigating a complaint

about a female recklessly riding a dirt bike without a helmet. Perkins mostly

complied with those requests but was unable to produce proof of insurance.

After asking if the inquiry was racially motivated, Perkins became

frustrated and non-compliant. She called 911 to request a supervising officer

and asked her son and nephew to record the encounter with their cell phones.

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1

These facts are recounted in the light most favorable to Perkins, as she is the non-

moving party, see Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009), save for

facts drawn conclusively from the videos, see Scott v. Harris, 550 U.S. 372, 381 (2007).

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The Deputies instructed the boys to return to the porch. D.J. and the nephew

both filmed the ensuing altercation. 2

When Perkins continued to act belligerently and refuse to comply with

their requests, the Deputies attempted to place her under arrest. They seized

her arms, forced her to the ground, muttered that she was “f—ing slippery,”

and then, according to Perkins, “leaned on [her] back and neck with their

knees and elbows, pulled her hair, and forced her face against the driveway

pavement while wrenching her arms behind her back.” Perkins does not

deny that she tried to pull her arms away. The Deputies repeatedly told her

to “stop resisting” but she continued to flail her arms and legs and deny that

she was resisting. She also repeatedly yelled at and taunted the Deputies—

telling one, “I’m on the ground, you’re so weak, boy.” Eventually, she was

successfully handcuffed by Deputy Hart.

At that point, Deputy Moring stood up and turned his attention to the

boys, while Hart continued to struggle with Perkins on the ground. Moring

moved directly in front of D.J., blocking his camera’s view of Perkins and

Hart. He told D.J. to “get back” and might have pushed him. D.J. and

Moring continued to quip at each other—“you can’t touch me,” “get back,”

and so on. Moring eventually held a taser out toward D.J. to keep him at bay,

and they then sniped about whether Moring could properly do so.

Meanwhile, on the ground, Hart kept pressure on Perkins’s back for

about a minute to keep her subdued. As soon as Hart released the pressure,

however, Perkins flipped onto her back and began kicking and struggling with

Hart again. At that point, Hart placed his hand on Perkins’s shoulder to

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2

There is a third video in the record taken by a neighbor, but it does not provide

any additional insight. We note, too, that the nephew’s video was altered and fast-forwards

through various moments during the fracas.

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control her, or to try to get up. His hand then slipped onto Perkins’s neck for

less than two seconds, and Perkins yelled “you’re choking me!” Her nephew

then yelled “y’all are choking a lady.” All this time, Moring’s back was

turned, as he and D.J. interacted. Moments later, Hart and Perkins stood and

walked toward the street. A neighbor told the boys to “go inside, go inside,

please go inside.” Perkins agreed, telling them to “go inside.” Their videos

then end.

The Deputies arrested Perkins for resisting a police officer with force

or violence, battery of a police officer, no proof of insurance, and no safety

helmet. She was detained overnight. The District Attorney’s Office

amended her bill of information to “R.S. 14:108 Resisting an Officer,” for

which she was tried and convicted.

B.

Perkins sued the Deputies, asserting claims individually and on behalf

of D.J. under 42 U.S.C. § 1983 for violations of their rights under the First,

Fourth, and Fourteenth Amendments. The Deputies filed a motion for

summary judgment, principally contending that they were entitled to

qualified immunity.

The district court granted the motion as to Perkins’s unlawful seizure

claim but denied summary judgment as to all other claims. Weighing

Perkins’s excessive force claim, the district court dissected the videos of her

arrest, specifically emphasizing the elbow pressure on her back, her cries of

pain, and Deputy Hart’s hands on Perkins’s throat after she had been

handcuffed. In light of “the minor nature of [Perkins’s] crime and [the

Deputies’] own admittance of that fact,” the court “determine[d] that there

[was] sufficient evidence that a jury could determine that the [Deputies’]

actions during the arrest were disproportionate . . . .” Adopting the

perspective of a reasonable officer on the scene, the court reasoned—again,

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relying on the videos—that Perkins was pacing back and forth in her driveway

when the arrest began and, while she resisted, there was “no evidence

whatsoever that [Perkins] threatened the [Deputies] or made any reference

to a weapon in her home.” The district court acknowledged that Perkins

admitted she initially resisted arrest, a fact confirmed by the videos. But the

court explained that this circuit’s “law has long been clearly established that

an officer’s continued use of force on a restrained and subdued subject is

objectively unreasonable.” The court concluded that “a disputed issue of

material fact exists regarding the amount of force used by Defendants while

attempting to arrest Plaintiff and after she was handcuffed and subdued.”

Turning to D.J.’s excessive force claim, the district court again

marshalled through the evidence and concluded that Deputy Moring violated

clearly established law and used excessive force. The court found that

Moring had no justification to display and threaten to use his taser against

D.J., a minor who was neither fleeing nor under arrest. Further, the court

determined that D.J.’s filming of the incident was a lawful activity, so no non-

retaliatory grounds justified Moring’s interference with D.J.’s First

Amendment rights. Thus, the court concluded that Moring’s conduct

violated D.J.’s clearly established First Amendment rights and was not

“objectively reasonable in light of clearly established law.”

The Deputies noticed this interlocutory appeal, challenging the

district court’s denial of qualified immunity.

II.

“To determine whether a public official is entitled to qualified

immunity, we decide ‘(1) whether the facts that the plaintiff has alleged make

out a violation of a constitutional right; and (2) whether the right at issue was

clearly established at the time of the defendant’s alleged misconduct.”

Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013). “[A]n order denying

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qualified immunity, to the extent it turns on an ‘issue of law,’ is immediately

appealable.” Behrens v. Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985)). Our interlocutory jurisdiction is limited,

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

determination that cannot be reviewed. Id. The district court’s

“determination that a particular dispute is material,” however, “is a

reviewable legal determination.” Id.; Melton v. Phillips, 875 F.3d 256, 261

(5th Cir. 2017) (en banc). Thus, we “ask only ‘whether the factual disputes

that the district court identified are material to the application of qualified

immunity.’” Kokesh v. Curlee, 14 F.4th 382, 391 (5th Cir. 2021) (en banc)

(quoting Samples v. Vadzemnieks, 900 F.3d 655, 660 (5th Cir. 2018)).

Within this limited jurisdiction, we “review de novo defendants’

invocations of qualified immunity,” but “accept all well-pleaded facts as

true . . . and view all facts and inferences in the light most favorable to the

nonmoving party.” Club Retro, 568 F.3d at 194. However, “[w]hen a public

official makes ‘a good-faith assertion of qualified immunity,’ that ‘alters the

usual summary-judgment burden of proof, shifting it to the plaintiff to show

that the defense is not available.’” Joseph on behalf of Est. of Joseph v. Bartlett,

981 F.3d 319, 329–30 (5th Cir. 2020). That means “[t]he plaintiff must show

that there is a genuine dispute of material fact and that a jury could return a

verdict entitling the plaintiff to relief.” Id. at 330; see also Mesa v. Prejean, 543

F.3d 264, 269 (5th Cir. 2008). “[T]o overcome qualified immunity, the

plaintiff’s version of those disputed facts must also constitute a violation of

clearly established law.” Joseph, 981 F.3d at 330. We examine the actions of

multiple defendants asserting qualified immunity individually. Solis v.

Serrett, 31 F.4th 975, 981 (5th Cir. 2022) (citing Meadours v. Ermel, 483 F.3d

417, 421–22 (5th Cir. 2007)).

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III.

A.

We begin with Perkins’s claim of excessive force. “To prevail on an

excessive-force claim, [a plaintiff] must show (1) injury, (2) which resulted

directly and only from a use of force that was clearly excessive, and (3) the

excessiveness of which was clearly unreasonable.” Hanks v. Rogers, 853 F.3d

738, 744 (5th Cir. 2017) (quoting Cooper v. Brown, 844 F.3d 517, 522 (5th Cir.

2016) (alteration in original)). “[W]hether the force used is excessive or

unreasonable depends on the facts and circumstances of each particular

case.” Id. (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2017)).

We consider three factors to help make this determination: “(1) the severity

of the crime at issue, (2) whether the suspect poses an immediate threat to

the safety of the officers or others, and (3) whether [s]he is actively resisting

arrest or attempting to evade arrest by flight.” Id. (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)).

Because the district court denied summary judgment to the Deputies

“on the basis that genuine issues of material fact exist,” it essentially “made

two distinct legal conclusions: that there are ‘genuine’ issues of fact in

dispute, and that these issues are ‘material.’” Reyes v. City of Richmond, 287

F.3d 346, 350 (5th Cir. 2002). We cannot review the first conclusion, but we

can the second. And while “we review the facts in the light most favorable

to the non-moving party,” “a plaintiff’s version of the facts should not be

accepted for purposes of qualified immunity when it is ‘blatantly

contradicted’ and ‘utterly discredited’ by video recordings.” Trammel v.

Fruge, 868 F.3d 332, 338 (5th Cir. 2017) (quoting Hanks, 853 F.3d at 743,

744.); but see Edwards v. Oliver, 31 F.4th 925, 930–31 (5th Cir. 2022)

(declining to consider video evidence because the district court found that

the video itself created a genuine factual dispute). Where the video evidence

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is conclusive, we should thus “view[] the facts in the light depicted by the

videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007).

“An officer challenges materiality when he contends that ‘taking all

the plaintiff’s factual allegations as true no violation of a clearly established

right was shown.’” Reyes, 287 F.3d at 350 (quoting Cantu v. Rocha, 77 F.3d

795, 803 (5th Cir. 1996)). The Deputies argue that Perkins cannot meet her

burden to overcome qualified immunity and the district court erred in

holding otherwise, particularly because the court’s conclusions were

“contrary” to the evidence—the videos taken by Perkins’s son and nephew.

See Edwards, 31 F.4th at 930. 3 The Deputies contend that the video evidence

so clearly exonerates their actions that a reasonable viewer has no choice but

to conclude the district court erred. We agree that the video footage

conclusively shows the Deputies’ use of force was not “clearly

unreasonable,” Hanks, 853 F.3d at 744, under the circumstances.

We first analyze whether Moring is entitled to qualified immunity,

then Hart. See Solis, 31 F.4th at 981 (“We examine each officer’s actions

independently to determine whether he is entitled to qualified immunity.”).

1.

Analyzing the Graham factors, the district court determined there

were genuine issues of fact as to whether Perkins suffered an injury during

the altercation, whether her purported crime was severe, and whether she

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3

While the Deputies ostensibly challenge materiality, their brief repeatedly

contests the district court’s conclusion that genuine fact disputes exist. Thus, “despite

giving lip service to the correct legal standard,” much of the Deputies’ argument

improperly challenges genuineness rather than materiality of the fact disputes found by the

district court. Reyes, 287 F.3d at 351. And the Deputies’ briefing often “does not take the

facts in a light most favorable to [Perkins].” Id. at 350. Those deficiencies aside, we assess

the Deputies’ arguments viewing the facts most favorably to Perkins except where the facts

are otherwise conclusively established by the videos. See Trammell, 868 F.3d at 338.

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posed a threat to the safety of the officers or others. We cannot, and do not,

question those conclusions. See Ramirez, 716 F.3d at 373. But the court also

found that Perkins actively resisted the Deputies when they tried to arrest

her—a fact the videos conclusively prove, and which proves conclusive in

assessing whether the Deputies, particularly Deputy Moring, are entitled to

immunity.

“‘[A] suspect’s refusal to comply with instructions’ may indicate that

physical force is justified . . . .” Joseph, 981 F.3d at 332 (quoting Deville, 567

F.3d at 167–68); see also Hutcheson v. Dallas Cnty., 994 F.3d 477, 480 (5th Cir.

2021) (“Resisting while being handcuffed constitutes active resistance and

justifies the use of at least some force.”). However, “[t]he timing, amount,

and form of a suspect’s resistance are key to determining whether the force

used by an officer was appropriate or excessive.” Joseph, 981 F.3d at 332.

“To stay within constitutional bounds, an officer must use force ‘with

measured and ascending actions that correspond[ ] to [a suspect’s] escalating

verbal and physical resistance.’” Id. (alterations in original) (quoting Poole v.

City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)). Notably, “[f]orce must

be reduced once a suspect has been subdued.” Id. at 335.

The videos demonstrate that Deputy Moring “stay[ed] within

constitutional bounds.” Id. at 332. Deputy Hart first approached Perkins

and attempted to place her hands behind her back. When she pulled away,

Moring approached to assist, and both Deputies repeatedly warned Perkins

not to resist. Perkins then sat on the ground and refused to place her hands

behind her back. As both Deputies attempted to cuff Perkins, she continued

to pull away and verbally antagonize them. The Deputies eventually forced

Perkins onto her stomach, after which Moring placed his elbow on her back

while Hart attempted to place handcuffs on her. Critically, as soon as Hart

put the handcuffs on Perkins, Moring stood up and walked towards D.J.

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Moring did not touch Perkins again. In other words, as soon as Perkins was

subdued, Moring reduced the force he applied, to none at all. See id. at 335.

The district court’s analysis of the summary judgment record up to

that point is not problematic, as it aligns with the video evidence. And that

evidence presents no material issue regarding the force either Deputy used

in their efforts to cuff and subdue Perkins, who indisputably was resisting

arrest. But the court thereafter erred by finding a genuine dispute of material

fact regarding both Deputies’ conduct based on Deputy Hart’s actions after

Perkins was cuffed—and after Deputy Moring stood up and engaged D.J. In

other words, the district court impermissibly treated the Deputies in tandem,

denying both of them qualified immunity because of Hart’s alleged choking

of Perkins, which the videos demonstrate Moring could not even see as it

occurred. Assessing Deputy Moring’s conduct individually, Solis, 31 F.4th

at 981, there is no dispute that his use of force was proportional to Perkins’s

resistance, and there is no dispute he stopped using force once Perkins was

subdued. Deputy Moring is therefore entitled to qualified immunity as a

matter of law. See Hutcheson, 994 F.3d at 481.

2.

As for Deputy Hart, based on Perkins’s version of events alone, the

district court’s denial of summary judgment to Hart could withstand

scrutiny; she alleges Hart choked her, and Hart denies it—a classic dispute

of material fact. However, when the evidence is “viewed in the light depicted

by the videotape,” Scott, 550 U.S. at 381, it is clear that Hart is also entitled

to qualified immunity. The district court, focusing on Hart’s alleged choking

of Perkins, found a genuine dispute of material fact as to whether the

Deputies’ use of force was proportional to Perkins’s resistance once she was

handcuffed. In so doing, the court accepted Perkins’s allegations that “she

was choked twice.” But the district court should not have adopted Perkins’s

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version of the facts because “no reasonable jury” could find that Hart choked

Perkins based on the video. See id. at 380.

Picking up where we left off above, Perkins’s nephew’s video 4 shows

that once Hart put the handcuffs on Perkins, Deputy Moring stood up and

walked towards D.J. Meanwhile, Hart continued to struggle with Perkins on

the ground. Because Moring was blocking D.J.’s and the nephew’s camera

angles, much of that struggle is obscured. But Hart kept pressure on

Perkins’s back for about a minute to subdue her. When Hart released the

pressure, Perkins flipped onto her back and began kicking and struggling with

Hart again. At that point, Hart placed his hand on Perkins’s shoulder to bring

her under control, or to try to get up. For two seconds, the nephew’s video

shows Hart’s hand on Perkins’s neck, and Perkins can be heard screaming,

“why you choking me?” Moments later, Hart and Perkins stood up and

walked toward the street. The video then ends.

“[V]iewed in the light depicted by the videotape,” id. at 381, Hart’s

use of force was proportional to Perkins’s resistance. He kept pressure on

her back for less than a minute and then reduced his force. At that point,

Perkins flipped onto her back and began kicking, i.e., resumed resisting Hart.

As they struggled, Hart placed his hand on Perkins’s shoulder, and it slipped

for a couple seconds onto her neck. Perkins’s exclamation about choking

notwithstanding, the video shows no choke. And Hart’s actions

“correspond[ed] to [Perkins’s] . . . physical resistance.” See Joseph, 981 F.3d

at 332–33. And the fact that Hart’s hand was briefly at Perkins’s neck does

not constitute excessive force. Cf. Williams v. Bramer, 180 F.3d 699, 704 (5th

Cir. 1999) (finding that an officer’s force was not excessive with respect to an

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4

As mentioned in note 2, there were three videos taken of the incident. But the

nephew’s video is the only one that shows the purported choking. D.J.’s video is blocked

by Moring as the alleged choke occurred, and the neighbor’s video does not show it either.

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alleged choking that occurred while the officer attempted to search the

plaintiff’s mouth). The district court erred in basing its denial of summary

judgment on Perkins’s version of the facts, despite what the video footage

shows. Deputy Hart is entitled to qualified immunity as a matter of law.

B.

Next, we turn to D.J.’s claim for excessive force. Such claims are

governed by the Fourth Amendment, which protects the right to be free from

excessive force during a seizure. Poole v. City of Shreveport, 691 F.3d 624, 627

(5th Cir. 2012). “A violation of this right occurs when a seized person suffers

an injury that results directly and only from a clearly excessive and objectively

unreasonable use of force.” Joseph, 981 F.3d at 332 (citing Poole, 691 F.3d at

628); see Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).

Here, our task is straightforward because there was simply no seizure

from which an excessive force claim can stem. See, e.g., Brower v. Cnty. of

Inyo, 489 U.S. 593, 595 (1989) (“We reasoned that ‘[w]henever an officer

restrains the freedom of a person to walk away, he has seized that person.’”

(quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985) (alteration in original))); see

also Graham, 490 U.S. at 395 (explaining that excessive force cases stem from

the course of an “arrest, investigatory stop, or other ‘seizure’ of a free

citizen” and should be analyzed under the Fourth Amendment’s

reasonableness standard). At no point was D.J. prevented from leaving the

scene—rather, he was repeatedly asked to do so, to “get back” and move

away while Deputy Moring was securing the perimeter. True, he was

prevented from further approaching Perkins and Deputy Hart, but that was

the officers’ prerogative to secure the scene and did not infringe on D.J.’s

Fourth Amendment rights. See United States v. Mendenhall, 446 U.S. 544,

552–55 (1980) (collecting cases, including Terry v. Ohio, 392 U.S. 1 (1968),

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delineating the difference between permissible police conduct furthering

police duty and conduct that constitutes a seizure).

Thus, even accepting D.J.’s version of the facts as true, he cannot

prevail on a claim of excessive force because there was no violation of his

Fourth Amendment rights. See Joseph, 981 F.3d at 330; Ontiveros, 564 F.3d

at 382. The district court erred in holding otherwise, and the Deputies are

entitled to summary judgment as to this claim.

C.

D.J.’s First Amendment retaliation claim against Deputy Moring

fares better. To establish such a claim, D.J. must show (1) he was “engaged

in constitutionally protected activity,” (2) Moring’s actions caused him to

“suffer an injury that would chill a person of ordinary firmness from

continuing to engage in that activity,” and (3) Moring’s “adverse actions

were substantially motivated against [D.J.’s] exercise of constitutionally

protected conduct.” See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

The district court determined D.J. satisfied all three prongs, as he was

engaged in lawful activity—the filming of the arrest—and there were no non-

retaliatory grounds to justify Moring’s interference with D.J.’s First

Amendment rights, particularly because D.J. was not engaged in any illegal

activity. The district court relied on Moring’s deposition testimony, in

which he admitted he intentionally stood in front of D.J. and blocked him

from recording Perkins’s arrest.

As to the first element, in 2017, we clearly established that “a First

Amendment right to record the police does exist, subject only to reasonable

time, place, and manner restrictions.” Turner v. Lieutenant Driver, 848 F.3d

678, 688 (5th Cir. 2017). While Moring acknowledges there is a

constitutional right to film the police, he insists this case is different because

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D.J. “exceed[ed] that right to the point of interference.” He pegs his

argument to our recent case, Buehler v. Dear, 27 F.4th 969 (5th Cir. 2022).

The Buehler court concluded there was not a clearly established right

to record the police in 2015. Id. at 992. However, while Buehler was

published after Turner, the events in Buehler happened well before Turner

was decided. The Buehler court thus did not engage in further analysis

because the officers were entitled to qualified immunity, as the First

Amendment right had not been clearly established at the time of the officers’

actions. Regardless, Moring latches on to Buehler’s opening statement—that

there is a “line between filming the police, which is legal, and hindering the

police, which is not.” Id. at 976 (asking, but not answering, “How close is

‘too close’ such that the filming, however well-intentioned, becomes

hazardous, diverting officers’ attention and impeding their ability to perform

their duties in fast-moving, highly charged situations?”).

Buehler is easily distinguishable. There, the plaintiff was a police-

accountability activist who was arrested on notoriously crowded Sixth Street

in downtown Austin, Texas, while recording police activity. Id. (describing

Buehler’s actions as “cop watching”). He engaged in repeated verbal

confrontations with police officers, pushing the boundaries of how close to

them he was permitted to stand while recording. Id. Buehler was arrested

for misdemeanor interference with performance of official duties after the

bickering escalated between him and the police. Id. The situation here is

fundamentally different. While D.J. was clearly close to the arrest scene—

the perimeter of which was being secured by Moring—D.J. was not a hazard,

was not too close, and did not impede the Deputies’ ability to perform their

duties. Indeed, the Deputies successfully handcuffed Perkins despite D.J.’s

presence and active recording.

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As we explained in Turner, “[f]ilming the police contributes to the

public’s ability to hold the police accountable, ensure that police officers are

not abusing their power, and make informed decisions about police policy.”

848 F.3d at 689. Such was the case here. D.J., therefore, did not cross the

“line between filming the police . . . and hindering the police,” Buehler, 27

F.4th at 976, and was engaged in a clearly established, constitutionally

protected activity on his family’s private property.

We also agree that D.J. has substantiated a requisite injury. That

element “requires some showing that the plaintiff’s exercise of free speech

has been curtailed.” McLin v. Ard, 866 F.3d 682, 696 (5th Cir. 2017) (quoting

Kennan, 290 F.3d at 258)). “The effect on freedom of speech may be small,

but since there is no justification for harassing people for exercising their

constitutional rights it need not be great in order to be actionable.” Id. at 697

(quoting Kennan, 290 F.3d at 259).

The district court found that D.J. suffered an injury when Moring

pointed his taser at D.J. and verbally threatened him. To be clear, Moring

was justified in securing the perimeter. However, Moring also verbally

taunted and shoved D.J. And Moring admitted in his deposition that he

intentionally moved from side to side to block D.J. from recording the arrest,

not to control the perimeter or respond to D.J.’s interference. Moring’s

actions, coupled with the threat of the taser and Moring’s admission, could

lead a reasonable jury to find that D.J’s speech was chilled and that Moring’s

actions were “substantially motivated against [D.J.’s] exercise” of his First

Amendment right. The district court therefore did not err by denying

Deputy Moring summary judgment as to D.J.’s First Amendment claim.

IV.

To sum up: The district court erred in denying summary judgment

for the Deputies as to Perkins’s excessive force claim. The video evidence

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conclusively demonstrates that neither Deputy employed excessive force to

subdue Perkins, who just as conclusively was resisting arrest.

D.J.’s excessive force claim fails because there was simply no seizure

from which such a claim could stem. But we agree with the district court that

D.J.’s filming of the arrest was a clearly established, constitutionally

protected activity that overcomes Moring’s qualified immunity defense at

this stage of the proceedings.

Accordingly, we DISMISS this appeal in part, REVERSE and

RENDER in part, and REMAND for further proceedings consistent with

this opinion.

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Case: 22-30456 Document: 00516985624 Page: 17 Date Filed: 11/30/2023

No. 22-30456

James C. Ho, Circuit Judge, dissenting in part:

Citizens have an established constitutional right to record police

interactions with members of the public, under our circuit precedent. See

Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017).

But this case does not present a violation of that right. To begin with,

the available video evidence confirms that Officer Ryan Moring did not once

ask D.J. to cease filming. Nor does it show Officer Moring otherwise trying

to prevent D.J. from recording his mother’s arrest.

To the contrary, it shows that Officer Moring was simply trying to

establish a reasonable perimeter so that his fellow officer could safely detain

D.J.’s mother, who was behaving in a hostile, abusive, and insulting manner

toward the officers. See id. at 688 (“[A] First Amendment right to record the

police does exist, subject only to reasonable time, place, and manner

restrictions.”). Specifically, the video shows D.J. shouting at the officers

while Perkins is just a few feet away actively resisting the officers’ attempts

to pacify her. So Moring understandably asks D.J. to back up. Yet despite

Moring’s repeated requests to back up and avoid interfering with their work,

D.J. refuses. Instead, D.J. repeatedly, and with increasing intensity, shouts

that he refuses to move. A safe distance is eventually established, at which

time Moring stops standing between D.J. and Perkins.

In addition, Officer Moring’s affidavit states that, far from trying to

interfere with anyone’s right to record, he specifically affirmed that D.J.

could “film from the porch of the residence.” Moring Aff. 6 at ¶28.

So I would affirm the judgment in its entirety. The Constitution does

not compel police officers to affirmatively help a citizen secure the ideal

camera angle while that citizen is actively berating the police just a few feet

away from an active physical struggle with another person. I dissent in part.

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