Grisham v. Valenciano

Case: 22-50915 Document: 87-1 Page: 1 Date Filed: 02/26/2024

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 22-50915

____________ FILED

February 26, 2024

Christopher Grisham; James Everard, Lyle W. Cayce

Clerk

Plaintiffs—Appellants,

versus

Rene Valenciano, Olmos Park Chief of Police; J. Lopez, Officer;

Hector Ruiz, Officer; A. Viera, Officer; City of Olmos Park,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:20-CV-387

______________________________

Before Stewart, Dennis, and Wilson, Circuit Judges.

Carl E. Stewart, Circuit Judge:

James Everard (“Everard”) and Christopher Grisham (“Grisham”)

(collectively, “Plaintiffs”) filed this civil rights suit under 42 U.S.C. § 1983

against the City of Olmos Park (“the City”) and several police officers

(collectively, “Defendants”) alleging that their arrests were in violation of

their constitutional rights. The district court granted summary judgment in

favor of the City and the officers and dismissed Everard’s and Grisham’s

claims. Because the record evidence supports the district court’s summary

judgment, we AFFIRM.

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No. 22-50915

I. FACTUAL & PROCEDURAL BACKGROUND1

Grisham and Everard are self-styled “Second Amendment

protestors” who had been involved in several protests advocating for the

repeal of a City ordinance that governs the unauthorized carrying of loaded

firearms. 2 This case arises out of their arrests on March 27, 2018. Prior to this

date, the Olmos Park Police Department had received calls from dispatch on

numerous occasions and was aware of several Second Amendment

demonstrations happening throughout the City.

On March 27, 2018, 911 operators received several calls regarding a

man “with an AK-47” around his neck, standing on a busy street corner in

Olmos Park for about five minutes. 3 Officers were dispatched to the scene to

investigate, with the idea that they would encounter “those Second

Amendment people again.” Officer James Lopez arrived on the scene and

_____________________

1

We derive the factual background from the Report and Recommendation by the

Magistrate Judge.

2

Olmos Park, Ordinance ch. 24, art. IV., § 24-85 (“Ordinance”).

3

During the early afternoon of March 27, 2018, several alarmed passersby called

911. One caller reported that a man with an “AK-47 around his neck” was occupying a

crowded public area in the City across the street from a busy Shell gas station. Another

caller reported that a man with a gun was walking along a busy street in a high traffic

location in the City. The callers described the man as wearing all black, displaying a gun

strapped around his neck, and interacting with passing motorists for several minutes. The

callers used the 911 emergency system to contemporaneously report the man’s suspicious

behavior, which they believed involved either an emergency or immediate threat to safety

and thus required immediate action. See Navarette v. California, 572 U.S. 393, 399–400

(2014) (holding that a motorist’s 911 emergency call provided reasonable suspicion of an

ongoing crime). The 911 dispatcher considered the callers and the information they

conveyed to be credible and dispatched officers to the scene. The dispatcher also relayed

to the officers that ‘it looks like it’s going to be the Second Amendment People.’”

Concluding that there was an emergency, officers arrived shortly after the calls and

encountered a large man, consistent with the 911 calls, wearing dark clothing and displaying

an assault-like rifle.

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encountered Everard standing on a street corner with a large gun in a holster

in front of his chest. Consistent with the 911 calls, the street corner that

Everard occupied was a high traffic location, busy with both pedestrian and

vehicle traffic, and Everard was a large man wearing dark clothing and

displaying an assault-like rifle. Moreover, Everard was openly and verbally

uncooperative, challenging the officers’ commands and refusing to comply

with their orders. Officer Lopez repeatedly told Everard to get on the ground,

but Everard did not comply. Next, Officer Adrian Viera arrived on the scene

and continued verbal negotiations with Everard. Grisham then approached

Everard with a handgun in a holster on his hip and began filming the

interaction with the officers. The officers instructed Grisham to “get away

from Everard,” but he did not comply and continued to stand near him.

Chief Rene Valenciano arrived on the scene and approached Grisham

and Everard, with one hand on his taser. Chief Valenciano told Everard to get

on the ground; again, Everard refused to comply. Officer Viera once again

instructed Grisham to get away from Everard, which Grisham refused to do.

Officer Viera then approached Grisham with handcuffs and reached for his

hands, but Grisham backed away several feet, pulled his hands away, and

continued to retreat from the officer. As Grisham turned away—backing up

in the direction of Everard and continuing to pull away from Officer Viera—

Chief Valenciano approached Grisham from behind and tased him, causing

Grisham to fall backwards and hit his head on the pavement.

Officer Hector Ruiz approached Everard, and Everard put his hands

behind his back to be handcuffed. Officer Ruiz walked Everard a few steps

away from the road and, with one hand on his arm and another on his upper

back, directed him to kneel in a slow and controlled manner. Officer Ruiz and

Chief Valenciano both grasped Everard’s arms and moved him from his

knees to a prone (lying flat on his stomach) position. The officers turned

Grisham over on his stomach, placed him in handcuffs, and searched him.

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Everard was charged with disorderly conduct for displaying a firearm in a

manner causing alarm, and Grisham was charged with interference with the

duties of a public servant. All charges were dismissed for insufficient

evidence.

Based on the above incident, Everard and Grisham filed suit under 42

U.S.C. § 1983 alleging violations of their First, Fourth, and Fourteenth

Amendment rights. Plaintiffs and Defendants filed cross- motions for

summary judgment. The district court referred the matter to the magistrate

judge, who adjudicated the parties’ competing motions and issued a report

and recommendation to the district court. The district court considered and

adopted the recommended order, granting Defendants’ motion for summary

judgment on Plaintiffs’ (1) Fourth Amendment claims for excessive force,

unlawful arrest, and unlawful search and seizure; (2) First Amendment

claims for prevention of protected conduct and retaliation for protected

conduct; (3) Fourteenth Amendment claims for deprivation of property and

failure to provide medical care; (4) failure to intervene claims; (5) malicious

prosecution claims; and (6) municipal liability claims. Everard and Grisham

appealed.

II. STANDARD OF REVIEW

We conduct a de novo review of a district court’s grant of summary

judgment. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020).

“Summary judgment is proper ‘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.’” Id. (citing FED. R. CIV. P. 56(a)). However, “[a] qualified

immunity defense alters the usual summary judgment burden of proof”

because, to overcome qualified immunity, Plaintiffs “must rebut the defense

by establishing a genuine [dispute of material fact] as to whether the official’s

allegedly wrongful conduct violated clearly established law.” Bey v. Prator, 53

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F.4th 854, 857 (5th Cir. 2022) (per curiam) (quoting Brown v. Callahan, 623

F.3d 249, 253 (5th Cir. 2010)) (alteration in original).

A dispute regarding a material fact is “genuine” if the evidence is such

that a reasonable jury could return a verdict in favor of the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A panel may affirm

summary judgment on any ground supported by the record, even if it is

different from that relied on by the district court.” Reed v. Neopost USA, Inc.,

701 F.3d 434, 438 (5th Cir. 2012) (internal quotation marks and citation

omitted). Although we view the evidence favorably to the nonmovant, we

nevertheless “assign greater weight, even at the summary judgment stage, to

the video recording taken at the scene.” Betts v. Brennan, 22 F.4th 577, 582

(5th Cir. 2022) (internal punctuation omitted) (quoting Carnaby v. City of

Houston, 636 F.3d 183, 187 (5th Cir. 2011)); see also Scott v. Harris, 550 U.S.

372, 380–81 (2007) (“The Court of Appeals should not have relied on [the

respondent’s version of events]; it should have viewed the facts in the light

depicted by the videotape.”). “[T]he ultimate determination of whether

there is probable cause for the arrest is a question of law [this court] review[s]

de novo.” United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc).

III. DISCUSSION

As an initial matter, we note that Plaintiffs do not challenge the district

court’s holding as to their claims regarding unlawful search, failure to

intervene, deprivation of property, failure to provide medical care, or

malicious prosecution. Accordingly, the issues are forfeited on appeal. See

Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits

an argument . . . by failing to adequately brief the argument on appeal.”).

Plaintiffs instead focus on the district court’s grant of summary judgment as

to (1) their First Amendment claims, (2) their Fourth Amendment claims,

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and (3) the City’s liability pursuant to Monell v. Department of Social Services,

436 U.S. 658 (1978).

The record in this case includes videotape exhibits capturing the

events in question. As discussed, this court must “vie[w] the facts in the light

depicted by the videotape” that captured the events underlying Plaintiffs’

claims. Scott, 550 U.S. at 381; see also Curran v. Aleshire, 800 F.3d 656, 664

(5th Cir. 2015) (“Scott instructs that 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.”). Thus, in

viewing the facts in the light depicted by the videotape, as Scott v. Harris

directs, we agree that the magistrate judge did not err in his recounting of the

facts. See 550 U.S. at 381. All the material facts as described by the magistrate

judge—from the arrival of responding officers to the subsequent arrests of

Everard and Grisham—were supported by the video record.

Accordingly, in the qualified immunity context, the magistrate judge

did not err in concluding that there were no genuine disputes of material fact

underlying the determination that (1) the officers had probable cause to

believe that Plaintiffs were engaging in criminal activity and (2) the officers

were not objectively unreasonable in believing such probable cause existed.

See Bey, 53 F.4th at 858 (internal quotation marks omitted). “It is well

established that under the Fourth Amendment a warrantless arrest must be

based on probable cause.” Castro, 166 F.3d at 733. “Probable cause exists

when the facts and circumstances within the arresting officer’s personal

knowledge, or of which he has reasonably trustworthy information, are

sufficient to occasion a person of reasonable prudence to believe an offense

has been committed.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)

(internal quotation marks and citation omitted).

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“The qualified immunity inquiry includes two parts”: (1) “whether

the officer’s alleged conduct has violated a federal right” and (2) “whether

the right in question was ‘clearly established’ at the time of the alleged

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). To determine

clearly established law we look to cases decided at the “at the time of the

violation.” See Henderson v. Harris Cnty., 51 F.4th 125, 133 (5th Cir. 2022)

(quoting Salazar v. Molina, 37 F.4th 278, 286 (5th Cir. 2022)). “The law can

be clearly established despite notable factual distinctions between the

precedents relied on and the cases then before the Court, so long as the prior

decisions gave reasonable warning that the conduct then at issue violated

constitutional rights.” Cooper v. Brown, 844 F.3d 517, 524 (5th Cir. 2016)

(quoting Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012)).

A. Unlawful, Retaliatory Arrests

Neither this court nor the Supreme Court has held that officers cannot

execute their law enforcement duties while someone is engaging in speech,

where probable cause exists. Rather, officers cannot execute their law

enforcement duties to search and seize in retaliation of speech or as imposed

censorship. See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (“The

First Amendment prohibits not only direct limits on individual speech but

also adverse governmental action against an individual in retaliation for the

exercise of protected speech activities.”).

Plaintiffs argue that Defendants “retaliated against them for

peacefully exercising their First Amendment right to protest the Ordinance.”

A retaliatory arrest claim requires that (1) Plaintiffs were engaged in

constitutionally protected activity, (2) Defendants caused them to suffer an

injury that would chill a person of ordinary firmness from continuing to

engage in that activity, and (3) Defendants’ adverse actions were

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substantially motivated by the Plaintiffs’ exercise of constitutionally

protected conduct. Keenan, 290 F.3d at 258. The magistrate judge recognized

that Plaintiffs met prong one by establishing a “constitutionally protected

activity: filming the Defendant officers” and that “filming police officers

engaged in their professional duties has been a clearly established right in the

Fifth Circuit since 2017[.]”

Still, a retaliatory criminal prosecution “in violation of the First

Amendment [is] actionable only if a plaintiff can also prove . . . absence of

probable cause to prosecute.” Keenan, 290 F.3d at 260. Additionally, in

Nieves v. Bartlett, the Supreme Court emphasized that a “plaintiff pressing a

retaliatory arrest claim” based on speech protected by the First Amendment

generally “must plead and prove the absence of probable cause for the

arrest.” 139 S. Ct. 1715, 1724 (2019). Moreover, the Nieves Court established

that plaintiffs in retaliatory prosecution cases must “show more than the

subjective animus of an officer and a subsequent injury; plaintiffs must also

prove as a threshold matter that the decision to press charges was objectively

unreasonable because it was not supported by probable cause.” Id. at 1723.

Here, as in Nieves, the officers had probable cause to make the arrests

for disorderly conduct and resisting arrest, thus precluding the arrestees’

retaliatory arrest claims. Still, on appeal, Plaintiffs argue that “probable cause

does not foreclose this lawsuit since Grisham and Everard were treated

differently from others because of their First Amendment activities.”

Notably, the Nieves Court did delineate a carveout to the probable cause

prerequisite in holding that a plaintiff asserting a retaliatory arrest claim does

not have to establish the absence of probable cause “when [the] plaintiff

presents objective evidence that he was arrested when otherwise similarly

situated individuals not engaged in the same sort of protected speech had not

been.” Id. at 1727. Plaintiffs contend that other armed protestors were not

arrested because the officers personally opposed “the message that Everard

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and Grisham conveyed.” However, as the magistrate judge noted, other

protestors were arrested, but they simply did not join in this lawsuit. Further,

caselaw does not require that the officers seize all “otherwise similarly

situated individuals.” Id. Rather, “where officers have probable cause to

make arrests” they may not disproportionately or unfairly “exercise their

discretion not to do so.” Id. The “no-probable-cause requirement” applies

in the instant case because Plaintiffs have not presented objective evidence,

beyond conclusory statements, that they were arrested “when otherwise

similarly situated individuals not engaged in the same sort of protected

speech had not been.” Id. Consequently, the officers are entitled to qualified

immunity because there was probable cause to arrest Everard and Grisham

pursuant to a presumptively constitutional and enforceable statute. 4 See

Michigan v. DeFellippo, 443 U.S. 31, 37 (1979). And, as the record reflects, the

officers were objectively reasonable in believing that such probable cause

existed. See Westfall v. Luna, 903 F.3d 534, 550 (5th Cir. 2018) (granting

qualified immunity when the record failed to show that the police officer’s

actions were motivated by the plaintiff’s speech rather than her conduct of

reaching for a doorknob against officers’ instructions).

Whether probable cause exists is based on what an objectively

reasonable officer would perceive under the totality of circumstances. See

District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (reaffirming that

probable cause is based on an objective totality of the circumstances test);

Freeman v. Gore, 483 F.3d 404, 414 (5th Cir. 2007) (“Although the probable

cause inquiry is an objective one, it must nevertheless be conducted in light

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4

A Texas Court of Appeals has evaluated the relevant disorderly conduct statute

under which Everard was arrested, holding that Texas Penal Code § 42.01(a) is neither

unconstitutionally vague nor unconstitutionally overbroad. Ex parte Poe, 491 S.W.3d 348,

355 (Tex. App.—Beaumont 2016) (“The statute’s plainly legitimate sweep bears a rational

relationship to the State’s interest in public safety and welfare.”).

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of the actual facts known to the officer at the time of the arrest.”). The

offense of disorderly conduct under Texas Penal Code § 42.01(a)

necessitates displaying a firearm (or other deadly weapon), intentionally or

knowingly, and in a manner calculated to alarm. At the time of the incident,

the text of the Texas statutes governing disorderly conduct and interference

with public duties and Texas state caselaw interpreting the relevant statutes

supported that there was probable cause to arrest Everard and Grisham. See

Ex parte Poe, 491 S.W.3d at 355 (“We conclude that although there clearly

are constitutional rights to bear arms and to express oneself freely, there is no

constitutionally protected right to display a firearm in a public place in a

manner that is calculated to alarm. . . . [§ 42.01(a)(8)’s] plainly legitimate

sweep bears a rational relationship to the State’s interest in public safety and

welfare.”); see also Lovett v. State, 523 S.W.3d 342, 347 (Tex. App.—Fort

Worth 2017) (“[T]he mere presence of a firearm or deadly weapon in public

cannot [] supply the requisite mens rea for a disorderly-conduct

conviction.”).

Although Plaintiffs maintain that their objective on March 27, 2018

was to educate the public, not to alarm it, the magistrate judge held that,

considering the totality of circumstances, the officers made an entirely

reasonable inference that probable cause existed to effectuate their lawful

arrests. Moreover, the Supreme Court has articulated that, to determine

whether there was probable cause to arrest, the reviewing court should ask

“whether a reasonable officer could conclude—considering all of the

surrounding circumstances, including the plausibility of the explanation

itself—that there was a substantial chance of criminal activity.” Wesby, 583

U.S. at 61 (internal quotation marks omitted). Here, Plaintiffs’ purported

innocent explanations do not negate the officers’ probable cause for

executing their arrests. See Loftin v. City of Prentiss, 33 F.4th 774, 781 (5th

Cir. 2022) (citing Wesby, 583 U.S. 61).

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The relevant facts and circumstances here were sufficient for a

reasonable officer to believe that Everard acted with the requisite specific

intent to cause sustained fear or serious public disruption by displaying a

firearm in a manner calculated to alarm and that Grisham’s continued

approach towards Everard and officers, while being instructed to retreat,

amounted to interference. Believing that immediate police action was

necessary, several alarmed passersby used the 911 emergency system to

contemporaneously report Everard’s suspicious behavior. The 911

emergency calls provided officers with the reasonable belief that either an

emergency or immediate threat to safety was underway. See Navarette, 572

U.S. at 399–400 (holding that a motorist’s 911 emergency call provided

reasonable suspicion of an ongoing crime). When officers arrived on the

scene, Everard was standing in a crowded public area with his gun in a holster

across his chest, which alarmed passersby enough to call 911. While

displaying his assault-like rifle and standing prominently in the center of a

very busy pedestrian and vehicle traffic area, Everard was also openly and

verbally uncooperative with officers, challenging their commands and

refusing to comply with their orders.

Moreover, the officers were aware that the disorderly conduct statute

was constitutional and that Texas courts have held that while “there clearly

are constitutional rights to bear arms and to express oneself freely, there is no

constitutionally protected right to display a firearm in a public place in a

manner that is calculated to alarm.” See Ex parte Poe, 491 S.W.3d at 3⁠55.

Construing all factual disputes in the light depicted by the videotape record,

probable cause principles dictate that Plaintiffs’ arrests were lawful. See Scott,

550 U.S. at 381. Accordingly, the officers are protected by qualified immunity

since (1) Everard can point to no clearly established law that a reasonable

officer would not have probable cause to arrest an armed, noncompliant

protestor under Texas Penal Code § 42.01(a), and (2) Grisham can point to

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no clearly established law that a reasonable officer would not have probable

cause to arrest an armed, noncompliant, interfering protestor under Texas

Penal Code § 38.15(a). Summary judgment was properly granted on

Plaintiffs’ Fourth Amendment unlawful arrest claims and First Amendment

prevention of protected conduct and retaliation for protected conduct claims.

See Bey, 53 F.4th at 857.

B. Excessive Force

Likewise, the video evidence does not support Everard’s claims of

excessive force. Instead, a review of the video evidence reveals that he was

not pushed or shoved forcefully but placed on the ground in a nonviolent

manner. As discussed, Everard complied with the officers as they handcuffed

him. Officers then walked Everard a few steps away, helped him onto his

knees in a manner that was slow and controlled, and moved him from his

knees to a prone position to effectuate a thorough search for additional

weapons.

In contrast, the force at issue in Grisham’s excessive force claim is

Chief Valenciano’s use of a taser. Grisham argues that the tasing constituted

excessive force because the crimes he was arrested for were not severe, he

was not an immediate safety threat, and he was not resisting arrest or

attempting to flee. A review of the video evidence, however, shows that this

recollection is inaccurate.

Determining whether the force used to carry out an arrest is

reasonable requires a fact intensive inquiry that turns on the totality of the

circumstances, “including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.”

Darden v. City of Fort Worth, 880 F.3d 722, 729 (5th Cir. 2018) (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). The magistrate judge

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determined that Grisham did not put his hands behind his back when ordered

but instead kept them within reach of his handgun. Given these

circumstances, it was not unreasonable for Chief Valenciano to believe—at

the time he deployed the taser—that Grisham was both a safety threat and

resisting arrest. The officers are entitled to qualified immunity because

neither Everard nor Grisham can point to any clearly established law that

such force was unreasonably excessive under the circumstances. Summary

judgment was properly granted on Plaintiffs’ Fourth Amendment excessive

force claims. See Bey, 53 F.4th at 857.

C. Municipal Liability

As a final matter, we also hold that summary judgment was properly

granted on Plaintiffs’ municipal liability claims. To recover a judgment

against a city under § 1983, a plaintiff must allege and establish that he

sustained a deprivation of a constitutional or other federally protected right

because of some official policy, practice, or custom of that governmental

entity. Monell, 436 U.S. at 691–94. “[M]unicipal liability under section 1983

requires proof of three elements: a policymaker; an official policy; and a

violation of constitutional rights whose ‘moving force’ is the policy . . . .”

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell,

436 U.S. at 694). Plaintiffs allege that the City ratified Chief Valenciano’s

policy to “Squash the Rebel” by failing to curtail the retaliatory arrests.

Plaintiffs argue that City Council members and other policymakers were

deliberately indifferent to the retaliatory arrests because they received “a lot

of emails from second amendment activists regarding the City’s

unconstitutional ordinance” and thus “were well-aware of the Olmos Park

Police Department’s violation of activists’ constitutional rights.” But, as the

magistrate judge correctly held, Plaintiffs failed to establish that there were

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constitutional violations vis-a-vis the arrests in question; thus, the City is not

liable. See Piotrowski, 237 F.3d at 578.

IV. CONCLUSION

For the foregoing reasons, the district court’s summary judgment is

AFFIRMED.

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