# Grisham v. Valenciano

> Court of Appeals for the Fifth Circuit · February 26, 2024 · 93 F.4th 903

URL: https://www.frixlaw.com/law-library/cases/9945093

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 26, 2024
- **Citations:** 93 F.4th 903
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 18 later opinions in the Frix Law Library

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## Opinion text

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
_____________________
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9945093. Public record. Not legal advice.