Page 39 - TPA Journal May June 2024
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Accordingly, the issues are forfeited on appeal. officer was on notice of the unlawfulness of his
Plaintiffs instead focus on the district court’s or her conduct.” To determine clearly
grant of summary judgment as to (1) their First established law we look to cases decided at the
Amendment claims, (2) their Fourth “at the time of the violation.” “The law can be
Amendment claims, and (3) the City’s liability clearly established despite notable factual
pursuant to Monell v. Department of Social distinctions between the precedents relied on
Services. and the cases then before the Court, so long as
the prior decisions gave reasonable warning that
The record in this case includes videotape the conduct then at issue violated constitutional
exhibits capturing the events in question. As rights.” Neither this court nor the Supreme
discussed, this court must “vie[w] the facts in Court has held that officers cannot execute their
the light depicted by the videotape” that law enforcement duties while someone is
captured the events underlying Plaintiffs’ engaging in speech, where probable cause
claims. Thus, in viewing the facts in the light exists. Rather, officers cannot execute their law
depicted by the videotape, as Scott v. Harris enforcement duties to search and seize in
directs, we agree that the magistrate judge did retaliation of speech or as imposed censorship.
not err in his recounting of the facts. All the Plaintiffs argue that Defendants “retaliated
material facts as described by the magistrate against them for peacefully exercising their First
judge—from the arrival of responding officers Amendment right to protest the Ordinance.” A
to the subsequent arrests of Everard and retaliatory arrest claim requires that (1) Plaintiffs
Grisham—were supported by the video record. were engaged in constitutionally protected
activity, (2) Defendants caused them to suffer an
Accordingly, in the qualified immunity context, injury that would chill a person of ordinary
the magistrate judge did not err in concluding firmness from continuing to engage in that
that there were no genuine disputes of material activity, and (3) Defendants’ adverse actions
fact underlying the determination that (1) the were substantially motivated by the Plaintiffs’
officers had probable cause to believe that exercise of constitutionally protected conduct.
Plaintiffs were engaging in criminal activity and The magistrate judge recognized that Plaintiffs
(2) the officers were not objectively met prong one by establishing a
unreasonable in believing such probable cause “constitutionally protected activity: filming the
existed. Defendant officers” and that “filming police
officers engaged in their professional duties has
“It is well established that under the Fourth been a clearly established right in the Fifth
Amendment a warrantless arrest must be based Circuit since 2017[.]”
on probable cause.” “Probable cause exists
when the facts and circumstances within the Still, a retaliatory criminal prosecution “in
arresting officer’s personal knowledge, or of violation of the First Amendment [is] actionable
which he has reasonably trustworthy only if a plaintiff can also prove . . . absence of
information, are sufficient to occasion a person probable cause to prosecute.” Additionally, in
of reasonable prudence to believe an offense Nieves v. Bartlett, the Supreme Court
has been committed.” emphasized that a “plaintiff pressing a
retaliatory arrest claim” based on speech
“The qualified immunity inquiry includes two protected by the First Amendment generally
parts”: (1) “whether the officer’s alleged conduct “must plead and prove the absence of probable
has violated a federal right” and (2) “whether cause for the arrest.” Moreover, the Nieves
the right in question was ‘clearly established’ at Court established that plaintiffs in retaliatory
the time of the alleged violation, such that the prosecution cases must “show more than the
May/June 2024 www.texaspoliceassociation.com • (512) 458-3140 35
