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subjective animus of an officer and a such probable cause existed.
subsequent injury; plaintiffs must also prove as
a threshold matter that the decision to press Whether probable cause exists is based on what
charges was objectively unreasonable because an objectively reasonable officer would
it was not supported by probable cause.” Here, perceive under the totality of circumstances.
as in Nieves, the officers had probable cause to The offense of disorderly conduct under Texas
make the arrests for disorderly conduct and Penal Code § 42.01(a) necessitates displaying a
resisting arrest, thus precluding the arrestees’ firearm (or other deadly weapon), intentionally
retaliatory arrest claims. Still, on appeal, or knowingly, and in a manner calculated to
Plaintiffs argue that “probable cause does not alarm. At the time of the incident, the text of the
foreclose this lawsuit since Grisham and Texas statutes governing disorderly conduct and
Everard were treated differently from others interference with public duties and Texas state
because of their First Amendment activities.” caselaw interpreting the relevant statutes
Notably, the Nieves Court did delineate a supported that there was probable cause to
carveout to the probable cause prerequisite in arrest Everard and Grisham.
holding that a plaintiff asserting a retaliatory
arrest claim does not have to establish the Although Plaintiffs maintain that their objective
absence of probable cause “when [the] plaintiff on March 27, 2018 was to educate the public,
presents objective evidence that he was arrested not to alarm it, the magistrate judge held that,
when otherwise similarly situated individuals considering the totality of circumstances, the
not engaged in the same sort of protected officers made an entirely reasonable inference
speech had not been.” Plaintiffs contend that that probable cause existed to effectuate their
other armed protestors were not arrested lawful arrests. Moreover, the Supreme Court has
because the officers personally opposed “the articulated that, to determine whether there was
message that Everard and Grisham conveyed.” probable cause to arrest, the reviewing court
However, as the magistrate judge noted, other should ask “whether a reasonable officer could
protestors were arrested, but they simply did not conclude—considering all of the surrounding
join in this lawsuit. Further, caselaw does not circumstances, including the plausibility of the
require that the officers seize all “otherwise explanation itself—that there was a substantial
similarly situated individuals.” Rather, “where chance of criminal activity.” Here, Plaintiffs’
officers have probable cause to make arrests” purported innocent explanations do not negate
they may not disproportionately or unfairly the officers’ probable cause for executing their
“exercise their discretion not to do so.” The arrests.
“no-probable-cause requirement” applies in the
instant case because Plaintiffs have not The relevant facts and circumstances here were
presented objective evidence, beyond sufficient for a reasonable officer to believe that
conclusory statements, that they were arrested Everard acted with the requisite specific intent
“when otherwise similarly situated individuals to cause sustained fear or serious public
not engaged in the same sort of protected disruption by displaying a firearm in a manner
speech had not been.” Consequently, the calculated to alarm and that Grisham’s
officers are entitled to qualified immunity continued approach towards Everard and
because there was probable cause to arrest officers, while being instructed to retreat,
Everard and Grisham pursuant to a amounted to interference. Believing that
presumptively constitutional and enforceable immediate police action was necessary, several
statute. And, as the record reflects, the officers alarmed passersby used the 911 emergency
were objectively reasonable in believing that system to contemporaneously report Everard’s
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