Page 29 - TPA Journal July August 2024

material fact and the movant is entitled to judgment Everard and Grisham—were supported by the
as a matter of law.’” However, “[a] qualified video record. Accordingly, in the qualified
immunity defense alters the usual summary immunity context, the magistrate judge did not err
judgment burden of proof” because, to overcome in concluding that there were no genuine disputes
qualified immunity, Plaintiffs “must rebut the of material fact underlying the determination that
defense by establishing a genuine [dispute of (1) the officers had probable cause to believe that
material fact] as to whether the official’s Plaintiffs were engaging in criminal activity and
allegedly wrongful conduct violated clearly (2) the officers were not objectively unreasonable
established law.” A dispute regarding a material in believing such probable cause existed. “It is
fact is “genuine” if the evidence is such that a well established that under the Fourth Amendment
reasonable jury could return a verdict in favor of a warrantless arrest must be based on probable
the nonmoving party. “A panel may affirm cause.” “Probable cause exists when the facts and
summary judgment on any ground supported by the circumstances within the arresting officer’s
record, even if it is different from that relied on by personal knowledge, or of which he has reasonably
the district court.” Although we view the evidence trustworthy information, are sufficient to occasion
favorably to the nonmovant, we nevertheless a person of reasonable prudence to believe an
“assign greater weight, even at the summary offense has been committed.”
judgment stage, to the video recording taken at the
scene.” “[T]he ultimate determination of whether “The qualified immunity inquiry includes two
there is probable cause for the arrest is a question of parts”: (1) “whether the officer’s alleged conduct
law [this court] review[s] de novo.” has violated a federal right” and (2) “whether the
right in question was ‘clearly established’ at the
As an initial matter, we note that Plaintiffs do not time of the alleged violation, such that the officer
challenge the district court’s holding as to their was on notice of the unlawfulness of his or her
claims regarding unlawful search, failure to conduct.” To determine Clearly established law we
intervene, deprivation of property, failure to look to cases decided at the “at the time of the
provide medical care, or malicious prosecution. violation.” “The law can be clearly established
Accordingly, the issues are forfeited on appeal. despite notable factual distinctions between the
Plaintiffs instead focus on the district court’s grant precedents relied on and the cases then before the
of summary judgment as to (1) their First Court, so long as the prior decisions gave
Amendment claims, (2) their Fourth Amendment reasonable warning that the conduct then at issue
claims, and (3) the City’s liability pursuant to violated constitutional rights.”
Monell v. Department of Social Services.
Neither this court nor the Supreme Court has held
The record in this case includes videotape exhibits that officers cannot execute their law enforcement
capturing the events in question. As discussed, this duties while someone is engaging in speech, where
court must “vie[w] the facts in the light depicted probable cause exists. Rather, officers cannot
by the videotape” that captured the events execute their law enforcement duties to search and
underlying Plaintiffs’ claims. Thus, in viewing the seize in retaliation of speech or as imposed
facts in the light depicted by the videotape, we censorship.
agree that the magistrate judge did not err in his
recounting of the facts. All the material facts as Plaintiffs argue that Defendants “retaliated against
described by the magistrate judge—from the arrival them for peacefully exercising their First
of responding officers to the subsequent arrests of Amendment right to protest the Ordinance.”

July/August 2024 www.texaspoliceassociation.com • (512) 458-3140 25