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existed to effectuate their lawful arrests. Moreover, factual disputes in the light depicted by the
the Supreme Court has articulated that, to videotape record, probable cause principles dictate
determine whether there was probable cause to that Plaintiffs’ arrests were lawful. Accordingly,
arrest, the reviewing court should ask “whether a the officers are protected by qualified immunity
reasonable officer could conclude—considering all since (1) Everard can point to no clearly established
of the surrounding circumstances, including the law that a reasonable officer would not have
plausibility of the explanation itself—that there probable cause to arrest an armed, noncompliant
was a substantial chance of criminal activity.” protestor under Texas Penal Code § 42.01(a), and
Here, Plaintiffs’ purported innocent explanations (2) Grisham can point to no clearly established law
do not negate the officers’ probable cause for that a reasonable officer would not have probable
executing their arrests. cause to arrest an armed, noncompliant, interfering
protestor under Texas Penal Code § 38.15(a).
The relevant facts and circumstances here were Summary judgment was properly granted on
sufficient for a reasonable officer to believe that Plaintiffs’ Fourth Amendment unlawful arrest
Everard acted with the requisite specific intent to claims and First Amendment prevention of
cause sustained fear or serious public disruption by protected conduct and retaliation for protected
displaying a firearm in a manner calculated to conduct claims.
alarm and that Grisham’s continued approach
towards Everard and officers, while being Likewise, the video evidence does not support
instructed to retreat, amounted to interference. Everard’s claims of excessive force. Instead, a
Believing that immediate police action was review of the video evidence reveals that he was
necessary, several alarmed passersby used the 911 not pushed or shoved forcefully but placed on the
emergency system to contemporaneously report ground in a nonviolent manner. As discussed,
Everard’s suspicious behavior. The 911 emergency Everard complied with the officers as they
calls provided officers with the reasonable belief handcuffed him. Officers then walked Everard a
that either an emergency or immediate threat to few steps away, helped him onto his knees in a
safety was underway. When officers arrived on the manner that was slow and controlled, and moved
scene, Everard was standing in a crowded public him from his knees to a prone position to effectuate
area with his gun in a holster across his chest, a thorough search for additional weapons.
which alarmed passersby enough to call 911. While
displaying his assault-like rifle and standing In contrast, the force at issue in Grisham’s
prominently in the center of a very busy pedestrian excessive force claim is Chief Valenciano’s use of
and vehicle traffic area, Everard was also openly a taser. Grisham argues that the tasing constituted
and verbally uncooperative with officers, excessive force because the crimes he was arrested
challenging their commands and refusing to for were not severe, he was not an immediate safety
comply with their orders. threat, and he was not resisting arrest or
attempting to flee. A review of the video evidence,
Moreover, the officers were aware that the however, shows that this recollection is inaccurate.
disorderly conduct statute was constitutional and
that Texas courts have held that while “there clearly Determining whether the force used to carry out an
are constitutional rights to bear arms and to express arrest is reasonable requires a fact intensive inquiry
oneself freely, there is no constitutionally protected that turns on the totality of the circumstances,
right to display a firearm in a public place in a “including the severity of the crime at issue,
manner that is calculated to alarm.” Construing all whether the suspect poses an immediate threat to

July/August 2024 www.texaspoliceassociation.com • (512) 458-3140 27