Page 38 - TPA Journal November December 2024

Office, and the Inspectors exhibited no malicious al calls regarding a man “with an AK-47” around
intent through the actions that they took. Thus, we his neck, standing on a busy street corner in
cannot fault law enforcement’s actions consider- Olmos Park for about five minutes. Officers were
ing the novelty of the technique and the dearth of dispatched to the scene to investigate, with the
court precedent to follow. idea that they would encounter “those Second
We hold that geofence warrants are modern-day Amendment people again.” Officer James Lopez
general warrants and are unconstitutional under arrived on the scene and encountered Everard
the Fourth Amendment. However, considering standing on a street corner with a large gun in a
law enforcement’s reasonable conduct in this case holster in front of his chest. Consistent with the
in light of the novelty of this type of warrant, we 911 calls, the street corner that Everard occupied
uphold the district court’s determination that sup- was a high traffic location, busy with both pedes-
pression was unwarranted under the good-faith trian and vehicle traffic, and Everard was a large
exception. man wearing dark clothing and displaying an
AFFIRMED. assault-like rifle. Moreover, Everard was openly
and verbally uncooperative, challenging the offi-
th th cers’ commands and refusing to comply with their
U.S. v. Smith, 5 Cir., No. 23-60321, Aug. 9 ,
orders. Officer Lopez repeatedly told Everard to
2024.
get on the ground, but Everard did not comply.
Next, Officer Adrian Viera arrived on the scene
PROBABLE CAUSE and continued verbal negotiations with Everard.
QUALIFIED IMMUNITY Grisham then approached Everard with a handgun
civil case in a holster on his hip and began filming the inter-
action with the officers. The officers instructed
James Everard (“Everard”) and Christopher Grisham to “get away from Everard,” but he did
Grisham (“Grisham”) (collectively, “Plaintiffs”) not comply and continued to stand near him.
filed this civil rights suit under 42 U.S.C. § 1983 Chief Rene Valenciano arrived on the scene and
against the City of Olmos Park (“the City”) and approached Grisham and Everard, with one hand
several police officers (collectively, on his taser. Chief Valenciano told Everard to get
“Defendants”) alleging that their arrests were in on the ground; again, Everard refused to comply.
violation of their constitutional rights. The district Officer Viera once again instructed Grisham to get
court granted summary judgment in favor of the away from Everard, which Grisham refused to do.
City and the officers and dismissed Everard’s and Officer Viera then approached Grisham with
Grisham’s claims. Because the record evidence handcuffs and reached for his hands, but Grisham
supports the district court’s summary judgment, backed away several feet, pulled his hands away,
we AFFIRM. and continued to retreat from the officer. As
Grisham and Everard are self-styled “Second Grisham turned away—backing up in the direc-
Amendment protestors” who had been involved in tion of Everard and continuing to pull away from
several protests advocating for the repeal of a City Officer Viera—Chief Valenciano approached
ordinance that governs the unauthorized carrying Grisham from behind and tased him, causing
of loaded firearms. This case arises out of their Grisham to fall backwards and hit his head on the
arrests on March 27, 2018. Prior to this date, the pavement.
Olmos Park Police Department had received calls Officer Hector Ruiz approached Everard, and
from dispatch on numerous occasions and was Everard put his hands behind his back to be hand-
aware of several Second Amendment demonstra- cuffed. Officer Ruiz walked Everard a few steps
tions happening throughout the City. away from the road and, with one hand on his arm
On March 27, 2018, 911 operators received sever- and another on his upper back, directed him to

Nov.-Dec. 2024 www.texaspoliceassociation.com • (512) 458-3140 37