Page 41 - TPA Journal November December 2024

Whether probable cause exists is based on what an to call 911. While displaying his assault-like rifle
objectively reasonable officer would perceive and standing prominently in the center of a very
under the totality of circumstances. The offense of busy pedestrian and vehicle traffic area, Everard
disorderly conduct under Texas Penal Code § was also openly and verbally uncooperative with
42.01(a) necessitates displaying a firearm (or officers, challenging their commands and refusing
other deadly weapon), intentionally or knowingly, to comply with their orders.
and in a manner calculated to alarm. At the time of Moreover, the officers were aware that the disor-
the incident, the text of the Texas statutes govern- derly conduct statute was constitutional and that
ing disorderly conduct and interference with pub- Texas courts have held that while “there clearly
lic duties and Texas state caselaw interpreting the are constitutional rights to bear arms and to
relevant statutes supported that there was probable express oneself freely, there is no constitutionally
cause to arrest Everard and Grisham. protected right to display a firearm in a public
Although Plaintiffs maintain that their objective place in a manner that is calculated to alarm.”
on March 27, 2018 was to educate the public, not Construing all factual disputes in the light depict-
to alarm it, the magistrate judge held that, consid- ed by the videotape record, probable cause princi-
ering the totality of circumstances, the officers ples dictate that Plaintiffs’ arrests were lawful.
made an entirely reasonable inference that proba- Accordingly, the officers are protected by quali-
ble cause existed to effectuate their lawful arrests. fied immunity since (1) Everard can point to no
Moreover, the Supreme Court has articulated that, clearly established law that a reasonable officer
to determine whether there was probable cause to would not have probable cause to arrest an armed,
arrest, the reviewing court should ask “whether a noncompliant protestor under Texas Penal Code §
reasonable officer could conclude—considering 42.01(a), and (2) Grisham can point to no clearly
all of the surrounding circumstances, including the established law that a reasonable officer would not
plausibility of the explanation itself—that there have probable cause to arrest an armed, noncom-
was a substantial chance of criminal activity.” pliant, interfering protestor under Texas Penal
Here, Plaintiffs’ purported innocent explanations Code § 38.15(a). Summary judgment was proper-
do not negate the officers’ probable cause for exe- ly granted on Plaintiffs’ Fourth Amendment
cuting their arrests. unlawful arrest claims and First Amendment pre-
The relevant facts and circumstances here were vention of protected conduct and retaliation for
sufficient for a reasonable officer to believe that protected conduct claims.
Everard acted with the requisite specific intent to Likewise, the video evidence does not support
cause sustained fear or serious public disruption Everard’s claims of excessive force. Instead, a
by displaying a firearm in a manner calculated to review of the video evidence reveals that he was
alarm and that Grisham’s continued approach not pushed or shoved forcefully but placed on the
towards Everard and officers, while being ground in a nonviolent manner. As discussed,
instructed to retreat, amounted to interference. Everard complied with the officers as they hand-
Believing that immediate police action was neces- cuffed him. Officers then walked Everard a few
sary, several alarmed passersby used the 911 steps away, helped him onto his knees in a manner
emergency system to contemporaneously report that was slow and controlled, and moved him from
Everard’s suspicious behavior. The 911 emer- his knees to a prone position to effectuate a thor-
gency calls provided officers with the reasonable ough search for additional weapons.
belief that either an emergency or immediate In contrast, the force at issue in Grisham’s exces-
threat to safety was underway. When officers sive force claim is Chief Valenciano’s use of a
arrived on the scene, Everard was standing in a taser. Grisham argues that the tasing constituted
crowded public area with his gun in a holster excessive force because the crimes he was arrest-
across his chest, which alarmed passersby enough ed for were not severe, he was not an immediate

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