On February 26, 2024, the Fifth Circuit Court of Appeals decided Grisham v. Valenciano[i], which is instructive regarding legalities in dealing with armed protestors. The relevant facts of Grisham are as follows:
Grisham and Everard are self-styled “Second Amendment protestors” who had been involved in several protests advocating for the repeal of a City ordinance that governs the unauthorized carrying of loaded firearms. This case arises out of their arrests on March 27, 2018. Prior to this date, the Olmos Park Police Department had received calls from dispatch on numerous occasions and was aware of several Second Amendment demonstrations happening throughout the City.
On March 27, 2018, 911 operators received several calls regarding a man “with an AK-47” around his neck, standing on a busy street corner in Olmos Park for about five minutes. Officers were dispatched to the scene to investigate, with the idea that they would encounter “those Second Amendment people again.” Officer James Lopez arrived on the scene and encountered Everard standing on a street corner with a large gun in a holster in front of his chest. Consistent with the 911 calls, the street corner that Everard occupied was a high traffic location, busy with both pedestrian and vehicle traffic, and Everard was a large man wearing dark clothing and displaying an assault-like rifle. Moreover, Everard was openly and verbally uncooperative, challenging the officers’ commands and refusing to comply with their orders. Officer Lopez repeatedly told Everard to get on the ground, but Everard did not comply. Next, Officer Adrian Viera arrived on the scene and continued verbal negotiations with Everard. Grisham then approached Everard with a handgun in a holster on his hip and began filming the interaction with the officers. The officers instructed Grisham to “get away from Everard,” but he did not comply and continued to stand near him.
Chief Rene Valenciano arrived on the scene and approached Grisham and Everard, with one hand on his taser. Chief Valenciano told Everard to get on the ground; again, Everard refused to comply. Officer Viera once again instructed Grisham to get away from Everard, which Grisham refused to do. Officer Viera then approached Grisham with handcuffs and reached for his hands, but Grisham backed away several feet, pulled his hands away, and continued to retreat from the officer. As Grisham turned away—backing up in the direction of Everard and continuing to pull away from Officer Viera—Chief Valenciano approached Grisham from behind and tased him, causing Grisham to fall backwards and hit his head on the pavement.
Officer Hector Ruiz approached Everard, and Everard put his hands behind his back to be handcuffed. Officer Ruiz walked Everard a few steps away from the road and, with one hand on his arm and another on his upper back, directed him to kneel in a slow and controlled manner. Officer Ruiz and Chief Valenciano both grasped Everard’s arms and moved him from his knees to a prone (lying flat on his stomach) position. The officers turned Grisham over on his stomach, placed him in handcuffs, and searched him. Everard was charged with disorderly conduct for displaying a firearm in a manner causing alarm, and Grisham was charged with interference with the duties of a public servant. All charges were dismissed for insufficient evidence.[ii]
Everard and Grisham sued the officers and the city for violating their rights under the First, Fourth and Fourteenth Amendments. The district court granted summary judgment to the officers and the city and dismissed all claims. Everard and Grisham appealed to the Fifth Circuit Court of Appeals.
The only issues the plaintiff’s raised on appeal were the First Amendment claim for retaliation, the Fourth Amendment claims, and the claim against the city.
1. The First Amendment and Fourth Amendment Claims for Unlawful, Retaliatory Arrests
The plaintiffs argued that the police retaliated against them as they peacefully exercised their First Amendment rights to protest a city ordinance.
The court of appeals noted the legal principles relevant to this issue and stated
Neither this court nor the Supreme Court has held that officers cannot execute their law enforcement duties while someone is engaging in speech, where probable cause exists. Rather, officers cannot execute their law enforcement duties to search and seize in retaliation of speech or as imposed censorship. See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (“The First Amendment prohibits not only direct limits on individual speech but also adverse governmental action against an individual in retaliation for the exercise of protected speech activities.”).[iii]
The court also discussed the elements of a retaliatory arrest claim. The court stated
A retaliatory arrest claim requires that (1) Plaintiffs were engaged in constitutionally protected activity, (2) Defendants caused them to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) Defendants’ adverse actions were substantially motivated by the Plaintiffs’ exercise of constitutionally protected conduct. Keenan, 290 F.3d at 258.[iv]
Lastly, the court discussed the requirement that a lack of probable cause for the arrest must be shown. The court stated
[A] retaliatory criminal prosecution “in violation of the First Amendment [is] actionable only if a plaintiff can also prove . . . absence of probable cause to prosecute.” Keenan, 290 F.3d at 260. Additionally, in Nieves v. Bartlett, the Supreme Court emphasized that a “plaintiff pressing a retaliatory arrest claim” based on speech protected by the First Amendment generally “must plead and prove the absence of probable cause for the arrest.” 139 S. Ct. 1715, 1724, 204 L. Ed. 2d 1 (2019). Moreover, the Nieves Court established that plaintiffs in retaliatory prosecution cases must “show more than the subjective animus of an officer and a subsequent injury; plaintiffs must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.” Id. at 1723.[v]
The court also noted that an arrest could be held to be retaliatory even if there is probable cause to arrest. This situation would occur when other people engaged in the same unlawful conduct as the plaintiffs but were not exercising their rights under the First Amendment, and those other people were not arrested for the conduct.[1] However, the court also noted that the plaintiffs failed to provide evidence that this occurred.
The court then applied the legal principles above to the facts of the case at hand. Although the plaintiffs argued that they were peacefully attempting to educate the public through their protest, the court stated that the officers were reasonable in their belief that probable cause was present to arrest Everard and Grisham. For example, Everard was standing in a crowded public pedestrian and vehicle area with a gun in a holster and an “assault-like rifle.” The court stated that “the 911 emergency calls provided officers with the reasonable belief that either an emergency or immediate threat to the safety was underway.”[vi] Additionally, Grisham, who was armed, continued to approach Everard and the officer’s despite being ordered to retreat by the officers.
[1] For example, if a large group of people were blocking traffic in a protest and one of the protestors told a nearby officer, “F— the police,” and that protestor was arrested for obstructing traffic but no other protesters blocking traffic were arrested, the person arrested may have a retaliatory arrest claim, even though there was probable cause to arrest him for blocking traffic.
The court also noted the ordinance at issue and stated
The offense of disorderly conduct under Texas Penal Code § 42.01(a) necessitates displaying a firearm (or other deadly weapon), intentionally or knowingly, and in a manner calculated to alarm. At the time of the incident, the text of the Texas statutes governing disorderly conduct and interference with public duties and Texas state caselaw interpreting the relevant statutes supported that there was probable cause to arrest Everard and Grisham.
Based on the legal principles and facts discussed the court of appeals held that the officers were entitled to qualified immunity from suit because
(1) Everard can point to no clearly established law that a reasonable officer would not have probable cause to arrest an armed, noncompliant protestor under Texas Penal Code § 42.01(a), and (2) Grisham can point to no clearly established law that a reasonable officer would not have probable cause to arrest an armed, noncompliant, interfering protestor under Texas Penal Code § 38.15(a). Summary judgment was properly granted on Plaintiffs’ Fourth Amendment unlawful arrest claims and First Amendment prevention of protected conduct and retaliation for protected conduct claims. See Bey, 53 F.4th at 857.[vii]
Thus, summary judgment based on qualified immunity was granted to both officers for the First Amendment retaliation claim and the Fourth Amendment unlawful arrest claims.
2. The Excessive Force Claim
Regarding the force used on Everard, the video evidence showed that he was not pushed or shoved forcefully but was rather placed on the ground in a controlled manner.
Regarding Grisham, the evidence showed that Chief Valenciano used his Taser to subdue him. Grisham argued that this was excessive force because he was arrested for a minor crime and he was not a threat, nor did he actively resist or flee. The court, however, stated that this was not an accurate characterization of Grisham’s conduct. Rather, the court observed that
Grisham did not put his hands behind his back when ordered but instead kept them within reach of his handgun. Given these circumstances, it was not unreasonable for Chief Valenciano to believe—at the time he deployed the taser—that Grisham was both a safety threat and resisting arrest.[viii]
The court also noted the legal principles regarding use of force and stated
Determining whether the force used to carry out an arrest is reasonable requires a fact intensive inquiry that turns on the totality of the circumstances, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Darden v. City of Fort Worth, 880 F.3d 722, 729 (5th Cir. 2018) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).[ix]
The court of appeals then held that the officers are entitled to qualified immunity because neither Everard nor Grisham can point to any caselaw that would clearly establish that the force used on each of them was unreasonably excessive under the circumstances of this case. As such, summary judgment for each officer was appropriate.
3. Municipal Liability
For a plaintiff to prevail on a claim against a municipality, the plaintiff must establish
[P]roof of three elements: [1] a policymaker; [2] an official policy; and [3] a violation of constitutional rights whose ‘moving force’ is the policy . . . .” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 U.S. at 694).[x]
The plaintiffs allege that the City “ratified Chief Valenciano’s policy to ‘Squash the Rebel’ by failing” stop retaliatory arrest. However, since the plaintiff’s failed to establish the officers or the chief committed a constitutional violation, which is the third element in claim above, the plaintiffs have failed to meet their burden. As such, the city is entitled to summary judgment.
Therefore, the court of appeals affirmed the decision of the district court.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-50915 (5th Cir. Decided February 26, 2024)
[ii] Id. at 2-4
[iii] Id. at 9 (emphasis added)
[iv] Id. (emphasis added)
[v] Id. at 10 (emphasis added)
[vi] Id. at 14
[vii] Id. at 15-16
[viii] Id. at 17
[ix] Id. at 16-17 (emphasis added)
[x] Id. at 17 (emphasis added)
