Grisham v. Valenciano

93 F.4th 903

Christopher GRISHAM; James Everard, Plaintiffs—Appellants, v. Rene VALENCIANO, Olmos Park Chief of Police; J. Lopez, Officer; Hector Ruiz, Officer;A. Viera, Officer; City of Olmos Park, Defendants—Appellees.

No. 22-50915

United States Court of Appeals, Fifth Circuit

FILED February 26, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 5:20-CV-387, Orlando L. Garcia, U.S. District Judge

Brandon Grable (argued), Grable Grimshaw, P.L.L.C., San Antonio, TX, for Plaintiffs—Appellants.

Patrick C. Bernal, Esq., Adolfo Ruiz, Attorney (argued), Denton Navarro Rodriguez Bernal Santee & Zech, P.C., San Antonio, TX, for Defendants—Appellees.

Before Stewart, Dennis, and Wilson, Circuit Judges.

Carl E. Stewart, Circuit Judge:

James Everard ("Everard") and Christopher Grisham ("Grisham") (collectively, "Plaintiffs") filed this civil rights suit under 42 U.S.C. § 1983 against the City of Olmos Park ("the City") and several police officers (collectively, "Defendants") alleging that their arrests were in violation of their constitutional rights. The district court granted summary judgment in favor of the City and the officers and dismissed Everard's and Grisham's claims. Because the record evidence supports the district court's summary judgment, we AFFIRM.

I. FACTUAL & PROCEDURAL BACKGROUND¹

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.² 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.³ 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.

Based on the above incident, Everard and Grisham filed suit under 42 U.S.C. § 1983 alleging violations of their First, Fourth, and Fourteenth Amendment rights. Plaintiffs and Defendants filed cross-motions for summary judgment. The district court referred the matter to the magistrate judge, who adjudicated the parties' competing motions and issued a report and recommendation to the district court. The district court considered and adopted the recommended order, granting Defendants' motion for summary judgment on Plaintiffs' (1) Fourth Amendment claims for excessive force, unlawful arrest, and unlawful search and seizure; (2) First Amendment claims for prevention of protected conduct and retaliation for protected conduct; (3) Fourteenth Amendment claims for deprivation of property and failure to provide medical care; (4) failure to intervene claims; (5) malicious prosecution claims; and (6) municipal liability claims. Everard and Grisham appealed.

II. STANDARD OF REVIEW

We conduct a de novo review of a district court's grant of summary judgment. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020). "Summary judgment is proper 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Id. (citing FED. R. CIV. P. 56(a)). However, "[a] qualified immunity defense alters the usual summary judgment burden of proof" because, to overcome qualified immunity, Plaintiffs "must rebut the defense by establishing a genuine [dispute of material fact] as to whether the official's allegedly wrongful conduct violated clearly established law." Bey v. Prator, 53 F.4th 854, 857 (5th Cir. 2022) (per curiam) (quoting Brown v. Callahan, 623 F. 3d 249, 253 (5th Cir. 2010)) (alteration in original).

A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A panel may affirm summary judgment on any ground supported by the record, even if it is different from that relied on by the district court." Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012) (internal quotation marks and citation omitted). Although we view the evidence favorably to the nonmovant, we nevertheless "assign greater weight, even at the summary judgment stage, to the video recording taken at the scene." Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022) (internal punctuation omitted) (quoting Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)); see also Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("The Court of Appeals should not have relied on [the respondent's version of events]; it should have viewed the facts in the light depicted by the videotape."). "[T]he ultimate determination of whether there is probable cause for the arrest is a question of law [this court] review[s] de novo." United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc).

III. DISCUSSION

As an initial matter, we note that Plaintiffs do not challenge the district court's holding as to their claims regarding unlawful search, failure to intervene, deprivation of property, failure to provide medical care, or malicious prosecution. Accordingly, the issues are forfeited on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) ("A party forfeits an argument . . . by failing to adequately brief the argument on appeal."). Plaintiffs instead focus on the district court's grant of summary judgment as to (1) their First Amendment claims, (2) their Fourth Amendment claims, and (3) the City's liability pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The record in this case includes videotape exhibits capturing the events in question. As discussed, this court must "vie[w] the facts in the light depicted by the videotape" that captured the events underlying Plaintiffs' claims. Scott, 550 U.S. at 381, 127 S.Ct. 1769; see also Curran v. Aleshire, 800 F.3d 656, 664 (5th Cir. 2015) ("Scott instructs that a plaintiff's version of the facts should not be accepted for purposes of qualified immunity when it is 'blatantly contradicted' and 'utterly discredited' by video recordings."). Thus, in viewing the facts in the light depicted by the videotape, as Scott v. Harris directs, we agree that the magistrate judge did not err in his recounting of the facts. See 550 U.S. at 381, 127 S.Ct. 1769. All the material facts as described by the magistrate judge—from the arrival of responding officers to the subsequent arrests of Everard and Grisham—were supported by the video record.

Accordingly, in the qualified immunity context, the magistrate judge did not err in concluding that there were no genuine disputes of material fact underlying the determination that (1) the officers had probable cause to believe that Plaintiffs were engaging in criminal activity and (2) the officers were not objectively unreasonable in believing such probable cause existed. See Bey, 53 F.4th at 858 (internal quotation marks omitted). "It is well established that under the Fourth Amendment a warrantless arrest must be based on probable cause." Castro, 166 F.3d at 733. "Probable cause exists when the facts and circumstances within the arresting officer's personal knowledge, or of which he has reasonably trustworthy...