Pulliam v. Fort Bend Cnty.

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JUSTIN PULLIAM, Plaintiff. v. FORT BEND COUNTY, TEXAS, et al., Defendants.

Civil Action No. 4:22-cv-04210

United States District Court, S.D. Texas, Houston Division

September 5, 2024

MEMORANDUM AND RECOMMENDATION

ANDREW M. EDISON, UNITED STATES MAGISTRATE JUDGE

Plaintiff Justin Pulliam (“Pulliam”) is a journalist who records law enforcement activities and frequently criticizes law enforcement officers. This criticism is lodged directly at law enforcement officers and through personal commentary in his videos. Pulliam publishes his work on Facebook and on his YouTube channel, “Corruption Report.” He brings this civil rights case against Fort Bend County and certain members of the Fort Bend County Sheriff's Office (“FBCSO”).

Pending before me is Pulliam's Motion for Partial Summary Judgment. Dkt. 61. Pulliam asserts that his constitutional rights were violated on two occasions. First, Pulliam argues his First and Fourteenth Amendment rights were violated when Fort Bend County Sheriff Eric Fagan (“Fagan”) ordered Pulliam's removal from a July 2021 press conference. Second, Pulliam argues his First Amendment rights were violated during a separate incident in December 2021 during which a FBCSO sergeant arrested him for interference with public duties.

For the reasons discussed below, I recommend Pulliam's motion be GRANTED IN PART and DENIED IN PART.

BACKGROUND

Pulliam captured the July 2021 and December 2021 incidents on video.

A. July 2021 Press Conference

On July 12, 2021, the FBCSO closed Jones Creek Ranch Park to the public after a corpse was discovered. Pulliam had been filming FBCSO activity in the park before the decision to close the park was announced. After being told the FBCSO had closed the park, Pulliam complained to the FBCSO officer who announced the decision, and to Fagan directly. The FBCSO officer told Pulliam to go to the park entrance where a press conference would be held. Fagan then told Pulliam that if Pulliam did not go to the park entrance within five minutes he would be arrested. Pulliam again protested, but eventually walked to his truck and drove to the park entrance where reporters were gathered. Pulliam parked his truck about 10 parking spaces away from where the reporters had parked their cars.

About five minutes later, Fagan arrived at the press conference in a golf cart. Pulliam then walked toward the press conference. As Pulliam approached, Fagan told FBCSO Detective Robert Hartfield (“Hartfield”) to remove Pulliam from the area of the press conference. Fagan pointed at Pulliam and told Hartfield: “If he don't do it, arrest him ‘cause he is not part of the local media, so he have to go back.” Dkt. 61-6 at 15:50-15:57. Fagan's instruction was in-line with the FBCSO media relations policy, which specifically excludes social-media journalism from its definition of “media.” See Dkt. 61-14 at 12 (“Media” is defined as “[p]ersons associated with television, print, electronic, or radio news programs/services and related entertainment enterprises. For purposes of this General Order this term does not generally include social media (this is defined and governed under General Order 05-04).”).^[1]

Hartfield then told Pulliam: “Mr. Pulliam, uh, you are not, uh, media, so at the sheriff's request, can you step back this way with us please?” Id. at 16:28-16:35.

Hartfield and Jonathan Garcia (“Garcia”)-an officer from the Fort Bend County Constable's Office-escorted Pulliam back to his truck. When they reached Pulliam's truck-about 80 feet away, well beyond earshot of the press conference- Hartfield told Pulliam: “Mr. Pulliam, it would be greatly appreciated if you'd just stick right here. You're more than happy to film from right here. If you just stay back here that'd be great, okay, sir? Alright? I appreciate you.” Id. at 17:03-17:12. Pulliam responded: “You're a joke. You're a joke, man. So I can be right here?” Id. at 17:12-17:16. Hartfield and Garcia walked back toward the press conference without responding to Pulliam's question. Pulliam, standing alone, then told his viewers watching live: “Well, I guess that's what I get for parking my truck too far back.” Id. at 18:24-18:28.

B. December 2021 Arrest

On December 21, 2021, Pulliam arrived at a property where FBCSO personnel had responded to a welfare check. Both the FBCSO and Pulliam knew that the man who lived at the property had a mental illness, used a firearm, and had been the subject of FBCSO responses before. Upon arrival, the subject's mother confronted Pulliam. Pulliam told her he was there to ensure the FBCSO would not harm her son, and obtained her permission to film the events. FBCSO Officer Ricky Rodriguez (“Rodriguez”) walked by, pointed in Pulliam's direction, and told him: “Sir, you need to stay back over there.” Dkt. 61-9 at 0:38-0:41.

About four minutes later, FBCSO Sergeant Taylor Rollins (“Rollins”) approached Pulliam, and the following interaction ensued:

Rollins: Can you move across the street please?

Pulliam: Across the street?

Rollins: Yes, across the street.

Pulliam: So you can shoot him?

Rollins: [pauses] What's wrong with you, man?

Pulliam: What's wrong with you?

Rollins: Please go across the street, thank you.

[Two people arrive and tell Rollins they are social workers, and Rollins begins speaking with them. Pulliam stands several feet behind them.]

Rollins: [pointing at Pulliam] Across the street.

Pulliam: Well hold on, if it's not for safety, I already have permission from the land-I already have [the subject's mother's] permission to stay.

Social worker: [to Pulliam] Sir, you cannot film my client...

Pulliam: So is everyone leaving or just me?

Rollins: Across the street.

Pulliam: Everyone or just me?

Rollins: Five, four, three.

Pulliam: Oh, you're going to be like that? [starts slowly walking backwards]

Rollins: Two, one. Come here. Turn around. Thank you. I asked you twice. Three or four times. You're interfering with my job. You're making my job a lot harder than it needs to be.

Id. at 4:18-5:15 (emphasis added). Rollins handcuffed Pulliam, arrested him for interference with public duties,^[2] and walked him to an FBCSO vehicle.

C. Procedural History

Pulliam filed this lawsuit on December 5, 2022. The live complaint includes the following claims: (1) free speech violation arising from the July 2021 press conference against Fagan, Hartfield, Garcia, and Fort Bend County; (2) equal protection violation arising from the July 2021 press conference against Fagan, Hartfield, Garcia, and Fort Bend County; (3) free speech violation arising from the December 2021 arrest against Fagan, Rollins, Rodriguez, and Fort Bend County; (4) First Amendment retaliation arising from the December 2021 arrest against Fagan, Rollins, Rodriguez, and Fort Bend County; and (5) Fourth Amendment violation against Fort Bend County. Pulliam also seeks injunctive relief, declaratory relief, and damages. On June 29, 2023, Judge David Hittner dismissed Pulliam's Fourth Amendment claim at the pleading stage. On September 14, 2023, Judge Hittner granted Pulliam's unopposed motion to dismiss the claims against Garcia and Rodriguez.^[3]

Pulliam has moved for partial summary judgment on three claims: (1) violation of free speech arising from the July 2021 press conference against Fagan, Hartfield, and Fort Bend County; (2) equal protection violation arising from the July 2021 press conference against Fagan, Hartfield, and Fort Bend County; and (3) First Amendment retaliation arising from the December 2021 arrest against Rollins and Fort Bend County. Neither party has moved for summary judgment on Pulliam's violation of free speech claims arising from the December 2021 arrest, or Pulliam's retaliation claim against Fagan.

LEGAL STANDARDS

A. Summary Judgment

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A genuine issue of material fact exists when there is evidence sufficient for a rational trier of fact to find for the non-moving party.” Schnell v. State Farm Lloyds, 98 F.4th 150, 156 (5th Cir. 2024) (quotation omitted).

“The movant has the burden of showing that there is no genuine issue of fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant makes such a showing, “the burden shifts to the non-movant to produce evidence of the existence of such an issue for trial.” Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir. 2015) (quotation omitted). The nonmoving party “must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial to avoid summary judgment.” Id. (quotation omitted). I “may not . . . evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes.” Matter of Green, 968 F.3d 516, 520 (5th Cir. 2020) (quotation omitted). Rather, I “view all facts, and the inferences to be drawn from them, in the light most favorable to the nonmovant.” Brandon, 808 F.3d at 269 (quotation omitted).

I “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) (cleaned up). I “need not rely on [a party]'s description of the facts where the record discredits that description but should instead consider ‘the facts in the light depicted by the videotape.'” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).

B. 42 U.S.C. § 1983

Section 1983 provides, in relevant part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to

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