REVISED March 31, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20217 FILED
February 7, 2017
JONATHAN DAVIDSON, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
CITY OF STAFFORD, TEXAS; BONNY KRAHN, Chief of Police, City of
Stafford, Texas; HENRY GARCIA, Police Officer, City of Stafford, Texas;
STEVEN FLAGG, Police Officer, City of Stafford, Texas; DAN JONES, Police
Officer, City of Stafford, Texas,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before KING, OWEN, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Plaintiff Jonathan Davidson was arrested during a protest of a Planned
Parenthood in Stafford, Texas. Davidson subsequently brought suit under 42
U.S.C. § 1983 for violations of his rights under the First and Fourth
Amendments against Defendants Officer Steven Flagg, Officer Dan R. Jones
III, Chief of Police Bonny Krahn, and the City of Stafford. The district court
held that the individual officers were entitled to qualified immunity and that
No. 16-20217
Davidson failed to create a dispute of fact for municipal liability for the City of
Stafford. Davidson appeals. For the reasons discussed below, we AFFIRM IN
PART, REVERSE IN PART, and REMAND.
I. Factual and Procedural Background
On March 31, 2013, Davidson arrived at the Planned Parenthood clinic
(the “Clinic”) in Stafford, Texas to protest and express his pro-life views. The
Clinic is part of a commercial strip center located along the southbound feeder
of U.S. 59. During his protest, Davidson stood in a green space between the
parking lot of the commercial strip center and U.S. 59. The green space was
bounded by the parking lot, U.S. 59, and at least one entryway from U.S. 59 to
the parking lot. 1
Davidson’s protest consisted of standing in the green space, holding a
sign that said “Pray to End Abortion,” and waving at cars both on U.S. 59 and
in the parking lot. If a car stopped, Davidson would speak to the passengers
and offer them a card with a phone number to a service that offers free
pregnancy tests and ultrasounds. 2
During his protest, Davidson was approached by a Clinic employee,
Marilyn Chosed. Although the parties disagree on what exactly happened,
both agree that Chosed informed Davidson that he had to leave. This exchange
prompted Chosed to contact the Stafford Police Department (“Stafford PD”).
During her phone call to Stafford PD, Chosed stated that “we have a protester
out here and he keeps coming off of the area that he’s supposed to and flagging
down our patients before they come in the clinic.” Chosed also provided the
1 Evidence in the record demonstrates that, while Davidson occasionally crossed the
entryway to stand on another green space, he remained on one green space during the
interaction that led to his arrest.
2 During his deposition, Davidson clarified that he protested with the intent to
persuade women not to go into the Clinic because he “[doesn’t] want abortions to happen.”
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No. 16-20217
operator with a physical description of Davidson. The operator subsequently
put out a dispatch stating that there was a “suspicious person call at Planned
Parenthood.” The operator then said “There’s a white male . . . who is flagging
down customers before they come in.”
Officer Steven Flagg of the Stafford PD was dispatched to the Clinic
following the dispatch call. Upon arrival, he observed Davidson standing in
the green space outside the parking lot. Officer Flagg proceeded to enter the
Clinic and speak with Chosed, who informed Officer Flagg that Davidson had
been walking in front of the Clinic and in the parking lot, approaching patients
on the sidewalk and in the parking lot, and delaying or inconveniencing
patients as they attempted to enter the Clinic. Chosed also informed Officer
Flagg that she had warned Davidson that he was both trespassing on Clinic
property and harassing Clinic patients, and that he needed to leave. Based on
his conversation with Chosed, Officer Flagg believed that Davidson was
walking in the parking lot and following patients to the entryway of the Clinic.
Officer Flagg clarified that Chosed did not inform him where exactly Davidson
had been walking. Officer Flagg also testified that Chosed did not state
anything about Davidson stopping vehicles, and that, based on Chosed’s
description, he did not believe Davidson was delaying vehicles.
A second officer, Dan R. Jones III, was dispatched as a backup unit to
Officer Flagg and arrived shortly after Officer Flagg arrived. Together, the
officers approached Davidson and asked him to come to them in the parking
lot. Davidson responded that he could not, but the officers again asked
Davidson to approach them. At this stage, the parties’ facts diverge. On the
one hand, Davidson claims that the officers began accusing him of harassing
Clinic customers, to which Davidson responded that he was there to pray, hold
his sign, and hand out cards. Davidson also claims to have informed the
officers that he had no way of knowing which people entering the parking lot
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No. 16-20217
were Clinic customers. On the other hand, Officers Flagg and Jones each claim
that Officer Flagg asked Davidson whether he was approaching patients or
stopping vehicles, to which Davidson responded in the affirmative. 3 The
officers also claim that Officer Flagg asked Davidson where he was
approaching patients, but Davidson did not provide a direct response. Finally,
Davidson’s police report indicates that Officer Flagg asked Davidson whether
he was on business property, to which Davidson stated that he knew what he
was and was not allowed to do.
At this point, Davidson backed away from the officers and acted as if he
was going to continue protesting. Officer Flagg asked Davidson to come back
and continue speaking to both officers. Officer Flagg also asked Davidson for
identification. Davidson said he did not have any identification and that his
name was “Jonathan.” Officer Flagg repeatedly asked Davidson for
identification or his last name, to which Davidson responded with either
“Jonathan” or “Jon.” Based on these responses, Officers Flagg and Jones
arrested Davidson. As they arrested Davidson, the officers stated “you don’t
ID, you go to jail” and “you fail to ID, you got to jail.” Upon a request from
Davidson to know why he was being arrested, one of the officers stated “fail to
ID, when we’re conducting an investigation, did not identify yourself to the
police.” Davidson again informed the officers that his name was Jonathan and
that he was not operating a motor vehicle, but an officer stated “when we’re
conducting an investigation, fail to give your name to the police, you go to jail.”
Davidson was charged with failure to identify under Texas Penal Code
§ 38.02 and taken to Fort Bend County Jail. He was released later that night.
3There appears to be some dispute over whether the officers thought Davidson was
stopping cars during his protest. Officer Jones’s affidavit also states his belief that Davidson
was approaching cars.
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Approximately a year later, Davidson’s attorney sent a letter to the City of
Stafford (“the City”) to confirm that Davidson would not be subject to any
present or future prosecution. The City responded that it would not prosecute
Davidson for his previous conduct but did not state whether it would prosecute
Davidson for similar conduct in the future. Davidson testified that he intends
to protest the Clinic in the future but had not returned because he does not
want to end up back in jail.
Davidson subsequently filed suit, alleging claims under 42 U.S.C. § 1983
for violations of his rights to both freedom of speech under the First
Amendment and freedom from unreasonable searches and seizures under the
Fourth Amendment. Davidson also asserted an as-applied challenge to Texas
Penal Code §§ 38.02 and 42.03. Davidson named Officers Flagg and Jones,
Chief of Police Bonny Krahn, and the City as defendants. Davidson’s
complaint sought damages, including punitive damages, as well as a
declaration that Defendants’ actions, policies, and practices violated the
Constitution.
Following an answer by the Defendants and discovery, Defendants filed
motions for summary judgment. The district court ultimately granted
summary judgment in favor of the Defendants on all claims. The district court
held that (1) Officer Flagg, Officer Jones, and Chief Krahn were entitled to
qualified immunity and (2) the City was entitled to summary judgment
because Davidson failed to demonstrate any policy that caused Davidson’s
alleged constitutional violation.
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No. 16-20217
II. Jurisdiction and Standard of Review
The district court had subject matter jurisdiction over Davidson’s claim
under 28 U.S.C. § 1331, and this court has jurisdiction to review the final
judgment under 28 U.S.C. § 1291.
An appeal from a grant of summary judgment is reviewed de novo. Moss
v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). “The court shall grant
summary judgment 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.”
FED. R. CIV. P. 56(a). “When considering a motion for summary judgment, the
court views all facts and evidence in the light most favorable to the non-moving
party.” Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016) (quoting
Moss, 610 F.3d at 922), cert denied, 137 S. Ct. 815 (2017).
III. Discussion
Davidson’s appeal both challenges the district court’s grant of summary
judgment on his § 1983 claims and argues that the district court failed to
address his claims that the City’s actions chilled his speech. We address each
of these arguments in turn.
A. Section 1983
Davidson seeks to reverse the district court’s grant of summary
judgment as to all three groups of Defendants: Officers Flagg and Jones, the
City, and Chief Krahn. We agree with Davidson that reversal is appropriate
as to Officers Flagg and Jones, but hold that the district court correctly granted
summary judgment to the City and Chief Krahn.
1. Officers Flagg and Jones
The district court held that Officers Flagg and Jones were entitled to
qualified immunity on Davidson’s claims of violations of both his First
Amendment right to free speech and his Fourth Amendment right to be free
from unlawful searches and seizures. The district court initially found that
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No. 16-20217
Officers Flagg and Jones did not have actual probable cause to arrest Davidson
for failure to identify. Nevertheless, the district court determined that the
officers were entitled to summary judgment because (1) Davidson had been
ordered to move under Texas Penal Code § 42.04 and (2) Flagg and Jones “at
least arguably had probable cause because [they] reasonably believed that
Davidson made passage through the parking lot and into [the Clinic]
unreasonably inconvenient by harassing [the Clinic’s] patients and stopping
vehicles as they entered and exited the parking lot.” This latter conduct,
according to the district court, constituted obstruction of a highway or other
passage under Texas Penal Code § 42.03.
“Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified
immunity ‘gives government officials breathing room to make reasonable but
mistaken judgments,’ and ‘protects all but the plainly incompetent or those
who knowingly violate the law.’” Messerschmidt v. Millender, 565 U.S. 535,
546 (2012) (quoting al-Kidd, 563 U.S. at 743).
A warrantless arrest without probable cause violates clearly established
law defining an individual’s rights under the Fourth Amendment. See Hogan
v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013). Individuals who protest are
also protected under the First Amendment from retaliatory actions by
government officials. Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016). But
if an officer has probable cause to seize that individual, “the objectives of law
enforcement take primacy over the citizen’s right to avoid retaliation.” Id. at
245 (quoting Keenan v. Tejeda, 290 F.3d 252, 261–62 (5th Cir. 2002)). Probable
cause “means facts and circumstances within the officer’s knowledge that are
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No. 16-20217
sufficient to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Hogan, 722 F.3d at 731 (quoting
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).
Officers are therefore entitled to qualified immunity unless there was no
actual probable cause for the arrest and the officers were objectively
unreasonable in believing there was probable cause for the arrest. See Crostley
v. Lamar Cty., 717 F.3d 410, 422–23 (5th Cir. 2013); see also Cooper v. City of
La Porte Police Dep’t, 608 F. App’x 195, 199 (5th Cir. 2015) (“[O]fficers are
entitled to qualified immunity unless there was not probable cause for the
arrest and a reasonable officer in their position could not have concluded that
there was probable cause for the arrest.” (citing Crostley, 717 F.3d at 422–23)).
This probable cause may be for any crime and is not limited to the crime that
the officers subjectively considered at the time they perform an arrest. Club
Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).
The district court held that Officers Flagg and Jones had “arguable”
probable cause to arrest Davidson for obstructing a highway or other passage
in violation of Texas Penal Code § 42.03. In relevant part, § 42.03 states:
(a) a person commits an offense if, without legal
privilege or authority, he intentionally, knowingly, or
recklessly:
(1) obstructs a highway, street, sidewalk,
railway, waterway, elevator, aisle,
hallway, entrance, or exit to which the
public or a substantial group of the public
has access, or any other place used for the
passage of persons, vehicles, or
conveyances, regardless of the means of
creating the obstruction and whether the
obstruction arises from his acts alone or
from his acts and the acts of others;
....
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No. 16-20217
(b) For purposes of this section, “obstruct” means to
render impassable or to render passage unreasonably
inconvenient or hazardous.
TEX. PENAL CODE § 42.03. 4
We agree with the district court that there was no actual probable cause
for Davidson’s arrest. At the time Officers Flagg and Jones arrested Davidson,
the only crime charged to Davidson was failure to identify under § 38.02. This
is further confirmed in Davidson’s police report, which charged Davidson with
failure to identify under § 38.02(a). But § 38.02(a) applies only when an officer
“has lawfully arrested the person and requested the information.” TEX. PENAL
CODE § 38.02(a). At the time they performed the arrest for the alleged § 38.02
violation, Davidson was not under arrest for any other violation, thus, the
“failure to identify” statute clearly was not triggered. We therefore conclude
that the district court correctly determined that the officers had no actual or
“arguable” probable cause for arresting Davidson under § 38.02. We consider
whether they had probable cause under any other statute below.
Turning to objective or “arguable” probable cause, and taking the facts
in the light most favorable to Davidson, it is clear that the officers were
objectively unreasonable in believing that there was probable cause for
Davidson’s arrest under the only other section posited here, § 42.03. Based on
the information available to Officers Flagg and Jones, Davidson had not
“render[ed] impassable or . . . render[ed] passage unreasonably inconvenient
4If the conduct regulated under § 42.03(a) consists of “speech or other communication”
or “a gathering . . . to otherwise express . . . a position on social, . . . political, or religious
questions,” Texas Penal Code § 42.04 requires that “the actor must be ordered to move,
disperse, or otherwise remedy the violation [under § 42.03] prior to his arrest if he had not
yet intentionally harmed the interest of others which those sections seek to protect.” TEX.
PENAL CODE § 42.04(a). Given our determination that the officers had no probable cause to
arrest Davidson under § 42.03, § 42.04 becomes inapplicable to Davidson’s conduct, as that
statute requires “conduct that would otherwise violate section . . . 42.03 (Obstructing
Passageway)” and Davidson’s conduct did not violate the statute. Id.
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No. 16-20217
or hazardous” for Clinic patients. TEX. PENAL CODE § 42.03. At the time
Officer Flagg arrived at the Clinic, Davidson was standing in the grass
easement next to the parking lot. Officer Flagg proceeded to speak with
Chosed, who informed him that Davidson had been both (1) walking both in
front of and in the parking lot of the Clinic and (2) approaching, delaying,
and/or inconveniencing patients as they attempted to enter the Clinic. Officer
Flagg later testified in his deposition that he took Chosed’s description of
Davidson’s behavior to mean that Davidson was not impeding vehicle traffic.
Officers Flagg and Jones could infer from Chosed’s statements that Davidson
had slowed down people entering both the parking lot and the Clinic in order
to speak with them and offer them informational cards. But while these
actions could be considered inconvenient based on Chosed’s description, they
cannot be construed, by an objectively reasonable officer in Officers Flagg’s or
Jones’s position, as rendering entry to the Clinic impassable or unreasonably
inconvenient as required under § 42.03.
A review of Texas state court decisions applying § 42.03 further supports
our holding that no reasonable officer would conclude that probable cause
existed to arrest Davidson. The description of Davidson’s actions provided to
Officer Flagg included two key facts that the Texas Court of Criminal Appeals
has previously seized upon in determining whether conduct rises to the level
of obstruction under § 42.03. See Haye v. State, 634 S.W.2d 313, 314–15 (Tex.
Crim. App. [Panel Op.] 1982). First, Chosed stated that Davidson was walking,
approaching, harassing, and delaying Clinic patients, but not stopping or
preventing their entry into the Clinic. This distinction of movement by the
defendant, as opposed to the defendant standing in place or making a pathway
impassible, requires a finding of no obstruction. Compare Sherman v. State,
626 S.W.2d 520, 528 (Tex. Crim. App. 1981) (no obstruction where a defendant
caused a momentary stop by walking in front of a car), with Haye, 634 S.W.2d
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No. 16-20217
at 314–15 (obstruction where a defendant stood on the sidewalk and forced an
individual to walk around him and through mud). Second, any delay caused
by Davidson was based on Davidson’s abortion protest. Reasonable officers in
Officers Flagg’s and Jones’s position must therefore consider the balance
between Davidson’s First Amendment rights and the right of the public to have
access to the Clinic. See Sherman, 626 S.W.2d at 526 (“By requiring [under
§ 42.03] that passage be severely restricted or completely blocked . . . we give
ample breathing room for the exercise of First Amendment rights. At the same
time, such a definition adequately protects the right of the public to have access
to the . . . premises.”). Given that the information available to Officers Flagg
and Jones at the time of Davidson’s arrest indicated that (1) Davidson had
delayed (by his words, not physically), but not prevented anyone from entering
the Clinic and (2) Davidson was exercising his First Amendment rights by
protesting, it was objectively unreasonable for these officers to conclude that
there was probable cause to arrest Davidson under § 42.03.
In addition to cases establishing the lack of probable cause, there was
fulsome case law clearly establishing that an arrest without probable cause
violates both First and Fourth Amendment rights at the time of Davidson’s
arrest in 2013. Specifically, Officers Flagg’s and Jones’s conduct violated
Davidson’s clearly established rights as demonstrated in federal case law. See
Club Retro, 568 F.3d at 206 (“The Fourth Amendment right to be free from
false arrest—arrest without probable cause—was clearly established at the
time of [the] arrests [in 2006].”); Keenan, 290 F.3d at 262 (“If no reasonable
police officer could have believed that probable cause existed for the law
enforcement actions of [the officers] against the plaintiffs, then their
retaliation violated clearly established law of this circuit.” (citing Rolf v. City
of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996)). Their actions also violated
Davidson’s rights as recognized by the highest state courts in Texas. See Faust
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No. 16-20217
v. State, 491 S.W.3d 733, 745 (Tex. Crim. App. 2016) (“There is no dispute that
[the protestors] had a First Amendment right to express their views in a public
forum.”), cert. denied, 85 U.S.L.W. 3324 (U.S. Jan. 9, 2017); Iranian Muslim
Org. v. City of San Antonio, 615 S.W.2d 202, 205 (Tex. 1981) (“The rights to
picket and demonstrate in public places, particularly streets, sidewalks, and
parks, are extended [F]irst [A]mendment protection.” (citations omitted)); see
also Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se. Tex., Inc.,
975 S.W.2d 546, 567–68 (Tex. 1998) (limiting injunction against protestors who
threatened to block clinic entrances to only that necessary to allow ingress and
egress while protecting the right of the protestors to be heard). These federal
and state decisions make clear that Davidson’s arrest without probable cause
was a violation of his First and Fourth Amendment rights.
On the second prong of the qualified immunity defense, recent Supreme
Court decisions addressing claims for excessive force have “reiterate[d] the
longstanding principle that ‘clearly established law’ should not be defined ‘at a
high level of generality.’” White v. Pauly, No. 16–67, Slip Op. at 6 (U.S. Jan. 9,
2017) (per curiam) (quoting al-Kidd, 563 U.S. at 742)); see also Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015). Our cases outside the excessive force area
involving warrantless arrests and limits on speech have not specifically
mentioned this aspect of Supreme Court cases. See, e.g., Deville v. Marcantel,
567 F.3d 156, 166 (5th Cir. 2009); Evett v. DETNTFF, 330 F.3d 681, 687 (5th
Cir. 2003). Assuming arguendo that the specific White/Mullenix admonition
applies to all qualified immunity cases regardless of the constitutional
violation charged, the officers here still come up short. The cases cited above
clearly demonstrate what does and does not violate § 42.03 and also clearly
establish the unconstitutionality of warrantless arrests without probable
cause.
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No. 16-20217
Even if he had not been exercising core First Amendment rights,
Davidson was not (even arguably) in violation of § 42.03 when he stood outside
of the Clinic. Additionally, his right to protest prohibited the officers’
application of § 42.03 in the manner employed here. Resolving all factual
disputes in favor of Davidson, the objective unreasonableness displayed by
Officers Flagg and Jones in the face of law clearly establishing Davidson’s
rights leads us to the conclusion that qualified immunity cannot shield their
actions against Davidson. We conclude that in Davidson’s case, “every
reasonable official would have understood that what he is doing violates”
Davidson’s rights. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting
al-Kidd, 563 U.S. at 741). The district court improperly granted summary
judgment in favor of Officers Flagg and Jones.
2. The City of Stafford
Davidson next argues that there are three bases from which we may find
that the City had an official policy of improperly applying § 38.02: (1) Chief
Krahn’s testimony concerning his interpretation of § 38.02, (2) evidence that
Chief Krahn ratified the conduct of Officers Flagg and Jones, and (3) evidence
concerning an alleged pattern of misapplication of § 38.02 by the Stafford PD.
We find none of Davidson’s arguments persuasive, and therefore affirm the
district court’s grant of summary judgment in favor of the City.
Municipalities are persons susceptible to suit under § 1983, but they
cannot be found liable on a theory of vicarious liability or respondeat superior.
Monell v. Dep’t of Social Servs., 436 U.S. 658, 690–91 (1978). At the summary
judgment stage, a plaintiff making a direct claim of municipal liability must
demonstrate a dispute of fact as to three elements: that (1) an official policy
(2) promulgated by the municipal policymaker (3) was the moving force behind
the violation of a constitutional right. Culbertson v. Lykos, 790 F.3d 608, 628
(5th Cir. 2015).
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No. 16-20217
Each of Davidson’s arguments before us goes to the first element, an
official policy on the part of the City. Davidson’s first argument relies on Chief
Krahn’s deposition testimony that an officer performs a legal arrest under
§ 38.02 if an officer has probable cause to believe that the person has
committed some other crime at the time they fail to identify. In “rare
circumstances,” a single unconstitutional action may be sufficient to impose
municipal liability “if undertaken by the municipal official or entity possessing
‘final policymaking authority’ for the action in question.” Howell, 827 F.3d at
527 (citation omitted). An unconstitutional policy may be found when a
policymaker performs the specific act that forms the basis of the § 1983 claim.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 482, 484–85 (1986);
Howell, 827 F.3d at 528; Anderson v. City of McComb, 539 F. App’x 385, 388
n.2 (5th Cir. 2013). But even if we assume arguendo that Chief Krahn was a
policymaker for the City, his testimony alone is insufficient to demonstrate an
official policy for the City because testimony is not a specific act by a
policymaker that results in a constitutional violation susceptible to a § 1983
claim. Unlike the situations in Pembaur, Howell, and Anderson, Davidson has
presented no evidence that Chief Krahn performed the arrest that forms the
basis of Davidson’s § 1983 claim. Without this evidence, Davidson fails to
demonstrate that Chief Krahn’s testimony constitutes the type of “rare
circumstance” in which this court may find that the City had a policy of
unconstitutionally interpreting § 38.02.
Davidson’s second argument also relies on deposition testimony from
Chief Krahn. Davidson argues that Chief Krahn ratified the conduct of
Officers Flagg and Jones when he reviewed Davidson’s arrest and determined
that there was no violation from which he could discipline the officers. “If the
authorized policymakers approve a subordinate’s decision and the basis for it,
their ratification would be chargeable to the municipality because their
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No. 16-20217
decision is final.” Peterson v. City of Fort Worth, 588 F.3d 838, 854 (5th Cir.
2009) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).
Ratification, however, is limited to “extreme factual situations.” World Wide
Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir.
2009) (quoting Peterson, 588 F.3d at 848). “[A] policymaker who defends
conduct that is later shown to be unlawful does not necessarily incur liability
on behalf of the municipality.” Peterson, 588 F.3d at 848 (citation omitted).
Further, good faith statements made while defending complaints of
constitutional violations by municipal employees do not demonstrate
ratification. Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010).
Here, the underlying conduct by Officers Flagg and Jones, while
unconstitutional, was not sufficiently extreme to qualify for a finding of
ratification. See Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985). 5
Chief Krahn’s conduct is more analogous to the conduct in Zarnow, where we
did not find ratification when a municipality defended the constitutionality
and propriety of its officers’ actions, despite our later determination that the
officers’ actions violated the Fourth Amendment. Zarnow, 614 F.3d at 169;
5 The facts of Grandstaff were described in a subsequent opinion as follows:
[I]n response to a minor traffic violation, three patrol cars
engaged in a high speed chase during which they fired wildly at
the suspected misdemeanant; the object of this chase took refuge
on an innocent person’s ranch, where the entire night shift of the
city police force converged and proceeded to direct hails of
gunfire at anything that moved; although nobody except the
police was ever shown to have fired a shot, the innocent rancher
was killed when the police shot him in the back as he was
emerging from his own vehicle; after this “incompetent and
catastrophic performance,” which involved a whole series of
abusive acts, the officers’ supervisors “denied their failures and
concerned themselves only with unworthy, if not despicable,
means to avoid legal liability.”
Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986) (citations omitted).
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No. 16-20217
see also Medina v. Ortiz, 623 F. App’x 695, 701 (5th Cir. 2015) (no ratification
where the sheriff accepted an officer’s use of force report, refused to turn over
evidence until a lawsuit was filed, and defended the deputies’ actions in the
case). Chief Krahn’s actions in investigating Officers Flagg’s and Jones’s
conduct thus cannot support an allegation of ratification resulting in an official
policy on the part of the City.
Davidson’s final argument attempts to impute a policy of
unconstitutionally enforcing § 38.02 to the City by relying on seven incidents
between January 2010 and June 2013 in which Stafford PD arrested
individuals due to, among other things, a violation of § 38.02. In order to find
a municipality liable for a policy based on a pattern, that pattern “must have
occurred for so long or so frequently that the course of conduct warrants the
attribution to the governing body of knowledge that the objectionable conduct
is the expected, accepted practice of city employees.” Peterson, 588 F.3d at 850
(quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en
banc)). A pattern requires similarity, specificity, and sufficiently numerous
prior incidents. Id. at 851. But Davidson’s evidence of an alleged pattern lacks
the detail necessary to find a policy on the part of the City. As an initial matter,
Davidson provides no evidence that any of the previous arrests resulted in
subsequent litigation alleging a constitutional violation. Looking to these prior
arrests, most appear to involve facts demonstrating that the arrestees had
committed or were in the act of committing another crime, in addition to their
failure to identify. Under this court’s precedent, these arrests likely did not
involve a constitutional violation, as the officers likely had probable cause to
arrest these defendants for the other crime. Club Retro, 568 F.3d at 204. 6 If
That we would have to consider whether each prior incident constitutes an
6
unconstitutional arrest further cuts against a finding of a pattern. See Pineda v. City of
Houston, 291 F.3d 325, 329 (5th Cir. 2002) (“The weakness in the approach is apparent in its
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No. 16-20217
we remove these cases from our consideration, Davidson’s pattern relies on
three cases (two from the records obtained by Davidson and Davidson’s case)
over three-and-a-half years to form the basis of the alleged pattern of
constitutional violations. Without further context of the size of Stafford PD or
the amount of arrests made over the corresponding period, these incidents are
insufficient to establish a pattern of constitutional violations by the Stafford
PD. See, e.g., Carnaby v. City of Houston, 636 F.3d 183, 189–90 (5th Cir. 2011)
(no pattern: two reports of violations of a policy in four years in Houston);
Peterson, 588 F.3d at 851 & n.4 (no pattern: twenty-seven complaints of
excessive force over four years in Fort Worth); Pineda v. City of Houston, 291
F.3d 325, 329 (5th Cir. 2002) (no pattern: eleven incidents of warrantless
searches in Houston). Because Davidson’s arguments on an official policy on
the part of the City and ratification based on Chief Krahn’s conduct also fail,
we affirm the district court’s grant of summary judgment in favor of the City
on Davidson’s § 1983 municipality liability claim.
3. Chief Krahn
Davidson’s final argument concerns the liability of Chief Krahn in his
individual capacity. According to Davidson, Chief Krahn’s endorsement of an
unconstitutional interpretation of § 38.02 caused a pattern of constitutional
violations, and Davidson’s arrest was the obvious consequence of Krahn’s
misinterpretation of the statute. In order to survive summary judgment
against a § 1983 claim for supervisory liability, a plaintiff is required to create
a dispute of fact that (1) the supervisor either failed to supervise or train the
subordinate officer; (2) a causal link exists between the failure to train or
supervise and the violation of the plaintiff’s rights, and (3) the failure to train
practical effects. It requires the City to defend ‘cases within cases’ from historical records to
justify searches conducted without a warrant.”).
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No. 16-20217
or supervise amounts to deliberate indifference. Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 452–53 (5th Cir. 1994) (en banc) (citing Hinshaw v. Doffer,
785 F.2d 1260, 1263 (5th Cir. 1986), abrogated in part by Johnson v. Morel, 876
F.3d 477, 480 (5th Cir. 1989)).
Davidson’s allegations and evidence fail to demonstrate a material
dispute of fact as to deliberate indifference. “Deliberate indifference is a
stringent standard of fault, requiring proof that a municipal actor disregarded
a known or obvious consequence of his action.” Estate of Davis ex rel. McCully
v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (quoting Bd. of
Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997) (alteration
omitted)). “Actions and decisions by officials that are merely inept, erroneous,
ineffective, or negligent do not amount to deliberate indifference and do not
divest officials of qualified immunity.” Id. (quoting Alton v. Tex. A&M Univ.,
168 F.3d 196, 201 (5th Cir. 1999)). Deliberate indifference can be
demonstrated in two ways. Kitchen v. Dallas Cty., 759 F.3d 468, 484 (5th Cir.
2014), abrogated in part by Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–76
(2015). First, a plaintiff may demonstrate “that a municipality had notice of a
pattern of similar violations.” Id. (alteration omitted) (quoting Sanders-Burns
v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010)). Second, a plaintiff may
demonstrate liability based on a single incident if the constitutional violation
was “‘the highly predictable’ consequence of a particular failure to train.” Id.
(citing City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989) and Connick v.
Thompson, 563 U.S. 61, 63–68 (2011)). If we find that Davidson cannot
establish a dispute of fact as to deliberate indifference, we need not address
the other two prongs of supervisory liability. Goodman v. Harris Cty., 571 F.3d
388, 395 (5th Cir. 2009).
As a threshold matter, the proper inquiry for supervisory liability here
would be Chief Krahn’s alleged failure to train or supervise, not his
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No. 16-20217
interpretation of § 38.02. But even if Chief Krahn’s interpretation of § 38.02
was the equivalent of a failure to train or supervise, Davidson has failed to
demonstrate a material dispute of fact concerning the deliberate indifference
of Chief Krahn. Davidson’s evidence is insufficient to demonstrate either a
pattern, as discussed in section III.A.2, supra, or that his injury was a highly
predictable consequence of Chief Krahn’s understanding of § 38.02. That is,
Chief Krahn’s understanding of § 38.02 does not lead to the highly predictable
consequence of officers arresting individuals (including Davidson) without
probable cause. On this point, our prior decision in Brown v. Bryan County,
219 F.3d 450 (5th Cir. 2000) is instructive. There, we found deliberate
indifference where the municipality in question had not trained or supervised
the officer who committed the allegedly unconstitutional conduct. Id. at 462.
We further emphasized the fact that the policymaker, a sheriff, had recently
investigated the officer and was aware of the officer’s “youth, inexperience,
personal background, and ongoing [improper] arrest activities.” Id. at 458,
462. None of the facts in Davidson’s case provide the same cause for concern
we recognized in Bryan County. Defendants provided evidence demonstrating
the extensive training completed by Officers Flagg and Jones, and Davidson
points to no evidence concerning the officers’ backgrounds or activities with the
Stafford PD that demonstrate the high probability of Davidson’s arrest.
Davidson’s evidence therefore fails to create a material dispute of fact as to
deliberate indifference, and the district court correctly granted summary
judgment on his claim for the liability of Chief Krahn in his individual capacity.
In conclusion, we agree with the district court that Davidson’s claims
against the City and Chief Krahn cannot survive summary judgment. But we
hold that Officers Flagg and Jones are not entitled to qualified immunity, as
they had no actual probable cause and were objectively unreasonable to believe
they had probable cause to arrest Davidson.
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No. 16-20217
B. First Amendment As-Applied Claim
Davidson also argues that the district court failed to address his claims
that Defendants’ understanding of sections 38.02 and 42.03 and Davidson’s
arrest resulted in an as-applied violation of Davidson’s First Amendment
rights. We agree. The district court appears to have addressed only Davidson’s
First Amendment claim in the context of § 1983 retaliation, where the district
court granted Defendants summary judgment due to its determination that
Officers Flagg and Jones had “arguable” probable cause. But Davidson
provided undisputed evidence and argued in his filings before the district court
that he intends to continue protesting the Clinic and that Defendants intend
to continue enforcing sections 38.02 and 42.03 in an unconstitutional manner. 7
This evidence is sufficient to demonstrate standing for a First Amendment
challenge. Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014). Regardless
of the outcome of Davidson’s other § 1983 claims, Davidson has stated a valid
claim that sections 38.02 and 42.03, as applied to his conduct, violate his First
Amendment rights. On remand, the district court shall consider this claim
and, if necessary, fashion a remedy in the form of a declaration specific to
Davidson and his protesting at the Clinic. Cf. McCullen v. Coakley, 134 S. Ct.
2518, 2541 (2014) (invalidating overly broad Massachusetts buffer zone statute
regarding healthcare facilities where abortions are performed). This
declaration must clearly define what is and is not allowed by both Davidson,
the City, and its officers under sections 38.02 and 42.03 in light of this opinion.
IV. Conclusion
Except as provided in Section III.B. above, we AFFIRM the district
court’s grant of summary judgment to the City and Chief Krahn on Davidson’s
7Defendants’ intent to unconstitutionally enforce sections 38.02 and 42.03 was further
demonstrated during oral argument through defense counsel’s erroneous interpretation of
the statutes.
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No. 16-20217
§ 1983 claims. We REVERSE the district court’s grant of summary judgment
to Officers Flagg and Jones, and REMAND these § 1983 claims to the district
court. On remand, the district court shall also consider Davidson’s First
Amendment claim and, fashion a declaration, in accordance with this opinion,
delineating both Davidson’s right to protest the Clinic and the scope of
Defendants’ authorization under sections 38.02 and 42.03.
21