REVISED APRIL 29, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-50360
_______________________
RICHARD M. KEENAN and RAY PRZYBYLSKI,
Plaintiffs-Appellants,
versus
RUBEN TEJEDA, Bexar County Constable, Precinct Five,
Individually and in his Official Capacity,
JOSEPH MARTINEZ, Bexar County Constable, Precinct Five,
Individually and in his Official Capacity, and
BEXAR COUNTY, TEXAS, a political subdivision of the
State of Texas,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, San Antonio Division
_________________________________________________________________
April 23, 2002
Before JONES and DeMOSS, Circuit Judges, and LIMBAUGH, District
Judge.*
EDITH H. JONES, Circuit Judge:
Richard Keenan and Ray Przybylski alerted the Bexar
County district attorney and a San Antonio television station to
possible wrongdoing by a Bexar County constable, Ruben Tejeda.
*
District Judge of the Eastern District of Missouri, sitting by
designation.
After the television station aired a critical report on the
constable, Keenan and Przybylski were subjected to a “felony”
traffic stop by numerous officers with guns drawn, and Keenan was
prosecuted unsuccessfully for “deadly conduct” for allegedly
pointing a gun at the constable. Keenan and Przybylski then filed
this § 1983 action against Constable Tejeda, Deputy Constable
Joseph Martinez, and Bexar County. The district court granted
summary judgment for the defendants. We hold that (1) the
defendants were not entitled to summary judgment on the plaintiffs’
First Amendment retaliation claim, (2) fact questions exist as to
whether Constable Tejeda and Deputy Constable Martinez are entitled
to qualified immunity from suit, (3) the plaintiffs waived their
Equal Protection and Due Process claims by not properly presenting
them to the district court, and (4) Bexar County is not subject to
liability under § 1983.
I. FACTS AND PROCEDURAL HISTORY
Keenan and Przybylski worked for several months in 1995
as reserve deputy constables for Precinct Five of Bexar County.
During this time, Keenan and Przybylski observed on-duty deputy
constables serving notices to vacate premises and providing private
security services. In return for his deputies’ services, Constable
Ruben Tejeda would collect a small fee. Keenan and Przybylski
2
believed these practices were unlawful, a view confirmed by two
Texas Attorney General Letter Opinions.1
After resigning their positions, Keenan and Przybylski
reported these activities to the Bexar County district attorney and
a San Antonio television station, KENS-TV, which aired a highly
critical, six-part investigative report entitled “Constable Cash”
in November 1996. Richard Keenan appeared in the “Constable Cash”
series as a disguised informant. Despite the attempt to conceal
Keenan’s identity, Constable Tejeda and Deputy Constable Joseph
Martinez apparently believed (according to the chief deputy
constable) that Keenan and Przybylski were responsible for exposing
the improper practices in the constable’s office. Keenan and
Przybylski allege that Constable Tejeda and his deputies began
harassing them in retaliation for exercising their First Amendment
rights. The plaintiffs focus on two incidents.
First, in June 1997, Deputy Constable Martinez stopped
Przybylski’s car as Przybylski and Keenan were driving down a
heavily-traveled street in San Antonio at 11:45 p.m. on a Sunday
night. Chief Deputy Constable Michael Lacey stated in his
affidavit that he drove to the scene because he had heard a deputy
say over the precinct’s radio that he had “spotted Keenan and
1
Op. Tex. Att’y Gen. No. 97-026 (1997); Op. Tex. Att’y Gen. No. 97-069
(1997). Both opinions were issued in response to queries from the Bexar County
Criminal District Attorney.
3
Przybylski,” and Deputy Martinez had said, “Let’s get them.” When
Lacey arrived, Martinez and three other deputies were holding
Keenan and Przybylski at gunpoint.2 Constable Tejeda arrived
shortly thereafter with several other deputy constables and four
officers from the San Antonio Police Department. The constables
detained Keenan and Przybylski for approximately 30 minutes to an
hour and cited Przybylski for driving without a rear license-plate
light. The police report suggests that Przybylski showed the
officers that the light was working, but Deputy Martinez wrote in
his report that the “light was inoperable at the time of the
offense.” The traffic ticket was later dismissed.
Second, in December 1997, Keenan attempted to videotape
Constable Tejeda using part-time constable employees illegally to
provide security services at a private facility. Constable Tejeda
noticed Keenan and ordered Deputy Constable Martinez to arrest him
on a misdemeanor “deadly conduct” charge. Constable Tejeda
maintains that Keenan pointed a gun at him. Keenan admits carrying
a 9mm pistol in the glove box of his car, but he insists that he
2
Martinez and the other deputy constables have stated in affidavits
that they observed a traffic violation, that they did not know who was in the car
until one of the deputies asked Przybylski for his driver’s license, and that
they never drew their weapons. But, given the procedural posture of this case,
we view the evidence in the light most favorable to the plaintiffs.
4
was pointing a video camera, not a gun. Keenan was tried on the
deadly conduct charge and found not guilty.3
In 1999, Keenan and Przybylski filed this § 1983 action
against Constable Tejeda, Deputy Constable Martinez, and Bexar
County. The plaintiffs alleged that the defendants retaliated
against them for speaking out against corruption in the constable’s
office. The plaintiffs also asserted that the defendants’ actions
denied them due process and equal protection of the law.
The district court granted summary judgment for the
defendants and dismissed the plaintiffs’ § 1983 action. The
district court ruled that the plaintiffs had no First Amendment
claim for retaliation because the defendants’ actions did not
actually chill the plaintiffs’ exercise of their First Amendment
rights. The district court emphasized that Keenan and Przybylski
were not cowed by Constable Tejeda’s campaign of harassment because
they helped videotape other illegal activities and filed complaints
in 1998 and 1999.
The district court concluded alternatively that the
traffic stop and false accusations would not have deterred a person
of ordinary firmness from engaging in speech activities. As for
3
Keenan and Przybylski also allege that, at several times during 1997
and 1998, Constable Tejeda and Deputy Constable Martinez ordered or encouraged
other employees of Precinct 5 to file false or misleading police reports
involving Keenan and Przybylski. Most of these reports appear to have been filed
in connection with the traffic stop and deadly conduct incidents. The only other
evidence of false statements constitutes inadmissible hearsay.
5
the allegedly false prosecution of Keenan, the court noted that in
this circuit, a criminal prosecution in retaliation for the
exercise of First Amendment rights must satisfy the standards of
malicious prosecution. Colson v. Grohman, 174 F.3d 498, 513 n.8
(5th Cir. 1999); Johnson v. Louisiana Dept. of Agriculture, 18 F.3d
318, 320 (5th Cir. 1994). One of those standards is an absence of
probable cause to prosecute. The district court found that the
facts alleged by Keenan himself established probable cause for
Tejeda to believe Keenan was pointing a gun at him. The court also
found -- erroneously -- that a grand jury indictment had issued,
providing a further basis for probable cause.
Having concluded that the plaintiffs could not prevail on
their First Amendment retaliation claim, the court did not address
further the defendants’ affirmative defense of qualified immunity.
Nor did the district court analyze the plaintiffs’ due process and
equal protection claims, presumably because neither side argued
those issues in their briefs.
On the question of municipal liability, the district
court ruled that Bexar County could not be held liable for the
actions of Tejeda and Martinez because Constable Tejeda is not a
policy-maker for purposes of Monell liability, and the plaintiffs
presented no evidence of a failure to train or failure to
supervise. The plaintiffs have appealed.
II. DISCUSSION
6
We review the district court’s grant of summary judgment
de novo, applying the same substantive standard set forth in FED.
R. CIV. P. 56(c). Horton v. City of Houston, 179 F.3d 188, 191 (5th
Cir. 1999).
A. First Amendment Retaliation
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. Colson, 174 F.3d at 508. As this court explained in
Colson, if government officials were permitted to impose serious
penalties in retaliation for an individual’s speech, then the
government would be able to stymie or inhibit his exercise of
rights in the future and thus obtain indirectly a result that it
could not command directly. Id. at 509-10; Perry v. Sindermann,
408 U.S. 593, 597, 92 S.Ct. 2694, 2697 (1972).
Unlike most of this circuit’s First Amendment retaliation
cases, this case does not involve an employment or other
contractual relationship between the plaintiffs and the
governmental officials. The settled law of other circuits, which
we endorse, holds that to establish a First Amendment retaliation
claim against an ordinary citizen, Keenan and Przybylski must show
that (1) they were engaged in constitutionally protected activity,
(2) the defendants’ actions caused them to suffer an injury that
would chill a person of ordinary firmness from continuing to engage
7
in that activity, and (3) the defendants’ adverse actions were
substantially motivated against the plaintiffs’ exercise of
constitutionally protected conduct. Carroll v. Pfeffer, 262 F.3d
847, 850 (8th Cir. 2001); Smith v. Plati, 258 F.3d 1167, 1176
(10th Cir. 2001); Lucas v. Monroe County, 203 F.3d 964, 973 (6th
Cir. 2000). The issues presented by this appeal are concerned
exclusively with the second element.
The district court concluded that the defendants’
actions, even when viewed in the light most favorable to the
plaintiffs, were not so serious as to discourage a person of
ordinary firmness from continuing to speak out against corruption
in the constable’s office. Certainly, some retaliatory actions --
even if they actually have the effect of chilling the plaintiff’s
speech -- are too trivial or minor to be actionable as a violation
of the First Amendment.4 Colson, for example, involved a city
council member who alleged that the police chief and other city
officials had retaliated against her because of her criticism of
the police department’s budget. We held that the defendants’
alleged actions constituted, at most, a “steady stream of false
accusations and vehement criticism that any politician must expect
to endure;” consequently, an ordinary politician would not be
4
In the employment context, this court’s requirement of an adverse
employment action serves the purpose of weeding out minor instances of
retaliation. Colson, 174 F.3d at 510, 514.
8
deterred from continuing to criticize police officials. See
Colson, 174 F.3d at 511-14.
In this case, Keenan and Przybylski have presented
evidence of two disturbing incidents involving an undercurrent of
violence. First, several constables and other officers stopped
Przybylski’s car in June 1997 and detained both plaintiffs for an
inordinate period of time, allegedly with their guns drawn during
part of the traffic stop, and ultimately issued only a minor
traffic citation that was later dismissed. Second, Keenan was
charged with “deadly conduct,” a misdemeanor under Texas law, under
suspicious circumstances. Keenan was forced to spend thousands of
dollars to exonerate himself at trial and, at the time he executed
his affidavit, neither his pistol nor his concealed handgun license
had been restored to him.
The question, to repeat, is whether a person of ordinary
firmness would have been deterred by these ominous events from
continuing to criticize the constable. Decisions of this and other
circuits have found that various concrete intimidating tactics
would have deterred ordinary persons from criticizing government
officials. See, e.g., North Miss. Comm., Inc. v. Jones, 951 F.2d
652, 653-54 (5th Cir. 1992)(county board’s decision to withhold
legal notice advertising); Bloch v. Ribar, 156 F.3d 673, 681 (6th
Cir. 1998)(release of confidential information regarding a rape
investigation); Nestor Colon Medina & Sucesores, Inc. v. Custodio,
9
964 F.2d 32, 40-41 (1st Cir. 1992)(denial of a land use permit).5
In light of these decisions, we hold that the actions of the
defendants in this case, if proved, are sufficiently intimidating
to chill the speech of a person of ordinary firmness.
Also with respect to the second element of the
retaliation claim, the district court concluded that Keenan and
Przybylski did not actually suffer an injury, inasmuch as they
persisted in exposing and challenging the constable. We are
mindful that § 1983 is a tort statute and that “[a] tort to be
actionable requires injury,” which, in this context, is the
deprivation of a constitutional right. Bart v. Telford, 677 F.2d
622, 625 (7th Cir. 1982). At the same time, “The effect on freedom
of speech may be small, but since there is no justification for
harassing people for exercising their constitutional rights it need
not be great in order to be actionable.” Id. The district court
correctly ruled that a retaliation claim requires some showing that
the plaintiffs’ exercise of free speech has been curtailed. See
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000);
Spear v. Town of West Hartford, 954 F.2d 63, 67 (2d Cir. 1992);
Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989); but see
5
See also Rolf v. City of San Antonio, 77 F.3d 823, 827-28 (5th Cir.
1996) (rejecting Rule 12(b)(6) dismissal of claim that condemnation of
landowners’ property was initiated in retaliation for their opposing construction
of the Applewhite Reservoir). Courts have not been reluctant to grant summary
judgment for hollow or trivial threats of retaliation. See e.g. Smith v. Plati,
supra; Sullivan v. Carrick, 888 F.2d 1 (1st Cir. 1989) (“I’m going to get you for
this, you little smurf!”).
10
Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283,
1300 (9th Cir. 1999)(“[I]t would be unjust to allow a defendant to
escape liability for a First Amendment violation merely because an
unusually determined plaintiff persists in his protected
activity.”); Smith, 258 F.3d at 1177 (“The focus . . . is upon
whether a person of ordinary firmness would be chilled, rather than
whether the particular plaintiff is chilled.”).
The district court clearly erred, however, in finding
that the plaintiffs made no showing of an injury. In his
affidavit, Keenan explained that after the incidents in June 1997
and December 1997, he was afraid to travel in Precinct 5 and he
“backed off from direct involvement in helping expose unlawful
practices” in the constable’s office. (Keenan goes on to say,
though, that he videotaped one instance of suspected unlawful
activity and filed a complaint with a state agency against
Constable Tejeda.) Przybylski made similar assertions in his
affidavit. Thus, both plaintiffs have stated, without
contradiction, that they curtailed their protected speech
activities in response to the defendants’ actions. At this stage
of the litigation, the plaintiffs have sufficiently averred that
they were deprived of a constitutional right, even though they were
not completely silenced. A required showing of actual injury does
not necessarily mean that plaintiffs must cease criticizing the
11
government officials altogether in order to have a claim for
retaliation.
Finally, the district court articulated an alternative
reason for granting summary judgment with respect to claims arising
from the “deadly conduct” charge against Keenan. As noted above,
we have held that retaliatory criminal prosecutions in violation of
the First Amendment are actionable only if a plaintiff can also
prove the common-law elements of malicious prosecution, including
the absence of probable cause to prosecute. See Johnson, 18 F.3d
at 320; see also Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir.
1992) (“An individual does not have a right under the First
Amendment to be free from a criminal prosecution supported by
probable cause that is in reality an unsuccessful attempt to deter
or silence criticism of the government.”); Curley v. Village of
Suffern, 268 F.3d 65, 73 (2d Cir. 2001). The district court found,
however, that Constable Tejeda had probable cause to arrest and
that a grand jury indictment removed any doubt of probable cause.
The court was wrong about the indictment; there was none.6 And it
found probable cause entirely on Keenan’s own statements, accepting
those which militated in favor of probable cause and ignoring those
which did not.
6
The deadly conduct charge against Keenan was a Class A misdemeanor
and not an indictable offense. See Tex. Pen. Code § 22.05(a); Tex. Code Crim.
Proc. art. 2.05.
12
The district court incorrectly drew its conclusion on
summary judgment despite the existence of fact issues concerning
the constable’s perception of Keenan’s actions. The court
emphasized that Keenan indisputably was pointing something at
Tejeda and that Tejeda could have believed it was a gun. Probable
cause, in the context of malicious prosecution claims, refers to
“The existence of such facts and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.” Kerr v. Lyford, 171 F.3d
330, 340 (5th Cir. 1999). Constable Tejeda is entitled to summary
judgment only if the ultimate finding of probable cause is not the
subject of a genuine, material factual dispute. Id. But the only
fact supporting the deadly conduct charge is Constable Tejeda’s own
assertion that “I am a trained law enforcement officer, and I know
a gun when I see it.” Neither of the other two officers present
saw Keenan point a gun. (Deputy John Rothenbach stated in his
affidavit that he told Constable Tejeda that he thought he had seen
Keenan drive by earlier in the evening.) Chief Deputy Lacey and
another deputy conducted a re-enactment about a week after the
arrest, and they concluded it was unlikely that Constable Tejeda
could have seen someone in a moving vehicle and in the dark
pointing a gun at him. Moreover, the manner of the arrest – Keenan
was not hand-cuffed for quite some time; the pistol was removed
13
from his glove compartment; knives may have been planted in his
vehicle as additional incriminating evidence – may suggest that he
was not viewed as a threat despite the nature of the charge
eventually filed. For summary judgment purposes, there are genuine
issues of material fact concerning whether the deadly conduct
charge lacked probable cause.
B. Qualified Immunity
Whether a government official is entitled to qualified
immunity, to the extent that it turns on a question of law, is a
question that we review de novo, even where the district court has
not passed on the objective reasonableness of the defendants’
actions. See, e.g., Kennedy v. Tangipahoa Parish Library Bd. of
Control, 224 F.3d 359, 376-77 (5th Cir. 2000).
The Supreme Court recently emphasized that claims of
qualified immunity require a two step analysis. Saucier v. Katz,
533 U.S. 194, 121 S.Ct. 2155 (2001). The threshold question is
“whether the facts alleged, taken in the light most favorable to
the party asserting the injury, show that the officer’s conduct
violated a constitutional right.” Price v. Roark, 256 F.3d 364,
369 (5th Cir. 2001)(citing Saucier, 533 U.S. at 201, 121 S.Ct. at
2156). Viewing the facts in the light most favorable to Keenan and
Przybylski, the defendants’ actions violated the First Amendment.
As we discussed above, Keenan and Przybylski were engaged in
constitutionally protected activity and suffered an injury that
14
would chill a person of ordinary firmness. Further, because it is
reasonable to assume (at this stage of the litigation) that the
“Constable Cash” broadcast was both politically and financially
damaging to Constable Tejeda and his deputies, and because the
harassment followed a few months after the report was aired, there
is sufficient evidence that the defendants’ actions were
substantially motivated as a response to the plaintiffs’ exercise
of protected conduct.
The next question is “whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation
he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. at 2156. If
the officer’s conduct was objectively reasonable in the light of
clearly established federal law, he is entitled to qualified
immunity from suit. This court has stated that government
retaliation against a private citizen for exercise of First
Amendment rights cannot be objectively reasonable. Rolf, 77 F.3d
at 828.7 The Rolf case did not, however, consider a situation in
which law enforcement officers might have a motive to retaliate but
7
In some cases, the balancing of rights required by the First
Amendment – either to determine what constitutes protected speech or to balance,
e.g., the public employee’s rights against those of the employer – strongly
favors qualified immunity. See Noyola v. Texas Dept. of Human Resources, 846
F.2d 1021, 1025 (5th Cir. 1988). In this case, however, the protected nature of
appellants’ speech is undisputed. And if a jury finds that the constable and
deputy constable were substantially motivated to and did deter appellants’
efforts to expose official misconduct, then there is no immunity shield for their
obvious wrongdoing. Such official intimidation strikes at the heart of First
Amendment freedoms.
15
there was also a ground to charge criminal conduct against the
citizen they disliked. In that situation, the objectives of law
enforcement take primacy over the citizen’s right to avoid
retaliation. See Mozzochi, 959 F.2d at 1179. The test for
qualified immunity, therefore, involves, though it does not end
with, the question of probable cause. If no reasonable police
officer could have believed that probable cause existed for the law
enforcement actions of Tejeda and Martinez against the plaintiffs,
then their retaliation violated clearly established law in this
circuit. See Rolf, 77 F.3d at 828; compare Click v. Copeland, 970
F.2d 106, 109 (5th Cir. 1992). If probable cause existed, however,
or if reasonable police officers could believe probable cause
existed, they are exonerated. Based on the several diametrically
opposed summary judgment affidavits before us, it is impossible to
determine whether qualified immunity stated in terms of probable
cause existed. Hence, qualified immunity turns on fact issues that
must be resolved by further proceedings in the trial court.
Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 842
(1996).
C. Due Process and Equal Protection
Keenan and Przybylski included due process and equal
protection claims in their complaint, and they have briefed these
issues on appeal. These issues have not been preserved. Due
process and equal protection were not even mentioned, much less
16
argued, in the defendants’ motion for summary judgment, in the
plaintiffs’ response to the motion for summary judgment, or in the
district court’s memorandum opinion granting summary judgment. Nor
did the plaintiffs file a motion for reconsideration following the
court’s dismissal of the entire action. Because the due process
and equal protection arguments were not properly presented to the
district court, we may not consider them here. In a factually
analogous case, the First Circuit explained:
Even an issue raised in the complaint but ignored at
summary judgment may be deemed waived. “If a party fails
to assert a legal reason why summary judgment should not
be granted, that ground is waived and cannot be
considered or raised on appeal.” This is because “an
appellate court, in reviewing a summary judgment order,
can only consider those matters presented to the district
court.”
Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir.
1995)(quoting Vaughner v. Pulito, 804 F.2d 873, 877 n. 2 (5th Cir.
1986), and Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582
F.2d 333, 334 (5th Cir. 1978). The summary judgment is therefore
affirmed with respect to the plaintiffs’ due process and equal
protection claims.
D. Monell liability
The final issue is whether the district court erred in
granting summary judgment for Bexar County. A government entity
may be held liable under § 1983 only when the injury results from
the “execution of a government’s policy or custom, whether made by
17
its lawmakers or by those whose edicts and acts may fairly be said
to represent official policy.” Monell v. Deparment of Social
Services, 436 U.S. 658, 694 (1978). Keenan and Przybylski present
three arguments for subjecting Bexar County to Monell liability,
none of which is persuasive.
First, Keenan and Przybylski contend that Constable
Tejeda had policy-making authority for the county and,
consequently, that his decision to retaliate against the plaintiffs
may fairly be said to represent the county’s official policy.
Whether a county constable in Texas possesses final policy-making
authority for purposes of Monell liability is a question of state
law. McMillian v. Monroe County, Alabama, 520 U.S. 781, 786
(1997). In a case involving an unlawful arrest, this court held
unambiguously that, under Texas law, Texas county constables are
not considered policy-makers in the area of law enforcement. Rhode
v. Denson, 776 F.2d 107, 108-10 (5th Cir. 1985)(“We are unpersuaded
that a constable of a Texas county precinct occupies a relationship
to the County such that his edicts or acts may fairly be said to
represent official county policy.”). Pursuant to Rhode, Constable
Tejeda cannot be considered a policy-maker for Bexar County.
Second, Keenan and Przybylski contend that the June 1997
traffic stop was the result of the county’s “zero tolerance” policy
with respect to traffic violations on Southwest Military Drive.
According to this joint city-county policy, all Bexar County
18
officers -- whether from the sheriff’s office, constable’s office,
or city police department -- were instructed to issue citations for
all violations that the officers observed. Keenan and Przybylski
suggest that the county policy provided a pretext for Constable
Tejeda’s and Deputy Martinez’s decision to harass them. This
argument fails because the appellants do not complain about the
citation itself as much as the intimidating tactics and the length
of the detention, neither of which is attributable to the county’s
“zero tolerance” policy. More fundamentally, though, the
plaintiffs have not established the kind of “affirmative link”
between a clearly permissible county policy and the alleged
injuries that is required by our Monell caselaw. See Stokes v.
Bullins, 844 F.2d 269, 272-73, 276 (5th Cir. 1988)(citing City of
Oklahoma City v. Tuttle, 471 U.S. 808, 822-24 (1985)); see also
Board of County Comm’rs of Bryan County, Oklahoma v. Brown, 520
U.S. 397, 404 (1997)(“[A] plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and
the deprivation of federal rights.”).
Third, Keenan and Przybylski contend that the county may
be held liable for its inadequate training and supervision of its
constables and deputy constables. See City of Canton, Ohio v.
Harris, 489 U.S. 378, 389 (1989)(“Only where a failure to train
reflects a ‘deliberate’ or ‘conscious’ choice by a municipality .
19
. . can a city be liable for such a failure under section 1983.”).
The plaintiffs presented no evidence of lack of training,
supervision or deliberate indifference.
III. CONCLUSION
We conclude that the district court erred in granting
summary judgment for the defendants, Constable Ruben Tejeda and
Deputy Constable Joseph Martinez, on the plaintiffs’ First
Amendment claim. Moreover, there are fact issues regarding the
appellees’ qualified immunity on this claim. In all other
respects, the judgment is affirmed. The case is remanded for
further proceedings not inconsistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
20