Keenan v. Tejeda
| Citation | 290 F.3d 252 |
| Decision Date | 23 April 2002 |
| Docket Number | No. 01-50360.,01-50360. |
| Parties | Richard M. KEENAN and Ray Przybylski, Plaintiffs-Appellants, v. Ruben TEJEDA, Etc.; et al., Defendants, Ruben Tejeda, Bexar County Constable, Precinct 5, Individually and in his Official Capacity, Joseph Martinez, Bexar County Constable, Precinct 5, Individually and in his Official Capacity, Bexar County, Texas, a political subdivision of the State of Texas, Defendants-Appellees. Richard M. Keenan, Plaintiff-Appellant, v. Ruben C. Tejeda, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Philip Martin Ross (argued), Castroville, TX, for Plaintiffs-Appellants.
Susan A. Bowen, Asst. Dist. Atty. (argued), San Antonio, TX, for Defendants-Appellees.
Robert E. Valdez, San Antonio, TX, for Tejeda.
Appeal from the United States District Court for the Western District of Texas.
Before JONES and DeMOSS, Circuit Judges, and LIMBAUGH, District 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. 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.
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 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 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 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 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.
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).
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, 33 L.Ed.2d 570 (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 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...
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