639 Fed.Appx. 986 (5th Cir. 2016), 14-60357, Brooks v. City of West Point

Docket Nº:14-60357
Citation:639 Fed.Appx. 986
Opinion Judge:STEPHEN A. HIGGINSON, Circuit Judge:
Party Name:GREGORY BROOKS, Plaintiff - Appellant v. CITY OF WEST POINT, MISSISSIPPI; JIMMY BIRCHFIELD; WILLIAM SPRADLING, Defendants - Appellees
Attorney:For GREGORY BROOKS, Plaintiff - Appellant: Brandon Lyle Flechas, Stroud Law Firm, P.C., Southaven, MS. For CITY OF WEST POINT, MISSISSIPPI, JIMMY BIRCHFIELD, WILLIAM SPRADLING, Defendants - Appellees: LeAnn Walber Nealey, Lemuel Eggleston Montgomery, III, Attorney, Orlando Rodriquez Richmond, Sr....
Judge Panel:Before DENNIS, PRADO, and HIGGINSON, Circuit Judges. JAMES L. DENNIS, Circuit Judge, specially concurring. JAMES L. DENNIS, Circuit Judge, specially concurring:
Case Date:February 11, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 986

639 Fed.Appx. 986 (5th Cir. 2016)

GREGORY BROOKS, Plaintiff - Appellant

v.

CITY OF WEST POINT, MISSISSIPPI; JIMMY BIRCHFIELD; WILLIAM SPRADLING, Defendants - Appellees

No. 14-60357

United States Court of Appeals, Fifth Circuit

February 11, 2016

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1

Appeal from the United States District Court for the Northern District of Mississippi. USDC No. 1:12-CV-190.

For GREGORY BROOKS, Plaintiff - Appellant: Brandon Lyle Flechas, Stroud Law Firm, P.C., Southaven, MS.

For CITY OF WEST POINT, MISSISSIPPI, JIMMY BIRCHFIELD, WILLIAM SPRADLING, Defendants - Appellees: LeAnn Walber Nealey, Lemuel Eggleston Montgomery, III, Attorney, Orlando Rodriquez Richmond, Sr., Esq., Margaret Zimmerman Smith, Butler Snow, L.L.P., Ridgeland, MS.

Before DENNIS, PRADO, and HIGGINSON, Circuit Judges. JAMES L. DENNIS, Circuit Judge, specially concurring.

OPINION

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STEPHEN A. HIGGINSON, Circuit Judge:[*]

Gregory Brooks filed this 42 U.S.C. § 1983 suit against West Point, Mississippi police officers Jimmy Birchfield and William Spradling, alleging that the officers violated his constitutional rights by unlawfully arresting him without probable cause, by unlawfully arresting him in retaliation for his exercise of freedom of speech, and by using excessive force upon him. The district court granted summary judgment in favor of both defendants on the ground of qualified immunity. We affirm in part and reverse in part.

I.

We summarize the evidence in the light most favorable to Brooks. The dispute began when Brooks called 911 to complain of harassing phone calls from his sister in Atlanta, and Birchfield responded to Brooks's home. When Birchfield told Brooks that he could not immediately press charges, Brooks became angry and used curse words and other disrespectful language in telling Birchfield to get off his property, but did not verbally or physically threaten Birchfield or make any threatening, combative or other overt gesture toward him. The exact words Brooks used are disputed.1

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Birchfield then told Brooks that he was " fixing to go to jail for disorderly conduct" and called for backup; while he was waiting in his car for a second officer, he told Brooks's wife and daughter--who had come out to talk to him--that Brooks would be arrested for disorderly conduct. When Spradling arrived, the two officers knocked on Brooks's front door and asked him to come outside, planning to arrest him for disorderly conduct. Brooks ran out of the house through a different door and moved quickly toward the officers, demanding to know why the officers were banging on his door (again, using some level of expletive that the parties dispute).

Here, accounts of the incident diverge. Brooks and two of his family members testified that Spradling quickly grabbed Brooks's arms and pulled them behind his back, and that Brooks put his hands up only to block the impact of Birchfield, who ran into Brooks and then yelled that he was going to charge him with assaulting an officer or resisting arrest. On the other hand, Spradling testified that he grabbed Brooks only after Brooks had first " shoved" Birchfield. And Birchfield testified that almost as soon as Brooks exited his home, he told Brooks that he was under arrest and to put his hands behind his back; Spradling then grabbed Brooks, who pulled free and " came at" and " pushed" Birchfield.

After that disputed stage of the second encounter, the officers took hold of Brooks, pushed him against the garage door, and forced him to the ground, resulting in abrasions on his hands and knees. Once Brooks was on the ground, he was handcuffed and led to Spradling's squad car. Brooks complained of pain in his back and neck, so the officers had an ambulance take him to a hospital, where he was treated for abrasions. Brooks also claims that the incident exacerbated his Post-Traumatic Stress Disorder (PTSD) symptoms.

II.

We review a district court's summary judgment decision de novo. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). We employ a two-pronged inquiry to resolve questions of qualified immunity at summary judgment. " The first asks whether the facts, '[t]aken in the light most favorable to the party asserting the injury, . . . show the officer's conduct violated a [federal] right[.]'" Tolan v. Cotton, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014) (per curiam) (alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The second prong " asks whether the right in question was 'clearly established' at the time of the violation." Id. (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). " [U]nder either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment." Id. at 1866.

Because the non-moving party's disputed evidence must be credited on a motion for summary judgment, the district court erred in dismissing on the basis of qualified immunity Brooks's claim that he was arrested without probable cause. " The right to be free from arrest without probable cause is a clearly established constitutional right." Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994). We look to the moment Brooks was arrested to determine whether the officers could have reasonably believed that they had probable cause--that " there was a fair probability that [Brooks] had committed or was committing an offense." Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir. 2004);

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see United States v. Tinkle, 655 F.2d 617, 623 (5th Cir. Unit A 1981) (" The critical time is the moment of arrest, not the moment the officer makes the decision to arrest." ).

It is regrettable when police are summoned and respond, only to be cursed. But viewing the facts at the time of arrest in the light most favorable to Brooks, no reasonable officer could have believed that he could arrest Brooks solely because of the words he used during his first encounter with Birchfield, which constituted neither " fighting words" punishable under the First Amendment nor disorderly conduct under Mississippi law. See City of Houston v. Hill, 482 U.S. 451, 461-63, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Gooding v. Wilson, 405 U.S. 518, 521-28, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Jones v. State, 798 So.2d 1241, 1247-48 (Miss. 2001) (en banc) (holding that a defendant's profane remarks to a police officer could not have given the officer reason to believe that a breach of the peace had occurred); Brendle v. City of Houston, 759 So.2d 1274, 1283-84 (Miss.Ct.App. 2000) (en banc) (holding that curse words addressed to a police officer were not fighting words punishable under Mississippi profanity statute). And although Spradling and Birchfield's disputed versions of the events after they knocked on Brooks's door might support a finding that the officers had probable cause to believe that Brooks committed simple assault or resisted a lawful arrest,[2] the facts established by the testimony of Brooks and his family--which we must credit on a motion for summary judgment--do not. The district court therefore erred in granting summary judgment on this claim.

The district court also erred in granting summary judgment to Birchfield on the basis of qualified immunity with respect to Brooks's claim for retaliation in violation of the First Amendment. On that claim, Brooks must show that (1) he " engaged in constitutionally protected activity" ; (2) Birchfield's actions caused Brooks " to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity" ; and (3) Birchfield's " adverse actions were substantially motivated against" Brooks's exercise of constitutionally protected speech. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). Viewing the evidence in the light most favorable to Brooks, a jury could conclude that Brooks's speech was constitutionally protected, that his arrest for cursing a police officer was an injury that would chill the speech of a person of ordinary firmness, and that Birchfield's decision to arrest Brooks was motivated against his exercise of protected speech. See

id. at 258-61. On this view of the evidence, it also would have been clear to any reasonable officer that Birchfield's conduct was unlawful because (1) " government retaliation against a private citizen for exercise of First Amendment rights cannot be objectively reasonable," and (2) as discussed, it is materially disputed whether Birchfield had a legitimate ground to arrest Brooks that could " take primacy over [Brooks's] right to avoid retaliation." See id. at 261-62. Thus, " qualified immunity turns on fact issues that must be resolved by further...

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