Allen v. Cisneros, 15–20264.

• Decision Date: 09 March 2016
• Docket Number: No. 15–20264.,15–20264.
• Citation: 815 F.3d 239
• Parties: David ALLEN, Plaintiff–Appellee v. A.H. CISNEROS; J. Montelongo, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

815 F.3d 239

David ALLEN, Plaintiff–Appellee

v.A.H. CISNEROS; J. Montelongo, Defendants–Appellants.

No. 15–20264.

United States Court of Appeals, Fifth Circuit.

March 9, 2016.

Erin Jude Kuenzig, Erin Elizabeth Mersino, Kate Margaret O'Reilly Oliveri (argued), Thomas More Law Center, Ann Arbor, MI, for Plaintiff–Appellee.

Robert William Higgason (argued), Suzanne Reddell Chauvin, Esq., City of Houston Legal Department, Houston, TX, John B. Wallace, J. Wallace Legal, Houston, TX, for Defendants–Appellants.

Before KING, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:

Plaintiff–Appellee David Allen participated in several demonstrations throughout the City of Houston that led to his detention and arrest by police officers, including Defendants–Appellants Aaron Cisneros and Juan Montelongo. Allen brought claims under 42 U.S.C. § 1983

against Sergeant Cisneros and Officer Montelongo, among others, alleging that the officers violated his constitutional rights. The district court denied the officers' motion for summary judgment on qualified immunity grounds, and the officers appealed. Because we hold that the officers are entitled to qualified immunity, we REVERSE the district court's order denying summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Since at least 2010, Plaintiff–Appellee David Allen has regularly engaged in street preaching throughout Houston, Texas, sounding a shofar as part of his preaching.¹ After Allen's activities led to his detention and arrest by police officers on multiple occasions, he filed a complaint in the United States District Court for the Southern District of Texas, alleging numerous violations of his constitutional rights arising out of several encounters with police officers. Two encounters are at issue in this appeal: Allen's encounter with Officer Montelongo on October 31, 2011, and his encounter with Sergeant Cisneros on January 14, 2012.

A. Incident Involving Officer Montelongo

On October 31, 2011, Allen was street preaching at a bus stop in Houston with David Stokes—another street preacher—and two other individuals. Officer Montelongo arrived on the scene in response to a disturbance call. He possessed a template that measured whether signs and objects used by demonstrators complied with Houston Ordinance § 28–33,² which describes the items that may be carried at a demonstration. He measured the signs and informed Stokes that the signs did not comply with the ordinance. Officer Montelongo also informed Allen that he could not have his shofar, which measured approximately thirty-seven inches long and six inches in width, and which Allen possessed throughout the entire incident. As Officer Montelongo and Stokes argued about whether the signs complied with the ordinance, Officer Montelongo's supervising officer arrived. While the officers discussed the situation, Stokes approached the officers, and the supervising officer detained Stokes. According to Officer Montelongo, Allen entered into the oncoming street traffic while Stokes was being detained. Officer Montelongo pulled Allen back onto the sidewalk, but Allen resisted and fell, leading to Officer Montelongo and another officer handcuffing Allen for the officers' and Allen's safety. According to Allen, however, he never entered or tried to enter the street; instead, the officers detained and handcuffed Allen as he attempted to use his cell phone to videotape Stokes' treatment by the officers. The parties agree that Allen was placed in the back of a police car after being handcuffed. Officer Montelongo ultimately issued citations to Stokes and Allen for violating the city ordinance, and confiscated the signs and Allen's shofar.³

B. Incident Involving Sergeant Cisneros

On January 14, 2012, Allen and Stokes protested in downtown Houston on the route of the Houston Marathon. Allen had his shofar and Stokes had several signs displaying controversial messages. A race official approached, stood in front of one of the signs, and exchanged words with Stokes. A police officer spoke with Stokes, and subsequently called for assistance because of "two extremely uncooperative males" that were causing a disruption along the race route.

Upon arriving at the scene, Sergeant Cisneros spoke with the other officer and the race official about the disruption. Sergeant Cisneros approached Stokes and Allen and directed them to move back from the edge of the race route, but Stokes verbally refused to move. Sergeant Cisneros told Stokes "[c]ome on with me" and escorted Stokes towards Sergeant Cisneros' police car, which was parked on a street blocked off for the race. As Sergeant Cisneros detained Stokes, Allen videotaped the encounter, following Sergeant Cisneros and "com[ing] up behind him." Sergeant Cisneros turned and told Allen, "I'm going to tell you. I do not want you near my police car. I'm going to order you to go away. If you do not go away, I'm going to put you in jail for interfering with a police investigation." Allen began walking backwards while continuing to videotape. Sergeant Cisneros then told Allen that "[i]f we are going to play the step-by-step game, I'm going to put you in the backseat of the car also." Allen verbally protested, claiming that he was on a public sidewalk and asking what he was doing wrong. Sergeant Cisneros confiscated the video camera from Allen, frisked him, and placed him in the backseat of the patrol car with Stokes.

After checking Stokes' and Allen's identification, Sergeant Cisneros released both men, returning their personal belongings. Allen began walking towards Sergeant Cisneros' patrol car with the video camera. Sergeant Cisneros contends that he warned Allen to stay out of the street, although Allen disputes that such a warning occurred. After Allen entered the street, Sergeant Cisneros arrested him. Sergeant Cisneros issued Allen a citation for failure to obey a lawful order of a police officer directing traffic and for violating Houston Ordinance § 28–33 by possessing a staff while participating in a demonstration.⁴

C. Procedural History

On May 15, 2013, Allen filed his complaint seeking relief under 42 U.S.C. § 1983

. Allen alleged that Defendants seized him in retaliation for his exercise of his freedom of speech, in violation of the First Amendment, and that the seizures were without probable cause or other lawful authority, in violation of the Fourth Amendment.⁵ Defendants moved for summary judgment, asserting that they were entitled to qualified immunity. The magistrate judge issued a memorandum and recommendation, advising that the district judge deny summary judgment on qualified immunity grounds as to the seizures of Allen by both Defendants.⁶ As to the incident involving Officer Montelongo, the magistrate judge found that there was a genuine factual dispute of whether Allen had entered the street when he was detained by Officer Montelongo. Similarly, the magistrate judge found that there was a genuine factual dispute of whether Allen complied with Sergeant Cisneros' orders and whether Allen remained bound by Sergeant Cisneros' prior orders. Both Defendants filed objections, but the district court adopted the magistrate judge's memorandum and recommendation in its entirety. Defendants timely appealed the denial of their summary judgment motion based on qualified immunity.

II. STANDARD OF REVIEW

An order denying summary judgment on qualified immunity "is a collateral order subject to immediate appeal." Brauner v. Coody, 793 F.3d 493, 497 (5th Cir.2015)

. However, "[t]his court has jurisdiction over such an order only ‘to the extent that the district court's order turns on an issue of law.’ " Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir.2014) (quoting Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir.2010) ). Accordingly, we lack jurisdiction to review the genuineness of a fact issue but have jurisdiction insofar as the interlocutory appeal "challenges the materiality of [the] factual issues." Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 490 (5th Cir.2001). We review de novo the district court's conclusions regarding the materiality of the facts, Gibson, 773 F.3d at 666, "consider[ing] only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment," Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.2004) (en banc). "Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs' version of the facts as true." Id.

III. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY

"The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)

(quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). "Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ " Id. (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ). A plaintiff can overcome a qualified immunity defense by 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, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Allen contends that Officer Montelongo and Sergeant Cisneros unlawfully seized him in retaliation for exercising his freedom of speech, in violation of the First and Fourth Amendments. However, because the genuine disputes identified by the district court are not material and Allen has failed to show that either officer violated his constitutional rights, Defendants are entitled to qualified immunity.

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