Buehler v. Dear

Decision Date03 March 2022
Docket NumberNo. 20-50822,20-50822
Citation27 F.4th 969
Parties Antonio BUEHLER, Plaintiff—Appellee Cross-Appellant, v. Randy DEAR, in his individual and official capacities, Aljoe Garibay, in his individual and official capacities; Wesley Devries, in his individual and official capacities; Monika McCoy, in her individual and official capacities, Defendants—Appellants Cross-Appellees, City of Austin, Quint Sebek, in his individual and official capacities; John Leo Coffey, in his individual and official capacities; Ryan Adams, in his individual and official capacities; Allen Hicks, in his individual and official capacities; Reginald Parker, in his individual and official capacities, Defendants—Cross-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Daphne L. Silverman, Silverman Law Group, Austin, TX, for PlaintiffAppellee Cross-Appellant.

Amanda Garrett Taylor, Butler Snow, L.L.P., Ridgeland, MS, Marshall Ayres Bowen, Butler Snow, L.L.P., Austin, TX, for DefendantsAppellants Cross-Appellees.

Before Clement, Southwick, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

This appeal concerns the line between filming the police, which is legal, and hindering the police, which is not. Without question, video footage plays a major role in exposing incidents of police brutality. The ubiquity of smartphone cameras has made eyewitnesses of us all; as smartphones proliferate, so do recordings of police interactions (some commendable, others condemnable). The rub is figuring out when filming veers from documenting to interfering. For example, how far away should a citizen-videographer be so as not to get in the way? How close is "too close" such that the filming, however well-intentioned, becomes hazardous, diverting officers' attention and impeding their ability to perform their duties in fast-moving, highly charged situations?

In the wee hours of August 2, 2015, Antonio Buehler, a police-accountability activist, was arrested on crowded Sixth Street in downtown Austin while "cop watching" (video-recording police activity). Buehler insists he was just filming; the officers insist he was interfering. In short, Buehler and the officers had repeated verbal confrontations about how close to them he was permitted to stand while recording. The bickering escalated, with Buehler ultimately arrested for misdemeanor interference with performance of official duties. Four Austin police officers took Buehler to the ground and handcuffed him, with Buehler suffering minor bruises and lesions as a result.

Buehler brought various constitutional claims against the City of Austin and nine officers of the Austin Police Department. Buehler alleged false arrest and excessive force in violation of the Fourth Amendment and retaliation for the exercise of his First Amendment right to film the police. The district court ruled mostly for the Defendants, but not fully. It dismissed Buehler's municipal-liability and First Amendment claims and granted summary judgment to the individual Defendants on Buehler's false-arrest claim, while denying summary judgment on his excessive-force claim. Defendants filed this interlocutory appeal of the partial denial of their summary judgment motion, and Buehler cross-appealed the district court's unfavorable rulings of all but his excessive-force claim.

We hold that none of the officers involved in Buehler's arrest used excessive force in violation of the Fourth Amendment. We also conclude that summary judgment for the officers on Buehler's false-arrest claim was proper; the officers were entitled to qualified immunity on Buehler's First Amendment claim; and Buehler's bystander- and municipal-liability claims fail for lack of an underlying constitutional violation. Accordingly, we REVERSE the district court's denial of summary judgment as to Buehler's excessive-force claim and AFFIRM the district court in all other respects.

I

Cross-Appellant Antonio Buehler leads the Peaceful Streets Project (PSP), a watchdog organization with the stated mission of holding police accountable for official misconduct. In the early morning hours of August 2, 2015, Buehler and several other PSP members were cop watching in downtown Austin. Buehler regularly filmed the Austin police, and many officers were familiar with him. In footage taken by Buehler, Officer Randy Dear can be seen talking to a passerby while Buehler films the encounter. Afterwards, Dear turns away, at which point Buehler shouts at Dear to get his attention and then begins arguing with Dear about the extent of Buehler's right to film the police. Buehler repeatedly interrupts Dear's answers to questions, and Dear tries several times to walk away while Buehler follows with his camera. Towards the end of the clip, Buehler can be heard saying, "I'm going after Dear. F***ing pigs. I hate pigs."

Other footage shows that, as of around 1:30 a.m., Buehler was standing next to a group of police officers standing in the middle of Sixth Street. Buehler is positioned extremely close to (though not physically touching) Officer Dear, and the two can be heard arguing contentiously from time to time. Officers Garibay and DeVries also can be seen arguing with Buehler about whether he was maintaining a sufficient distance while filming. In footage taken by Buehler, Dear can be seen turning to Buehler and telling him, "just going to let y'all know, the next time we go to a disturbance and y'all get in the way .... The next time you're interfering, you're going to be arrested." As he walks away from Buehler, Dear then adds, "You've been warned, sir." Buehler follows him briefly before pointing his camera at the other officers and asking several times, "What does that mean? Can you explain that?" Officer Sebek responds, "arm's length, please. Arm's length, please." Footage taken from another angle shows that Buehler continued to stand closer to the officers than an arm's length away (certainly no more than two feet, and probably no more than one).

After nearly two minutes pass with little movement by the officers or Buehler, Dear turns to Buehler to give further orders, telling Buehler, "you're interfering with my space here so I can monitor the crowd," and, "I'm going to ask you one more time." Buehler then takes several steps and pivots such that he is directly facing Dear, but standing about the same distance away. A few seconds later, Dear tells Buehler, "Go ahead and turn around, sir. Go ahead and turn around," and "You're under arrest." While Dear is giving these orders, Buehler begins taking steps backward away from the officers, even as Dear is walking forward towards Buehler. Buehler then turns his back on the officers and takes one or two additional steps away from them. Officer Garibay grabs Buehler's wrists from behind in an attempt to restrain him. Footage of the incident taken at ground level appears to show Buehler taking another step after being grabbed, lurching forward as Garibay attempts to make the arrest, though aerial ("x") footage taken by an APD camera suggests that Buehler's sudden motion was most likely an attempt to throw the device with which he was filming to someone else so as to preserve his footage. At that point, Dear, Garibay, and DeVries take Buehler to the ground and hold him in a prone position while placing him in handcuffs. Officer McCoy also ran to assist after Buehler was taken down, holding Buehler's legs still while the other officers carry out the arrest. Buehler remained on the ground for between 40 and 45 seconds.

Afterwards, the officers took him to the Travis County jail and booked him for misdemeanor interference with official duties and resisting arrest. Buehler claims to have suffered mental pain, bruises on his tricep and head, and abrasions to his face as a result of the arrest (though any facial injuries he suffered were apparently not serious enough to be visible in photographs of him taken soon after the incident).

* * *

In August 2017, Buehler sued the City of Austin and nine APD officers (Dear, Garibay, DeVries, McCoy, Sebek, Coffey, Adam, Hicks, and Parker1 ) under 42 U.S.C. § 1983, alleging false arrest and excessive force in violation of the Fourth Amendment, and retaliation for exercise of his First Amendment right to film police. Buehler also brought municipal-liability claims against the City and bystander-liability claims against the officers not directly involved in his arrest. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted Defendants' motion in part, holding that they were entitled to qualified immunity on the First Amendment claim; and that Buehler had failed to state claims for either bystander- or municipal-liability, or for excessive force against Defendants Coffey, Sebek, Hicks, or Adam. But the district court denied Defendants' 12(b)(6) motion as to Buehler's false-arrest and excessive-force claims against the four officers who participated in his arrest (Dear, Garibay, DeVries, and McCoy, hereinafter "Officers").2

The arresting Officers subsequently moved for summary judgment on Buehler's remaining claims. The district court granted the Officers' motion as to the false-arrest claim but held that Buehler had established a genuine dispute of material fact as to whether they were entitled to qualified immunity on the excessive-force claim, thus precluding summary judgment.3 The district court subsequently denied both Buehler's motion for reconsideration and the Officers' motion to alter or amend judgment. The Officers then filed this interlocutory appeal of the denial of summary judgment on the excessive-force claim, and the district court granted Buehler's request for certification of partial final judgment so that he could cross-appeal that court's judgment in all other respects.4

II

The standards of review governing Buehler's cross-appealed claims are straightforward. He appeals the dismissals of his First Amendment and...

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