Perkins v. Hart ( 2023 )

Case: 22-30456 Document: 00516985624 Page: 1 Date Filed: 11/30/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
November 30, 2023
No. 22-30456 Lyle W. Cayce
____________ Clerk
Teliah C. Perkins, individually and as parent and natural guardian of
D.J., a minor,
Plaintiff—Appellee,
versus
Kyle Hart; Ryan Moring,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-879
______________________________
Before Elrod, Ho, and Wilson, Circuit Judges.
Per Curiam: *
Teliah C. Perkins was arrested by two St. Tammany Parish Sheriff’s
Deputies, Kyle Hart and Ryan Moring, after the Deputies responded to
reports of a person driving a dirt bike recklessly and without a helmet. The
Deputies approached Perkins in her driveway and asked for her license,
registration, and proof of insurance. The situation escalated quickly. The
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Deputies initiated an arrest; Perkins resisted but was eventually taken to the
ground and handcuffed. Perkins’s minor son D.J. and her nephew recorded
the altercation with their cell phones. At one point, the videos briefly show
Deputy Hart’s hand on Perkins’s throat as he struggled to get up off the
ground. Perkins sued, alleging claims of excessive force used against her and
D.J. She also alleged a First Amendment retaliation claim on behalf of D.J.
The Deputies moved for summary judgment, raising qualified
immunity as a defense to the claims. The district court largely denied the
Deputies’ motion. On appeal, we dismiss in part, reverse and render in part,
and remand for further proceedings.
I.
A.
Perkins is a resident of Slidell, Louisiana. 1 On May 5, 2020, she
observed the Deputies riding down the street on police motorcycles. The
Deputies turned their motorcycles around, drove to her driveway, and
shouted for her to come to them. The Deputies asked for her driver’s license,
registration, and proof of insurance, as they were investigating a complaint
about a female recklessly riding a dirt bike without a helmet. Perkins mostly
complied with those requests but was unable to produce proof of insurance.
After asking if the inquiry was racially motivated, Perkins became
frustrated and non-compliant. She called 911 to request a supervising officer
and asked her son and nephew to record the encounter with their cell phones.
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1
These facts are recounted in the light most favorable to Perkins, as she is the non-
moving party, see Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009), save for
facts drawn conclusively from the videos, see Scott v. Harris, 550 U.S. 372, 381 (2007).
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The Deputies instructed the boys to return to the porch. D.J. and the nephew
both filmed the ensuing altercation. 2
When Perkins continued to act belligerently and refuse to comply with
their requests, the Deputies attempted to place her under arrest. They seized
her arms, forced her to the ground, muttered that she was “f—ing slippery,”
and then, according to Perkins, “leaned on [her] back and neck with their
knees and elbows, pulled her hair, and forced her face against the driveway
pavement while wrenching her arms behind her back.” Perkins does not
deny that she tried to pull her arms away. The Deputies repeatedly told her
to “stop resisting” but she continued to flail her arms and legs and deny that
she was resisting. She also repeatedly yelled at and taunted the Deputies—
telling one, “I’m on the ground, you’re so weak, boy.” Eventually, she was
successfully handcuffed by Deputy Hart.
At that point, Deputy Moring stood up and turned his attention to the
boys, while Hart continued to struggle with Perkins on the ground. Moring
moved directly in front of D.J., blocking his camera’s view of Perkins and
Hart. He told D.J. to “get back” and might have pushed him. D.J. and
Moring continued to quip at each other—“you can’t touch me,” “get back,”
and so on. Moring eventually held a taser out toward D.J. to keep him at bay,
and they then sniped about whether Moring could properly do so.
Meanwhile, on the ground, Hart kept pressure on Perkins’s back for
about a minute to keep her subdued. As soon as Hart released the pressure,
however, Perkins flipped onto her back and began kicking and struggling with
Hart again. At that point, Hart placed his hand on Perkins’s shoulder to
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2
There is a third video in the record taken by a neighbor, but it does not provide
any additional insight. We note, too, that the nephew’s video was altered and fast-forwards
through various moments during the fracas.
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control her, or to try to get up. His hand then slipped onto Perkins’s neck for
less than two seconds, and Perkins yelled “you’re choking me!” Her nephew
then yelled “y’all are choking a lady.” All this time, Moring’s back was
turned, as he and D.J. interacted. Moments later, Hart and Perkins stood and
walked toward the street. A neighbor told the boys to “go inside, go inside,
please go inside.” Perkins agreed, telling them to “go inside.” Their videos
then end.
The Deputies arrested Perkins for resisting a police officer with force
or violence, battery of a police officer, no proof of insurance, and no safety
helmet. She was detained overnight. The District Attorney’s Office
amended her bill of information to “R.S. 14:108 Resisting an Officer,” for
which she was tried and convicted.
B.
Perkins sued the Deputies, asserting claims individually and on behalf
of D.J. under 42 U.S.C. § 1983 for violations of their rights under the First,
Fourth, and Fourteenth Amendments. The Deputies filed a motion for
summary judgment, principally contending that they were entitled to
qualified immunity.
The district court granted the motion as to Perkins’s unlawful seizure
claim but denied summary judgment as to all other claims. Weighing
Perkins’s excessive force claim, the district court dissected the videos of her
arrest, specifically emphasizing the elbow pressure on her back, her cries of
pain, and Deputy Hart’s hands on Perkins’s throat after she had been
handcuffed. In light of “the minor nature of [Perkins’s] crime and [the
Deputies’] own admittance of that fact,” the court “determine[d] that there
[was] sufficient evidence that a jury could determine that the [Deputies’]
actions during the arrest were disproportionate . . . .” Adopting the
perspective of a reasonable officer on the scene, the court reasoned—again,
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relying on the videos—that Perkins was pacing back and forth in her driveway
when the arrest began and, while she resisted, there was “no evidence
whatsoever that [Perkins] threatened the [Deputies] or made any reference
to a weapon in her home.” The district court acknowledged that Perkins
admitted she initially resisted arrest, a fact confirmed by the videos. But the
court explained that this circuit’s “law has long been clearly established that
an officer’s continued use of force on a restrained and subdued subject is
objectively unreasonable.” The court concluded that “a disputed issue of
material fact exists regarding the amount of force used by Defendants while
attempting to arrest Plaintiff and after she was handcuffed and subdued.”
Turning to D.J.’s excessive force claim, the district court again
marshalled through the evidence and concluded that Deputy Moring violated
clearly established law and used excessive force. The court found that
Moring had no justification to display and threaten to use his taser against
D.J., a minor who was neither fleeing nor under arrest. Further, the court
determined that D.J.’s filming of the incident was a lawful activity, so no non-
retaliatory grounds justified Moring’s interference with D.J.’s First
Amendment rights. Thus, the court concluded that Moring’s conduct
violated D.J.’s clearly established First Amendment rights and was not
“objectively reasonable in light of clearly established law.”
The Deputies noticed this interlocutory appeal, challenging the
district court’s denial of qualified immunity.
II.
“To determine whether a public official is entitled to qualified
immunity, we decide ‘(1) whether the facts that the plaintiff has alleged make
out a violation of a constitutional right; and (2) whether the right at issue was
clearly established at the time of the defendant’s alleged misconduct.”
Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013). “[A]n order denying
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qualified immunity, to the extent it turns on an ‘issue of law,’ is immediately
appealable.” Behrens v. Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)). Our interlocutory jurisdiction is limited,
as the district court’s finding that a genuine factual dispute exists is a
determination that cannot be reviewed. Id. The district court’s
“determination that a particular dispute is material,” however, “is a
reviewable legal determination.” Id.; Melton v. Phillips, 875 F.3d 256, 261
(5th Cir. 2017) (en banc). Thus, we “ask only ‘whether the factual disputes
that the district court identified are material to the application of qualified
immunity.’” Kokesh v. Curlee, 14 F.4th 382, 391 (5th Cir. 2021) (en banc)
(quoting Samples v. Vadzemnieks, 900 F.3d 655, 660 (5th Cir. 2018)).
Within this limited jurisdiction, we “review de novo defendants’
invocations of qualified immunity,” but “accept all well-pleaded facts as
true . . . and view all facts and inferences in the light most favorable to the
nonmoving party.” Club Retro, 568 F.3d at 194. However, “[w]hen a public
official makes ‘a good-faith assertion of qualified immunity,’ that ‘alters the
usual summary-judgment burden of proof, shifting it to the plaintiff to show
that the defense is not available.’” Joseph on behalf of Est. of Joseph v. Bartlett,
981 F.3d 319, 329–30 (5th Cir. 2020). That means “[t]he plaintiff must show
that there is a genuine dispute of material fact and that a jury could return a
verdict entitling the plaintiff to relief.” Id. at 330; see also Mesa v. Prejean, 543
F.3d 264, 269 (5th Cir. 2008). “[T]o overcome qualified immunity, the
plaintiff’s version of those disputed facts must also constitute a violation of
clearly established law.” Joseph, 981 F.3d at 330. We examine the actions of
multiple defendants asserting qualified immunity individually. Solis v.
Serrett, 31 F.4th 975, 981 (5th Cir. 2022) (citing Meadours v. Ermel, 483 F.3d
417, 421–22 (5th Cir. 2007)).
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III.
A.
We begin with Perkins’s claim of excessive force. “To prevail on an
excessive-force claim, [a plaintiff] must show (1) injury, (2) which resulted
directly and only from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable.” Hanks v. Rogers, 853 F.3d
738, 744 (5th Cir. 2017) (quoting Cooper v. Brown, 844 F.3d 517, 522 (5th Cir.
2016) (alteration in original)). “[W]hether the force used is excessive or
unreasonable depends on the facts and circumstances of each particular
case.” Id. (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2017)).
We consider three factors to help make this determination: “(1) the severity
of the crime at issue, (2) whether the suspect poses an immediate threat to
the safety of the officers or others, and (3) whether [s]he is actively resisting
arrest or attempting to evade arrest by flight.” Id. (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)).
Because the district court denied summary judgment to the Deputies
“on the basis that genuine issues of material fact exist,” it essentially “made
two distinct legal conclusions: that there are ‘genuine’ issues of fact in
dispute, and that these issues are ‘material.’” Reyes v. City of Richmond, 287
F.3d 346, 350 (5th Cir. 2002). We cannot review the first conclusion, but we
can the second. And while “we review the facts in the light most favorable
to the non-moving party,” “a plaintiff’s version of the facts should not be
accepted for purposes of qualified immunity when it is ‘blatantly
contradicted’ and ‘utterly discredited’ by video recordings.” Trammel v.
Fruge, 868 F.3d 332, 338 (5th Cir. 2017) (quoting Hanks, 853 F.3d at 743,
744.); but see Edwards v. Oliver, 31 F.4th 925, 930–31 (5th Cir. 2022)
(declining to consider video evidence because the district court found that
the video itself created a genuine factual dispute). Where the video evidence
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is conclusive, we should thus “view[] the facts in the light depicted by the
videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007).
“An officer challenges materiality when he contends that ‘taking all
the plaintiff’s factual allegations as true no violation of a clearly established
right was shown.’” Reyes, 287 F.3d at 350 (quoting Cantu v. Rocha, 77 F.3d
795, 803 (5th Cir. 1996)). The Deputies argue that Perkins cannot meet her
burden to overcome qualified immunity and the district court erred in
holding otherwise, particularly because the court’s conclusions were
“contrary” to the evidence—the videos taken by Perkins’s son and nephew.
See Edwards, 31 F.4th at 930. 3 The Deputies contend that the video evidence
so clearly exonerates their actions that a reasonable viewer has no choice but
to conclude the district court erred. We agree that the video footage
conclusively shows the Deputies’ use of force was not “clearly
unreasonable,” Hanks, 853 F.3d at 744, under the circumstances.
We first analyze whether Moring is entitled to qualified immunity,
then Hart. See Solis, 31 F.4th at 981 (“We examine each officer’s actions
independently to determine whether he is entitled to qualified immunity.”).
1.
Analyzing the Graham factors, the district court determined there
were genuine issues of fact as to whether Perkins suffered an injury during
the altercation, whether her purported crime was severe, and whether she
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3
While the Deputies ostensibly challenge materiality, their brief repeatedly
contests the district court’s conclusion that genuine fact disputes exist. Thus, “despite
giving lip service to the correct legal standard,” much of the Deputies’ argument
improperly challenges genuineness rather than materiality of the fact disputes found by the
district court. Reyes, 287 F.3d at 351. And the Deputies’ briefing often “does not take the
facts in a light most favorable to [Perkins].” Id. at 350. Those deficiencies aside, we assess
the Deputies’ arguments viewing the facts most favorably to Perkins except where the facts
are otherwise conclusively established by the videos. See Trammell, 868 F.3d at 338.
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posed a threat to the safety of the officers or others. We cannot, and do not,
question those conclusions. See Ramirez, 716 F.3d at 373. But the court also
found that Perkins actively resisted the Deputies when they tried to arrest
her—a fact the videos conclusively prove, and which proves conclusive in
assessing whether the Deputies, particularly Deputy Moring, are entitled to
immunity.
“‘[A] suspect’s refusal to comply with instructions’ may indicate that
physical force is justified . . . .” Joseph, 981 F.3d at 332 (quoting Deville, 567
F.3d at 167–68); see also Hutcheson v. Dallas Cnty., 994 F.3d 477, 480 (5th Cir.
2021) (“Resisting while being handcuffed constitutes active resistance and
justifies the use of at least some force.”). However, “[t]he timing, amount,
and form of a suspect’s resistance are key to determining whether the force
used by an officer was appropriate or excessive.” Joseph, 981 F.3d at 332.
“To stay within constitutional bounds, an officer must use force ‘with
measured and ascending actions that correspond[ ] to [a suspect’s] escalating
verbal and physical resistance.’” Id. (alterations in original) (quoting Poole v.
City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)). Notably, “[f]orce must
be reduced once a suspect has been subdued.” Id. at 335.
The videos demonstrate that Deputy Moring “stay[ed] within
constitutional bounds.” Id. at 332. Deputy Hart first approached Perkins
and attempted to place her hands behind her back. When she pulled away,
Moring approached to assist, and both Deputies repeatedly warned Perkins
not to resist. Perkins then sat on the ground and refused to place her hands
behind her back. As both Deputies attempted to cuff Perkins, she continued
to pull away and verbally antagonize them. The Deputies eventually forced
Perkins onto her stomach, after which Moring placed his elbow on her back
while Hart attempted to place handcuffs on her. Critically, as soon as Hart
put the handcuffs on Perkins, Moring stood up and walked towards D.J.
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Moring did not touch Perkins again. In other words, as soon as Perkins was
subdued, Moring reduced the force he applied, to none at all. See id. at 335.
The district court’s analysis of the summary judgment record up to
that point is not problematic, as it aligns with the video evidence. And that
evidence presents no material issue regarding the force either Deputy used
in their efforts to cuff and subdue Perkins, who indisputably was resisting
arrest. But the court thereafter erred by finding a genuine dispute of material
fact regarding both Deputies’ conduct based on Deputy Hart’s actions after
Perkins was cuffed—and after Deputy Moring stood up and engaged D.J. In
other words, the district court impermissibly treated the Deputies in tandem,
denying both of them qualified immunity because of Hart’s alleged choking
of Perkins, which the videos demonstrate Moring could not even see as it
occurred. Assessing Deputy Moring’s conduct individually, Solis, 31 F.4th
at 981, there is no dispute that his use of force was proportional to Perkins’s
resistance, and there is no dispute he stopped using force once Perkins was
subdued. Deputy Moring is therefore entitled to qualified immunity as a
matter of law. See Hutcheson, 994 F.3d at 481.
2.
As for Deputy Hart, based on Perkins’s version of events alone, the
district court’s denial of summary judgment to Hart could withstand
scrutiny; she alleges Hart choked her, and Hart denies it—a classic dispute
of material fact. However, when the evidence is “viewed in the light depicted
by the videotape,” Scott, 550 U.S. at 381, it is clear that Hart is also entitled
to qualified immunity. The district court, focusing on Hart’s alleged choking
of Perkins, found a genuine dispute of material fact as to whether the
Deputies’ use of force was proportional to Perkins’s resistance once she was
handcuffed. In so doing, the court accepted Perkins’s allegations that “she
was choked twice.” But the district court should not have adopted Perkins’s
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version of the facts because “no reasonable jury” could find that Hart choked
Perkins based on the video. See id. at 380.
Picking up where we left off above, Perkins’s nephew’s video 4 shows
that once Hart put the handcuffs on Perkins, Deputy Moring stood up and
walked towards D.J. Meanwhile, Hart continued to struggle with Perkins on
the ground. Because Moring was blocking D.J.’s and the nephew’s camera
angles, much of that struggle is obscured. But Hart kept pressure on
Perkins’s back for about a minute to subdue her. When Hart released the
pressure, Perkins flipped onto her back and began kicking and struggling with
Hart again. At that point, Hart placed his hand on Perkins’s shoulder to bring
her under control, or to try to get up. For two seconds, the nephew’s video
shows Hart’s hand on Perkins’s neck, and Perkins can be heard screaming,
“why you choking me?” Moments later, Hart and Perkins stood up and
walked toward the street. The video then ends.
“[V]iewed in the light depicted by the videotape,” id. at 381, Hart’s
use of force was proportional to Perkins’s resistance. He kept pressure on
her back for less than a minute and then reduced his force. At that point,
Perkins flipped onto her back and began kicking, i.e., resumed resisting Hart.
As they struggled, Hart placed his hand on Perkins’s shoulder, and it slipped
for a couple seconds onto her neck. Perkins’s exclamation about choking
notwithstanding, the video shows no choke. And Hart’s actions
“correspond[ed] to [Perkins’s] . . . physical resistance.” See Joseph, 981 F.3d
at 332–33. And the fact that Hart’s hand was briefly at Perkins’s neck does
not constitute excessive force. Cf. Williams v. Bramer, 180 F.3d 699, 704 (5th
Cir. 1999) (finding that an officer’s force was not excessive with respect to an
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4
As mentioned in note 2, there were three videos taken of the incident. But the
nephew’s video is the only one that shows the purported choking. D.J.’s video is blocked
by Moring as the alleged choke occurred, and the neighbor’s video does not show it either.
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alleged choking that occurred while the officer attempted to search the
plaintiff’s mouth). The district court erred in basing its denial of summary
judgment on Perkins’s version of the facts, despite what the video footage
shows. Deputy Hart is entitled to qualified immunity as a matter of law.
B.
Next, we turn to D.J.’s claim for excessive force. Such claims are
governed by the Fourth Amendment, which protects the right to be free from
excessive force during a seizure. Poole v. City of Shreveport, 691 F.3d 624, 627
(5th Cir. 2012). “A violation of this right occurs when a seized person suffers
an injury that results directly and only from a clearly excessive and objectively
unreasonable use of force.” Joseph, 981 F.3d at 332 (citing Poole, 691 F.3d at
628); see Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
Here, our task is straightforward because there was simply no seizure
from which an excessive force claim can stem. See, e.g., Brower v. Cnty. of
Inyo, 489 U.S. 593, 595 (1989) (“We reasoned that ‘[w]henever an officer
restrains the freedom of a person to walk away, he has seized that person.’”
(quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985) (alteration in original))); see
also Graham, 490 U.S. at 395 (explaining that excessive force cases stem from
the course of an “arrest, investigatory stop, or other ‘seizure’ of a free
citizen” and should be analyzed under the Fourth Amendment’s
reasonableness standard). At no point was D.J. prevented from leaving the
scene—rather, he was repeatedly asked to do so, to “get back” and move
away while Deputy Moring was securing the perimeter. True, he was
prevented from further approaching Perkins and Deputy Hart, but that was
the officers’ prerogative to secure the scene and did not infringe on D.J.’s
Fourth Amendment rights. See United States v. Mendenhall, 446 U.S. 544,
552–55 (1980) (collecting cases, including Terry v. Ohio, 392 U.S. 1 (1968),
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delineating the difference between permissible police conduct furthering
police duty and conduct that constitutes a seizure).
Thus, even accepting D.J.’s version of the facts as true, he cannot
prevail on a claim of excessive force because there was no violation of his
Fourth Amendment rights. See Joseph, 981 F.3d at 330; Ontiveros, 564 F.3d
at 382. The district court erred in holding otherwise, and the Deputies are
entitled to summary judgment as to this claim.
C.
D.J.’s First Amendment retaliation claim against Deputy Moring
fares better. To establish such a claim, D.J. must show (1) he was “engaged
in constitutionally protected activity,” (2) Moring’s actions caused him to
“suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity,” and (3) Moring’s “adverse actions
were substantially motivated against [D.J.’s] exercise of constitutionally
protected conduct.” See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
The district court determined D.J. satisfied all three prongs, as he was
engaged in lawful activity—the filming of the arrest—and there were no non-
retaliatory grounds to justify Moring’s interference with D.J.’s First
Amendment rights, particularly because D.J. was not engaged in any illegal
activity. The district court relied on Moring’s deposition testimony, in
which he admitted he intentionally stood in front of D.J. and blocked him
from recording Perkins’s arrest.
As to the first element, in 2017, we clearly established that “a First
Amendment right to record the police does exist, subject only to reasonable
time, place, and manner restrictions.” Turner v. Lieutenant Driver, 848 F.3d
678, 688 (5th Cir. 2017). While Moring acknowledges there is a
constitutional right to film the police, he insists this case is different because
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D.J. “exceed[ed] that right to the point of interference.” He pegs his
argument to our recent case, Buehler v. Dear, 27 F.4th 969 (5th Cir. 2022).
The Buehler court concluded there was not a clearly established right
to record the police in 2015. Id. at 992. However, while Buehler was
published after Turner, the events in Buehler happened well before Turner
was decided. The Buehler court thus did not engage in further analysis
because the officers were entitled to qualified immunity, as the First
Amendment right had not been clearly established at the time of the officers’
actions. Regardless, Moring latches on to Buehler’s opening statement—that
there is a “line between filming the police, which is legal, and hindering the
police, which is not.” Id. at 976 (asking, but not answering, “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?”).
Buehler is easily distinguishable. There, the plaintiff was a police-
accountability activist who was arrested on notoriously crowded Sixth Street
in downtown Austin, Texas, while recording police activity. Id. (describing
Buehler’s actions as “cop watching”). He engaged in repeated verbal
confrontations with police officers, pushing the boundaries of how close to
them he was permitted to stand while recording. Id. Buehler was arrested
for misdemeanor interference with performance of official duties after the
bickering escalated between him and the police. Id. The situation here is
fundamentally different. While D.J. was clearly close to the arrest scene—
the perimeter of which was being secured by Moring—D.J. was not a hazard,
was not too close, and did not impede the Deputies’ ability to perform their
duties. Indeed, the Deputies successfully handcuffed Perkins despite D.J.’s
presence and active recording.
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As we explained in Turner, “[f]ilming the police contributes to the
public’s ability to hold the police accountable, ensure that police officers are
not abusing their power, and make informed decisions about police policy.”
848 F.3d at 689. Such was the case here. D.J., therefore, did not cross the
“line between filming the police . . . and hindering the police,” Buehler, 27
F.4th at 976, and was engaged in a clearly established, constitutionally
protected activity on his family’s private property.
We also agree that D.J. has substantiated a requisite injury. That
element “requires some showing that the plaintiff’s exercise of free speech
has been curtailed.” McLin v. Ard, 866 F.3d 682, 696 (5th Cir. 2017) (quoting
Kennan, 290 F.3d at 258)). “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. at 697
(quoting Kennan, 290 F.3d at 259).
The district court found that D.J. suffered an injury when Moring
pointed his taser at D.J. and verbally threatened him. To be clear, Moring
was justified in securing the perimeter. However, Moring also verbally
taunted and shoved D.J. And Moring admitted in his deposition that he
intentionally moved from side to side to block D.J. from recording the arrest,
not to control the perimeter or respond to D.J.’s interference. Moring’s
actions, coupled with the threat of the taser and Moring’s admission, could
lead a reasonable jury to find that D.J’s speech was chilled and that Moring’s
actions were “substantially motivated against [D.J.’s] exercise” of his First
Amendment right. The district court therefore did not err by denying
Deputy Moring summary judgment as to D.J.’s First Amendment claim.
IV.
To sum up: The district court erred in denying summary judgment
for the Deputies as to Perkins’s excessive force claim. The video evidence
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conclusively demonstrates that neither Deputy employed excessive force to
subdue Perkins, who just as conclusively was resisting arrest.
D.J.’s excessive force claim fails because there was simply no seizure
from which such a claim could stem. But we agree with the district court that
D.J.’s filming of the arrest was a clearly established, constitutionally
protected activity that overcomes Moring’s qualified immunity defense at
this stage of the proceedings.
Accordingly, we DISMISS this appeal in part, REVERSE and
RENDER in part, and REMAND for further proceedings consistent with
this opinion.
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Case: 22-30456 Document: 00516985624 Page: 17 Date Filed: 11/30/2023
No. 22-30456
James C. Ho, Circuit Judge, dissenting in part:
Citizens have an established constitutional right to record police
interactions with members of the public, under our circuit precedent. See
Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017).
But this case does not present a violation of that right. To begin with,
the available video evidence confirms that Officer Ryan Moring did not once
ask D.J. to cease filming. Nor does it show Officer Moring otherwise trying
to prevent D.J. from recording his mother’s arrest.
To the contrary, it shows that Officer Moring was simply trying to
establish a reasonable perimeter so that his fellow officer could safely detain
D.J.’s mother, who was behaving in a hostile, abusive, and insulting manner
toward the officers. See id. at 688 (“[A] First Amendment right to record the
police does exist, subject only to reasonable time, place, and manner
restrictions.”). Specifically, the video shows D.J. shouting at the officers
while Perkins is just a few feet away actively resisting the officers’ attempts
to pacify her. So Moring understandably asks D.J. to back up. Yet despite
Moring’s repeated requests to back up and avoid interfering with their work,
D.J. refuses. Instead, D.J. repeatedly, and with increasing intensity, shouts
that he refuses to move. A safe distance is eventually established, at which
time Moring stops standing between D.J. and Perkins.
In addition, Officer Moring’s affidavit states that, far from trying to
interfere with anyone’s right to record, he specifically affirmed that D.J.
could “film from the porch of the residence.” Moring Aff. 6 at ¶28.
So I would affirm the judgment in its entirety. The Constitution does
not compel police officers to affirmatively help a citizen secure the ideal
camera angle while that citizen is actively berating the police just a few feet
away from an active physical struggle with another person. I dissent in part.
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