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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-40040
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 21, 2015
BARBARA JEANNETTE SINGLETON,
                                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

MICHAEL DARBY,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:12-CV-935


Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Barbara Jeannette Singleton (“Singleton”) filed this
action under 42 U.S.C. § 1983 against Defendant-Appellee Michael Darby
(“Darby”). Singleton claims that Darby retaliated against her for exercising her
First Amendment rights. She also claims that Darby subjected her to excessive
force in violation of the Fourth Amendment. Singleton appeals the district




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-40040


court’s order granting summary judgment in Darby’s favor on both of her
claims. We affirm.


                                        I.
      On November 19, 2012, citizens opposed to the Keystone XL Pipeline
conducted a protest at Farm to Market Road 1911 in Cherokee County, Texas.
Approximately eighty people attended the protest, including Singleton, a
retired schoolteacher who opposes the pipeline. Although a few of the
protestors, including Singleton, were older persons, and a few of the protestors
were confined to wheelchairs, a video taken at the protest demonstrates that a
large number of the protestors were young and able-bodied.
      The Cherokee County Sheriff’s Department dispatched a truck carrying
a cherry picker to the site of the protest to remove protestors from nearby trees.
The Sheriff’s Department also dispatched Darby, a deputy sheriff sergeant, to
ensure that the protest remained under control.
      The truck arrived at the scene first, with Darby following behind in his
police car. Some of the protestors, including Singleton, became concerned that
the truck was about to run over a young demonstrator. Accordingly, they
entered the road and began screaming at the driver to stop. One protestor
banged on the hood of the truck, jumped on the vehicle, and opened the door to
make the driver stop. Upon witnessing the protestor climb on the truck, Darby
exited his vehicle and began walking toward the protestor. Before the protestor
reached the driver of the truck, he jumped off the truck and fled.
      At some point, the young demonstrator in the path of the oncoming truck
stood up and moved out of the way. Several protestors nevertheless remained
in or entered the road to prevent the cherry picker from reaching the protestors
in the trees. The video shows several protestors leaning against the grill of the
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                                      No. 14-40040


truck and inviting about a dozen other protestors into the road to block the
truck’s path. Singleton remained in the road during this time.
         Darby walked toward the protestors blocking the truck, including
Singleton, and ordered them to “[g]et out of the road.” The protestors did not
obey his command. Approximately five seconds later, Darby leveled a stream
of pepper spray toward Singleton and several other protestors in the road.
Darby did not spray any of the protestors on the sides of the road who were not
obstructing traffic.
         Singleton described the burning in her eyes as extremely painful. After
Singleton left the protest, she visited her doctor, who treated and released her
that same day.
         Singleton alleged that Darby violated her constitutional rights under the
First and Fourth Amendments by using pepper spray on her. The district court
concluded that Darby was entitled to qualified immunity from Singleton’s suit,
and accordingly granted summary judgment in Darby’s favor.


                                            II.
         We review a district court’s grant of summary judgment de novo. 1
Summary judgment is proper if the record demonstrates no genuine issue as
to any material fact and the movant is entitled to judgment as a matter of
law. 2
         Although we review evidence in the light most favorable to the
         nonmoving party, we assign greater weight, even at the summary
         judgment stage, to the facts evident from video recordings taken
         at the scene. A court of appeals need not rely on the plaintiff’s

         Kitchen v. Dallas Cnty., Tex., 759 F.3d 468, 476 (5th Cir. 2014) (citing Deville v.
         1

Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009); Burge v. Parish of St. Tammany, 187 F.3d
452, 464 (5th Cir. 1999)).
       2 Id. (citing Deville, 567 F.3d at 163-64; Burge, 187 F.3d at 464-65).

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                                       No. 14-40040


       description of the facts where the record discredits that description
       but should instead consider “the facts in the light depicted by the
       videotape.” 3


                                             III.
       To survive summary judgment on her First Amendment retaliation
claim, Singleton must, among other things, produce sufficient evidence that
(1) she was “engaged in constitutionally protected activity;” (2) Darby’s
actions caused her “to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity;” and (3) Darby’s adverse
actions “were substantially motivated against [her] exercise of
constitutionally protected conduct.” 4
       We conclude that Singleton failed to demonstrate a genuine dispute of
material fact as to the first of these elements. The First Amendment does not
entitle a citizen to obstruct traffic or create hazards for others. 5 A State may
therefore enforce its traffic obstruction laws without violating the First
Amendment, even when the suspect is blocking traffic as an act of political
protest. 6 The video demonstrates that Singleton and her compatriots were
obstructing traffic in violation of Texas law. 7 Thus, Singleton was not
engaging in constitutionally protected activity at the time Darby pepper
sprayed her.




       3 Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011) (quoting Scott v. Harris,
550 U.S. 372, 381 (2007)).
       4 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (citations omitted).
       5 Cox v. Louisiana, 379 U.S. 536, 553-58 (1965); Frye v. Police Dep’t of Kan. City, Mo.,

260 F. Supp. 2d 796, 799 (W.D. Mo. 2003).
       6 Cox, 379 U.S. at 553-58.
       7 TEX. PENAL CODE ANN. § 42.03(c) (West 2014).

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       The dissent contends that Singleton’s earlier protest on the side of the
road constitutes the necessary protected activity. But Singleton never made
this argument, and for good reason: Singleton was in the street by the time
Darby arrived. Darby therefore never witnessed Singleton’s protected
activity, so there would be no basis for finding he retaliated against that
earlier roadside activity if Singleton had raised this claim.
       Singleton has likewise failed to create a fact issue on the motivation
element. The record fails to show that Darby pepper sprayed the protestors
for any reason other than to clear the road and to allow the cherry picker to
get through the blockade. Darby did not disturb any of the protestors lawfully
exercising their speech and assembly rights along the sides of the road. 8
Moreover, Darby ordered Singleton and her fellow protestors to “get out of
the road,” rather than to cease the protest entirely. This affirmatively
demonstrates that Darby pepper sprayed Singleton and her group not
because they were protesting, but because they were blocking traffic in
violation of Texas law.
       For these reasons, the district court properly granted summary
judgment in Darby’s favor on Singleton’s First Amendment retaliation claim.


                                             IV.
       We now consider Singleton’s excessive force claim. To survive summary
judgment, Singleton must, inter alia, demonstrate that Darby’s use of force
was objectively unreasonable under the circumstances and under current



       8  Compare McCarthy v. Barrett, 804 F. Supp. 2d 1126, 1138 (W.D. Wash. 2011)
(holding that a jury could infer that defendant officers “desire[d] to silence the protestors’
speech” where officers “launch[ed] tear gas into an entire crowd” of protestors rather than
solely at the “aggressive” protestors demonstrating “near the line of police officers”).
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law. 9 “Once we have determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent supportable by the
record,” the objective reasonableness of Darby’s actions “is a pure question of
law.” 10 The qualified immunity doctrine, “even on summary judgment, ‘gives
ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.’” 11
       “‘To gauge the objective reasonableness of the force used by a law
enforcement officer, we must balance the amount of force used against the
need for force,’ paying ‘careful attention to the facts and circumstances of
each particular case.’” 12 Even at the summary judgment stage, “[w]e must
evaluate an officer’s use of force ‘from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.’” 13 “The calculus
of reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments – in circumstances that are
tense, uncertain, and rapidly evolving – about the amount of force that is
necessary in a particular situation.” 14
       For the following reasons, Darby’s use of force was not objectively
unreasonable. First, although Singleton’s crime was not particularly severe,




       9 Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (citing Goodson v. City of
Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)).
       10 Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (emphasis and internal quotations

omitted).
       11 Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (quoting Brumfield v.

Hollins, 551 F.3d 322, 326 (5th Cir. 2008)).
       12 Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (quoting Flores, 381 F.3d at

399).
       13 Poole, 691 F.3d at 628 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
       14 Graham, 490 U.S. at 396-97.

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                                     No. 14-40040


she was blocking traffic in violation of Texas law, 15 and the State of Texas
has an interest in keeping its roads free of obstructions. 16
      Secondly, a reasonable officer would have concluded that the protestors
posed a threat to Darby, the driver of the truck, the truck itself, or to others.
The protestors vastly outnumbered Darby. Darby saw one of the
demonstrators climb onto the truck, bang on its hood, and open the truck’s
door. The video shows several young protestors leaning against the grill of
the truck and inviting other protestors to block the vehicle. Because
numerous other protestors remained crowded around the truck, a reasonable
officer could have believed that other protestors might climb on the truck or
attack the driver. A reasonable officer in Darby’s position could have
reasonably concluded that the protestors were out of control and that the
situation required definitive action to move the truck past the demonstrators
and out of danger.
      Third, Singleton and her compatriots resisted Darby’s attempt to clear
the road. Singleton admits that she heard Darby’s warning before he pepper
sprayed her group. The video demonstrates that Darby gave Singleton
sufficient time to at least begin walking out of the road before he deployed
the pepper spray. Singleton nevertheless did not move. Although Singleton
testified in her deposition that Darby did not give her enough time to react,
we must credit the video evidence over Singleton’s contrary testimony. 17
      Thus, Darby, as a reasonable officer, was justified in using some degree
of force to clear the road. The force Darby employed was not disproportionate
to the need. Deploying pepper spray was not an unreasonable way to defuse


      15 TEX. PENAL CODE ANN. § 42.03(c) (West 2014).
      16 See Cox, 379 U.S. at 554-55.
      17 See Carnaby, 636 F.3d at 187 (quoting Scott, 550 U.S. at 381).

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                                       No. 14-40040


the situation. Indeed, it was probably the least intrusive means available to
Darby. To reiterate, the protestors vastly outnumbered Darby. As one of only
two police officers on the scene, 18 Darby could not have individually
handcuffed and arrested each of the numerous protestors blocking the road.
In addition to the obvious difficulty of one officer attempting to handcuff so
many violators, Darby faced the likelihood that such an action could motivate
a larger number of protestors lining the road to join in the road-blocking
enterprise or otherwise retaliate against Darby. Darby’s decision to utilize
pepper spray was therefore not an unreasonable way to gain control of a
potentially explosive situation.
       Moreover, even assuming arguendo that Darby’s use of force did violate
Singleton’s constitutional rights, Singleton would still need to also
demonstrate that those rights were “clearly established” at the time of her
injury. 19 The dissent contends that Singleton has satisfied this prong of the
qualified immunity analysis because
       at the time of the pepper-spraying incident, Singleton had a clearly
       established right to be free from excessive force and it was clearly
       established that the amount of force that Darby could use
       depended on the severity of the crime at issue, whether the suspect
       posed a threat to the officer’s safety, and whether the suspect was
       resisting arrest or attempting to flee. 20




       18 The video depicts a second man in a white shirt and tie with a badge and a handgun
in a holster accompanying Darby, but the record does not identify this man or his position
with law enforcement. Even though Darby was not alone, the protestors still greatly
outnumbered law enforcement officers at the scene.
       19 See Hernandez v. United States, --- F.3d ----, 2015 WL 1881566, at *1 (5th Cir. 2015)

(en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
       20 (Internal citations, brackets, and ellipses omitted.).

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                                       No. 14-40040


However, the Supreme Court recently repeated its warning against defining
the law in question “at a high level of generality.” 21 In doing so, the Supreme
Court rejected the lower court’s reliance on a generalized assessment of the
Graham factors for overcoming qualified immunity in an excessive force case
– the same analysis the dissent employs to try and defeat qualified immunity
here. 22 Instead, to overcome qualified immunity, the plaintiff must identify
case law clearly establishing that the “official acted reasonably in the
particular circumstances that he or she faced.” 23 Notably, the dissent is
unable to point to case law with facts anywhere close to the particular
circumstances involved here – the use of pepper spray to clear a road filled
with protestors who vastly outnumbered law enforcement – that would have
placed Darby on notice that his conduct was unlawful.
       Thus, viewing the facts through the deferential lens of qualified
immunity and from the perspective of a reasonable officer on the scene, we
conclude that Darby’s use of force was not objectively unreasonable under the
circumstances. At a minimum, case law did not make it clear to every
reasonable officer that use of pepper spray in this situation was
unreasonable. 24 The district court therefore properly granted summary
judgment in Darby’s favor.
       AFFIRMED.




       21  Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting Ashcroft v. Al-Kidd, 131
S. Ct. 2074, 2080 (2011)).
        22 See id.
        23 Id.
        24 See Ashcroft, 131 S. Ct. at 2083.

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                                  No. 14-40040


        JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in
part.
        Respectfully, I concur in the judgment only insofar as it rejects
Singleton’s First Amendment retaliation claim, and I dissent from the
majority’s affirmance of summary judgment against Singleton on her Fourth
Amendment excessive force claim.
        Regarding the Fourth Amendment claim, the majority incorrectly read
the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372 (2007) to hold
that in analyzing a motion for summary judgment in an excessive force case in
which the record contains a videotape of crucial events in question, a court is
not required to determine the relevant facts by adopting the plaintiff’s version
of events and reading the record in the light most favorable to the plaintiff,
but rather should decide whether the officer violated the Fourth Amendment
solely in light of the facts depicted by the videotape. Scott v. Harris did not so
hold. Rather, the Court so proceeded in that case only because the record
contained a telling videotape that “blatantly” and “utterly” contradicted and
discredited the plaintiff’s version of the facts, so that no reasonable jury could
have believed him. Id. at 378-80. In a case, such as the present one, in which
the record with a videotape does not contradict, but instead corroborates,
plaintiff Singleton’s version of the facts, the court is required to apply standard
summary-judgment principles, including accepting the plaintiff’s version of the
facts as the basis for its decision and viewing the record and reasonable
inferences in the light most favorable to her. The majority’s failure to do so
skewed its entire decisional process, leading it to erroneously affirm the
district court’s summary judgment.


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                                  No. 14-40040
      On the other hand, Singleton’s First Amendment claim falters, but only
because she failed to present sufficient evidence to show that Sergeant Darby’s
conduct was substantially motivated by her constitutionally protected speech
activities against the XL pipeline. The majority’s additional reasons for
affirming summary judgment on this claim erroneously disregard the fact that
Singleton undisputedly had engaged in constitutionally protected speech
against the pipeline on the side of the road just before she was pepper sprayed
by Sergeant Darby. Thus, the majority reaches the right result on this claim,
although its reasoning is partly flawed.
                                             I.
      In Scott v. Harris, 550 U.S. 372 (2007), Deputy Scott terminated a high-
speed chase of Harris, a motorist clocked speeding, by bumping his car and
causing it to crash, rendering Harris a quadriplegic. Id. at 374-75. Harris’s §
1983 action alleging Scott’s use of excessive force in violation of the Fourth
Amendment survived Scott’s motion for summary judgment on the basis of
qualified immunity below, but the Supreme Court granted certiorari and
reversed.
      In Scott, the Court stated that the threshold inquiry is whether Deputy
Scott's actions violated the Fourth Amendment and that usually the first step
in assessing the constitutionality of Scott's actions is to determine the “relevant
facts.” Id. at 378. Upon motion for summary judgment, if there is a genuine
issue as to a material fact, courts are required to view the facts and draw all
reasonable inferences in the light most favorable to the party opposing the
summary judgment motion. Id. “In qualified immunity cases, this usually
means adopting . . . the plaintiff's version of the facts.” Id.
      But in Scott, the Court stated that there was an “added wrinkle” that
prevented a straightforward application of these regular summary-judgment
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                                    No. 14-40040
principles. Id. That “wrinkle” was the existence of a police videotape of the
auto chase, which together with the whole record, so “blatantly” contradicted
Harris’s version of the facts that no reasonable jury could believe it. Id. at 378-
80. According to the Court, in such a case, a court should not adopt the
plaintiff’s version of the facts for purposes of ruling on a motion for summary
judgment. Id. at 389.
         The present case is clearly distinguishable from Scott v. Harris, however,
because Singleton’s version of the events, unlike that of Harris, is not
“blatantly contradicted by the record, so that no reasonable jury could believe
it[.]”   Id. at 380.   To the contrary, Singleton’s evidence of Darby’s use of
excessive force on her is not contradicted, but is largely corroborated by the
one-minute videotape and Darby’s own deposition testimony.               Thus, the
present case meaningfully differs from Scott, because there is no “added
wrinkle,” id.at 378, of a videotape and record that “blatantly contradict” id. at
380, and “utterly discredit,” id., Singleton’s story. Rather, unlike the unusual
situation in Scott, the present case is a more typical summary-judgment case
in which this court is required to begin its analysis by adopting the plaintiff’s
version of the facts and to view them and all reasonable inferences in the light
most favorable to her.
         A proper application of the well-established summary judgment
principles to the record in the present case leads to the following conclusions:
based on the relevant set of facts, see Part II infra, Sergeant Darby violated
clearly established Fourth Amendment law by pepper spraying Singleton in
her face and eyes without providing her any warning or opportunity to comply
with his command, see Part III infra, but Singleton has failed to produce
sufficient evidence to establish that Darby’s conduct amounted to retaliation
in violation of the First Amendment, see Part IV infra.
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                                     No. 14-40040
                                                 II.
      On November 19, 2012, a group of protesters peacefully gathered along
the side of Farm-to-Market Road 1911 in Cherokee County, Texas, in order to
protest the construction of the Keystone XL pipeline on a site nearby. Among
those in attendance was Singleton, a 75-year-old grandmother, retired school
teacher, and long-time resident of Nacogdoches County, Texas.                  Singleton
attended the protest with a group calling itself the Raging Grannies in
Nacogdoches. The Raging Grannies intended to protest the pipeline by singing
songs decrying its adverse environmental effects while dressed in old-
fashioned clothes. Singleton, for example, wore “an old-fashioned lacy blouse
and a big blue skirt.”
      Sergeant Darby explained in his declaration that he and other members
of the Cherokee County Sherriff’s Office were dispatched to various locations
throughout Cherokee County due to protests occurring against the pipeline.
Because some protesters reportedly were located in trees, 1 the Sheriff’s
Department also ordered and dispatched a semi-trailer truck hauling a “cherry
picker” to be delivered to a protest site in order to remove those protesters from
the trees. The truck transporting the cherry picker was driven by Danny
Emerson, an employee of United Rentals. Sergeant Darby followed behind
Emerson’s truck in his patrol car.
       As Emerson’s truck slowly approached the area where Singleton and
others were standing, the group became concerned that the truck might run
over a young person who was in attendance. Some of the protesters, including



      1  The record is unclear whether those individuals reportedly located in trees were a
part of the same group of protesters as Singleton, or whether they were affiliated with
another pipeline protest nearby.

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                                      No. 14-40040
Singleton, therefore entered and spread across the roadway in order to flag
down the truck. The protesters shouted multiple warnings to Emerson that,
“[His] truck’s running over somebody.” 2 In addition, some people also sought
to stop Emerson’s truck by banging by hand on its hood. However, Emerson
testified that none of the protesters ever touched him or damaged his truck,
and he explained that Singleton was not among the protesters touching his
truck. In response to the protesters’ warnings, Emerson stopped his truck in
the road. One protester climbed onto the side of Emerson’s truck and tried to
open its door. Darby, who had stopped behind the truck, exited his patrol car
and walked toward the front of the truck along its left side. Before Darby
reached the cab of the truck, that protester jumped off the truck and ran away.
       Darby did not pursue that protester but instead continued to walk
toward the other protesters who were still gathered in the roadway near the
front of the truck. A one-minute video taken of the scene, which begins shortly
before Darby came abreast of the truck’s cab, shows the following: 3 After
Emerson stopped his truck, a young protester crawled from near the front end
of the stationary truck. 4 Two protesters leaned against the truck’s front grill.



       Emerson himself testified that the protesters yelled warnings to him that his truck
       2

was running over someone.

       3  The video camera was located off the highway on the right side of and slightly in
front of the stopped truck. Singleton submitted the video as an exhibit to her brief opposing
summary judgment, and Darby does not contest its accuracy. However, as explained above,
this is not a case where we may disregard the non-movant’s version of events in light of a
video’s contrary portrayal, compare Scott, 550 U.S. at 380-81, because the video footage
contained in the record does not blatantly contradict or discredit Singleton’s version of the
facts but instead substantially corroborates her and the other protesters’ testimony.

       4 This crawling protester appears within the first few seconds of the video. It is not
evident from the video whether this young protester who can be seen crawling from near the
front end of the truck was the same young protester whom the protesters thought the truck
might hit.
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                                    No. 14-40040
Some of the protesters, including Singleton, stood in the road, and other
protesters eventually began to join them, including a woman confined to a
wheelchair. 5 Many of the protesters held signs; some laughed, talked and
called for others to join them.         However, contrary to Darby’s attorney’s
argument, the video does not show any protester screaming or making threats
to Emerson or anyone else.         Moreover, the video does not show that any
protester raised his or her voice or complained to Darby until after he began to
pepper spray the gathering.
      Approximately twenty-three seconds into the video, Darby can be seen
walking toward the protesters on the left side of the truck and near its front
end. At this time, he twice shouted in short succession, “Get out of the road.”
Approximately five seconds later, without warning the protesters that he
would use pepper spray, Darby began deploying pepper spray at the protesters,
including Singleton, in the roadway. Darby was about 10-to-15 feet from them
at this time. In his deposition, Darby admitted that he discharged the pepper
spray in a “steady stream.” Prior to unleashing the pepper spray, Darby did
not attempt to use any less drastic measure to move the protesters out of the
roadway. For example, he admitted in his deposition that did not warn the
protesters that he would arrest them or use pepper spray or other force against
them if they stayed in the road—he testified, “[t]here was no reason to tell
them.” Thus, he did not warn them that he would give them only five seconds
to clear the road before he would use pepper spray on them. Nor did he call for
backup by other officers to help him to move the protesters off the road or to




      5The video shows that at least two of the protesters in attendance were confined to
wheelchairs.
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                                          No. 14-40040
make arrests. 6 The video footage shows that Darby aimed and then unleashed
the pepper spray, sweeping it at approximately face-level in the direction of
the protesters. After most of the protesters fled to avoid the pepper spray,
Darby can be seen walking around among the stragglers and aiming the pepper
spray directly at certain individuals. Approximately thirty-eight seconds into
the video, Singleton can be seen exiting the road and rubbing her eyes;
subsequently, the video shows her bent over and covering her eyes. Although
the video does not capture the exact moment when Darby’s pepper spray hit
Singleton in her face and both eyes, the protesters can be heard repeatedly
yelling to Darby that he pepper sprayed an “old” or “elderly lady.” Thus, it was
not until after Darby unleashed the pepper spray without warning that anyone
challenged his actions, and then it was only verbally and non-violently.
       The video footage corroborates the account of the pepper spraying given
by Singleton and other protester-witnesses.                   For example, according to
Singleton, Darby “pepper sprayed [her] immediately before [she] had time” to
comply with his command. Significantly, Singleton testified that “[she] would
have got out of the road if he had given us some time.” 7 Another witness


       6  Notably, however, another peace officer in a white shirt and tie, with a badge and a
handgun in a holster, can be seen in the video slowly and passively walking along and
observing Darby pepper spray the protesters. Although he might have been another deputy
sheriff, the record does not otherwise identify him.

       7   Singleton further elaborated as follows at her deposition:
                         Q: “And you heard him say, ‘Get out of the road?’”
                         A: “’Get out of the road,’ but he didn’t give me time to get out of the
                road.”
                       Q: “Well, did you make any effort at all to get out of the road?”
                       A: “I don’t think I did because I didn’t have time.”
                       Q: “Well, did you make any movement like you were going to get out of
                the road?”
                       A: “I don’t know. He didn’t say, ‘Get out’- - he did not give us a - - give
                me a warning.”
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                                     No. 14-40040
similarly testified that Darby “all of a sudden” began pepper spraying the
protesters without any warning aside from ordering them to exit the road.
Further, consistent with Singleton’s deposition testimony that Darby “was
very close to [her],” the video shows Darby to be in close proximity of the
protesters when he deployed the pepper spray.
      Numerous witnesses described the aftermath of the pepper spraying.
One witness stated that Singleton was “incapacitated” after being hit, and
another stated that Singleton was “in intense excruciating pain.” According to
one witness, “I really thought [Singleton] was dying, her skin was yellow, her
hands were clenched and she had yellow stains all over this lacy white blouse.”
Photos from the scene show Singleton after being pepper sprayed. In one
photo, Singleton is shown having her eyes washed with liquid. Singleton
stated that the pepper spraying was “the most painful thing” she’s ever
experienced, including childbirth. After being driven home by a friend because
she was unable to drive, Singleton sought medical attention for her injuries
because flushing her eyes with water did not alleviate her pain.
                                                 III.
      Singleton appeals the district court’s grant of summary judgment to
Darby on her Fourth Amendment excessive-force claim. Summary judgment



                    ...
                    Q: “So your testimony is, is that after he said, ‘Get out of the road,’ that
            if he had waited another 5 seconds, you would have walked out of the road?”
                    A: “Yes. I mean, I’ve never done anything illegal in my life.”
                    Q: “Well, if all these other people stayed there in the road, and you’ve
            admitted you were caught up in the moment, your testimony is you still would
            have just walked on out of the road?”
                    A: “If he had given us some warning and told us what he was fixing to
            do, yeah.”
                    Q: “Well, how much warning would you have needed?”
                    A: “A minute, at least a little bit of time to process. . . .”
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                                  No. 14-40040
on the basis of qualified immunity is appropriate only if, taking the facts in the
light most favorable to Singleton, she has not established that Darby’s “conduct
violated a constitutional right,” Saucier v. Katz, 533 U.S. 194, 201, (2001), or if
“the right at issue was [not] clearly established at the time of [Darby’s] alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation
marks omitted).
      Claims for excessive force are analyzed under the Fourth Amendment's
prohibition against unreasonable seizures using the framework articulated in
Graham v. Connor, 490 U.S. 386 (1989). The reasonableness of a seizure turns
on “whether the officers’ actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them.” Id. at 397.             In order to determine
whether an officer’s actions were “objectively reasonable” and therefore
constitutionally permissible, we must first assess “the nature and quality of
the intrusion on the individual’s Fourth Amendment interests” and then
balance that particular intrusion “against the countervailing governmental
interests at stake.”    Graham, 490 U.S. at 396 (internal quotation marks
omitted).
      If we determine that, taking the facts in the light most favorable to
Singleton, Darby’s conduct amounts to a violation of the Fourth Amendment’s
prohibition on excessive force, we then determine whether Darby is entitled to
qualified immunity by assessing whether “the right at issue was clearly
established at the time of defendant's alleged misconduct.” Pearson, 555 U.S.
at 232 (internal quotation marks omitted).




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                                  No. 14-40040
      A. Nature and Quality of Intrusion
      The gravity of the particular intrusion that a given use of force imposes
upon an individual's liberty interest is measured with reference to the type and
amount of force inflicted. See Tennessee v. Garner, 471 U.S. 1, 7-9 (1985).
Singleton contends that Darby pepper sprayed her after ordering her and the
other protesters out of the road but without giving her a reasonable chance to
do so. “Unquestionably, infliction of pepper spray . . . has a variety of
incapacitating and painful effects . . . and, as such, its use constitutes a
significant degree of force.” Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010).
Indeed, “[p]epper spray is designed to cause intense pain and inflicts a burning
sensation that causes mucus to come out of the nose, an involuntary closing of
the eyes, a gagging reflex, and temporary paralysis of the larynx, as well as
disorientation, anxiety, and panic.” Young v. Cnty. Of Los Angeles, 655 F.3d
1156, 1162 (9th Cir. 2011) (internal quotation marks omitted); see also Danley
v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008) (observing that pepper spray is
designed to disable the person sprayed “by causing intense pain, a burning
sensation that causes mucus to come out of the nose, an involuntary closing of
the eyes, a gagging reflex, and temporary paralysis of the larynx” (internal
quotation marks omitted)), overruled on other grounds by Randall v. Scott, 610
F.3d 701 (11th Cir. 2010); accord United States v. Neill, 166 F.3d 943, 949-50
(9th Cir. 1999) (affirming district court finding that pepper spray is a
“dangerous weapon” under the U.S. Sentencing Guidelines and describing trial
evidence that pepper spray causes “extreme pain” and is “capable of causing
‘protracted impairment of a function of a bodily organ’” as well as lifelong
health problems such as asthma).
      In the instant case, Darby admits that he unleashed a “steady stream”
of pepper spray that hit Singleton in the face and both her eyes. Singleton
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                                     No. 14-40040
testified that the ensuing pain was the most excruciating that she has ever
experienced, including childbirth, and she was so incapacitated from the pain
that she could not even drive home. Singleton was forced to seek medical
attention for her injuries.
      As the foregoing makes clear, by pepper spraying Singleton, Darby used
a significant amount of force that is known to cause and, in fact, did cause
substantial pain. While pepper spray may be less severe than other forms of
force, there is no question that streaming it into the face and eyes of a 75-year-
old woman is a sufficiently serious intrusion that it must be justified by a
proportionally serious governmental interest.
      B. Governmental Interest at Stake
      In assessing the governmental interest at stake, we are guided by the
“Graham factors,” which “include ‘the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others,
and whether [she was] actively resisting arrest or attempting to evade arrest
by flight.’” Martinez-Aguero v. Gonzalez, 459 F.3d 618, 626 (5th Cir. 2006)
(quoting Graham, 490 U.S. at 396).                However, “[b]ecause the test of
reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application,” Graham, 490 U.S. at 396 (internal
quotation marks omitted), our ultimate inquiry must focus on “whether the
totality of the circumstances justified [the] particular . . . seizure” at issue.
Garner, 471 U.S. at 8-9.
      First, the severity of Singleton’s alleged crime was indisputably minimal,
if it was an offense at all.        In Texas, it is a Class B misdemeanor 8 to


      8  In Texas, a Class B misdemeanor is punishable by “(1) a fine not to exceed $2,000;
(2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and
confinement.” Texas Penal Code § 12.22.
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                                  No. 14-40040
intentionally, knowingly, or recklessly, obstruct a highway; or to disobey a
reasonable request or order to move issued by a peace officer. Texas Penal
Code § 42.03.       Singleton testified that she entered the road with other
protesters to warn the truck driver not to hit a young protester who had wound
up in the road. She further testified that she would have obeyed Darby’s order
to move if he had given her a chance to do so, but that he pepper sprayed her
in her face and eyes immediately after his order, making it impossible for her
to move before being incapacitated by the pepper spray.          Even assuming
Singleton was violating the law, the offense was at most a nonviolent
misdemeanor, and her infraction was therefore minimal. Because Singleton’s
alleged offense did not evince that she posed a danger to Darby or the public
such that there would be a heightened interest in the use of pepper spray on
her or the other protesters, the “severity of the crime at issue” weighs against
a finding that the government had an interest in the use of pepper spray in
this particular case.      Although the alleged commission of a minor or
misdemeanor offense is not to be taken lightly, we repeatedly have recognized
that it militates against concluding that the use of significant force was
objectively reasonable. See, e.g., Deville v. Marcantel, 567 F.3d 156, 167 (5th
Cir. 2009) (“[The plaintiff] was stopped for a minor traffic violation. . . making
the need for force substantially lower than if she had been suspected of a
serious crime.”).
      Application of the second Graham factor—the individual’s threat to
officer safety—likewise buttresses the conclusion that Darby’s use of pepper
spray against Singleton was excessive and objectively unreasonable. Viewed
in the light most favorable to Singleton, the evidence establishes that the
pipeline protesters, including Singleton, had been entirely peaceful in their
protest and had lawfully confined their speech activities to the side of the road
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                                 No. 14-40040
until they moved into the road in order to flag down Emerson’s truck before it
ran over a young protester in the road. Although one protester reportedly
responded by climbing onto the side of Emerson’s truck, Darby admitted that
this protester jumped off the truck and ran away after he exited his patrol car
and before he deployed the pepper spray. Moreover, the evidence shows that
Singleton herself never made any contact with Emerson’s truck, and that none
of the protesters damaged the truck or ever touched Emerson. The video
footage of the scene further reinforces the conclusion that neither Singleton
nor the other protesters posed a threat to Darby. The video-audio footage
reflects that the protesters did not threaten or scream at Darby or Emerson; to
the contrary, some of the protesters can be seen laughing and talking with one
another peaceably before Darby pepper sprayed them. In fact, the video does
not show any of the protesters raising their voices at Darby until he hit
Singleton with pepper spray, at which time the protesters can be heard
repeatedly yelling to Darby that he had pepper sprayed an “old” and “elderly
lady.” Moreover, although the protesters were allegedly committing a minor
offense, the video shows that none of the protesters ever made an advance
toward Darby. Further, nowhere in his sworn declaration or at his deposition
did Darby himself ever contend that the use of pepper spray was necessary
because of a threat of violence by the protesters; rather, he asserted that his
“only purpose” in unleashing the pepper spray was to “clear the roadway.”
Finally, but critically, it is important to note that Singleton was 75 years old
at the time of the protest, and that the group of protesters who Darby pepper
sprayed also included individuals who were confined to wheelchairs. See, e.g.,
Autin v. City of Baytown, 174 F. App’x 183, 185 (5th Cir. 2005) (“In judging the




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                                       No. 14-40040
objective reasonableness of [the] use of force, it should not be forgotten that
[plaintiff] was fifty-nine years old and five feet two inches tall.”). 9
       The third Graham factor—whether Singleton or anyone resisted
Darby—further supports a conclusion that Darby’s use of pepper spray against
her and the others was objectively unreasonable. Crediting all reasonable
inferences in her favor, Singleton presented evidence that she and the other
protesters did not have a reasonable opportunity to comply with Darby’s
command to vacate the road before he pepper sprayed them, and, therefore,
they did not actively resist him before he used pepper spray on them. Indeed,
the video footage clearly demonstrates that Darby unleashed the pepper spray
only about five seconds after shouting to the protesters to leave the road; thus,
Singleton and the other protesters never had a reasonable opportunity to
comply with his order. 10 Moreover, Singleton testified at her deposition—



       9While it may not be dispositive of whether Singleton posed a reasonable threat to
Darby or not, it is important to note that the video footage suggests that Darby had additional
manpower with him at the scene. Specifically, the video shows that a man who accompanied
Darby as he approached the protesters was neatly dressed in a dress shirt and tie with a
badge, handcuffs and a holstered handgun at his waist. Although the record does not identify
the man, drawing all reasonable inferences from the video in Singleton’s favor, Darby appears
to have been accompanied by an armed law enforcement officer when he confronted the
protesters, which further evinces that the protesters posed no threat that warranted the
nearly immediate use of pepper spray.

       10  In this connection, the majority clearly fails to view the controverted facts in the
light most favorable to Singleton by concluding: “The video demonstrates that Darby gave
Singleton sufficient time to at least begin walking out of the road before he deployed the
pepper spray. Singleton nevertheless did not move.” However, this material issue of fact,
whether Darby gave Singleton and the other protesters reasonably sufficient time to vacate
the roadway before he pepper sprayed them, is genuinely in dispute and must therefore be
resolved in Singleton’s favor for purposes of summary-judgment analysis. First, Darby
admitted that he gave no warning whatsoever to Singleton and the other protesters that he
would pepper spray them if they remained in the road. Second, Singleton and her witness,
Mr. Macinerney, (who said he was only 10 feet from her when she was pepper sprayed), both
testified that Darby yelled “get out of the road” and then walked up to Singleton and, without
any further warning, pepper sprayed her in the face; that no one was threatening or resisting
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                                       No. 14-40040
which we must credit in her favor at this stage of proceedings—that she would
have exited the road if Darby had given her time to obey his command. 11 When,
as here, a police officer does not give sufficient time to comply with an order
prior to utilizing force against a person, that person’s resulting failure to
comply immediately with the order cannot, without more, give rise to a
governmental interest in the use of significant force. Thus, viewed in the light
most favorable to Singleton, the evidence therefore simply does not support a
conclusion that it was reasonably necessary for a police officer in Darby’s
position to use pepper spray or other significant force based on any resistance
to Darby’s command by Singleton or any other protester.
       In addition to the foregoing Graham factors, other critical aspects of this
case warrant highlighting, as they further evince the slightness of the
governmental interest vis-à-vis the significance of the force Darby used against
Singleton.     First, the evidence establishes that Darby never attempted to
utilize any less severe tactic to remove the protesters from the road prior to
unleashing pepper spray on Singleton. For example, prior to using pepper
spray, Darby could have called for backup; he could have requested that the
additional peace officer on the scene help him order the protesters off the


Darby; and that Singleton would have moved out of the road if Darby had given her a minute
or at least a few more seconds to do so. Third, the videotape corroborates Singleton’s and
Macinerney’s testimony: it shows that Darby yelled “get out of the road” twice and then, 4 to
5 seconds later, began to pepper spray the protesters in the road at face level; that Singleton
was not visible in the video at that exact time but about thirty-eight seconds into the video
can be seen exiting the road after having been pepper sprayed and thereafter bending over
on the side of the road. Thus, contrary to the majority’s conclusion otherwise, the summary-
judgment record amply supports a reasonable inference that Darby did not give Singleton
“sufficient time” to move.

       11 Specifically, Singleton repeatedly emphasized: “[Darby] didn’t give me time to get
out of the road” and “I would have got out of the road if he had given us some time.” Asked
by Darby’s counsel how much of a warning she would have needed, Singleton testified: “A
minute, at least a little bit of time to process.”
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                                  No. 14-40040
highway or make arrests; he could have warned the protesters that they would
be arrested if they did not immediately comply with his command; or he simply
could have attempted to arrest the protesters. But Darby chose none of these
options, thus skirting a number of less painful and potentially injurious
measures that would have been feasible and reasonable under the
circumstances. Instead, he chose to immediately resort to a significant form of
force that caused Singleton excruciating pain. Darby’s failure to first utilize
such viable alternatives thus further illustrates how limited was the
government’s interest in deploying the use of substantial force against
Singleton. See, e.g., Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010)
(emphasizing that “there were clear, reasonable, and less intrusive
alternatives” than the use of taser, such as waiting for backup); Headwaters
Forest Defense v. Cnty. of Humboldt, 240 F.3d 1185, 1203 (9th Cir. 2000)
(“Because the protesters posed no immediate threat to the safety of anyone
during the protests, the officers . . . were required to consider what other tactics
if any were available to effect their arrest [aside from pepper spray].” (internal
marks and citation omitted)), vacated on other grounds by 534 U.S. 801 (2001),
affirmed on remand in 276 F.3d 1125 (2002). Moreover, Darby also never
provided Singleton and the protesters a reasonable opportunity to comply with
his command, nor did he provide any type of warning that pepper spray would
be utilized if they did not immediately comply with his order to exit the road.
See Nelson v. City of Davis, 685 F.3d 867, 882-83 (9th Cir. 2012) (“Additionally,
there is nothing in the record that indicates that the group was told prior to
the [use of the pepperball gun] how they should comply with the [officers’]
orders . . . or that force would be used against them if they did not behave in a
particular manner.     Thus, failure to give sufficient warnings also weighs


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                                   No. 14-40040
against the government’s decision to use [a pepperball gun] against [plaintiff]
and his associates.”).
      C. Balancing Intrusion against Governmental Interest at Stake
      Finally, to “[d]etermine whether the force used [by Darby] is ‘reasonable’
under the Fourth Amendment,” we must “balanc[e] . . . the nature and quality
of the intrusion on [Singleton]’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.” Graham, 490 U.S. at 396
(internal quotation marks omitted). The force used by Darby indisputably
constituted a substantial intrusion upon Singleton’s liberty. Indeed, pepper
spray is known to cause significant pain and detrimental health consequences
and, in fact, did cause Singleton the worst pain she said she has ever known—
necessitating medical care. In evaluating the countervailing governmental
interest that we must balance against this intrusion, as explained supra, all
three Graham factors militate against a finding that the force used in this case
was reasonable. First, Singleton was at most committing the minor crime of
obstructing a highway, which is a Class B misdemeanor and non-violent in
nature. Second, viewing the evidence in the light most favorable to Singleton,
“there was no reason to believe that her actions posed a threat to the officer[],
herself, or [others].” Deville, 567 F.3d at 167. Third, there is no evidence that
Singleton or any other protester actively resisted Darby, because the evidence
shows that Darby did not give them a reasonable opportunity to comply with
his command before he pepper sprayed them. Finally, Darby’s failure to try
any of the less severe alternatives available before resorting to pepper spraying
Singleton and the other protesters, and his failure to warn them that pepper
spray would be used, further shows that the governmental interest in using
the significant force of pepper spray under the circumstances was extremely
limited or nonexistent.
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                                  No. 14-40040
      Because the force imposed on Singleton by pepper spray was significant
and the governmental interest in the use of that particular force was minimal,
viewing the evidence in the light most favorable to Singleton, Darby’s use of
pepper spray was excessive and in violation of the Fourth Amendment.
      Nevertheless, in order to deny Darby qualified immunity, it must also be
determined whether at the time of the incident it was “clearly established” that
such conduct would violate Singleton’s Fourth Amendment rights. Id. at 169.
“For a constitutional right to be clearly established, its contours must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal
quotation marks omitted). Critically, the “clearly established” standard “does
not mean that officials’ conduct is protected by qualified immunity unless ‘the
very action in question has previously been held unlawful.’” Kinney v. Weaver,
367 F.3d 337, 350 (5th Cir. 2004) (quoting Hope, 536 U.S. at 739). Rather, the
“central concept” of the standard “is that of ‘fair warning’: The law can be
clearly established ‘despite notable factual distinctions between the precedents
relied on and the cases then before the Court, so long as the prior decisions
gave reasonable warning that the conduct then at issue violated constitutional
rights.’” Id. (quoting Hope, 536 U.S. at 740).
      At the time of the pepper-spraying incident, “[Singleton] had a clearly
established right to be free from excessive force . . . and it was clearly
established that the amount of force that [Darby] could use depended on the
severity of the crime at issue, whether the suspect posed a threat to the officer’s
safety, and whether the suspect was resisting arrest or attempting to flee.”
Deville, 567 F.3d at 169 (internal marks and citation omitted). Viewing the
evidence in the light most favorable to Singleton, she and the other protesters
posed no threat, were not resisting arrest, and were committing, at the very
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                                  No. 14-40040
most, a non-violent, minor offense when Darby almost immediately and,
without any warning that he would do so, resorted to the significant force of
pepper spray. “While the Fourth Amendment’s reasonableness test is ‘not
capable of precise definition or mechanical application,’ the test is clear enough
that [Darby] should have known that he could not [use pepper spray against
Singleton and the other protesters under the particular circumstances.]” Bush
v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (quoting Graham, 490 U.S. at 396).
Accordingly, I would conclude that Darby is not entitled to qualified immunity
on Singleton’s Fourth Amendment claim.
      In reaching the opposite conclusion, the majority erroneously contends
that the Supreme Court’s recent decision in Plumhoff v. Rickard, 134 S. Ct.
2012 (2014), requires us to find a case with nearly identical facts to the
particular circumstances here in order to conclude that Darby’s conduct
violated “clearly established” Fourth Amendment law.           In so doing, the
majority grossly misreads that decision and altogether ignores the long-
established principle that the lodestar in qualified-immunity cases is whether
officers had “fair warning” that their conduct would violate a constitutional
right. See, e.g., Hope, 536 U.S. at 740; Kinney, 367 F.3d at 350.
      In Plumhoff, the Court held that police officers who shot the driver of a
fleeing vehicle in order to end a dangerous car chase were entitled to qualified
immunity. 134 S. Ct. at 2016-17. In conducting the “clearly established law”
prong of its qualified immunity analysis, the Court emphasized its precedents
observing that deadly force cases “depend[] very much on the facts of each
case,” meaning that a pure application of the Graham and Garner factors may
not be appropriate in such a case. 134 S. Ct. at 2023 (discussing Brosseau v.
Haugen, 543 U.S. 194, 199 (2004)). Accordingly, in light of the unique fact that
the officers utilized deadly force in response to a high-speed car chase, the
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                                 No. 14-40040
Court held that Graham and Garner alone did not put the officers on notice
that their conduct violated “clearly established” Fourth Amendment law. Id.
at 2023-24.
      Contrary to the majority’s position, Plumhoff does not eviscerate the
long-established principle that a police officer is not entitled to qualified
immunity where, as here, he has “fair warning” based on existing precedents
that his conduct would violate the constitutional rights of the plaintiff. Hope,
536 U.S. at 740. Rather, as even a cursory review of Plumhoff reveals, the
Court’s “clearly established law” analysis pivoted entirely upon the unique fact
that the case involved “deadly force” in response to a dangerous “vehicular
flight,” 134 S. Ct. at 2023, which is clearly not the case confronting us here.
Indeed, unlike the instant case where there was no threat to Darby or the
public whatsoever, the officers in Plumhoff “shot at Rickard to put an end to
what had already been a lengthy, high-speed pursuit that indisputably posed
a danger both to the officers involved and to any civilians who happened to be
nearby.” Id.
      Moreover, in addition to ignoring these meaningful factual distinctions
between Plumhoff and the instant case, the majority also errs in concluding
that Plumhoff militates against applying a “generalized assessment of the
Graham factors” in order to conclude that Darby violated “clearly established”
Fourth Amendment law. Such logic further reflects the majority’s careless
reading of Plumhoff. Plumhoff explicitly and repeatedly endorsed the Court’s
earlier decision in Brousseau, wherein the Court made clear that, even in the
fact-dependent context of deadly force cases, “Graham and Garner alone [can]
offer a basis for decision” that officers violated “clearly established” Fourth
Amendment law in “an obvious case.”         Brousseau, 543 U.S. at 199.       As
explained above, this is an obvious case: in response to the alleged commission
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                                       No. 14-40040
of a non-violent and indisputably minor offense, Darby unleased pepper spray
into the face and eyes of an elderly woman without providing her any warning
or opportunity to comply with his command and without attempting to first
utilize any less severe alternative whatsoever. 12 Given these egregious facts,
a reasonable officer in Darby’s position would have “fair warning” that his
conduct violated the Fourth Amendment’s prohibition on excessive force
pursuant to both Supreme Court and this Circuit’s precedents.                       See, e.g,
Graham, 490 U.S. at 396; Bush, 513 F.3d at 502.
                                                  IV.
       Singleton also alleges that Darby’s use of pepper spray against her
amounted to retaliation against her for engaging in protected speech activities
opposing the pipeline in violation of the First Amendment.                       “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.” Keenan v. Tejeda, 290 F.3d 252, 258
(5th Cir. 2002). “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. (citing Colson v. Grohman, 174 F.3d 498, 509 (5th Cir. 1999)). In


       12  The majority’s repeated reliance upon Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011) is
similarly misplaced. Unlike here, Al-Kidd involved an entirely novel constitutional issue,
viz., whether “pretext could render an objectively reasonable arrest pursuant to a material-
witness warrant unconstitutional.” Id. at 2083. Also unlike here, “not a single judicial
opinion” had ever so held. Id. The Court’s language in Al-Kidd therefore must be read in
light of the unique question confronting the Court. Here, by contrast, we are confronted with
a run-of-the-mill question that we have, time and again, confronted: whether a police officer
may utilize a significant amount of force in response to a minor offense and where the suspect
poses no threat whatsoever and does not resist the officer. See Deville, 567 F.3d at 169. He
cannot.
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                                        No. 14-40040
order to satisfy her burden under the first prong of the qualified-immunity test,
Singleton must show that Darby’s conduct amounted to unconstitutional
retaliation and, accordingly, she must produce sufficient evidence to establish
that (1) she was “engaged in constitutionally protected activity”; (2) Darby’s
actions caused her “to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity”; and (3) Darby’s “adverse
actions were substantially motivated against [her] exercise of constitutionally
protected conduct.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
        Here, contrary to the majority opinion’s analysis, it cannot seriously be
disputed that Singleton engaged in constitutionally protected activity when
she joined in the protest against the Keystone XL pipeline on the side of the
road.        The majority opinion erroneously and narrowly focuses only on
Singleton’s conduct of standing in the roadway at the time of the pepper
spraying. The majority thus elides the critical fact that Singleton had been
engaged in constitutionally protected speech immediately prior to that point
when she was lawfully protesting on the side of the road.                 13   Regardless of


        13The majority erroneously contends that Singleton never claimed that her earlier
roadside speech activities served the basis for her retaliation claim, as opposed to her actions
in the road itself. But even a cursory review of her brief belies the majority’s conclusion. For
example, the heading of her brief’s section devoted to the retaliation claim uses the plural
“protests,” indicating that she contends Darby retaliated against her series of speech
activities speaking out against the construction of the pipeline, including her protest on the
side of the road. In addition, in other sections of her brief, Singleton emphasizes her speech
activities on the side of the road. See, e.g., Singleton Brief p. 3 (“Ms. Singleton, along with a
number of other protestors lined the sides of a rural road . . .”); id. at 5 (“Ms. Singleton was
doing what she had a lawful right to do during the afternoon of Nov. 19, 2012. Specifically,
Ms. Singleton was in Cherokee County near the Goodman Bridge in Wells, Texas to protest
and speak out on a matter of public concern: stopping the Keystone Pipeline.”).
        The majority derives its mistaken conclusion based on the fact that Singleton
apparently was in the road prior to the time Darby exited his car and approached the
protesters. According to the majority, because Darby never “witnessed” Singleton’s protest
on the side of the road, there would be no reason for him to retaliate against those speech
activities. But the majority wholly ignores that the record shows that Darby, as well as other
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                                    No. 14-40040
whether Singleton allegedly was violating state law when she moved from the
side of the road into the road, our own precedents illustrate that a plaintiff may
suffer unconstitutional retaliation motivated by speech activities that occurred
long prior to the challenged retaliatory conduct. See, e.g., Keenan, 290 F.3d at
261; Rolf v. City of San Antonio, 77 F.3d 823, 827-28 (5th Cir. 1996). In other
words, a valid retaliation claim does not require that the plaintiff be actively
engaged in constitutionally protected speech at the very moment a government
agent engages in retaliatory conduct.
      Nevertheless, I ultimately agree that summary judgment was properly
granted to Darby on Singleton’s retaliation claim, because Singleton has failed
to produce sufficient evidence to create a genuine dispute as to the third
element of her claim—i.e., that Darby’s use of pepper spray was “substantially
motivated against her exercise of constitutionally protected conduct.”               Id.
Because Singleton has failed to produce sufficient evidence to establish that
Darby’s conduct included one of the essential elements of unconstitutional
First Amendment retaliation, Darby is entitled to qualified immunity on the
First Amendment claim. See McClendon v. City of Columbia, 305 F.3d 314,
326-27 (5th Cir. 2002).
                                                V.
      For these reasons, I respectfully dissent from the majority’s decision
affirming the grant of summary judgment for Darby on Singleton’s Fourth
Amendment claim. However, I concur in the judgment affirming the district
court’s grant of summary judgment for Darby on Singleton’s First Amendment



members of the Cherokee County Sheriff’s Department, were dispatched throughout the area
in response to the protests against the pipeline. This raises a reasonable inference that
Darby would have been aware of the protests against the pipeline before encountering
Singleton and the other protesters obstructing the road itself.
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                                No. 14-40040
claim, but only because Singleton presented insufficient evidence that Darby’s
actions were substantially motivated by her speech against the construction of
the pipeline.




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