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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60357                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
GREGORY BROOKS,                                                          February 11, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

CITY OF WEST POINT, MISSISSIPPI; JIMMY BIRCHFIELD; WILLIAM
SPRADLING,

              Defendants - Appellees




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


Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Gregory Brooks filed this 42 U.S.C. § 1983 suit against West Point,
Mississippi police officers Jimmy Birchfield and William Spradling, alleging
that the officers violated his constitutional rights by unlawfully arresting him
without probable cause, by unlawfully arresting him in retaliation for his
exercise of freedom of speech, and by using excessive force upon him. The



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60357
district court granted summary judgment in favor of both defendants on the
ground of qualified immunity. We affirm in part and reverse in part.
                                             I.
       We summarize the evidence in the light most favorable to Brooks. The
dispute began when Brooks called 911 to complain of harassing phone calls
from his sister in Atlanta, and Birchfield responded to Brooks’s home. When
Birchfield told Brooks that he could not immediately press charges, Brooks
became angry and used curse words and other disrespectful language in telling
Birchfield to get off his property, but did not verbally or physically threaten
Birchfield or make any threatening, combative or other overt gesture toward
him. The exact words Brooks used are disputed. 1
       Birchfield then told Brooks that he was “fixing to go to jail for disorderly
conduct” and called for backup; while he was waiting in his car for a second
officer, he told Brooks’s wife and daughter—who had come out to talk to him—
that Brooks would be arrested for disorderly conduct. When Spradling arrived,
the two officers knocked on Brooks’s front door and asked him to come outside,
planning to arrest him for disorderly conduct. Brooks ran out of the house
through a different door and moved quickly toward the officers, demanding to
know why the officers were banging on his door (again, using some level of
expletive that the parties dispute).
       Here, accounts of the incident diverge. Brooks and two of his family
members testified that Spradling quickly grabbed Brooks’s arms and pulled
them behind his back, and that Brooks put his hands up only to block the
impact of Birchfield, who ran into Brooks and then yelled that he was going to



       1Birchfield maintains that Brooks said, “I don’t like your punk ass no way,” and “just
get your mother fucking ass out of my yard.” Brooks does not recall saying those words and
denies that he would ever do so, but does admit telling Birchfield to “get the hell off [his]
property.”
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                                  No. 14-60357
charge him with assaulting an officer or resisting arrest. On the other hand,
Spradling testified that he grabbed Brooks only after Brooks had first “shoved”
Birchfield. And Birchfield testified that almost as soon as Brooks exited his
home, he told Brooks that he was under arrest and to put his hands behind his
back; Spradling then grabbed Brooks, who pulled free and “came at” and
“pushed” Birchfield.
      After that disputed stage of the second encounter, the officers took hold
of Brooks, pushed him against the garage door, and forced him to the ground,
resulting in abrasions on his hands and knees.        Once Brooks was on the
ground, he was handcuffed and led to Spradling’s squad car.               Brooks
complained of pain in his back and neck, so the officers had an ambulance take
him to a hospital, where he was treated for abrasions. Brooks also claims that
the incident exacerbated his Post-Traumatic Stress Disorder (PTSD)
symptoms.
                                       II.
      We review a district court’s summary judgment decision de novo. Poole
v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). We employ a two-
pronged inquiry to resolve questions of qualified immunity at summary
judgment.    “The first asks whether the facts, ‘[t]aken in the light most
favorable to the party asserting the injury, . . . show the officer’s conduct
violated a [federal] right[.]’” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per
curiam) (alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). The second prong “asks whether the right in question was ‘clearly
established’ at the time of the violation.” Id. (quoting Hope v. Pelzer, 536 U.S.
730, 739 (2002)).      “[U]nder either prong, courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.” Id. at 1866.
      Because the non-moving party’s disputed evidence must be credited on a
motion for summary judgment, the district court erred in dismissing on the
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                                 No. 14-60357
basis of qualified immunity Brooks’s claim that he was arrested without
probable cause. “The right to be free from arrest without probable cause is a
clearly established constitutional right.” Mangieri v. Clifton, 29 F.3d 1012,
1016 (5th Cir. 1994). We look to the moment Brooks was arrested to determine
whether the officers could have reasonably believed that they had probable
cause—that “there was a fair probability that [Brooks] had committed or was
committing an offense.” Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir.
2004); see United States v. Tinkle, 655 F.2d 617, 623 (5th Cir. Unit A 1981)
(“The critical time is the moment of arrest, not the moment the officer makes
the decision to arrest.”).
      It is regrettable when police are summoned and respond, only to be
cursed. But viewing the facts at the time of arrest in the light most favorable
to Brooks, no reasonable officer could have believed that he could arrest Brooks
solely because of the words he used during his first encounter with Birchfield,
which constituted neither “fighting words” punishable under the First
Amendment nor disorderly conduct under Mississippi law. See City of Houston
v. Hill, 482 U.S. 451, 461–63 (1987); Gooding v. Wilson, 405 U.S. 518, 521–28
(1972); Jones v. State, 798 So. 2d 1241, 1247–48 (Miss. 2001) (en banc) (holding
that a defendant’s profane remarks to a police officer could not have given the
officer reason to believe that a breach of the peace had occurred); Brendle v.
City of Houston, 759 So. 2d 1274, 1283–84 (Miss. Ct. App. 2000) (en banc)
(holding that curse words addressed to a police officer were not fighting words
punishable under Mississippi profanity statute). And although Spradling and
Birchfield’s disputed versions of the events after they knocked on Brooks’s door
might support a finding that the officers had probable cause to believe that




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                                       No. 14-60357
Brooks committed simple assault or resisted a lawful arrest, 2 the facts
established by the testimony of Brooks and his family—which we must credit
on a motion for summary judgment—do not. The district court therefore erred
in granting summary judgment on this claim.
       The district court also erred in granting summary judgment to Birchfield
on the basis of qualified immunity with respect to Brooks’s claim for retaliation
in violation of the First Amendment. On that claim, Brooks must show that
(1) he “engaged in constitutionally protected activity”; (2) Birchfield’s actions
caused Brooks “to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity”; and (3) Birchfield’s
“adverse actions were substantially motivated against” Brooks’s exercise of
constitutionally protected speech. Keenan v. Tejeda, 290 F.3d 252, 258 (5th
Cir. 2002). Viewing the evidence in the light most favorable to Brooks, a jury
could conclude that Brooks’s speech was constitutionally protected, that his
arrest for cursing a police officer was an injury that would chill the speech of a
person of ordinary firmness, and that Birchfield’s decision to arrest Brooks was
motivated against his exercise of protected speech. See id. at 258–61. On this
view of the evidence, it also would have been clear to any reasonable officer
that Birchfield’s conduct was unlawful because (1) “government retaliation
against a private citizen for exercise of First Amendment rights cannot be
objectively reasonable,” and (2) as discussed, it is materially disputed whether
Birchfield had a legitimate ground to arrest Brooks that could “take primacy
over [Brooks’s] right to avoid retaliation.” See id. at 261–62. Thus, “qualified
immunity turns on fact issues that must be resolved by further proceedings in
the trial court.” Id. at 262.


       2 “The offense of resisting arrest presupposes a lawful arrest. A person has a right to
use reasonable force to resist an unlawful arrest.” Taylor v. State, 396 So. 2d 39, 42 (Miss.
1981) (citation omitted).
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                                  No. 14-60357
      Nonetheless, the district court correctly dismissed Brooks’s claim that
the officers used excessive force in violation of the Fourth Amendment when
they arrested him—an issue we analyze “without regard to whether the arrest
itself was justified.” Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007). “To
state a claim for excessive use of force, the plaintiff’s asserted injury must be
more than de minimis.” Id. at 416. According to Brooks, he suffered abrasions
to his hands and knees, some pain in his back and neck, and unspecified
problems with his asthma. We have held injuries of this type to be de minimis.
See id. at 417 (“[M]inor, incidental injuries that occur in connection with the
use of handcuffs to effectuate an arrest do not give rise to a constitutional claim
for excessive force.”); Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)
(concluding that allegations of “suffer[ing] ‘acute contusions of the wrist,’ and
psychological injury from being handcuffed” stated only de minimis injuries).
Brooks’s additional allegation that he suffered an increase in his PTSD
symptoms, which he does not support with medical evidence, does not suffice
to survive summary judgment either. Although the record indicates that the
officers knew Brooks was a veteran, there is no evidence they knew or should
have known that he had PTSD. And “[t]he ‘reasonableness’ of a particular use
of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490
U.S. 386, 396 (1989). Brooks’s hidden susceptibility to psychological trauma,
therefore, provides little support for his claim of having suffered a cognizable
injury from the officers’ conduct. See Tarver, 410 F.3d at 752 (“Tarver does not
demonstrate that he suffered psychological injury from the handcuffing or that
the handcuffing was excessive or unreasonable.”); Richman v. Sheahan, 512
F.3d 876, 883 (7th Cir. 2008) (explaining that a claim of a “hidden vulnerability
. . . would undermine the plaintiff’s case that the defendants had used excessive
force”). Because Brooks has not proffered evidence that the officers caused him
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                                No. 14-60357
more than a de minimis injury, the district court did not err in granting
summary judgment on his excessive force claim.
                                     III.
      For these reasons, we AFFIRM the district court’s grant of summary
judgment in favor of the police officers on Brooks’s excessive force claim, but
REVERSE its grant of summary judgment with respect to Brooks’s unlawful
arrest and First Amendment retaliation claims, and REMAND the case for
further proceedings consistent with this opinion.




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                                 No. 14-60357
JAMES L. DENNIS, Circuit Judge, specially concurring:
      I respectfully concur in the conclusions and judgment of the majority
opinion for the reasons assigned in this special concurring opinion.
      Judicial opinions serve three functions. First, written opinions
      communicate a court’s conclusions and the reasons for them to the
      parties and their lawyers. Second, when published, opinions
      announce the law to other lawyers, judges, academics, and the
      interested public. Finally, the preparation of a written opinion
      imposes intellectual discipline on the author, requiring the judge
      to clarify his or her reasoning and assess the sufficiency of
      precedential support.
FEDERAL JUDICIAL CENTER, JUDICIAL WRITING MANUAL 1 (1991).
      The majority opinion is a summary and shortened version of the full-
fledged opinion that I proposed for deciding this case. Because I believe my
proposed full opinion more adequately performs the functions that judicial
opinions should serve, I set forth part of it below as my reasons for concurring
in the conclusions and judgment of the majority opinion.
               I.     Factual and Procedural Background
      This litigation arises from two encounters between Brooks and Sergeant
Birchfield on Brooks’s front lawn on the same morning. The first encounter
was a one-on-one situation between only Brooks and Sgt. Birchfield.          The
second encounter was between Brooks and Officers Birchfield and Spradling;
and it was witnessed by Brooks’s family. The defendant officers contend that
during the first encounter Brooks committed the state crime of disorderly
conduct; and that during the second encounter Brooks committed the
additional state offenses of resisting arrest and simple assault on an officer.
Brooks alleges that the officers violated his constitutional rights by unlawfully
arresting him because they did not have reasonable grounds to believe that he
had committed any of those crimes before they physically seized him.

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                                       No. 14-60357
A.     First Encounter
       On the morning of January 2, 2012, plaintiff Gregory Brooks called 911
from his home in West Point, Mississippi complaining that he had received
harassing phone calls and messages from his sister in Atlanta, Georgia. In
response, defendant Sergeant Jimmy Birchfield of the West Point, Mississippi
police department was dispatched to Brooks’s home. Sgt. Birchfield parked in
the driveway and Brooks met him on the front lawn. Brooks explained that
his sister in Atlanta had been making harassing phone calls and leaving
abusive messages, and he proceeded to play several examples of the messages
for Sgt. Birchfield to hear. The undisputed record evidence indicates that
during the first encounter Brooks and Sgt. Birchfield were the only persons
present and were on Brooks’s private property; that Brooks became
disappointed and angry when Sgt. Birchfield told him that he could not
immediately press charges against his sister in Atlanta; and that Brooks used
curse words and other disrespectful language in telling Sgt. Birchfield to get
off his property; but that Brooks did not verbally or physically threaten Sgt.
Birchfield or make any threatening, combative or other overt gesture toward
him. 1 Nevertheless, Sgt. Birchfield told Brooks that he would arrest Brooks


       1 On summary judgment we must consider the facts in the light most favorable to
Brooks. See Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Sgt. Birchfield
contends he told Brooks that he would have to go to the police station to press charges against
his sister but that she could not be extradited from Georgia on a phone harassment charge.
According to Sgt. Birchfield, he suggested that Brooks just change his phone number, so
Brooks may have thought Birchfield was being sarcastic, and Brooks responded by saying, “I
don’t like your punk ass no way” and “just get your mother fucking ass out of my yard.”
Brooks, on the other hand, denied using any foul language other than “hell.” Sgt. Birchfield
stated that he responded by telling Brooks, “you can’t be cussing the police . . . now, at this
point what you’re doing is being disorderly . . . I’m trying to advise you on what we can do
and what we can’t do.” According to Sgt. Birchfield, when Brooks continued to curse at him,
he responded by saying either “Mr. Brooks, you’re fixing to go to jail for disorderly conduct”
or “Mr. Brooks, you’re going to be under arrest for disorderly conduct.”

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                                   No. 14-60357
and charge him with disorderly conduct because Brooks had continued to use
curse words in addressing Sgt. Birchfield after the officer ordered him to stop.
Brooks next walked back into his house and Sgt. Birchfield pulled his squad
car out of Brooks’s driveway. During their first encounter, Sgt. Birchfield did
not arrest or even touch Brooks, and Brooks did not touch or threaten Sgt.
Birchfield.
      Sgt. Birchfield then parked his squad car on the street in front of
Brooks’s house, called 911, and reported that Brooks “clearly, you know, he
called us out here for telephone harassment, but he’s clearly disorderly. He’s
very disorderly.” Sgt. Birchfield asked that another officer be dispatched to
Brooks’s home to assist in arresting Brooks.           While Sgt. Birchfield was
awaiting the second officer, Brooks’s wife and teenage daughter came out of
the house and asked Sgt. Birchfield why Brooks could not press charges
against his sister. Sgt. Birchfield informed them that he was going to arrest
Brooks for disorderly conduct “due to the fact where he has been told not to
curse the police the way he did . . . that’s why he’s going to jail because he was
told.” Brooks’s wife asked Sgt. Birchfield if Brooks could just apologize, but
Sgt. Birchfield responded “that is just too far over for disrespecting a police
officer . . . I just can’t accept, you know, you cursing a police when they’re trying
to help you at the same time.” Brooks’s wife and daughter went back in the
house.
      Soon afterwards, defendant Corporal William Spradling, also of the West
Point police department, arrived on the scene. Sgt. Birchfield instructed Cpl.
Spradling that they were going to arrest Brooks for disorderly conduct and they
walked up to Brooks’s house and knocked on the front door.




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                                      No. 14-60357
B.     Second Encounter
       Unbeknown to the officers, the Brooks family kept the front door
permanently dead-bolted and used a side door for entrance and egress. Inside
the house, Brooks, his wife, his teenage daughter, and his younger son heard
a loud bang that frightened them. Mrs. Brooks testified that it “sounded like
our front door was coming down.” Brooks, who testified that he is an Iraq war
veteran and suffers from Post-Traumatic Stress Disorder (“PTSD”), stated that
he was “traumatized” by the banging on the door. He said that “it felt like the
feeling like [he] was in Iraq again, like a big explosion.”
       The officers, knocking at the front door, called for Brooks to “come
outside.” Brooks exited the house by running or moving quickly from his den,
through his garage, and out the side door of the garage. Brooks then went
around the corner of the garage and headed toward the front door of the house.
Brooks’s wife, daughter, and son followed closely behind Brooks and witnessed
his encounter with the officers. As Brooks walked toward the officers near the
front door, he demanded to know why the “hell” they were banging on his door. 2
       1.     Dispute as to Material Facts
       At this point, there is a sharp difference between the three Brookses’
version of events and that of the police officers. Brooks, his wife, and his
daughter testified as follows: After the officers knocked and called for Brooks
to come out, they did not issue any other command to Brooks. When Brooks
reached his front yard, he demanded to know why the officers were banging on
his house, and Cpl. Spradling, who was closer to Brooks, grabbed Brooks’s


       2Sgt. Birchfield testified that Brooks said, “why your mother fucking ass knocking on
my door[?] Didn’t I tell you to get the fuck off my yard[?]” Cpl. Spradling’s testimony was
consistent with Sgt. Birchfield’s. Brooks’s wife, however, testified that the only expletive
Brooks may have used was “hell.”

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                                     No. 14-60357
arms and pulled them behind his back. 3 Sgt. Birchfield then yelled at Brooks
that he was going to arrest him for disorderly conduct, “because he can’t call
the police out to his house and then get upset because they wouldn’t allow him
to press charges.” Then, Sgt. Birchfield started to run at Brooks at full speed.
Brooks pulled his arms away from Cpl. Spradling and put both hands up,
palms open, in order to block the impact. Sgt. Birchfield ran into Brooks’s open
hands. Sgt. Birchfield then yelled that he was going to charge Brooks with
assaulting an officer.
      On the other hand, each officer’s account of the incident disputes that of
the Brooks family and, in part, that of the other officer. Cpl. Spradling testified
that: He grabbed Brooks only after Brooks had first “shoved” Sgt. Birchfield.
Sgt. Birchfield testified that: Almost as soon as Brooks exited his home, he told
Brooks that he was under arrest for disorderly conduct and to put his hands
behind his back. Cpl. Spradling then grabbed Brooks’s arm and began to place
it behind Brooks’s back. Brooks pulled free from Cpl. Spradling’s grasp, “came
at” Sgt. Birchfield, and “pushed” Sgt. Birchfield with his hands.
      2.     The Rest of the Material Facts Are Undisputed
       The parties agree that, after that disputed stage of the second
encounter, the officers both grabbed hold of Brooks, pushed him against the
garage door, and vigorously forced him to the ground, resulting in abrasions
on his hands and knees. Once Brooks was on the ground, he was handcuffed
and led to Cpl. Spradling’s squad car. While they were en route to the jail,
Brooks began to complain of severe pain in his back and neck, so the officers
had an ambulance take him to a hospital, where he was treated for abrasions



      3 There is some discrepancy in the record as to whether Cpl. Spradling pulled both of
Brooks’s arms behind his back, or just one.

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                                  No. 14-60357
on his hand and foot. Brooks also alleges that the ordeal aggravated his PTSD
symptoms.
C.     Procedural History
       Brooks brought claims under 42 U.S.C. § 1983 and various state laws
against the City of West Point, Mississippi, as well as against Sgt. Birchfield
and Cpl. Spradling in both their personal and official capacities. Brooks v. City
of W. Point, 18 F. Supp. 3d 790, 794 (N.D. Miss. 2014). Brooks later abandoned
all claims against the city, all state-law claims, and all claims against the
officers in their official capacities, leaving only his claims against the officers
individually for Fourth Amendment unlawful arrest, First Amendment
retaliatory arrest, and for excessive force.      Id.   Sgt. Birchfield and Cpl.
Spradling (collectively, “Defendants”) moved for summary judgment on the
basis of qualified immunity and the district court granted their motions. Id.
Brooks appealed.
     II.   Elements of Summary Judgment and Qualified Immunity
       We review a district court’s summary judgment decision de novo. Poole
v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Summary judgment is
appropriate if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In
ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is
to be believed, and all justifiable inferences are to be drawn in his favor.” Tolan
v. Cotton, 134 S. Ct. 1861, 1863 (2014) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)).
       In this circuit, the defense of qualified immunity involves a shifting
burden of proof.      Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).
“Although we sometimes short-handedly refer to only one party’s burden, the
law is that both bear a burden.” Id. The defendant official first has the burden
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                                  No. 14-60357
to plead good faith and establish that he engaged in the relevant conduct while
acting within the scope of his discretionary authority. Id. (citing Saldana v.
Garza, 684 F.2d 1159, 1163 (5th Cir. 1982)). “Once the defendant has done so,
the burden shifts to the plaintiff to rebut this defense by establishing that the
official’s allegedly wrongful conduct violated clearly established law.”        Id.
(citing Whatley v. Philo, 817 F.2d 19, 20 (5th Cir. 1987); United States v.
Burzynski Cancer Research Inst., 819 F.2d 1301, 1310 (5th Cir. 1987)).
      We employ a two-pronged inquiry to resolve questions of qualified
immunity at summary judgment. “The first asks whether the facts, ‘[t]aken in
the light most favorable to the party asserting the injury, . . . show the officer’s
conduct violated a [federal] right[.]’” Tolan, 134 S. Ct. at 1865 (quoting Saucier
v. Katz, 533 U.S. 194, 201 (2001)). “The second prong of the qualified-immunity
analysis asks whether the right in question was ‘clearly established’ at the time
of the violation.” Id. (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The
order in which to address these two prongs rests in the reviewing court’s
discretion. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “But under either
prong, courts may not resolve genuine disputes of fact in favor of the party
seeking summary judgment.” Tolan, 134 S. Ct. at 1866 (citing Brosseau v.
Haugen, 543 U.S. 194, 195 n.2 (2004) (per curiam)). “This is not a rule specific
to qualified immunity; it is simply an application of the more general rule that
a ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine
issue for trial.’” Id. (quoting Anderson, 477 U.S. at 249). “Summary judgment
is appropriate only if ‘the movant shows that there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law.’”
Id. (quoting FED. RULE CIV. PROC. 56(a)). “In making that determination, a


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                                 No. 14-60357
court must view the evidence ‘in the light most favorable to the opposing
party.’” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
                              III.   Discussion
A.     Fourth Amendment Unlawful Arrest Claim
       “The right to be free from arrest without probable cause is a clearly
established constitutional right.” Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th
Cir. 1994) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)); see Gerstein v. Pugh,
420 U.S. 103, 111 (1975). Probable cause to arrest turns on whether an officer,
at the time of arrest, “had knowledge that would warrant a prudent person’s
belief that the person arrested had already committed or was committing a
crime.” Mangieri, 29 F.3d at 1016 (quoting Duckett v. City of Cedar Park, 950
F.2d 272, 278 (5th Cir. 1992)). “Police officers who ‘reasonably but mistakenly
conclude that probable cause is present’ are entitled to qualified immunity.”
Id. at 1017 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). In Devenpeck
v. Alford, 543 U.S. 146, 153 (2004), the Supreme Court made clear that the
pertinent question in a claim of false arrest under the Fourth Amendment is
whether there was probable cause to arrest the plaintiff for a crime, regardless
of the individual officer’s subjective reason for making the arrest. Applying
the Devenpeck standard in the qualified immunity context, the inquiry is
whether, given the facts known to Defendants, they could have reasonably
believed they had probable cause to arrest Brooks for a crime he had committed
or was committing.
       Defendants point to three Mississippi statutes under which they contend
they had probable cause to arrest Brooks: (1) disorderly conduct, Mississippi
Code § 97-35-7; (2) resisting arrest, § 97-9-73; and (3) simple assault, § 97-3-
7(1)(a). Applying the summary judgment and qualified immunity principles
to the materials in the record, however, it becomes clear that the movant
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                                   No. 14-60357
officers are not entitled to summary judgment dismissing Brooks’s claims of
unlawful arrest and retaliation for his speech, because the materials in the
record show that (1) during his first encounter with Sgt. Birchfield, Brooks did
not commit the offense of disorderly conduct, and (2) there is a genuine dispute
as to whether, during the second encounter, Cpl. Spradling and Sgt. Birchfield
unlawfully arrested Brooks before Brooks lawfully attempted to defend himself
against their unconstitutional seizure of him. After discussing Defendants’
meritless arguments as to disorderly conduct, resisting arrest, and assault, I
will further address their claim of qualified immunity.
        The Mississippi disorderly conduct statute provides, in pertinent part,
that:
        (1) Whoever, with intent to provoke a breach of the peace, or under
            such circumstances as may lead to a breach of the peace, or
            which may cause or occasion a breach of the peace, fails or
            refuses to promptly comply with or obey a request, command,
            or order of a law enforcement officer, having the authority to
            then and there arrest any person for a violation of the law, to:
              [Subparts (a) through (h) list various types of commands,
              orders or requests with which a person must comply, e.g.,
              “(a) Move or absent himself and any vehicle or object subject
              to his control from the immediate vicinity where the request,
              command or order is given.”]
              (i) Act or do or refrain from acting or doing as ordered,
                  requested or commanded by said officer to avoid any
                  breach of the peace at or near the place of issuance of such
                  order, request or command, shall be guilty of disorderly
                  conduct, which is made a misdemeanor and, upon
                  conviction thereof, such person or persons shall be
                  punished by a fine of not more than Five Hundred Dollars
                  ($500.00) or imprisonment in the county jail for not more
                  than six (6) months, or by both such fine and
                  imprisonment.
MISS. CODE ANN. § 97-35-7(1) (2006).

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                                  No. 14-60357
      Thus, to convict a person of violating subsection (i) of Mississippi’s
disorderly conduct statute the state must prove that the accused failed to
comply with an officer’s command, order, or request to act, or not to act, as
instructed, while the officer’s command, order, or request had been issued to
avoid a breach of the peace, and the accused either intended to provoke a
breach of the peace, or knew that his non-compliance may cause or lead to a
breach of the peace. See id.      However, under the free speech principles
recognized by both state and federal courts, the statute may not be applied to
punish a person, or to justify his arrest, because of his spoken words only,
unless his speech constitutes “fighting words” or falls within some other
category of speech not protected by the First Amendment.
      The Supreme Court has held that “the First Amendment protects a
significant amount of verbal criticism and challenge directed at police officers.”
City of Houston v. Hill, 482 U.S. 451, 461 (1987). “Speech is often provocative
and challenging. . . . [But it] is nevertheless protected against censorship or
punishment, unless shown likely to produce a clear and present danger of a
serious substantive evil that rises far above public inconvenience, annoyance,
or unrest.” Id. (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). “The
constitutional guarantees of freedom of speech forbid the States to punish the
use of words or language not within narrowly limited classes of speech.”
Gooding v. Wilson, 405 U.S. 518, 521-22 (1972) (quotation marks omitted).
“These include . . . ‘fighting’ words—those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New
Hampshire, 315 U.S. 568, 571-72 (1942). “‘The test is what men of common
intelligence would understand would be words likely to cause an average
addressee to fight.’” Id. at 573 (citation omitted). “Even as to such a class,
however, because the line between speech unconditionally guaranteed and
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                                 No. 14-60357
speech which may legitimately be regulated, suppressed, or punished is finely
drawn, in every case the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom.”
Gooding, 405 U.S. at 522 (quotation marks, citations, and alterations omitted).
“In other words, the statute must be carefully drawn or be authoritatively
construed to punish only unprotected speech and not be susceptible of
application to protected expression.” Id.
      For example, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), a state
court found that the appellant had yelled obscenities and threats at an officer
after the officer had asked the appellant’s husband for his driver’s license. Id.
at 131 n.1. The appellant was convicted under a municipal ordinance making
it unlawful “for any person wantonly to curse or revile or to use obscene or
opprobrious language toward or with reference to any member of the city police
while in the actual performance of his duty.” Id. at 132 (citation omitted). The
Court vacated the conviction and invalidated the ordinance as facially
overbroad. Id. at 134. “Critical to [the Court’s] decision was the fact that the
ordinance ‘punishe[d] only spoken words’ and was not limited in scope to
fighting words that ‘by their very utterance inflict injury or tend to incite an
immediate breach of the peace.’” Hill, 482 U.S. 461-62 (quoting Lewis, 415 U.S.
at 133); see also Gooding, 405 U.S. at 525 (invalidating Georgia breach-of-the-
peace statute not limited to fighting words).        Since the ordinance was
“susceptible of application to protected speech,” it was “constitutionally
overbroad and therefore . . . facially invalid.”     Lewis, 415 U.S. at 134.
Moreover, in his concurrence in Lewis, Justice Powell went so far as to question
whether the “fighting words” exception applies in full force to speech directed
at police officers, as “a properly trained officer may reasonably be expected to
exercise a higher degree of restraint than the average citizen, and thus be less
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                                       No. 14-60357
likely to respond belligerently to ‘fighting words.’” Id. at 135 (citation and
quotation marks omitted).           Later, in Hill, a majority of the Court cited
favorably this language from Justice Powell. 482 U.S. at 462.
       Mississippi courts have recognized and applied the Chaplinsky “fighting
words” doctrine in considering whether spoken words alone, without
threatening or combative conduct or gestures, may be punished under state
statutes. See Brendle v. City of Houston, 759 So. 2d 1274, 1283-84 (Miss. Ct.
App. 2000) (en banc) (Brendle’s use of spoken words only, “I’m tired of this God
d— police sticking their nose in s— that doesn’t even involve them” and “f—,”
in addressing a police officer and another person, inside Brendle’s place of
business, were not “fighting words” so as to make him punishable under
Mississippi public profanity or drunkenness statute) (Per Lee, J., with three
judges concurring and two judges concurring specially); Odem v. State, 881 So.
2d 940 (Miss. Ct. App. 2004) (en banc) (holding that defendant Odem used
fighting words because, in addition to directing curse words at a sheriff’s
deputy inside his office from which the deputy could not walk away, defendant
engaged in combative conduct); 4 Sendelweck v. State, 101 So. 3d 734 (Miss. Ct.
App. 2012) (finding probable cause to arrest Sendelweck for disorderly conduct
because he walked across a public street to where a deputy was standing beside
his parked vehicle and irately pointed his finger in the officer’s face while




       4 Odem did not stop with simply expressing his displeasure. See Odem v. State, 881
So. 2d 940, 946 (Miss. Ct. App. 2004). He was combative and he created a stalemate that
rose to the level of “fighting words” that were likely to inflict injury or incite an immediate
breach of the peace. Id. at 948-49. Indeed, Odem indicated no intent to back down until the
officer gave him his vehicle without following the proper procedure. Id. at 949.
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                                  No. 14-60357
yelling and cursing and refusing to step back when directed, which the officer
believed to be threatening and combative gestures).
      Although the Mississippi Supreme Court has not explicitly applied the
Chaplinsky “fighting words” doctrine in construing the disorderly conduct
statute, it reached a result consistent with the doctrine in Jones v. State, 798
So. 2d 1241 (Miss. 2001) (en banc). Defendant Jones was arrested after he
publicly berated a sheriff’s deputy outside a pit-stop grocery, calling him “a
child killing motherfucker,” yelling other profanity, accusing him of having had
a hand in Jones’s son’s death, and refusing to leave the premises as the officer
instructed. Id. at 1246. A majority held under state-law precedent that, based
on Jones’s spoken words only without any threatening conduct or gestures at
that point, the deputy did not have sufficient evidence to believe that a breach
of the peace was being threatened or a crime was about to be committed. Id.
at 1248 (Per Diaz, J., with two judges concurring and two judges concurring in
the result.) The four dissenting justices fully considered and discussed the
Chaplinsky “fighting words” doctrine but found that Jones’s actions and words
were not protected speech. Id. at 1256-57 (Easley, J., dissenting). Needless to
say, although most, if not all, judges in Mississippi, as elsewhere, recognize the
constraints of the First Amendment “fighting words” doctrine, that does not
mean they will always agree upon its specific application and result in every
particular factual situation.
      Applying the foregoing principles to the present case leads to the
conclusion that, during the first encounter, under the undisputed facts,
Brooks’s spoken words only, which did not threaten harm to Sgt. Birchfield or
anyone else, and which Brooks addressed only to Sgt. Birchfield within the
confines of Brooks’s own property, without any overt hostile act, conduct or
gesture, although angry, distasteful and uncivil, simply could not reasonably
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                                        No. 14-60357
be thought to rise to the level of “‘fighting’ words—those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.”
Chaplinsky, 315 U.S. at 571.            Nor were Brooks’s spoken words “likely to
produce a clear and present danger of a serious substantive evil that rises far
above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337
U.S. 1, 4 (1949). Consequently, the disorderly conduct statute could not be
construed to punish Brooks’s spoken words only under those circumstances,
and the previous decisions of the Mississippi Supreme Court and Courts of
Appeals are consistent with this conclusion.
       Sgt. Birchfield points to nothing in the record that suggests that, during
the first encounter, Brooks’s words alone, under the circumstances then
present, had any tendency to cause a fight or public disturbance or to interfere
with the police in the performance of their duties. Rather, the record shows
that during the first encounter, it is far more likely that Sgt. Birchfield took
offense at Brooks’s spoken words and decided to arrest him and charge him
with disorderly conduct because of his speech alone.                     For example, Sgt.
Birchfield testified that when Brooks told him “I don’t like your mother fucking
ass no way. Get the fuck on out of my yard,” 5 Sgt. Birchfield immediately said,
“okay, Mr. Brooks, you’re fixing to go to jail for disorderly conduct.” And Sgt.
Birchfield testified that Brooks was “arrested for cursing, saying, ‘get your
mother fucking ass off my yard.              I told your punk ass.’” 6         Although Sgt.
Birchfield’s subjective reason for arresting Brooks is not controlling, his failure
to give any reason for the arrest other than Brooks’s speech alone highlights



       5 Brooks testified that he told Sgt. Birchfield “to get the hell out of [his] yard” and he
denied using any other expletive.
       6 Brooks denied using this vulgar language. He stated that “hell” was the only

expletive he used.
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                                 No. 14-60357
the lack of probative evidence that Brooks said or did anything to threaten
Birchfield, other persons, or the peace of the public. Thus, for the purpose of
deciding the summary judgment motion, we must conclude that Brooks was
arrested for his spoken words only and that his speech did not constitute
“fighting words,” those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. See Gooding, 405 U.S. at 522.
      With respect to the second encounter, there is a genuine issue of material
fact as to whether Defendants, Sgt. Birchfield and Cpl. Spradling, had probable
cause to arrest Brooks for a criminal offense prior to the moment that Cpl.
Spradling arrested Brooks by seizing him and placing his arms behind his
back. Although Sgt. Birchfield and Cpl. Spradling testified that Brooks lunged
at and assaulted Sgt. Birchfield before Cpl. Spradling arrested Brooks, the
three Brooks family members testified to the contrary. Brooks, his wife, and
teenage daughter testified consistently that Cpl. Spradling grabbed Brooks
and pinned his arms behind his back as soon as Brooks reached the front yard,
and that it was only after Cpl. Spradling had seized Brooks that Sgt. Birchfield
sprinted towards Brooks and Brooks put his open hands out to protect his body
from the impact.    Because in ruling on a summary judgment motion the
evidence of the nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor, we must credit the testimony of Brooks, his wife and
his daughter and infer that at the moment Brooks was arrested he had not
given the officers any reason to believe that he had committed or was
committing a criminal offense.
      Defendants’ arguments that they had probable cause to arrest Brooks for
resisting arrest and assault on a police officer are also meritless.      Under
Brooks’s version of the facts, which we must credit for summary judgment
purposes, he had not committed a criminal offense prior to the time he was
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                                 No. 14-60357
arrested by Cpl. Spradling. Therefore, Cpl. Spradling and Sgt. Birchfield may
not interpose their disputed version of the facts as a basis for deciding the
motion for summary judgment.
      Viewing the evidence in the light most favorable to Brooks, there are
unresolved disputes of material fact as to whether Defendants violated
Brooks’s Fourth Amendment right to be free from arrest without probable
cause. See Tolan, 134 S. Ct. at 1865. The next step in the qualified immunity
analysis is to determine whether the right Defendants allegedly violated was
“clearly established” at the time of the violation.    See id. at 1866. Since
qualified immunity protects those officers who “reasonably but mistakenly”
violate an individual’s constitutional rights, Defendants are entitled to
qualified immunity if “reasonable officers in [Defendants’] position could have
believed probable cause existed to arrest” Brooks. Freeman v. Gore, 483 F.3d
404, 415 (5th Cir. 2007). The record evidence, viewed most favorably to Brooks,
indicates that no reasonable officer could have believed probable cause existed.
Brooks has submitted competent evidence that his relevant conduct prior to
arrest was limited to spoken words only.        As discussed above, Brooks’s
speech—however disrespectful, abusive, or inappropriate—fell far short of
“fighting words” or any other category of speech that can be punished by the
state. See Gooding, 405 U.S. at 522. No reasonable officer in Defendants’
position could have believed that the First Amendment or Mississippi law
permitted Brooks to be arrested for his words alone. See Jones, 798 So. 2d at
1248. Accordingly, Defendants are not entitled to summary judgment based
upon qualified immunity on Brooks’s Fourth Amendment unlawful arrest
claim.




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                                        No. 14-60357
B.     First Amendment Retaliation for Speech Claim
       Brooks further claims that Sgt. Birchfield violated his First Amendment
free speech rights by causing Brooks to be arrested in retaliation for Brooks’s
spoken words to Sgt. Birchfield in their first encounter. 7 To establish that he
was subjected to retaliation in violation of his First Amendment rights, Brooks
must show that (1) he “engaged in constitutionally protected activity”; (2) Sgt.
Birchfield’s actions caused Brooks “to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity”; and (3) Sgt.
Birchfield’s “adverse actions were substantially motivated against” Brooks’s
exercise of constitutionally protected speech. Keenan v. Tejeda, 290 F.3d 252,
258 (5th Cir. 2002). Sgt. Birchfield has asserted qualified immunity on this
claim, which requires an analysis of “whether the facts alleged, taken in the
light most favorable to the party asserting the injury, show that the officer’s
conduct violated a constitutional right” and “whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he
confronted.” Keenan, 290 F.3d at 261 (quotation marks and citations omitted).
In Keenan, two former deputy constables, Keenan and Przybylski, brought a
§ 1983 suit asserting that their First Amendment rights were violated when
they suffered retaliation for their protected speech. Id. at 256. Not long after
they publicly exposed possible wrongdoing by the county constable, Keenan
and Przybylski were subjected to a traffic stop by several officers with guns
drawn that led to the issuance of a minor traffic ticket, later dismissed, and
Keenan was subsequently charged with misdemeanor “deadly conduct” under
suspicious circumstances. Id. at 256-59. The district court granted summary
judgment based on qualified immunity in favor of the defendant officers, but


       7   Brooks does not include Cpl. Spradling as a defendant in his First Amendment claim.

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                                  No. 14-60357
we reversed on appeal. First, we concluded that Keenan and Przybylski were
engaged in protected activity, suffered an injury that would chill a person of
ordinary firmness, and had offered sufficient evidence that the officers’ conduct
was substantially motivated by the plaintiffs’ protected speech. Id. at 261.
Moving to qualified immunity’s second prong, we stated that “[i]f no reasonable
police officer could have believed that probable cause existed for the law
enforcement actions of [the defendant officers] against the plaintiffs, then their
retaliation violated clearly established law in this circuit.” Id. at 262. This
was because “government retaliation against a private citizen for exercise of
First Amendment rights cannot be objectively reasonable” in light of clearly
established law, but “the objectives of law enforcement take primacy over the
citizen’s right to avoid retaliation” where there is a legitimate ground to charge
the plaintiff with a crime. Id. at 261-62 (citing Rolf v. City of San Antonio, 77
F.3d 823, 828 (5th Cir. 1996) and Mozzochi v. Borden, 959 F.2d 1174, 1179 (2d
Cir. 1992)).   Since a genuine dispute of fact made it impossible for us to
determine whether probable cause existed, “qualified immunity turn[ed] on
fact issues that [had to] be resolved by further proceedings in the trial court”
and we reversed the district court’s summary judgment in favor of the
defendants. Id. at 262.
      Here, Brooks has proffered sufficient evidence that Sgt. Birchfield
violated his First Amendment rights because, under Brooks’s version of events,
his speech was constitutionally protected activity, his arrest was an injury that
would chill the speech of a person of ordinary firmness, and he has offered
ample evidence that Sgt. Birchfield’s decision to arrest Brooks was




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                                      No. 14-60357
substantially motivated against Brooks’s exercise of protected speech. 8 See id.
at 261. Next, we must consider “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Id.
(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).                As we have stated,
“government retaliation against a private citizen for exercise of First
Amendment rights cannot be objectively reasonable.” Id. Furthermore, as
discussed in Part III.A., supra, Sgt. Birchfield’s summary judgment arguments
that he had probable cause to arrest Brooks are without merit. In light of
clearly established federal law, no reasonable officer in Sgt. Birchfield’s
position could have believed he could arrest Brooks in retaliation for Brooks’s
spoken words only that under the circumstances clearly did not amount to
“fighting words.” See id. at 262. Thus, Sgt. Birchfield was not entitled to
qualified immunity on Brooks’s First Amendment retaliatory arrest claim.
C.     Fourth Amendment Excessive Force Claim
       I concur fully in the majority opinion’s disposition of Brooks’s excessive
force claim because it is essentially identical to that which I proposed in my
full-length opinion.
                                   IV.    Conclusion
       For these reasons, I concur in the conclusions and judgment of the
majority opinion.




       8 For example, Sgt. Birchfield charged that Brooks “willfully and unlawfully, said to
officer Birchfield to get his punk ass off his property” and refused to comply with a request
to calm down. Sgt. Birchfield also told Brooks’s wife that he would arrest Brooks because “he
has been told not to curse the police the way he did . . . that’s why he’s going to jail.”

                                             26
