     Case: 15-20264      Document: 00513412219       Page: 1   Date Filed: 03/09/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                      No. 15-20264                  United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
DAVID ALLEN,                                                           March 9, 2016
                                                                      Lyle W. Cayce
               Plaintiff - Appellee                                        Clerk

v.

A. H. CISNEROS; J. MONTELONGO,

               Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:
      Plaintiff–Appellee David Allen participated in several demonstrations
throughout the City of Houston that led to his detention and arrest by police
officers,    including   Defendants–Appellants       Aaron     Cisneros     and         Juan
Montelongo. Allen brought claims under 42 U.S.C. § 1983 against Sergeant
Cisneros and Officer Montelongo, among others, alleging that the officers
violated his constitutional rights. The district court denied the officers’ motion
for summary judgment on qualified immunity grounds, and the officers
appealed. Because we hold that the officers are entitled to qualified immunity,
we REVERSE the district court’s order denying summary judgment.
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             I.   FACTUAL AND PROCEDURAL BACKGROUND
       Since at least 2010, Plaintiff–Appellee David Allen has regularly
engaged in street preaching throughout Houston, Texas, sounding a shofar as
part of his preaching. 1 After Allen’s activities led to his detention and arrest
by police officers on multiple occasions, he filed a complaint in the United
States District Court for the Southern District of Texas, alleging numerous
violations of his constitutional rights arising out of several encounters with
police officers. Two encounters are at issue in this appeal: Allen’s encounter
with Officer Montelongo on October 31, 2011, and his encounter with Sergeant
Cisneros on January 14, 2012.
       A. Incident Involving Officer Montelongo
       On October 31, 2011, Allen was street preaching at a bus stop in Houston
with David Stokes—another street preacher—and two other individuals.
Officer Montelongo arrived on the scene in response to a disturbance call. He
possessed a template that measured whether signs and objects used by
demonstrators complied with Houston Ordinance § 28-33, 2 which describes the


       1  A shofar is a trumpet-like instrument made from a ram’s horn. Shofars are
commonly used in Judaism to mark the holidays of Rosh Hashanah and Yom Kippur. Joseph
Berger, In Brooklyn, Horn Lessons by a Rabbi Ring Out, N.Y. Times, Sept. 29, 2011, at A24.
Sergeant Cisneros and Officer Montelongo did not know of the shofar’s religious significance,
and the parties do not dispute on appeal that Defendants are entitled to qualified immunity
for the seizure of Allen’s shofar.
        2 The ordinance provides that:



       (a) No person shall carry or possess while participating in any demonstration,
       rally, picket line or public assembly, any stick, board, pole, stave, rod, plank,
       pipe, stud, cane, staff, slat, or similar object unless that object conforms to the
       following specifications:
               (1) All objects which are generally rectangular in shape shall not
               exceed one-fourth inch in thickness and two inches in width.
               (2) All objects which are not generally rectangular in shape shall
               not exceed three-quarters inch in their thickest dimension.
               (3) All objects must be constructed of wood, wood products, or
               other cellulose materials.

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                                     No. 15-20264
items that may be carried at a demonstration. He measured the signs and
informed Stokes that the signs did not comply with the ordinance. Officer
Montelongo also informed Allen that he could not have his shofar, which
measured approximately thirty-seven inches long and six inches in width, and
which Allen possessed throughout the entire incident. As Officer Montelongo
and Stokes argued about whether the signs complied with the ordinance,
Officer Montelongo’s supervising officer arrived. While the officers discussed
the situation, Stokes approached the officers, and the supervising officer
detained Stokes.      According to Officer Montelongo, Allen entered into the
oncoming street traffic while Stokes was being detained. Officer Montelongo
pulled Allen back onto the sidewalk, but Allen resisted and fell, leading to
Officer Montelongo and another officer handcuffing Allen for the officers’ and
Allen’s safety. According to Allen, however, he never entered or tried to enter
the street; instead, the officers detained and handcuffed Allen as he attempted
to use his cell phone to videotape Stokes’ treatment by the officers. The parties
agree that Allen was placed in the back of a police car after being handcuffed.
Officer Montelongo ultimately issued citations to Stokes and Allen for violating
the city ordinance, and confiscated the signs and Allen’s shofar. 3
       B. Incident Involving Sergeant Cisneros
       On January 14, 2012, Allen and Stokes protested in downtown Houston
on the route of the Houston Marathon. Allen had his shofar and Stokes had
several signs displaying controversial messages. A race official approached,
stood in front of one of the signs, and exchanged words with Stokes. A police
officer spoke with Stokes, and subsequently called for assistance because of




Houston, Tex., Code of Ordinances ch. 28, art. 1, § 33.
      3 The citation was later dismissed because it had been incorrectly completed.

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                                   No. 15-20264
“two extremely uncooperative males” that were causing a disruption along the
race route.
      Upon arriving at the scene, Sergeant Cisneros spoke with the other
officer and the race official about the disruption.             Sergeant Cisneros
approached Stokes and Allen and directed them to move back from the edge of
the race route, but Stokes verbally refused to move. Sergeant Cisneros told
Stokes “[c]ome on with me” and escorted Stokes towards Sergeant Cisneros’
police car, which was parked on a street blocked off for the race. As Sergeant
Cisneros detained Stokes, Allen videotaped the encounter, following Sergeant
Cisneros and “com[ing] up behind him.” Sergeant Cisneros turned and told
Allen, “I’m going to tell you. I do not want you near my police car. I’m going
to order you to go away. If you do not go away, I’m going to put you in jail for
interfering with a police investigation.” Allen began walking backwards while
continuing to videotape. Sergeant Cisneros then told Allen that “[i]f we are
going to play the step-by-step game, I’m going to put you in the backseat of the
car also.” Allen verbally protested, claiming that he was on a public sidewalk
and asking what he was doing wrong. Sergeant Cisneros confiscated the video
camera from Allen, frisked him, and placed him in the backseat of the patrol
car with Stokes.
      After checking Stokes’ and Allen’s identification, Sergeant Cisneros
released both men, returning their personal belongings. Allen began walking
towards Sergeant Cisneros’ patrol car with the video camera.                Sergeant
Cisneros contends that he warned Allen to stay out of the street, although
Allen disputes that such a warning occurred. After Allen entered the street,
Sergeant Cisneros arrested him. Sergeant Cisneros issued Allen a citation for
failure to obey a lawful order of a police officer directing traffic and for violating




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                                      No. 15-20264
Houston Ordinance § 28-33 by possessing a staff while participating in a
demonstration. 4
       C. Procedural History
       On May 15, 2013, Allen filed his complaint seeking relief under 42 U.S.C.
§ 1983. Allen alleged that Defendants seized him in retaliation for his exercise
of his freedom of speech, in violation of the First Amendment, and that the
seizures were without probable cause or other lawful authority, in violation of
the Fourth Amendment. 5 Defendants moved for summary judgment, asserting
that they were entitled to qualified immunity. The magistrate judge issued a
memorandum and recommendation, advising that the district judge deny
summary judgment on qualified immunity grounds as to the seizures of Allen
by both Defendants. 6 As to the incident involving Officer Montelongo, the
magistrate judge found that there was a genuine factual dispute of whether
Allen had entered the street when he was detained by Officer Montelongo.
Similarly, the magistrate judge found that there was a genuine factual dispute
of whether Allen complied with Sergeant Cisneros’ orders and whether Allen
remained bound by Sergeant Cisneros’ prior orders. Both Defendants filed
objections, but the district court adopted the magistrate judge’s memorandum
and recommendation in its entirety. Defendants timely appealed the denial of
their summary judgment motion based on qualified immunity.




       4  The charges were later dismissed after Sergeant Cisneros missed Allen’s court date.
       5  Allen also brought claims against the chief of the Houston Police Department,
Charles McClelland, and the City of Houston, but the district court ultimately dismissed
those claims.
        6 The magistrate judge also advised that the district court grant summary judgment

on qualified immunity grounds as to the seizure of Allen’s shofar by both officers, and the
district court dismissed those claims relating to the seizures of the shofar.
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                         II.   STANDARD OF REVIEW
        An order denying summary judgment on qualified immunity “is a
collateral order subject to immediate appeal.” Brauner v. Coody, 793 F.3d 493,
497 (5th Cir. 2015). However, “[t]his court has jurisdiction over such an order
only ‘to the extent that the district court’s order turns on an issue of law.’”
Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014) (quoting Kovacic v.
Villarreal, 628 F.3d 209, 211 (5th Cir. 2010)). Accordingly, we lack jurisdiction
to review the genuineness of a fact issue but have jurisdiction insofar as the
interlocutory appeal “challenges the materiality of [the] factual issues.” Bazan
ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 490 (5th Cir. 2001). We review de
novo the district court’s conclusions regarding the materiality of the facts,
Gibson, 773 F.3d at 666, “consider[ing] only whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment,” Kinney v. Weaver,
367 F.3d 337, 348 (5th Cir. 2004) (en banc). “Where factual disputes exist in
an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’
version of the facts as true.” Id.
III.     DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY
        “The doctrine of qualified immunity shields officials from civil liability so
long as their conduct ‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555
U.S. 223, 231 (2009)). “Put simply, qualified immunity protects ‘all but the
plainly incompetent or those who knowingly violate the law.’” Id. (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). A plaintiff can overcome a qualified
immunity defense by showing “(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time
of the challenged conduct.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011)
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                                 No. 15-20264
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Allen contends that
Officer Montelongo and Sergeant Cisneros unlawfully seized him in retaliation
for exercising his freedom of speech, in violation of the First and Fourth
Amendments. However, because the genuine disputes identified by the district
court are not material and Allen has failed to show that either officer violated
his constitutional rights, Defendants are entitled to qualified immunity.
      “[T]he First Amendment prohibits government officials from subjecting
an individual to retaliatory actions, including criminal prosecutions, for
speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). However, a
retaliation claim is only applicable “when nonretaliatory grounds are in fact
insufficient to provoke the adverse consequences.” Id. As a result, even where
a citizen believes that he has been subject to a retaliatory detention or arrest,
if there was reasonable suspicion or probable cause for an officer to seize the
citizen, “the objectives of law enforcement take primacy over the citizen’s right
to avoid retaliation.” Keenan v. Tejeda, 290 F.3d 252, 261–62 (5th Cir. 2002);
see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is
‘sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.’” (quoting Reichle v. Howards, 132 S. Ct.
2088, 2093 (2012))).
      Under the Fourth Amendment, “[p]olice officers may briefly detain
individuals on the street, even though there is no probable cause to arrest
them, if they have a reasonable suspicion that criminal activity is afoot.”
United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994). Reasonable
suspicion exists if there are “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant [a
detention].” Terry v. Ohio, 392 U.S. 1, 21 (1968).        However, determining
reasonableness is an objective inquiry where “[w]e ask whether ‘the
circumstances, viewed objectively, justify [the challenged] action.’” Ashcroft,
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                                 No. 15-20264
131 S. Ct. at 2080 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)).
Accordingly, “[t]he Fourth Amendment requires only some minimum level of
objective justification for the officers’ actions—but more than a hunch—
measured in light of the totality of the circumstances,” Michelletti, 13 F.3d at
840, considering the facts available to the officer at the time of the detention,
Davila v. United States, 713 F.3d 248, 258 (5th Cir. 2013).
      A. Officer Montelongo
      First, the district court erred in finding that Officer Montelongo was not
entitled to qualified immunity because the genuine factual dispute identified
by the court—whether Allen had entered the roadway—is not material to the
determination of qualified immunity. Here, Allen’s possession of his shofar
independently provided reasonable suspicion for his detention.         The city
ordinance specifically prohibited “carry[ing] or possess[ing] while participating
in any demonstration” objects that “exceed three-quarters inch in their thickest
dimension.” Houston, Tex., Code of Ordinances ch. 28, art. 1, § 33. The shofar,
which was approximately six inches in width, clearly violated the ordinance.
Moreover, Allen refused to relinquish the shofar to Officer Montelongo and
continued to possess it until he was detained. Based on the totality of the
circumstances, these facts provide a “minimum level of objective justification”
for the detention of Allen by Officer Montelongo. Michelletti, 13 F.3d at 840.
Officer Montelongo therefore did not violate Allen’s Fourth Amendment rights
when he lawfully detained Allen for carrying or possessing the shofar in
violation of the city ordinance. See Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001) (“If an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”). Furthermore, Officer
Montelongo did not violate Allen’s First Amendment rights because Allen’s
possession of the shofar provided a legal, non-retaliatory ground for Allen’s
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                                 No. 15-20264
detention. Keenan, 290 F.3d at 261–62. Thus, the genuine factual dispute
regarding whether Allen entered the roadway was not material to determining
whether Allen’s constitutional rights were violated. See Gibson, 773 F.3d at
666. The district court therefore erred in holding that Officer Montelongo is
not entitled to qualified immunity.
      B. Sergeant Cisneros
      Second, the district court also erred in denying qualified immunity to
Sergeant Cisneros. Neither of the remaining factual disputes identified by the
district court—whether Allen complied with Sergeant Cisneros’ orders and
whether Allen remained bound by Sergeant Cisneros’ prior orders—is material
for determining whether Sergeant Cisneros is entitled to qualified immunity
for his detention and subsequent arrest of Allen.
      Sergeant Cisneros had a lawful reason for detaining Allen independent
of any potential failure to comply by Allen. During an investigation, police
officers may “take such steps as [a]re reasonably necessary to protect their
personal safety and to maintain the status quo during the course of the stop.”
United States v. Campbell, 178 F.3d 345, 348–49 (5th Cir. 1999) (quoting
United States v. Hensley, 469 U.S. 221, 235 (1985)). We only consider, on a
case-by-case basis, “whether the police were unreasonable in failing to use less
intrusive procedures to conduct their investigation safely.” Id. at 349 (quoting
United States v. Sanders, 994 F.2d 200, 206–07 (5th Cir. 1993)). Here, while
Sergeant Cisneros was in the process of detaining Stokes, Allen followed and
“came up behind” Sergeant Cisneros, prompting Cisneros to order Allen to back
away. Based on those undisputed facts, we cannot say that Sergeant Cisneros’
detention of Allen was an unreasonable procedure for protecting the officer’s
safety and maintaining the status quo during the detention of Stokes. Thus,




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                                     No. 15-20264
whether Allen complied with Sergeant Cisneros’ order is immaterial because
Sergeant Cisneros had an independent basis for lawfully detaining Allen. 7
      Sergeant Cisneros also had a lawful reason for arresting Allen unrelated
to the genuine factual disputes. “[A] warrantless arrest by a law officer is
reasonable under the Fourth Amendment where there is probable cause to
believe that a criminal offense has been or is being committed.” Devenpeck v.
Alford, 543 U.S. 146, 152 (2004); see also Cole v. Carson, 802 F.3d 752, 764 (5th
Cir. 2015) (noting that in order to make out a Fourth Amendment claim for
warrantless arrests, the Supreme Court has made clear that “the [officers]
must not be aware of facts constituting probable cause to arrest or detain the
person for any crime.”).         Allen possessed and carried his shofar while
demonstrating with Stokes, a demonstration that ultimately led to Sergeant
Cisneros’ involvement. And as previously discussed, the undisputed evidence
shows that the shofar violated the Houston ordinance. See Atwater, 532 U.S.
at 354 (“If an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”). Sergeant Cisneros
therefore had probable cause to arrest Allen unrelated to the genuine factual
disputes identified by the district court. 8 Those factual disputes are therefore
not material, and Sergeant Cisneros is entitled to qualified immunity.
                              IV.    CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s order
denying summary judgment on Allen’s § 1983 claims and REMAND for entry




      7  Allen also possessed his shofar during this incident involving Sergeant Cisneros,
similar to the incident involving Officer Montelongo.
       8 Moreover, because Sergeant Cisneros had non-retaliatory grounds for his detention

and subsequent arrest of Allen, he did not violate Allen’s First Amendment rights. See
Hartman, 547 U.S. at 256.
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                                 No. 15-20264
of judgment in favor of Officer Montelongo and Sergeant Cisneros. Allen shall
bear the costs of this appeal.




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