     Case: 16-10442   Document: 00513869662     Page: 1   Date Filed: 02/09/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 16-10442                           FILED
                                                                 February 9, 2017
                                                                   Lyle W. Cayce
RANDY CHILDERS,
                                                                        Clerk

             Plaintiff–Appellant,

v.

ED IGLESIAS; ANNE HOLLIS,

             Defendants–Appellees.




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


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Plaintiff–Appellant Randy Childers brought suit against Defendants–
Appellees Ed Iglesias and Anne Hollis for unlawful arrest under 42 U.S.C.
§ 1983. The district court granted the Defendants’ motion to dismiss on the
ground that Childers failed to allege a constitutional violation. For the reasons
stated below, we AFFIRM.
                              I. BACKGROUND
      Childers owns a ranch in Parker County, Texas. On September 15, 2013,
Childers went to his ranch to evict an individual whom he was allowing to stay
there. After he arrived, he requested assistance from the Parker County
Sheriff’s Office. When Hollis and Iglesias, who are Parker County Deputy
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Sheriffs, arrived, Childers’s truck was parked in front of the gate to the ranch.
The Defendants parked their car in front of Childers’s truck. Childers alleges
that he was intending to leave the ranch at that point, but that the Defendants’
parked car prevented him from leaving.
      Childers then attempted to explain the situation to Hollis. While
Childers was speaking with Hollis, Iglesias asked Childers to move his truck.
Childers did not immediately comply; instead he “attempted to complete his
explanation.” Iglesias then placed Childers under arrest for interfering with
the officers’ duties. Childers alleges that the Defendants could have driven
around his truck, and that Hollis agreed; Iglesias, however, did not believe he
could drive around the truck.
      Although the district attorney eventually dismissed the charge, Childers
was held in jail for over twenty-four hours and incurred legal fees as a result
of his arrest. Childers subsequently brought suit in state court under 42 U.S.C.
§ 1983, claiming that the Defendants arrested him without probable cause in
violation of the Fourth Amendment. After removing the case to federal court,
the Defendants moved to dismiss under Federal Rule of Civil Procedure
12(b)(6). The Defendants asserted qualified immunity and argued that
Childers’s allegations do not support a constitutional violation. The district
court agreed and granted the Defendants’ motion to dismiss. This appeal
followed.
                                II. DISCUSSION
A.    Standard of Review and Applicable Law
      We review de novo a district court’s dismissal under Rule 12(b)(6),
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” Hines v. Alldredge, 783 F.3d 197, 201 (5th Cir.)
(quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)), cert. denied, 136 S.
Ct. 534 (2015). “If the complaint has not set forth ‘enough facts to state a claim
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to relief that is plausible on its face,’ it must be dismissed.” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
       To survive a motion to dismiss, Childers must allege facts that show the
Defendants lacked probable cause to arrest him. Brown v. Lyford, 243 F.3d
185, 189 (5th Cir. 2001). “Probable cause exists ‘when the totality of the facts
and circumstances within a police officer’s knowledge at the moment of arrest
are sufficient for a reasonable person to conclude that the suspect had
committed or was committing an offense.’” Haggerty v. Tex. S. Univ., 391 F.3d
653, 655–56 (5th Cir. 2004) (quoting Glenn v. City of Tyler, 242 F.3d 307, 313
(5th Cir. 2001)). Moreover, the Defendants are “entitled to qualified immunity
if a reasonable officer in [their] position could have believed that, in light of the
totality of the facts and circumstances of which [they were] aware, there was a
fair probability” that Childers committed an offense—namely, interfering with
a police officer’s official duties. Id. at 656; see also Tex. Penal Code § 38.15 (“A
person commits an offense if the person with criminal negligence interrupts,
disrupts, impedes, or otherwise interferes with . . . a peace officer while the
peace officer is performing a duty or exercising authority imposed or granted
by law.”).
B.     Analysis
       Childers principally argues that he did nothing to interfere with the
Defendants’ official duties. 1 Although Childers concedes that he did not move
his truck when Deputy Iglesias requested he do so, he contends that the
Defendants could have driven around his truck or simply walked past it to
enter the ranch. Childers also argues that he merely attempted to explain the



       1Childers neither alleges in his complaint nor argues on appeal that the Defendants
were not performing duties authorized by law. Indeed, Childers himself requested police
assistance at the ranch. Childers also neither alleges nor argues that he lacked the criminal
negligence required by Texas Penal Code § 38.15.
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situation to the Defendants, which he suggests was protected speech under the
First Amendment. See City of Hous. v. Hill, 482 U.S. 451, 462–63 (1987)
(recognizing “[t]he freedom of individuals verbally to oppose or challenge police
action without thereby risking arrest”).
      Childers cites Carney v. State, 31 S.W.3d 392, 396 (Tex. App.—Austin
2000, no pet.), in support of his argument that he did not interfere with the
Defendants’ official duties. In Carney, the Texas Court of Appeals reversed a
conviction under Texas Penal Code § 38.15 on the ground that the defendant’s
interference “consisted of speech only,” which is a complete defense to a
conviction under that statute. 31 S.W.3d at 395. Carney was trying to prevent
police officers from entering his house to execute a search warrant. Id. at 397.
The court found that the defendant did not physically block the officers from
entering the house; he merely argued with the officers, thereby delaying their
entry. Id. at 398. The court held that mere argument was insufficient to
support a conviction under Texas Penal Code § 38.15. Id.
      The district court found that Childers’s case is factually distinguishable
from Carney because Childers’s truck blocked the Defendants’ entry to the
property. Specifically, the district court inferred that because “Childers admits
that the police were blocking his ability to exit the property, . . . it follows that
the officer’s passage was also obstructed.” This was improper fact-finding; on
a motion to dismiss, we must assume that the plaintiff’s allegations are correct.
See Hines, 783 F.3d at 201.
      Even assuming that Childers’s truck was not blocking the Defendants’
entry, however, Carney is distinguishable based on the fact that Childers failed
to move his truck when Deputy Iglesias instructed him to do so. This
instruction was made within the scope of the official duty Deputy Iglesias was
performing: trying to access the ranch through the gate that was indisputably
located behind Childers’s truck. Moreover, this instruction concerned the
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                                       No. 16-10442
moving of Childers’s truck rather than the content of his speech. 2 Thus,
Childers did more than just argue with police officers; he failed to comply with
an officer’s instruction, made within the scope of the officer’s official duty and
pertaining to physical conduct rather than speech.
       Texas courts have found that failure to comply with an officer’s
instructions under similar circumstances violates Texas Penal Code § 38.15
and is not protected speech. Specifically, several courts have affirmed
convictions of defendants who failed to comply with an officer’s instruction to
move away from a crime scene. 3 See Duncantell v. State, 230 S.W.3d 835, 842
(Tex. App.—Hous. [14th Dist.] 2007, pet. ref’d) (finding that defendant violated
Texas Penal Code § 38.15 by repeatedly disregarding officers’ orders to stand
away from crime scene); Key v. State, 88 S.W.3d 672, 676 (Tex. App.—Tyler
2002, pet. ref’d) (concluding that defendant “engaged in conduct other than
speech in refusing to obey the directives of” a police officer to remain on the
sidewalk, which the officer “believed was necessary to prevent [defendant]
from assaulting” another individual). Likewise, this Court has held that failure
to comply with a police officer’s instruction to stand back is not protected
speech and gives the officer probable cause to arrest under Texas Penal Code
§ 38.15. See Haggerty, 391 F.3d at 657 (“[W]hile Haggerty’s relevant actions
included speech, a reasonable officer could have believed that they were not
limited to speech: Haggerty stepped forward toward [an officer] after having



       2 Although Childers argues, correctly, that his attempt to explain the situation to the
Defendants was protected speech, see Freeman v. Gore, 483 F.3d 404, 414 (5th Cir. 2007), he
does not argue that his refusal to move his truck was itself expressive conduct that might be
protected by the First Amendment.
       3 In an unpublished case, a Texas appellate court has extended this principle to failure

to comply with an officer’s instruction to move a tent. Momentoff v. State, No. 02-12-00335-
CR, 2013 WL 5967107, at *7 (Tex. App.—Fort Worth Nov. 7, 2013, no pet.) (holding that
defendant’s “act of standing in his tent and refusing to allow the officer to remove it did not
constitute ‘speech only’”).
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previously been warned to not interfere and was within relative proximity (10
to 15 feet away).”). Based on this precedent, a reasonable officer could have
believed that there was a fair probability that Childers violated Texas Penal
Code § 38.15 by failing to comply with Iglesias’s instruction to move the truck.
                             III. CONCLUSION
      For the foregoing reasons, the district court’s order of dismissal is
AFFIRMED.




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