Basler v. Barron et al
MEMORANDUM OPINION AND ORDER DENYING 44 MOTION for Partial Summary Judgment , DENYING 42 MOTION for Summary Judgment , GRANTING 43 MOTION for Summary Judgment , Attorney Laura Beckman Hedge and Fred A Keys, Jr terminated, County of Harris, Texas and Ron Hickman (in his official capacity) terminated(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GENE GERALD BASLER,
DEPUTY ERIK LANCE BARRON, et. al.,
CIVIL ACTION H-15-2254
MEMORANDUM OPINION AND ORDER
Pending before the court are three motions for summary judgment: (1) defendant Deputy Erik
Barron’s motion for summary judgment (Dkt. 42); (2) defendants Harris County and Sheriff Ron
Hickman’s (collectively “Harris County”) motion for summary judgment (Dkt. 43); and (3) plaintiff
Gene Gerald Basler’s cross motion for partial summary judgment (Dkt. 44). Having considered the
motions, responses, replies, record evidence, and applicable law, the court is of the opinion that (1)
Deputy Barron’s motion for summary judgment should be DENIED; (2) Harris County’s motion for
summary judgment should be GRANTED; and (3) Basler’s motion for partial summary judgment
should be DENIED.
Basler alleges that his civil rights were violated in conjunction with his arrest on June 20,
2014. Dkt. 16. On that afternoon, Deputy Barron, a deputy sheriff for Harris County, set up a static
traffic stop in the U-turn area of the 18500 Tomball Parkway at Grant Road in Harris County.
Dkt. 42 at 2.
Basler claims he witnessed Deputy Barron exhibit abusive behavior toward a motorist, later
identified as Vinny Muanza. Dkt. 64, Ex. 3 (Basler Dep.) at 97. Deputy Barron stopped Muanza
for driving without a seatbelt. Id. Further, Basler claims that, because he was fearful for Muanza’s
safety, he began recording the incident with his cell phone. Id. The parties and Muanza, as a
witness, disagree on precisely how far Basler was positioned from the traffic stop while recording,
but it was somewhere between approximately fifteen and fifty feet. See Dkt 42, Ex. B (Barron Dep.)
at 67, Ex. C (Muanza Dep.) at 12, Ex. D (Basler Dep.) at 60; Dkt. 44, Ex. 4 (Tisdale Dep.) at 16, Ex.
5. For the purposes of his motion for partial summary judgment only, Basler represents that the
distance between himself and Deputy Barron was at least fifteen feet. Dkt. 44 at 6.
It is a matter of undisputed fact that Deputy Barron ordered Basler to move further away from
the traffic stop and Basler refused the order. Dkt. 42, Ex. D (Basler Dep.) at 6–7. Deputy Barron
gave this order at least twice, and possibly up to four times, before approaching Basler. Id. Deputy
Barron arrested Basler by removing him from his bicycle, forcing him flat on the ground, placing his
knee on Basler’s back, and handcuffing him. Dkt. 42, Ex. B (Barron Dep.) at 37, Ex. D (Basler
Dep.) at 13–14. Deputy Barron also confiscated Basler’s cell phone. Dkt. 42 at 4.
Deputy Barron claims he arrested Basler for interfering with his official duties by standing
too close and failing to comply with his commands. Dkt. 42, Ex. B (Barron Dep.) at 69–70. Deputy
Barron also claims he had other grounds to arrest Basler, but that he did not charge Basler for those
offenses. Id. Basler alleges that the reason Deputy Barron arrested him was either to prevent his
filming of the traffic stop or in retaliation for his filming. Dkt. 16.
On August 5, 2015, Basler filed a complaint against the defendants, and then amended that
complaint on October 15, 2015. Dkt. 16. On December 21, 2015, Deputy Barron filed a Rule
12(b)(6) motion to dismiss the claims against him. Dkt. 14. The court dismissed Basler’s state law
claims, but retained Basler’s claims against Deputy Barron under 42 U.S.C. § 1983 for unreasonable
seizure, excessive force, violation of freedom of speech, and malicious prosecution, and under the
Privacy Protection Act (42 U.S.C. § 2000aa) for the destruction of a journalistic work product. Dkt.
Deputy Barron now moves for summary judgment on all the claims against him. Dkt. 42.
Harris County also moves for summary judgment on all the claims against it. Dkt. 43. Basler
responded to both motions for summary judgment, and the defendants replied jointly. Dkts. 64, 65.
Basler moves for partial summary judgment against Deputy Barron for all Basler’s claims against
Deputy Barron except for violation of freedom of speech and against Harris County for all Basler’s
claims against Harris County except for negligent retention. Dkt. 44. The defendants responded
jointly; Basler replied to each defendant separately.1 Dkts. 54, 62, 67.
II. LEGAL STANDARD
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56©; see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; there must be an absence of any genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505 (1986). An issue is
“material” if its resolution could affect the outcome of the action. Burrell v. Dr. Pepper/Seven Up
Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007). “[A]nd a fact is genuinely in dispute only if
a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc. v. Texaco, Inc.,
463 F.3d 388, 392 (5th Cir. 2006).
Basler filed a motion in limine to exclude Harris County’s expert Kenneth Brady. Dkt. 36. The court need
not rule on this motion because the court has not relied on evidence from Brady’s deposition while making any
determinations in these pending motions for summary judgment.
The moving party bears the initial burden of informing the court of all evidence
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548 (1986). Only when the moving party has discharged this initial burden
does the burden shift to the non-moving party to demonstrate that there is a genuine issue of material
fact. Id. at 322. If the moving party fails to meet this burden, then it is not entitled to a summary
judgment, and no defense to the motion is required. Id. “For any matter on which the non-movant
would bear the burden of proof at trial . . . , the movant may merely point to the absence of evidence
and thereby shift to the non-movant the burden of demonstrating by competent summary judgment
proof that there is an issue of material fact warranting trial.” Transamerica Ins. Co. v. Avenell , 66
F.3d 715, 718–19 (5th Cir. 1995); see also Celotex, 477 U.S. at 323–25. To prevent summary
judgment, “the non-moving party must come forward with ‘specific facts showing that there is a
genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348 (1986) (quoting Fed. R. Civ. P. 56(e)).
When considering a motion for summary judgment, the court must view the evidence in the
light most favorable to the non-movant and draw all justifiable inferences in favor of the
non-movant. Envtl. Conservation Org. v. City of Dallas, Tex., 529 F.3d 519, 524 (5th Cir. 2008).
The court must review all of the evidence in the record, but make no credibility determinations or
weigh any evidence; disregard all evidence favorable to the moving party that the jury is not required
to believe; and give credence to the evidence favoring the non-moving party as well as to the
evidence supporting the moving party that is uncontradicted and unimpeached. Moore v. Willis Ind.
Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). However, the non-movant cannot avoid summary
judgment simply by presenting “conclusory allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation.” TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc). By the same token, the moving party will not meet its burden of proof
based on conclusory “bald assertions of ultimate facts.” Gossett v. Du-Ra-Kel Corp., 569 F.2d 869,
872 (5th Cir. 1978); see also Galindo v. Precision Am. Corp., 754 F.2d 1212, 1221 (5th Cir. 1985).
In this case, the parties have filed cross motions for summary judgment. See Dkts. 42, 43,
44. Where the parties file cross motions for summary judgment on an issue, the court must “review
each party’s motion independently, viewing the evidence and inferences in the light most favorable
to the non-moving party.” Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir.
III. BASLER’S § 1983 CLAIMS AGAINST DEPUTY BARRON
Basler asserts four causes of action against Deputy Barron under 42 U.S.C. § 1983: (1)
unreasonable seizure in violation of the Fourth and Fourteenth Amendments; (2) excessive force in
violation of the Fourth Amendment; (3) violation of the right to freedom of speech under the First
Amendment; and (4) malicious prosecution in violation of the Fourth Amendment. Dkt. 16 at 9–11.
Deputy Barron moves for summary judgment both on the grounds that Basler has no
evidence for the required elements for each of his claims and also with evidence that negates the
existence of Basler’s claims. Dkt. 42 at 5. Basler moves for partial summary judgment on three of
these claims: unreasonable seizure, excessive force, and malicious prosecution. Dkt. 44. Basler
argues that there is no dispute of material facts in establishing his claims that he was deprived of his
Constitutional rights. Id. at 7.
For a plaintiff to state a claim under § 1983 he “must first show a violation of the
Constitution or of federal law, and then show that the violation was committed by someone acting
under color of state law.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).
The parties agree that Deputy Barron was acting under the color of state law in his duties as a peace
officer when he arrested Basler. Dkt. 42 at 6; Ex. B (Barron Dep.) at 11. Therefore, the court will
consider the cross motions for summary judgment with respect to the arguments and evidence
provided by each party with respect to Basler’s allegation that Deputy Barron committed a violation
of his Constitutional liberties.
Probable Cause and Unreasonable Seizure
Basler’s first claim is that Deputy Barron violated Basler’s Fourth Amendment rights by
arresting him and seizing his cell phone without probable cause. Dkt. 16 at 9–11. The Fourth
Amendment offers protection against an unreasonable seizure during an arrest. Glenn v. City of
Tyler, 242 F.3d 307, 313 (5th Cir. 2001). “[The] arrest must be based on probable cause, which
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.’” Id. (quoting Spiller v. Tex. City, 130 F.3d 162, 165 (5th Cir.1997)).
When the arrest is supported by probable cause, “‘the government’s interests in enforcing its laws
outweigh the suspect’s privacy interest and arrest of the suspect is reasonable’ under the Fourth
Amendment.” Id. (quoting Atwater v. City of Lago, 195 F.3d 242, 244 (5th Cir1999)).
The determination of probable cause is also applicable to proving the elements of malicious
prosecution and excessive force. Because these claims arise out of an allegedly unlawful arrest,
meeting the elements of the § 1983 claims implicitly requires Basler to show an absence of probable
cause during his arrest. Russell v. Altom, 546 F. App’x 432, 436–437 (5th Cir. 2013); Buehler v.
City of Austin, No. A-13-CV-1100-ML, 2015 WL 737031, at *9 (W.D. Tex. Feb. 20, 2015). Deputy
Barron argues that there was probable cause for the arrest, and the court should find probable cause
by either by taking judicial notice or because there is no dispute over the material facts which
establish probable cause. Dkt. 42. The court disagrees.
1. Magistrate’s Determination of Probable Cause
Deputy Barron requests, again, that this court take judicial notice of the probable cause
finding of the magistrate judge, in light of the evidence in his motion for summary judgment.
Dkt. 42 at 12; see also Dkt. 24 (declining to take judicial notice of probable cause in a motion to
dismiss in this same action). The court observed in its order denying Deputy Barron’s motion for
dismissal that Basler’s assertion that Deputy Barron “manufactur[ed] probable cause” is central to
several of Basler’s claims against him. Dkt. 16 at 11–12. Deputy Barron’s alleged probable cause
to arrest Basler, which the magistrate judge subsequently found based on Deputy Barron’s
representations, was that Basler was interfering with the duties of a public servant. Dkt. 24. This
court opined, when denying a Deputy Barron’s motion to dismiss: “Here, Basler alleges specific,
material facts that Deputy Barron intentionally withheld from the magistrate. Assuming these
allegations are true, the magistrate judge’s finding of probable cause would not be entitled to a
presumption of validity.” Dkt. 24. Neither party presented any evidence with their motions for
summary judgment to negate this finding of the court. Therefore, the court renews its conclusion
that “[b]ecause judicially noted facts must not be subject to reasonable dispute, the court cannot
judicially note that there was probable cause for Basler’s arrest as a matter of law.” Dkt. 24 (citing
to Fed. R. Evid. 201(b)).
2. Probable Cause Analysis
Deputy Barron’s substantive argument is that Basler’s arrest was reasonable because he had
probable cause to believe that Basler was committing the offense of interference with the duties of
a peace officer. Dkt. 42, Ex. B (Barron Dep.) at 72. This offense occurs when “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 imposted or granted by law.” Tex.
Penal Code § 38.15(a)(1).
Basler and Deputy Barron offer alternative stories about Basler’s initial approach to the
traffic stop, including allegations that Basler may have, either reasonably or unreasonably, verbally
confronted Deputy Barron. Dkt. 42, Ex. C (Muanza Dep.) at 16, Ex. D (Basler Dep.) at 97.
However, the stories themselves are not material to a determination that Deputy Barron had probable
cause to arrest Basler. See Freeman v. Gore, 483 F.3d 404, 414 (5th Cir. 2007) (finding that
“yelling” and “screaming” at a police officer is not evidence that a plaintiff physically obstructed
deputies or enough evidence to give rise to probable cause for an arrest for interference with public
Deputy Barron alleges that probable cause for the arrest arose because Basler was creating
a distraction and posed a safety hazard by his proximity to the traffic stop. Dkt. 42, Ex. B (Barron
Dep.) at 39-40, 44, Ex. D (Basler Dep.) at 34. That is why, Deputy Barron claims, he ordered Basler
to move away, that he made the order multiple times, and each time Basler refused the order. Id.
“For a summary judgment . . . the court must not evaluate the credibility of the witnesses,
weigh the evidence, or resolve factual disputes.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1263 (5th Cir. 1991). If the evidence in the record “is such that a reasonable jury drawing all
inferences in favor of the non-moving party could arrive at a verdict in that party’s favor, the court
must deny the defendants’ motion.” Id.
With respect to Deputy Barron’s motion for summary judgment, the court views the evidence
in the light more favorable to Basler, despite any credibility and weight of evidence favoring Deputy
Barron’s version of these events. Here, Basler provides competing evidence that he was far enough
away from the traffic stop to create enough spacing for safety and that Deputy Barron was motivated
not by safety, but by a desire to stop Basler from filming. Dkt. 64, Ex. 4 (Tisdale Dep.) at 62.
Deputy Barron was undisputedly aware that Basler was filming him, and it is a matter of his
credibility as to whether the arrest was actually for safety or if it was because of the filming. Dkt.
64, Ex. 3 (Barron Dep.) at 10. Considering the sum of this evidence in the light most favorable to
Basler — that Basler was at least fifteen feet and possibly much farther from Deputy Barron, that
Deputy Barron was acting with a malicious motive against Basler’s filming, and that Deputy
Barron’s affidavit in support of probable cause did not include that Basler was far enough away that
he had to yell to communicate with Basler — the court comes to the same conclusion as when it
considered the motion to dismiss (Dkt. 24). There remains a dispute of material fact as to whether
there was probable cause for the arrest. Therefore, Deputy Barron’s motion for summary judgment
on the unreasonable seizure claim is DENIED.
With respect to Basler’s motion for summary judgment, Basler argues that Deputy Barron
failed to articulate Basler’s mens rea of criminal negligence, which is required for the crime of
interference with the duties of a peace officer. Dkt. 44 at 8–9. Without mens rea, Basler argues,
Deputy Barron had no reason to believe Basler was violating the law. Id. Deputy Barron argues that
he perceived that Basler’s mens rea was to commit an intentional violation by disobeying his orders,
which is a higher standard of mens rea than mere criminal negligence. Dkt. 42, Ex. B (Barron Dep.)
at 94. Basler testified that he intentionally disobeyed Deputy Barron’s order to back away, so there
is no dispute of material fact here. Dkt. 42, Ex. D (Basler Dep.) at 14. The court agrees that Deputy
Barron properly articulated Basler’s intentional mens rea sufficiently to establish this element of the
The remaining offered evidence, when viewed in the light most favorable to Deputy Barron,
supports the conclusion that he had probable cause to arrest Basler because Basler failed to move
away after multiple orders and presented a safety hazard while Deputy Barron was conducting his
official duties at the traffic stop. Therefore, Basler’s motion for summary judgment on the
unreasonable seizure claim is DENIED.
Second, Basler claims that Deputy Barron used excessive force when he pulled Basler from
his bicycle, held him face down to the ground, and handcuffed him. Dkt. 16. To establish an
excessive use of force claim, Basler must show “(1) an injury (2) which resulted directly and only
from the use of force that was excessive to the need and (3) the force used was objectively
unreasonable.” Glenn, 242 F.3d at 314 (citation omitted). The injury must be more than a de
minimis injury and must be evaluated in the context that the force was used. Mitchell v. Baggett,
No. 4:13-CV-2221, 2014 WL 2973627, at *2 (S.D. Tex. July 2, 2014) (Hoyt, J.). In determining this
issue, the court inquires whether reasonable force was used, when viewed from the perspective of
an officer on the scene and taking into account the totality of the circumstances involved. Ramirez
v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008).
In an excessive force claim arising under the Fourth Amendment, the reasonableness of the
officer’s actions requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime, whether the suspect posed an immediate threat to the safety of
the officer or others, and whether he was actively resisting arrest or attempting to evade arrest by
flight. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865 (1989); see, e.g., Glenn, 242 F.3d at
314 (finding officer placement of handcuffs too tightly on a wrist did not amount to excessive force);
Flores v. City of Palacios, 381 F.3d 391, 398 (5th Cir. 2004) (finding that psychological injuries may
not give rise to an excessive force claim when properly balanced against the objective reasonableness
of the use of force).
For Deputy Barron to succeed on his motion for summary judgment, he must show that
Basler failed to provide evidence for at least one of the elements of the claim when viewed in the
light most favorable to Basler. There is no dispute that Deputy Barron used force in the arrest,
pulling Basler off the bike, pinning him to the ground, handcuffing him, and potentially injuring him
with bruises. Dkt. 42, Ex. B (Barron Dep.) at 44.
Therefore, the court turns to whether Basler provided evidence required to establish an issue
of material fact as two of the remaining elements of this cause of action: that the force was both
excessive to the need and was objectively unreasonable. On one hand, Basler attempted to flee. Dkt.
44, Ex. 2 (Basler Dep.) at 11, Ex. 1 (Barron Dep.) at 21, 46–48. Also, there is no dispute that Basler
met the force of his arrest with at least some resistence. Dkt. 44, Ex. 2 (Basler Dep.) at 169–170.
On the other hand, both parties agree that Basler was not carrying any weapons. Dkt. 42, Ex. B
(Barron Dep.) at 44. Also, the alleged crime of interfering with a public servant is not a particularly
severe one. Basler even provided an expert who agreed that in these circumstances, the use of force
is reasonable, if there had been probable cause. Dkt. 64, Ex. 5 (Tindale Dep.) at 70. However, the
expert opines, the corollary is also true, that the use of the force may be objectively unreasonable in
the absence of probable cause. Id.
Here, the court has already determined that there remain questions of material fact as to
whether there was probable cause for the arrest. If those facts are construed in the light most
favorable to Basler to find no probable cause, then Deputy Barron’s use of force was likely
unnecessary and objectively unreasonable. Therefore, Deputy Barron’s motion for summary
judgment on the excessive force claim is DENIED. Likewise, with respect to Basler’s motion for
summary judgment, if these same facts are construed in the light most favorable to Deputy Barron
for a finding of probable cause, Deputy Barron has provided substantial evidence, including the
testimony of Basler’s expert, that his use of force was necessary and reasonable under the
circumstances, in the presence of probable cause. Dkt. 64, Ex. 5 (Tindale Dep.) at 70. Therefore,
Basler’s motion for summary judgment on the excessive force claim is also DENIED.
Violation of the Right to Freedom of Speech
Third, Basler claims that Deputy Barron violated his right to freedom of speech. Deputy
Barron has moved for summary judgment Basler’s free speech claims. Dkt. 42. On this claim,
Basler has not filed a cross motion for summary judgment. To survive a summary judgment motion
on a First Amendment claim, Basler must produce sufficient evidence that “(1) [he] was ‘engaged
in constitutionally protected activity;’ (2) [Basler’s] actions caused [him] ‘to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that activity;’ and (3) [Deputy
Barron’s] adverse actions ‘were substantially motivated against [Basler’s] exercise of
constitutionally protected conduct.’” Singleton v. Darby, 609 F. App’x 190, 193 (5th Cir. 2015)
(quoting Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)). Deputy Barron argues that (1)
Basler has not provided any evidence that his free speech activity of filming was the cause of his
arrest, and (2) Basler’s filming was not a constitutionally protected activity. Dkt. 42.
There is no dispute that Basler appeared to be filming Deputy Barron’s traffic stop, that
Deputy Barron ordered Basler to move away because he was “too close,” and that Deputy Barron
never directly ordered Basler to stop filming. Dkt. 42, Ex. B (Barron Dep.) at 93, Ex. C (Muanza
Dep.) at 15–16, Ex. D (Basler Dep.) at 6–7. However, the court finds there is still a disputed
material fact as to Deputy Barron’s motivation to make this order. Deputy Barron claims that Basler
was “too close,” which posed a “safety hazard” because he would not have enough time to react
should Basler threaten him. Dkt. 42, Ex. B (Barron Dep.) at 41. However, Basler contends that
Deputy Barron was motivated to confront him because of his desire to halt Basler from filming, an
accusation which is supported by the fact that Deputy Barron was aware of the filming. Dkt. 64 at
1. Further, Basler provides evidence that he was a safe distance away from the traffic stop. Dkt. 64,
Ex. 5 (Tisdale Dep.) at 31. The court has already determined that there is an underlying issue of
material fact about whether Deputy Barron had probable cause for the arrest. The source of this is
an issue of material fact about Deputy Barron’s motivation to order Basler away, whether it was an
actual issue of safety or an attempt to stop Basler from filming. Deputy Barron’s motivations depend
on the credibility of his testimony, supporting testimony, and the fact-finder’s perception of the
circumstances. When viewed in the light most favorable to Basler, Basler has alleged enough facts
to show that Deputy Barron’s action may have been motivated by the filming, rather than by safety.
Therefore, the court cannot grant summary judgment for Deputy Barron on these grounds.
In the alternative, Deputy Barron also alleges that even had his order constrained Basler’s free
speech rights, it was still a lawful content-neutral time and place restriction. Ward v. Rock Against
Racism, 491 U.S. 781, 783, 109 S. Ct. 2746 (1989). Information gathering about government affairs
or matters of public concern—including recording police activity—is protected by the First
Amendment. E.g., Enlow v. Tishomingo County, 962 F.2d 501 (5th Cir. 1992) (assuming the
plaintiff’s allegations were true, the court held that arresting the plaintiff for photographing a police
raid, in which he did not interfere, violated the plaintiff’s First Amendment rights); Shillingford v.
Holmes, 634 F.2d 263, 264, 266 (5th Cir. 1981) (stating that a police officer’s “unprovoked and
unjustified” assault of a plaintiff who “was photographing what the policeman did not want to be
memorialized” and “was not involved in the arrest incident and did not interfere with the police in
any fashion” established a deprivation of constitutional rights), abrogated on other grounds by
Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993). In light of these Fifth Circuit decisions, the
court finds it impossible to conclude that a general police order to cease free speech activity, even
if content neutral, becomes a lawful time and place restriction.
Here, Basler made factual allegations, when viewed in the light most favorable to him, that
support his contention that he was engaged in a lawful free speech activity of filming and that the
adverse action against him (i.e., the arrest) was motivated by that activity. Therefore, Deputy
Barron’s motion for summary judgment on the free speech cause of action is DENIED.
Finally, Basler claims that Deputy Barron engaged in malicious prosecution. The Fifth
Circuit has held those “causing charges to be filed without probable cause will not without more
violate the Constitution.” Castellon v. Fridges, 352 F.3d 939, 953 (5th Cir. 2003) (en banc). If a
plaintiff labels his claim “malicious prosecution” and invokes Texas state law elements for that
claim, the claim “invites confusion” and is not properly brought under § 1983. Id. Consequently,
a plaintiff may not bring “a freestanding 42 U.S.C. § 1983 claim based solely on malicious
prosecution.” Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.2010). “In Castellano,
the Fifth Circuit held that the initiation of criminal proceedings without probable cause does not
automatically give rise to a §1983 claim . . . . Rather, a plaintiff must show that officials violated
specific constitutional rights in connection with a ‘malicious prosecution’ in order to trigger the
remedies of § 1983.” Gonzalez v. City of Corpus Christi Tex., No. CIV.A. C-10-321, 2011 WL
147741, at *3 (S.D. Tex. Jan. 18, 2011) (Jack, J.).
Basler’s claim for malicious prosecution includes an accusation of an underlying violation
of his Constitutional rights under the First and Fourth Amendments. The court has already
determined that whether violations of these rights occurred are disputes over material fact.
Therefore, the court cannot grant a motion for summary judgment in favor of either party for
malicious prosecution. Deputy Barron and Basler’s motions for summary judgment for malicious
prosecution are both DENIED. Dkts. 42, 44.
IV. BASLER’S § 1983 CLAIMS AGAINST HARRIS COUNTY
Basler asserts claims against Harris County based on municipal liability under theories of
failure to train, failure to supervise, and negligent retention. Dkt. 16. Harris County moves for
summary judgment on these causes of action. Dkts. 43. Basler moves for partial summary judgment
on the failure to train and failure to supervise causes of action. Dkt. 44; Dkt. 64 at 7.
Section 1983 prohibits “persons” acting under the color of law from depriving another of any
“rights, privileges, and immunities secured by the Constitution and laws . . . .” 42 U.S.C. § 1983.
Municipalities and cities qualify as “persons” under § 1983. Monell v. Dep’t of Soc. Serv., 436 U.S.
658, 690, 98 S. Ct. 2018 (1978). To state a claim for municipal liability under § 1983, a plaintiff must
identify (a) a policymaker, (b) an official policy or custom or widespread practice, and © a violation
of constitutional rights whose “moving force” is the policy or custom. Id. at 694; see also Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (“[M]unicipal liability under section 1983
requires proof of three elements: a policymaker; an official policy, and a violation of constitutional
rights whose ‘moving force’ is the policy or custom.” ).
The court has already held that whether Basler’s First and Fourth Amendment rights were
violated is still open to a dispute of material fact on whether probable cause for the arrest existed.
Therefore, the court will evaluate the cross motions for summary judgment by analyzing whether
Basler met one of the remaining requirements of a claim for municipal liability by directly identifying
an official policy, custom, or widespread practice or if he established such a policy exists through
failure to train, failure to supervise, and negligent retention theories.
A. Official Policy or Custom or Widespread Practice
The Fifth Circuit defines official policy for purposes of § 1983 as “‘[a] policy statement,
ordinance, regulation or decision that is officially adopted and promulgated by the municipality’s
law-making officials or by an official to whom the lawmakers have delegated policy-making
authority.’” Okon v. Harris Cty. Hosp. Dist., 426 F.. App’x. 312, 316 (5th Cir. 2011) (quoting Bennett
v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc)). To meet the “official policy” element,
the plaintiff must either allege (1) a written policy or procedure that is officially adopted or
promulgated by the policymaking authorities of a governmental agency; or (2) a persistent,
widespread practice of governmental agency officials or employees which, although not officially
promulgated or adopted, is so common and well settled as to constitute a policy or custom that fairly
represents the agency’s policy. Piotrowski, 237 F.3d at 579. The plaintiff may also demonstrate an
unwritten policy if he or she proves that a “final policymaker” took a single unconstitutional action.
Bolton v. City of Dall., 541 F.3d 545, 548 (5th Cir. 2008).
“It is not sufficient for a plaintiff to allege, without elaboration, a policy or a custom and its
relationship to the underlying constitutional violation; instead the plaintiff must plead specific facts.”
Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire v.
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)). “Allegations of an isolated incident are not
sufficient to show the existence of a custom or policy.” Fraire, 957 F.2d at 1278; see also Rivera v.
Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (“‘[I]solated unconstitutional actions
by municipal employees will almost never trigger liability.’”) (quoting Piotrowski, 237 F.3d at 578).
Harris County observes that Basler’s own complaint asserts “there was no policy, rule,
regulation, ordinance or procedure” for police response when a civilian records their conduct. Dkt.
16. The court agrees. Basler provided no evidence in his briefings that Harris County had a policy
or procedure for preventing retaliation against civilians filming at the time the incident transpired.
Failure to train must reflect a “deliberate” or “conscious” choice of Harris County for liability to
attach. City of Canton, Ohio v. Harris, 489 U.S. 378, 379, 109 S. Ct. 1197 (1989). The court finds
that Basler’s advancement of a conclusory argument that there was no policy and little training in
place is not sufficient evidence to establish the lack of a policy was a deliberate or conscious decision
on the part of Harris County.
Further, Basler fails to provide any evidence that Harris County deputy sheriffs retaliating
against civilians is a widespread practice or custom. For a Monnell claim, the plaintiff must establish
a widespread practice or custom by providing evidence of numerous similar incidents. See Pineda
v. City of Hou., 291 F.3d 325, 329 (5th Cir. 2002) (finding insufficient incidents to create enough
evidence of a municipal custom of illegal conduct). Here, discovery is complete, and Basler has
provided scant evidence regarding two instances of police possibly retaliating against a filming
civilian: an internal affairs complaint from a filming incident in 2013 and the existence of a lawsuit
arising from a filming incident in 2003. Dkt. 64, Ex. 1 (internal affairs report); Ibarra v. Baker, 338
F. App’x 457, 459 (5th Cir. 2009) (describing an underlying case that referenced video recording of
police activity). Two incidents over the last decade, combined with Basler’s incident, does not
approach a reasonable threshold needed to provide evidence of a “widespread” practice. The court
finds that Basler has not met his burden to provide evidence that there was a policy, custom, or
widespread practice required for municipal liability.
Failure to Train, Failure to Supervise, and Negligent Retention.
In the alternative, Basler also asserts that Harris County’s failure to train, failure to supervise,
and negligent retention amount to the policy.2 Failure to train, failure to supervise, or negligent
Harris County argues that Basler is improperly asserting a claim of negligence, when intentionality is required
for this cause of action. Dkt. 43 at 8–9. The court agrees § 1983 requires intentional action. Farmer v. Brennan, 511
U.S. 825, 828–29, 114 S.Ct. 1979 (1994). Basler also agrees he is not asserting a negligence cause of action, and
supervision can amount to a policy for municipal liability. City of Canton, 489 U.S. at 390. An
official not personally involved in the acts that deprived the plaintiff of his constitutional rights is
liable under § 1983 if (1) the official failed to train or supervise the officers involved; (2) there is a
causal connection between the alleged failure to supervise or train and the alleged violation of the
plaintiff’s rights; and (3) the failure to train or supervise constituted deliberate indifference to the
plaintiff’s constitutional rights. Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d
375, 380 (5th Cir. 2005); Thompson v. Upshur Cty., Tex., 245 F.3d 447, 459 (5th Cir. 2001). The
third element of the test is a “stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Estate of Davis, 406 F.3d at 381.
Deliberate indifference is not satisfied with evidence of negligence or gross negligence, and requires
more than erroneous decisions. Id.
Proof of more than a single instance of the lack of training or supervision causing
a violation of constitutional rights is normally required before such lack of training
or supervision constitutes deliberate indifference. The plaintiff must generally
demonstrate at least a pattern of similar violations. Furthermore, the inadequacy
of training must be obvious and obviously likely to result in a constitutional
Thompson, 245 F.3d at 459 (internal citations omitted).
1. Failure to Train
“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality
. . . can a city be liable for such a failure under [Section] 1983.” Goodman v. Harris Cty., 571 F.3d
388, 396 (5th Cir.2009) (citing City of Canton, 489 U.S. at 387.). “The failure to train can amount
to a policy if there is a deliberate indifference to an obvious need for training where citizens are likely
to lose their constitutional rights on account of novices in law enforcement.” Peterson v. City of Fort
reaffirms his argument that his failure to train, failure to supervise, and negligent supervision theories are based on
intentional conduct on the part of Harris County. Dkt. 64 at 7.
Worth, Tex., 588 F.3d 838, 849 (5th Cir. 2009). “To demonstrate deliberate indifference, a plaintiff
must show that ‘in light of the duties assigned to specific officers or employees, need for more or
different training is obvious, and the inadequacy so likely to result in violations of constitutional
rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent
to the need.’” World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 756 (5th
Cir. 2009) (quoting City of Canton, 489 U.S. at 387) (“The failure to train must reflect a ‘deliberate’
or ‘conscious’ choice by a municipality.”) Usually, a plaintiff must demonstrate “at least a pattern
of similar incidents” in order to demonstrate deliberate indifference. Estate of Davis, 406 F.3d at 383
(citations and internal quotations omitted). These prior indications must “point to the specific
violation in question”; the “specificity required should not be exaggerated, [but] the prior acts [must]
be fairly similar to what ultimately transpired . . . .” Id.
Harris County provides a litany of undisputed evidence about the training Deputy Barron has
received to perform his duties. Deputy Barron is certified as a peace officer, takes the required twenty
hours of training per year, and completed additional training on traffic stops. Dkt. 43, Ex. A (Barron
Dep.) at 12–13, 16–19, Ex. H. Deputy Barron also trains other officers on the safety risks associated
with traffic stops. Dkt. 43, Ex. A (Barron Dep.) at 16–20. Basler counters Harris County’s evidence
with a single undisputed allegation — that Deputy Barron does not remember the details of the
training he received regarding free speech rights. Dkt. 43, Ex. A (Barron Dep.) at 23–25.
However, even if Barron does not remember his training at all or the training was inadequate
for his personal retention, that does not serve as evidence to show a pattern of “similar incidents”
required to demonstrate Harris County’s widespread indifference. Deliberate indifference requires
actual knowledge and conscious disregard of the risk of harm to the plaintiff. Farmer v. Brennan,
511 U.S. 825, 834, 114 S. Ct. 1970 (1994).
The only allegation Basler makes that Harris County had actual knowledge to meet the
deliberate indifference standard is an allegation of the popularity of the 1991 Rodney King video and
two Fifth Circuit decisions also from over two decades ago. Dkt.44 at 20, Ex. 1. The Rodney King
incident took place across the country and is not factually similar to Basler’s case other than it
involved a civilian filming the police. Even assuming that Harris County had knowledge of these
events, the court would have to make a substantial inference without any evidence from Basler, that
mere knowledge of these events gives rise to a conclusion that Harris County was deliberately
indifferent and consciously disregarded any risk that there might be retaliation for filming which can
be rectified through additional training for the police. Therefore, the court concludes that Basler
failed to provide the evidence required to establish failure to train was a policy of the department.
2. Failure to Supervise and Negligent Retention
To hold a supervisor liable under § 1983, a plaintiff must show that the conduct of the
supervisor violated the constitutional rights of a party, not merely that a supervisor’s subordinate
violated the rights of a party. Goodman, 571 F.3d at 395. Basler argues that Harris County has
received complaints from other civilians about Deputy Barron and that those complaints demonstrate
that Harris County failed to supervise Deputy Barron and negligently retained him as a peace officer
despite these complaints. Dkt. 16. However, Basler provided no evidence in support of those
allegations. Dkt. 43 at 13. During his deposition, Basler stated “I’m not aware of any facts” that
support his claim that Harris County negligently supervised Deputy Barron. Dkt. 43, Ex. C (Basler
Dep.) at 101. Likewise, Basler stated he was not aware of any civilian complaints against Deputy
Barron. Id. at 102–103. Basler claims that there are still open issues of material fact regarding
Deputy Barron’s disciplinary record. Dkt. 64 at 7. Discovery in this matter is complete and Basler
has provided no additional evidence from the disciplinary record in his response. The court finds
there are no open issues of material fact regarding Deputy Barron’s disciplinary history. Therefore,
the court concludes that Basler failed to provide the evidence that there were complaints against
Deputy Barron, or that Harris County failed to supervise or negligently retained Deputy Barron.
Basler failed to establish a policy or practice of the department as a written policy, through
widespread custom or practice, or through a failure to train, failure to supervise, or negligent
supervision theories. Therefore, Basler has not met his burden of showing there is an issue of
material fact as to the “policy” element required for municipal liability. Basler’s motion for partial
summary judgment is DENIED, and Harris County’s motion for summary judgment is GRANTED
with regard to Basler’s claims against Harris County for municipal liability on these theories.
V. BASLER’S PRIVACY PROTECTION ACT CLAIMS AGAINST DEPUTY BARRON
Basler asserts a cause of action against Deputy Barron for the seizure and destruction of a
journalistic work product in violation the Privacy Protection Act (“PPA”). 42 U.S.C. § 2000aa;
Dkt. 16 at 11. Basler and Deputy Barron filed cross motions for summary judgment on this cause of
action. Dkts. 42, 44. The PPA makes it:
Unlawful for a government officer or employee, in connection with the investigation
or prosecution of a criminal offense, to search for or seize any work product materials
possessed by a person reasonably believed to have a purpose to disseminate to the
public a newspaper, book, broadcast, or other similar form of public communication,
in or affecting interstate or foreign commerce; but this provision shall not impair or
affect the ability of any government officer or employee, pursuant to otherwise
applicable law, to search for or seize such materials, if . . . there is probable cause to
believe that the person possessing such materials has committed or is committing the
criminal offense to which the materials relate . . .
42 U.S.C.A. §2000aa (emphasis added).
As a preliminary matter, there is no dispute that Deputy Barron seized Basler’s cell phone
during his arrest. Dkt. 42 at 8; Dkt. 44, Ex. 13. Basler, however, also alleges that the video
recordings he made were deleted in whole or in part by the police, a fact which Deputy Barron
disputes. Dkt. 62, Ex. 1 (Barron Dep.) 14–15. Nevertheless, the court finds this disputed fact is not
material to this cause of action. The cause of action arises from mere seizure of the work product,
which undisputedly occurred when Basler’s cell phone was confiscated during his arrest..
The first question for the court is whether Basler is protected by the PPA. Deputy Barron
argues that Basler is not protected by this act because he is not a professional journalist, and thus his
work product is not protected. Dkt. 16; Dkt. 42 at 7–8, Ex. D (Basler Dep.) at 68, 115. Basler is an
arborist by profession, but has been a contributor to internet publications that are critical of the police.
Id. The PPA, however, does not specify that it only protects professional journalists. PPA protects
“work product . . . [made by] a person reasonably believed to have a purpose to disseminate to the
public . . .” The Fifth Circuit has only opined on this law twice, and neither case presented an
analogous fact pattern. See Crenshaw-Logal v. City of Abilene, Tex., 436 F. App’x 306, 308 n.2 (5th
Cir. 2011) (noting that Crenshaw-Logal was not asserting a claim under the PPA); Steve Jackson
Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 459 (5th Cir. 1994) (asserting a PPA cause of action
when the Secret Service seized, among other contents stored on a computer, a book intended for
publication); see also Mink v. Suthers, 482 F.3d 1244, 1249 (10th Cir. 2007) (dismissing, on other
grounds, the PPA claims of a student who runs an internet journal; the court did not comment on
whether his work was covered by the PPA).
Deputy Barron argues that the only “work product” that could be produced by Basler are those
related to his profession as an arborist. Dkt. 42 at 8. However, PPA defines “work product” broadly
as materials created, among other requirements, “. . . in anticipation of communicating such materials
to the public, are prepared, produced, authored, or created, whether by the person in possession of the
materials or by any other person.” 42 U.S.C.A. § 2000aa(7). This definition also helps the court
conclude that the creator of the material does not have to be a professional journalist because the
language disregards who possesses the material and merely defines the material as being produced
in “anticipation” of public communication.
Deputy Barron states that he is fully aware of web sites where civilians disseminate films of
police activity to the public. Dkt. 42 at 3; Dkt. 62, Ex. 1 (Barron Dep.) at 23 (admitting he is aware
that cell phone videos of the police are posted to the Internet while refusing to opine on Basler’s
motives). Seeking to discredit Basler’s motives, Deputy Barron points out Basler’s involvement in
the CopBlock.com public and online community and cites to Basler’s previous publications on that
site. Dkt. 42 at 3, 11; Ex. D (Basler Dep.) at 40–41, 47. Deputy Barron has not advanced any
alternative argument or evidence that Basler had another purpose for filming besides disseminating
the film to the public. The court finds that there is no reasonable dispute about the purpose of
Basler’s filming. Id. Here, the court finds that Deputy Baron likely knew or had reason to know that
Basler was filming him for the purpose of disseminating the film to the public via public
communication (in this case, the Internet) and that any video contained on the seized cell phone was
indeed work product under the definition of the PPA.
The second question, however, is whether, the seizure is still permitted pursuant to the
“applicable law” and “probable cause” exception in the second provision of the PPA. 42 U.S.C.A.
§2000aa. The PPA allows an exception for the seizure of a journalistic work product if there “is
probable cause to believe that the person possessing such materials has committed or is committing
the criminal offense to which the materials relate.” Id. Therefore, whether Basler has a cause of
action under the PPA depends on if this exception applies. Knowing Basler was filming, Deputy
Barron claims that there may have been evidence recorded on the phone of Basler’s interference with
his public duties. Dkt. 62, Ex. 2 (Barron Dep.) at 11. This makes sense if Basler was recording the
entire sequence of events leading up to his arrest. If the arrest occurred with probable cause, the
seizure of the cell phone may be allowed under the PPA pursuant to the exception allowing a seizure
during a lawful arrest.
Because the court concludes Basler’s filming may be protected activity under the PPA, but
there is an issue of material fact as to probable cause that may make the exception for seizure of the
cell phone applicable, both Deputy Barron and Basler’s motions for summary judgment on this cause
of action (Dkts. 42, 44) are DENIED.
Deputy Barron’s motion for summary judgment (Dkt. 42) is DENIED.
Harris County’s motion for summary judgment (Dkt. 43) is GRANTED.
Basler’s motion for partial summary judgment (Dkt. 44) is DENIED.
Signed at Houston, Texas on February 6, 2017.
Gray H. Miller
United States District Judge
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