David Allen v. Charles McClelland, Jr.
815 F.3d 239
5th Cir.2016Background
- David Allen, a longtime street preacher who used a ~37-inch shofar, was detained/arrested during two Houston demonstrations (Oct 31, 2011; Jan 14, 2012).
- Oct 31 incident: Officer Montelongo responded to a disturbance, measured protest objects under Houston Ord. §28-33, told Allen the shofar was prohibited, and handcuffed Allen during a confrontation; signs and the shofar were confiscated and citations issued.
- Jan 14 incident: Sergeant Cisneros moved to detain another demonstrator (Stokes) near the marathon route; Allen videotaped, was told to back away, was detained, had his camera seized, then released, reapproached the patrol car and was arrested; citations issued and later dismissed for procedural reasons.
- Allen sued under 42 U.S.C. § 1983 alleging retaliatory seizures violating the First Amendment and unlawful seizures violating the Fourth Amendment; defendants raised qualified immunity.
- The district court denied qualified immunity based on factual disputes (e.g., whether Allen entered the street; whether he complied with Cisneros’ orders); the officers appealed.
- The Fifth Circuit accepted Allen’s factual version for purposes of review but held those disputed facts were not material because each officer had independent, lawful grounds for detention/arrest and therefore reversed and granted qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers’ detentions/arrests were retaliatory and thus violated the First Amendment | Allen: detentions were retaliatory for his preaching/videotaping and not supported by lawful grounds | Officers: nonretaliatory, lawful grounds (ordinance violation, officer safety) justified detentions/arrests | Held: No First Amendment violation; officers had independent lawful grounds, so no actionable retaliation |
| Whether officers lacked reasonable suspicion/probable cause in seizing Allen (Fourth Amendment) | Allen: factual disputes (did not enter street; complied with orders) negate reasonable suspicion/probable cause | Officers: shofar violated ordinance and provided reasonable suspicion/probable cause; positioning near officer justified detention for safety | Held: No Fourth Amendment violation; shofar possession and officer-safety concerns provided objective justification |
| Whether factual disputes identified by district court were material to qualified immunity | Allen: disputes (entry into roadway; compliance with orders) preclude summary judgment | Officers: those disputes are not material because independent lawful bases exist | Held: Disputes immaterial; qualified immunity applies to both officers |
| Whether officers are entitled to qualified immunity | Allen: constitutional rights were violated and were clearly established | Officers: even if rights implicated, not clearly established under these facts; they acted reasonably | Held: Officers entitled to qualified immunity; district court reversed and judgment for officers directed |
Key Cases Cited
- Mullenix v. Luna, 136 S. Ct. 305 (Sup. Ct.) (qualified immunity protects all but plainly incompetent or knowing violators)
- Hartman v. Moore, 547 U.S. 250 (Sup. Ct.) (retaliation claims require showing nonretaliatory grounds insufficient)
- Terry v. Ohio, 392 U.S. 1 (Sup. Ct.) (police may briefly detain on reasonable suspicion)
- Atwater v. City of Lago Vista, 532 U.S. 318 (Sup. Ct.) (officer with probable cause may arrest for minor offense)
- Devenpeck v. Alford, 543 U.S. 146 (Sup. Ct.) (warrantless arrest reasonable where probable cause exists for any offense)
- United States v. Michelletti, 13 F.3d 838 (5th Cir.) (reasonable suspicion requires specific, articulable facts)