Case: 20-30356 Document: 00516022065 Page: 1 Date Filed: 09/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 21, 2021
No. 20-30356
Lyle W. Cayce
Clerk
Adam Kokesh,
Plaintiff—Appellee,
versus
Kevin Curlee,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-1372
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
This is another case involving a law enforcement officer’s defense of
qualified immunity. But unlike most cases involving qualified immunity, this
one raises no issue with regard to excessive force, or an unconstitutional
search of a premises. In fact, this story begins not even with a traffic stop.
Rather, this federal civil rights lawsuit has blossomed from the attempt by a
state trooper to render roadside assistance.
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I.
On the night of January 2, 2019, Louisiana State Trooper Kevin
Curlee, patrolling in the New Orleans area, came upon a pickup truck
stopped on the shoulder of the Carrollton Overpass on Interstate 10. The
pickup truck had its emergency hazard lights blinking, its hood open, 1 and
also a visible current handicap license plate. Two people stood outside the
truck. Trooper Curlee pulled his marked Louisiana State Police (“LSP”)
unit, with its emergency lights flashing, behind the pickup truck. He then
started his bodycam, which stayed on for several hours thereafter and
throughout all material times relative to this matter. Both from the bodycam
footage, 2 as well as through judicial notice, 3 we note the following about this
location:
1
Kokesh submitted and cites to Curlee’s “arrest narrative,” which contains the
description of the truck’s hood being open. Kokesh does not deny and offers no explanation
as to why the hood of the truck was open, other than stating that it is not visible on Curlee’s
bodycam recording. At any rate, the Court’s ruling does not depend on whether the hood
was open or not.
2
Although all alleged facts are taken as if they are true, facts established by a video
record control when they clearly contradict the facts contained in a pleading. See Scott v.
Harris, 550 U.S. 372, 380–81 (2007); see also United States ex rel. Riley v. St. Luke’s Episcopal
Hosp.,
355 F.3d 370, 377 (5th Cir. 2004). Here, Curlee has attached a video of the incident,
which is available at: http://www.ca5.uscourts.gov/opinions/pub/20/20-30356.mp4.
There are several points of material fact on which the video clearly contradicts Kokesh’s
alleged facts. On these facts, the video will control. It is curious that Kokesh did not provide
his video of this incident, but we assume it shows events no differently.
3
The dissent accuses us of “peeking outside the record to assess the history and
characteristics of the Carrollton Overpass and its purported dangers,” but this critique falls
flat. Post at 25. Indeed, each and every fact regarding the Overpass which we supply by
judicial notice not only provides texture, context, and assistance in the fact-intensive
inquiry we must perform, but is also “generally known within the trial court’s territorial
jurisdiction” and capable of being “accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b). As a result, no
such fact “is . . . subject to reasonable dispute” under the applicable rule of evidence, and
2
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The Pontchartrain Expressway portion of Interstate 10 in New
Orleans runs from the Jefferson-Orleans Parish line to the foot of the
Crescent City Connection, which spans the Mississippi River. For the last
60-plus years, it has been the single major express thoroughfare between
downtown New Orleans, its Central Business District (or “CBD”), and the
French Quarter on its eastern side, and Metairie, Kenner, and Armstrong
International Airport to the west. It has six lanes (three in each direction), a
regularly-exceeded speed limit of 60 mph, and contains a lengthy section, the
“Carrollton Overpass”—also referred to by locals as “the Carrollton
Interchange” because of the several crisscrossing on-and-off ramps under it.
A significant and central artery of the City’s landscape leading to the
Louisiana Superdome, the Carrollton Overpass is elevated high above city
streets, each side having a barely wide enough shoulder for stalled vehicles
and/or distressed drivers, and a low concrete wall on the edge. In short,
vehicles parked on the shoulder and the passengers who exit these vehicles,
especially at night, are in danger of being struck by oncoming traffic travelling
at high interstate speeds, thus endangering lives and creating road hazards.
There are hardly any benign reasons why a car or truck, such as the one found
this night, would purposely be parked on the shoulder of this elevated
expressway after nightfall. 4
the court “may judicially notice” each such fact accordingly. Id. It makes no difference
whether such facts appear in the record, as “an appellate court may judicially notice certain
facts, even if the district court did not.” Brown v. Tarrant Cnty.,
985 F.3d 489, 493 n.4 (5th
Cir. 2021).
4
Curlee’s arrest narrative states that he arrived on the scene of the overpass
incident “at approximately 1740 hours,” or 5:40 p.m. On the other hand, Curlee’s briefing
on appeal states that Curlee arrived “shortly before midnight,” citing the time index of
Curlee’s bodycam. Review of Curlee’s bodycam footage indicates that Curlee’s arrest
narrative provides the accurate time—the radio clock on Curlee’s LSP unit reads “17:40”
when Curlee arrives. In any event, the bodycam footage indicates that the entire incident
3
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Viewing the encounter objectively, one would expect Curlee to stop
his LSP unit on the overpass behind the stopped pickup truck bearing a
handicap license plate, especially upon seeing people outside of the truck and
the truck’s emergency hazard lights blinking. Reasonably, Curlee’s initial
concern and inquiry at that time was not possible criminal activity, but rather
the safety of the truck’s occupants if it had stalled and the safety of other
motorists passing at high speeds.
As Curlee pulled behind the truck, he observed one person apparently
spraying the overpass wall while another watched or assisted, and discerned
that the purpose was to illegally spray paint or stencil a message onto the
wall. 5 Reasonably finding such conduct (defacing public property) to be
suspicious (not to mention dangerous), Curlee demanded that the man
overseeing the spraying get back in the front passenger seat of the truck. He
then questioned the man performing the spraying, who gave his name as
Elijah Gizzarelli. Gizzarelli denied he was spray painting, and explained that
occurred after sunset, and the time discrepancy has no bearing on the issues presented on
appeal.
5
LA. R.S. 14:56.4 provides, in pertinent part:
§56.4. Criminal damage to property by defacing with graffiti
A. It shall be unlawful for any person to intentionally deface with graffiti
immovable or movable property, whether publicly or privately owned,
without the consent of the owner.
B. As used in this Section, the following terms mean:
(1) “Deface” or “defacing” is the damaging of immovable or movable
property by means of painting, marking, scratching, drawing, or etching
with graffiti.
(2) “Graffiti” includes but is not limited to any sign, inscription, design,
drawing, diagram, etching, sketch, symbol, lettering, name, or marking
placed upon immovable or movable property in such a manner and in such
a location as to deface the property and be visible to the general public.
4
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he was pressure washing the word “freedom” into the dirt on the wall to
promote a book “that’s being delivered to every household in New Orleans.”
Per his law enforcement training, Curlee then placed Gizzarelli in handcuffs,
inquired with Gizzarelli about whether there were weapons in the truck, and
learned that there were none of which Gizzarelli was aware.
Gizzarelli told Curlee that he and his companions had done extensive
legal research to make sure pressure washing the wall was lawful and that
they had already pressure washed two other locations. Without verifying
Gizzarelli’s assertion by examining the wall and the pressure washer, Curlee
then told Gizzarelli: “It looks like y’all are spray painting. So if it’s not spray
paint, that’ll be fine.” 6 Curlee explained to Gizzarelli how law enforcement
officers could reasonably perceive the group’s activities as spray painting
rather than pressure washing. Gizzarelli responded that he could understand
how such a misconception might occur. Curlee recommended that the group
avoid “going to do that anywhere else” to avoid getting stopped by law
enforcement again. Curlee then walked toward the truck and briefly shined
his flashlight into the bed of the truck and onto the site of the alleged pressure
washing on the overpass wall. The contents of the truck bed are not apparent
on the bodycam video. Further, although the word “freedom” is visible on
6
We note that Louisiana law requires operators of portable pressure washing
equipment to obtain a proper permit from the Department of Energy Quality. LA. R.S.
30:2075; https://deq.louisiana.gov/assets/docs/Permits/LAG750000.pdf. Failure to
obtain such a permit may result in a $25,000 fine and/or one year of imprisonment. LA.
R.S. 30:2076.2(A)(1), (3). Additionally, it is unlawful to discharge industrial wastewater
upon the rights-of-way of state highways without prior written consent from the
Department of Transportation and Development and the Louisiana Department of Health.
LA. R.S. 48:385. Despite Gizzarelli’s apparent lack of authorization to operate pressure
washing equipment on a public highway—Gizzarelli even admitted that he had “never used
a pressure washer before”—Curlee determined that no one would be arrested or ticketed
for unauthorized pressure washing.
5
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the wall, based on the distance between Curlee and the wall, as well as the
darkness of the night, the bodycam video is unclear as to whether the stencil
was accomplished with white paint or a pressure washer.
Next, Curlee turned to the two other men seated in the truck—the
driver and the passenger, who was now videotaping the encounter with
Gizzarelli on a cell phone. Curlee called out to the driver of the truck and was
met with no response. Curlee then asked Gizzarelli who the driver was, and
Gizzarelli enigmatically replied: “I’m not one hundred percent sure of his
name to be honest, I think it’s, I don’t know, he’s a friend.” At this point,
under any objective measure, Curlee surely was required to go further, based
on his experience and the puzzling nature of this response. Henceforth,
seeking the identity of the three men in and around the truck seemed not only
prudent, but necessary, even in hindsight.
Curlee then ordered the driver to step out of the vehicle and requested
to see the driver’s ID. The driver exited the vehicle and represented his ID
to Curlee (showing the name of Robert Evans), thus complying with Curlee’s
instructions. The driver also asserted he was involved in the Jefferson Parish
Libertarian Party. Curlee again observed the third individual, Kokesh, in the
passenger seat of the truck, still recording Curlee’s every move with a cell
phone. Curlee requested to see Kokesh’s ID twice and was initially met with
no response. After Curlee’s third request, Kokesh took out and read from a
card to invoke his rights to remain silent and to an attorney, obviously in
reference to United States v. Miranda, 384 U.S. 436 (1966). But Kokesh was
not under arrest or in custody at the time and thus such rights did not legally
attach under Miranda. See
id. at 467–68. Therefore, his failure to cooperate
with Curlee in producing requested identification does not fall within the
scope of his rights upon arrest. Kokesh further read from his card that he did
not consent to a search of any kind, though neither Curlee nor the laterarriving state troopers requested, attempted, or performed a search of the
6
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vehicle at any time during the encounter. Indeed, after Evans purportedly
identified Kokesh by name, Kokesh continued to refuse to allow Curlee to
see his ID and continued his recording of the encounter. Evans stated he
“didn’t think it was a good idea” to stop on the expressway, and later advised
Curlee that it was Kokesh who told him to stop so the wall could be stenciled
with the word “freedom” to promote the release of Kokesh’s book.
Further fueling Curlee’s need to inquire more deeply, Evans then
claimed that Kokesh was a candidate for President of the United States—
indeed it would be a rare occurrence for a national presidential candidate to
be found stopped high atop the Pontchartrain Expressway after nightfall in
New Orleans. From the responses given by both Gizzarelli and Evans, it is
clear that Kokesh was the instigator, leader, and overseer of the purposeful
stop on the shoulder of the Pontchartrain Expressway. Evans, as the driver,
and Gizzarelli, as the stenciler, followed Kokesh’s instructions. Given the
strange circumstances Kokesh created, Curlee then wisely summoned a
back-up trooper 7 to assist. At this time, Gizzarelli was still handcuffed, and
the lawful detention and investigation were still underway. Determining that
further investigation of this truly odd circumstance was warranted, Curlee
was thus acting within the scope of LA. R.S. 14:108, 8 which prohibits an
7
Two other LSP troopers arrived, though not together, and one sooner than the
other.
8
LA. R.S. 14:108 provides, in pertinent part:
SUBPART D. OFFENSES AFFECTING LAW ENFORCEMENT
§108. Resisting an officer
A. Resisting an officer is the intentional interference with, opposition or
resistance to, or obstruction of an individual acting in his official capacity
and authorized by law to make a lawful arrest, lawful detention, or seizure
of property or to serve any lawful process or court order when the offender
7
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individual from resisting an officer by refusing to identify himself during a
lawful detention, which this indeed was at the time. And a violation of LA.
R.S. 14:108 might result in an arrest of the offender—which ultimately
occurred here.
Despite Kokesh’s continued intransigence, Curlee, this time
accompanied by the back-up trooper who had arrived, again approached
Kokesh, who remained seated in the truck’s passenger seat continuing his
video recording. Curlee again asked to view Kokesh’s ID, explaining that the
truck was “illegally stopped on the shoulder of the road,” and warning
Kokesh that he might be arrested if he failed to show his identification.
Consistent with the dictates of LA. R.S. 14:108, Curlee indicated that Kokesh
might be charged with “interfering with the investigation.” Because Kokesh
yet again refused to cooperate by showing an ID, he was handcuffed, advised
of his Miranda rights, and the back-up trooper placed him into the back seat
of Curlee’s LSP unit. Thus, the arrest had been completed.
knows or has reason to know that the person arresting, detaining, seizing
property, or serving process is acting in his official capacity.
B.(1) The phrase “obstruction of” as used herein shall, in addition to its
common meaning, signification, and connotation mean the following:
…
(c) Refusal by the arrested or detained party to give his name and make his
identity known to the arresting or detaining officer or providing false
information regarding the identity of such party to the officer.
…
C. Whoever commits the crime of resisting an officer shall be fined not
more than five hundred dollars or be imprisoned for not more than six
months, or both.
8
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Curlee then removed Gizzarelli’s handcuffs. Curlee walked over to
the stenciling site and shined his flashlight on the “freedom” stencil for a
second time. Unlike Curlee’s cursory first look, his second view of the stencil
was much closer and more careful, and the video clearly shows an absence of
dirt rather than white paint. Curlee returned to his LSP unit to grab a camera
and walked back to take a photograph of the “freedom” stencil. Curlee then
shined his flashlight into the bed of the truck for the second time. Unlike his
first look, which was too quick to get a clear view of the contents of the truck
bed, Curlee saw the pressure washing equipment the second time and took a
photograph of that equipment as well.
Curlee inquired with Evans whether Kokesh had a wallet in the truck,
and asked to see it if so. Evans, who again vocalized his realization that he
should not have stopped the truck on the highway shoulder to accomplish the
pressure washing, located the wallet and handed it to Curlee. Curlee then
told Evans, “I see that it’s not paint, which I guess, there’s no law against
cleaning something.” This is Curlee’s first unequivocal statement
confirming Gizzarelli’s initial representation that the stencil was pressure
washed rather than graffitied with spray paint. Curlee then viewed Kokesh’s
wallet while seated in his LSP unit. 9 Completing his task, Curlee exited his
LSP vehicle, and wrote a ticket to Evans for illegally stopping the truck on
the elevated expressway shoulder under LA. R.S. 32:296(A). 10 Evans drove
9
While Kokesh was seated in Curlee’s vehicle, Curlee examined the three IDs he
now possessed. Kokesh’s ID indicated that he was a military veteran, and the computer in
the LSP unit disclosed an existing warrant from another jurisdiction. Curlee also searched
Kokesh’s person, discovered pepper spray and a tool containing a razor blade, and asked
Kokesh whether he wished for his friends to take this and other personal property like his
sunglasses, or whether Kokesh chose to maintain possession.
10
With a few exceptions not relevant this case, Louisiana law provides that “[n]o
person shall stop, park, or leave standing any unattended vehicle on any state highway
9
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off with Gizzarelli, and Curlee took Kokesh to the LSP station, where he was
later taken to jail.
From these facts, to recap, it is clear that the defendant, LSP Trooper
Kevin Curlee: (1) observed a handicap-plated truck after nightfall stopped on
the shoulder of the road high atop the Carrollton Interchange on the
Pontchartrain Expressway, part of the interstate system in New Orleans,
Louisiana; (2) stopped to investigate the many possible circumstances as to
why the truck was stopped, including vehicle breakdown, criminal activity,
and motorist assistance; (3) as part of the investigation, and based upon the
odd answers given by the three men in the truck, sought the identification of
each; (4) noted that, although two men, including the truck’s driver,
complied, Kokesh remained intransigent, refused to comply, and videotaped
the encounter; (5) continued his investigation with one man still handcuffed,
although hampered because Kokesh continued his lack of cooperation,
attempted to assert his Miranda rights though he had not been arrested, and
refused to show identification to an officer lawfully investigating potential
defacement of public property and why the truck was stopped at such a
dangerous place on the elevated expressway at night; (6) arrested Kokesh
because of his failure to provide identification; (7) completed his
investigation by determining that the two other men in the truck were acting
on Kokesh’s instructions; and (8) decided Gizzarelli should be uncuffed and
released, photographed the product of the pressure spray stencil on the
overpass wall and pressure washing equipment, and wrote a ticket to Evans,
the truck’s driver, for illegally stopping on the interstate shoulder. According
to Curlee’s narrative, he arrested Kokesh for “Resisting an officer—not
providing identification” in violation of Louisiana law, which requires a
shoulder, unless such stopping, parking, or standing is made necessary by an
emergency . . . .” LA. R.S. 32:296(A).
10
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lawfully detained person “to give his name and make his identity known to
the arresting or detaining officer.” LA. R. S. 14:108(B)(1)(c).
Kokesh sued Curlee, the Superintendent of the Louisiana State
Police, and the Orleans Parish District Attorney for (1) false arrest, (2) false
imprisonment, (3) kidnapping, (4) battery, (5) malicious prosecution, (6)
intentional infliction of emotional distress, (7) unreasonable seizure and
excessive force under the Fourth Amendment, and (8) retaliation under the
First Amendment. After a series of motions to dismiss, the district court
dismissed all claims for injunctive and declaratory relief, all official-capacity
claims, and all state law claims. The only remaining claims at that point were
the 42 U.S.C. § 1983 claims against Curlee in his individual capacity for
unreasonable seizure and excessive force under the Fourth Amendment, and
retaliation under the First Amendment. Curlee moved for summary
judgment on these claims, in part based on qualified immunity. The district
court granted the motion as to the excessive-force claim but denied it as to
the unreasonable-seizure claim and the claim for First Amendment
retaliation. Curlee timely brought this interlocutory appeal, challenging the
district court’s denial of qualified immunity.
II.
District court orders denying summary judgment on the basis of qualified
immunity are immediately appealable and reviewed de novo only if they are
predicated on conclusions of law and not genuine issues of material fact.
Naylor v. Louisiana, 123 F.3d 855, 857 (5th Cir. 1997). “This means that the
district court’s finding that a genuine factual dispute exists is a factual
determination that this court is prohibited from reviewing in this
interlocutory appeal.” Good v. Curtis,
601 F.3d 393, 397 (5th Cir. 2010)
(emphasis in original). “Thus, a defendant challenging the denial of a motion
for summary judgment on the basis of qualified immunity must be prepared
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to concede the best view of the facts to the plaintiff and discuss only the legal
issues raised by the appeal.” Id. (quoting Freeman v. Gore,
483 F.3d 404, 410
(5th Cir. 2007)). This Court is essentially reviewing the district court’s
decision that a “certain course of conduct would, as a matter of law, be
objectively unreasonable in light of clearly established law.” Kinney v.
Weaver,
367 F.3d 337, 346 (5th Cir. 2004) (en banc). “To make this
determination, the court applies an objective standard based on the viewpoint
of a reasonable official in light of the information then available to the
defendant and the law that was clearly established at the time of the
defendant’s actions.” Freeman, 493 F.3d at 411.
Qualified immunity shields public officials “sued in their individual
capacities ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Joseph v. Bartlett, 981 F.3d 319, 328
(5th Cir. 2020) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).
When a defendant invokes qualified immunity, it affects our jurisdiction in
two ways—“we review earlier than we otherwise would, and we review less
than we otherwise would.” Id. at 330. As to the expedited timing of our
review, defendants who unsuccessfully assert the qualified-immunity
defense pretrial can bring an interlocutory appeal, even though denials of
summary judgment are not generally final, appealable orders under
28 U.S.C.
§ 1291. See Mitchell v. Forsyth,
472 U.S. 511, 524–30 (1985); see also Plumhoff
v. Rickard,
572 U.S. 765, 771–72 (2014).
As to the scope of our review, it is circumscribed. In a typical
summary-judgment case, we review the district court’s analysis de novo,
asking the same question that the district court did—whether the movant has
shown “that 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). But
in reviewing the denial of qualified immunity, we accept the district court’s
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determination that there are genuine fact disputes. See Melton v Phillips, 875
F.3d 256, 261 (5th Cir. 2017) (en banc) (“[W]e 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.”) (quoting Allen v.
Cisneros,
815 F.3d 239, 244 (5th Cir. 2016)). And we ask only “whether the
factual disputes that the district court identified are material to the
application of qualified immunity.” Samples v. Vadzemnieks,
900 F.3d 655,
660 (5th Cir. 2018).
We apply that materiality analysis to both questions that arise when
an official invokes qualified immunity: (1) whether the defendant violated the
plaintiff’s constitutional or statutory rights; and (2) whether those rights
were clearly established at the time of the violation “such that the officer was
on notice of the unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d
444, 451 (5th Cir. 2019) (en banc), as revised (Aug. 21, 2019), cert. denied sub
nom. Hunter v. Cole,
141 S. Ct. 111 (2020).
“Whether an official’s conduct was objectively reasonable [in light of
the law that was clearly established at the time of the disputed action] is a
question of law for the court, not a matter of fact for the jury.” Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010). But, “in certain circumstances
where ‘there remain disputed issues of material fact relative to immunity, the
jury, properly instructed, may decide the question.’” Mesa v. Prejean,
543
F.3d 264, 269 (5th Cir. 2008) (quoting Presley v. City of Benbrook,
4 F.3d 405,
410 (5th Cir. 1993)); see also McCoy v. Hernandez,
203 F.3d 371, 376 (5th Cir.
2000) (if the court has not decided the issue prior to trial, “the jury . . .
determine[s] the objective legal reasonableness of the officers’ conduct”).
“A qualified immunity defense alters the usual summary judgment
burden of proof.” Brown, 623 F.3d at 253. Although nominally an affirmative
defense, the plaintiff has the burden to negate the defense once it is properly
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raised. Garza v. Briones, 943 F.3d 740, 744 (5th Cir. 2019). The plaintiff has
the burden to point out clearly established law. Clarkston v. White,
943 F.3d
988, 993 (5th Cir. 2019). The plaintiff also bears the burden of “raising a fact
issue as to its violation.” Delaughter v. Woodall,
909 F.3d 130, 139 (5th Cir.
2018)). Thus, once the defense is invoked, “[t]he plaintiff must rebut the
defense by establishing that the official’s allegedly wrongful conduct violated
clearly established law and that genuine issues of material fact exist regarding
the reasonableness of the official’s conduct” according to that law. Gates v.
Texas Dep’t of Protective & Regul. Servs.,
537 F.3d 404, 419 (5th Cir. 2008).
At the summary judgment stage, however, all inferences are still
drawn in the plaintiff’s favor. Brown, 623 F.3d at 253. This is true “even when
. . . a court decides only the clearly-established prong of the [qualified
immunity] standard.” Tolan v. Cotton,
572 U.S. 650, 657 (2014). Likewise,
“under either [qualified immunity] prong, courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.”
Id. at 656.
“Accordingly, courts must take care not to define a case’s ‘context’ in a
manner that imports genuinely disputed factual propositions.”
Id. at 657; see,
e.g., Tarver v. City of Edna,
410 F.3d 745, 754 (5th Cir. 2005) (dismissal at
summary judgment phase inappropriate because determining whether
officer’s conduct was objectively unreasonable in light of clearly established
law required factfinding and credibility assessments).
When evaluating a qualified immunity defense, courts “consider[]
only the facts that were knowable to the defendant officers.” White v. Pauly,
137 S. Ct. 548, 550 (2017) (per curiam); see also Cole,
935 F.3d at 456 (“[W]e
consider only what the officers knew at the time of their challenged
conduct.”). “Facts [that] an officer learns after the incident ends—whether
those facts would support granting immunity or denying it—are not
relevant.” Hernandez v. Mesa,
137 S. Ct. 2003, 2007 (2017) (per curiam);
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Brown, 623 F.3d at 253 (“An official’s actions must be judged in light of the
circumstances that confronted him, without the benefit of hindsight.”).
“Because the focus is on whether the officer had fair notice that [his]
conduct was unlawful, reasonableness is judged against the backdrop of the
law at the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
“Clearly established law is determined by controlling authority—or a robust
consensus of persuasive authority—that defines the contours of the right in
question with a high degree of particularity.” Clarkston,
943 F.3d at 993
(quoting Delaughter,
909 F.3d at 139).
Thus, “[q]ualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open legal
questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). It likewise “shields
an officer from suit when [the officer] makes a decision that, even if
constitutionally deficient, reasonably misapprehends the law governing the
circumstances [the officer] confronted.” Brosseau,
543 U.S. at 198; see also
Saucier v. Katz,
533 U.S. 194, 205 (2001) (“The concern of the immunity
inquiry is to acknowledge that reasonable mistakes can be made as to the legal
constraints on particular police conduct.”). In short, “[w]hen properly
applied, [qualified immunity] protects all but the plainly incompetent or
those who knowingly violate the law.” al-Kidd, 563 U.S. at 743 (internal
quotation marks and citation omitted).
Consequently, “[q]ualified immunity is justified unless no reasonable
officer could have acted as [the defendant officer] did here, or every
reasonable officer faced with the same facts would not have [acted as the
defendant officer did].” Mason v. Faul, 929 F.3d 762, 764 (5th Cir. 2019),
cert. denied,
141 S. Ct. 116 (2020) (emphases omitted); see also District of
Columbia v. Wesby,
138 S. Ct. 577, 590 (2018) (“The precedent must be clear
enough that every reasonable official would interpret it to establish the
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No. 20-30356
particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that
‘every reasonable official’ would know.”) (citations omitted).
III.
On appeal, the parties do not dispute the district court’s
determination that the initial traffic stop and detention were valid. 11 The
remaining issue is whether the continued detention and subsequent arrest of
Kokesh were objectively unreasonable in light of clearly established law at the
time of the arrest.
A. Fourth Amendment Claim
Relying on Johnson v. Thibodaux City, 887 F.3d 726 (5th Cir. 2018),
Kokesh argues that, as in Johnson, he was simply a passenger in a vehicle that
was lawfully stopped but who himself was not suspected of criminal
wrongdoing. Further, Kokesh contends that Curlee began to demand
identification only when he noticed Kokesh recording him, which is a
protected activity under the First Amendment. See Turner v. Lieutenant
Driver,
848 F.3d 678, 690 (5th Cir. 2017) (holding that the First Amendment
protects “the right to record the police”). Even viewing the facts in a light
most favorable to Kokesh, we disagree.
The centerpiece of Kokesh’s argument is the recent Johnson case. In
Johnson, Jackalene Johnson, Dawan Every, and Kelly Green were passengers
in a truck driven by Latisha Robertson. A Thibodaux Police Department
officer recognized Robertson as the subject of an outstanding warrant. He had
11 It is undisputed that the pickup truck stopped atop the Pontchartrain Expressway
voluntarily, apparently at the insistence of Kokesh. Curlee’s arrival at the scene did not
initially effectuate a Terry stop, but it is also undisputed that, when he exited his LSP unit
and commenced his investigation, it soon became a Terry stop. See Terry v. Ohio, 392 U.S.
1 (1968).
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No. 20-30356
no other probable cause or reasonable suspicion to stop the truck except his
recognition of Robertson. The officer effected a Terry stop, asked Robertson
to exit the truck, and handcuffed her once she did. Thus, the purpose of the
Terry stop was accomplished, and the lawful detention of the other occupants
of the vehicle, none of whom were known to the officer, had concluded. Our
court reasoned:
The city maintains that Johnson was lawfully detained because
Amador [the officer] had a valid justification for the initial
traffic stop: to arrest Robertson on an outstanding warrant. We
disagree.
When the police stop a vehicle and detain the
occupants, they have effected a Fourth Amendment
“seizure.” United States v. Brigham, 382 F.3d 500, 506 (5th
Cir. 2004) (en banc). We treat those traffic stops as Terry stops.
Id. Our Terry analysis has two parts. First, we assess whether
the initial stop was justified. Id. As the city demonstrates, the
initial stop was justified to arrest Robertson, who had an
outstanding warrant.
Second, we determine whether “the officer’s
subsequent actions were reasonably related in scope to the
circumstances that justified the stop.” Id. The “touchstone”
here is “reasonableness,” which “eschews bright-line rules
[and] instead emphasiz[es] the fact-specific nature of the . . .
inquiry.” Id. at 507 (quoting Ohio v. Robinette, [
519 U.S. 33, 39
(1996)]). Hence, we require that an officer’s actions after a
legitimate stop be “reasonably related to the circumstances
that justified the stop, or to dispel[] his reasonable suspicion
[that] developed during the stop. Id. A reasonable detention
“must be temporary and last no longer than is necessary to
effectuate the purpose of the stop, unless further reasonable
suspicion, supported by articulable facts, emerges.” Id.
Even in the light most favorable to the verdict, the
evidence shows that Johnson’s detention lasted longer than
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No. 20-30356
necessary to effect the purpose of the stop. Amador testified
that he stopped the truck because he recognized Robertson,
knew that she had an outstanding warrant, and planned to
arrest her. And Amador quickly effected that purpose.
Johnson, 887 F.3d at 733–34. Unlike Kokesh, Johnson was merely a passenger
in the truck, said not a word to the officer, and took no action whatsoever
prior to the request for identification. In fact, but for the recognition of
Robertson as the subject of a warrant, the truck’s occupants in Johnson were
not violating any laws or traffic regulations and would not have been lawfully
stopped under those facts.
In order for Kokesh to fall within the scope of Johnson, he must
demonstrate that Curlee improperly continued and extended a traffic stop for
the sole purpose of obtaining his identification, without developing
“reasonable suspicion, supported by articulable facts” during the justified
portion of the stop or must have made the request because of “the
circumstances that justified the stop.” Id.at 734 (citation omitted). Putting
aside the undisputed fact that this was not a traffic stop at all, but rather was
initiated by the voluntary stop of the truck at the instruction of Kokesh, the
evidence does not suggest that Curlee continued or extended his interaction
with Kokesh and his supporters unnecessarily and unreasonably. Indeed, as
set forth above, articulable facts exist (and are depicted on the bodycam
video) to support reasonable suspicion that Kokesh participated in the
defacement of public property in violation of LA. R.S. 14:56.4. To that end,
Curlee questioned both Evans and Gizzarelli, who both indicated they acted
on Kokesh’s instructions as to stopping the truck on the elevated
Pontchartrain Expressway, exiting the vehicle, and stenciling “freedom” on
the overpass wall. Because both Gizzarelli and Evans cited Kokesh’s
authority, as a presidential candidate and book author, for their acts, further
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No. 20-30356
inquiry was surely in order, and requesting a personal identification from
Kokesh was not unreasonable. 12
Moreover, the actions of Kokesh himself, under these circumstances,
also generated reasonable suspicion: without prompting, Kokesh pulled out
a card and began reading what would be his Miranda rights when Curlee
approached. Also, without any request whatsoever to search, Kokesh
announced forthrightly that he did not consent to a search of any kind. At
that time, Curlee understood that Kokesh was the leader and director of the
trio, that he refused to cooperate with the production of identification, and
seemed to be under the impression he was being arrested though Curlee
made not even an intimation of such intent. These are hardly the
circumstances which would warrant a law enforcement officer to return to
his LSP unit and drive off into the night. Kokesh’s claim therefore fails on
the first inquiry of qualified immunity: his constitutional and statutory rights
were not violated by Curlee’s request for identification or the arrest for
failure to comply under LA. R.S. 14:108(B)(1)(c). Accordingly, we need not
discuss the second prong, i.e., the clear establishment of such rights at the
time of the violation such that the officer was on notice of the unlawfulness
of his conduct. Cole, 935 F.3d at 451.
12
By contrast, the alternative course of action the dissent insists upon would be
unreasonable. Indeed, the unforgiving standard urged by the dissent would leave Curlee
with little choice but to wish the three gentlemen a nice evening, get in his LSP unit, and
drive away into the dark night. In so doing, Curlee still would not have ascertained the true
name of the uncooperative person in the passenger seat who was purportedly responsible
for such suspicious and unique circumstances. Worse yet, he would have left the scene not
yet certain whether he had deserted a kidnapping or illicit transaction in progress, but fully
aware that his leaving a parked truck on the shoulder of the dark and narrow Pontchartrain
Expressway created a peril not only to the three people at the scene (one a presidential
candidate), but to oncoming traffic as well. In such an alternative scenario, Curlee likely
would have been considered derelict in his duty and may have found himself on the
receiving end of several negligence lawsuits, rather than this single § 1983 action.
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Kokesh’s argument also hinges on two statements made by Curlee on
the expressway: (1) during his questioning of Gizzarelli, Curlee stated: “It
looks like y’all are spray painting. So if it’s not spray paint, that’ll be fine.”;
and (2) “I see it’s not paint, which I guess, there’s no law against cleaning
something.” Kokesh argues that the Terry stop ended based on these
statements, and Curlee’s interaction with Kokesh and his supporters should
have ceased. In so arguing, Kokesh suggests that Curlee should have then
gotten back into his LSP unit and driven off, leaving the trio and the truck
atop the elevated expressway to complete their pressure washing stencil.
We disagree. First, Curlee’s “that’ll be fine” comment was phrased
in the conditional and preceded Curlee’s investigation into the alleged
pressure washing: if Curlee confirmed Gizzarelli’s representation that the
group was pressure washing rather than spray painting, then their actions
would not run afoul of any law. Curlee did not confirm Gizzarelli’s
representation until after Kokesh’s intransigence and arrest under LA. R.S.
14:108, when Curlee took his second, closer look at the “freedom” stencil
with his flashlight, saw the evidence of pressure washing, and observed
pressure washing equipment in the bed of the truck. Only then did Curlee
relay to Evans his conclusion that “it’s not paint” and that there was “no law
against cleaning something.”
Second, Curlee’s responsibility to continue to investigate and resolve
the situation of a pickup truck stopped on the Pontchartrain Expressway
continued until the traffic hazard had been abated. And as previously stated,
given the enigmatic answers he received, Curlee may even have been derelict
in his duty had he departed with so many open questions. Further, given that,
at a minimum, a potential traffic violation had occurred, Curlee continued
assessing the situation, and indeed soon thereafter determined that a traffic
citation would issue. And so, the detention properly continued. We believe
any reasonable officer, faced with these facts, could have continued as did
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Curlee, and that the scope and length of the detention was thus not excessive,
even considering these facts in a light most favorable to Kokesh.
Kokesh maintains that, even if the continued stop was lawful, he as a
passenger was not obligated to produce identification, likening his actions to
those of Jackalene Johnson. This argument is faulty for several reasons, the
first of which is that Kokesh was initially seen outside the truck participating
in the pressure washing. Secondly, Kokesh’s immediate assertion of his
Miranda rights, and his pronouncement that he did not and would not
consent to any search whatsoever, without any communication with Curlee,
save the request for an ID, remains intriguing. A reasonable officer—indeed
a reasonable person—would wonder in that moment whether drugs or
alcohol had been involved; whether other foul play existed, given that
Gizzarelli did not know the name of the truck’s driver; whether any of the
three men were held against their will; whether Kokesh was wanted or the
subject of a warrant, given his steadfast refusal to produce an ID; or what the
immediate intentions of the three were, i.e., whether they wished to remain
undisturbed pressure washing atop the Pontchartrain Expressway, or
whether they would vacate such a precarious position. To leave these
concerns unresolved could even seem derelict on the part of a law
enforcement officer like Trooper Curlee. The key to the constitutionality of
a Terry stop is whether reasonable suspicion of criminal activity and whether
the officer’s investigative efforts were “likely to confirm or dispel [his]
suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686 (1985).
Curlee’s actions reasonably fall within the effort to confirm or dispel his
suspicions regarding the three men on the elevated expressway.
B. First Amendment Retaliation Claim
Kokesh claims that Curlee retaliated against him for exercising his
First Amendment right, which resulted in his arrest. When asserting a claim
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for retaliatory arrest, a plaintiff must first establish the absence of probable
cause, and then demonstrate that the retaliation was a substantial or
motivating factor behind the arrest. Nieves v. Bartlett, 139 S. Ct. 1715, 1725
(2019). In making this claim, Kokesh alleges that his use of a cell phone to
record Curlee’s activities on the expressway was the cause of Curlee’s
actions in demanding to see Kokesh’s ID and ultimately his arrest.
Specifically, Kokesh cites Curlee’s comment upon noticing Kokesh’s
camera: “Is this what y’all do? Videotape the police?” 13
Kokesh’s allegations that Curlee’s actions were driven by seeing
Kokesh video recording the encounter are frivolous. Indeed, Curlee was well
aware that his conduct and verbiage was being recorded for posterity where
all could view, examine, and second guess each and every second because he
purposefully turned his bodycam on, and left it on for hours during the time
he was with Kokesh. It therefore makes no sense that Curlee was angered,
incensed, or motivated by resentment upon seeing Kokesh holding his
recording cell phone.
13 Kokesh also takes offense at Curlee’s later comments, while they were seated
together in Curlee’s LSP unit. Although he earlier asserted his “right” to remain silent and
refused to show his ID, Kokesh began questioning Curlee, who responded: “I don’t come
out here to play games, bro. Oh, serious games like the one you were playing? You don’t
know what I do, bro. I do this for a living. I can’t hear you. You don’t need to talk no more,
bro.” Curlee’s response, however, makes no specific reference to video recording. And the
“serious games” could likely include pressure washing stenciled words; stopping along a
busy elevated expressway; leaving messages on public property; asserting Miranda rights,
including off a prewritten card, when not arrested; and refusing to produce identification
when asked. This statement is of no help to Kokesh’s First Amendment claim for
retaliatory arrest, because it does not reference the video recording, and more importantly,
was made after the arrest had already occurred.
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Moreover, Curlee not once instructed Kokesh to cease the video
recording, nor did he try to obstruct Kokesh’s camera lens. Curlee did not
voice any objection to the video recording (no doubt because his bodycam
was also recording), nor did he ask either Evans or Gizzarelli to prevail upon
Kokesh to stop recording. Once Kokesh was arrested, Curlee did not destroy
or delete the video recording, nor did he ask Kokesh’s companions to do so.
He did not even seek to stop the recording himself by grabbing the phone. In
fact, Curlee offered Kokesh the option of either keeping his cell phone (which
contained the existing recording and was even then recording or capable of
continuing to record into the future), or putting it in possession of Evans
and/or Gizzarelli for safekeeping. In front of Curlee, Kokesh gave the phone
to Evans. These acts are hardly evidence of a state trooper angry over the
video recording of his actions. Rather, they suggest the opposite.
Kokesh also argues that Curlee’s unreasonable detention is evidenced
by the fact that Curlee never asked Kokesh what his name was, and that
Curlee already knew his name because Evans disclosed it. But it takes no
amount of law enforcement training to know that a person, particularly one
with something to hide, might logically give a false name or alias. And law
enforcement officers are not bound to accept a third person’s identification
of a companion, particularly in circumstances where a false identification
would benefit one seeking to evade the police anyway. Seeking and relying
upon an official means of identification, like an authorized current driver’s
license, is far superior to word-of-mouth unverified identification from a
third party, especially since it had already been established that one of the trio
(Gizzarelli) did not know the name of the other (Evans).
IV.
Citizens have long-cherished constitutional rights which deserve our
protection. Law enforcement officers have difficult but necessary jobs which
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No. 20-30356
deserve our cooperation and respect. Under the facts presented here, this
appears to be a regular investigation of an extraordinary and hazardous
situation created voluntarily by the plaintiff himself, and this officer’s
conduct appears to be in accord with reasonable expectations as the
encounter unfolded. The Fourth Amendment and 42 U.S.C. § 1983 should
not be employed as a daily quiz tendered by videotaping hopefuls seeking to
metamorphosize law enforcement officers from investigators and protectors,
into mere spectators, and then further converting them into federal
defendants. Based upon the facts as alleged by Kokesh and represented on
Trooper Curlee’s bodycam, the denial of summary judgment on qualified
immunity is REVERSED and the case is REMANDED to the district
court for entry of summary judgment in favor of Trooper Curlee.
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Don R. Willett, Circuit Judge, dissenting:
This is a strange case, even by New Orleans’ standards. 1 Maybe the
utter weirdness of it all—a midnight meeting between a police officer, a
pressure washer, and a presidential candidate—explains the majority’s grant
of qualified immunity: What was an officer to do? Even so, the key facts are
sharply disputed, even if their oddness is not. Accordingly, I believe the
district court got it right: A jury of Trooper Curlee’s peers should decide if
he acted constitutionally—not us.
Respectfully, the majority missteps in various ways: (1) peeking
outside the record to assess the history and characteristics of the Carrollton
Overpass and its purported dangers; (2) speculating about Trooper Curlee’s
concerns when he arrived on the scene 2 and venturing conclusions about
Curlee’s reasonableness 3 and Kokesh’s blameworthiness; 4 and (3) exceeding
our jurisdictional limits by collaterally attacking the district court’s
genuineness findings under the guise of materiality.
I respectfully dissent.
1
Anthony Bourdain, the globe-trotting chef, author, and travel documentarian put
it well: “There is no other place on earth even remotely like New Orleans. Don’t even try
to compare it with anywhere else.” Anthony Bourdain & Laurie Woolever,
World Travel: An Irreverent Guide (2021) (ebook).
2
Ante at 4.
3
E.g., ante at 4 (“Reasonably finding such conduct (defacing public property) to be
suspicious (not to mention dangerous), Curlee demanded that the man overseeing the
spraying get back in the front passenger seat of the truck.”); ante at 6 (“At this point, under
any objective measure, Curlee surely was required to go further, based on his experience
and the puzzling nature of [Gizzarelli’s] response.”).
4
Ante at 7 (“Given the strange circumstances Kokesh created, Curlee then wisely
summoned a back-up trooper to assist.”).
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I
Just before midnight on January 2, 2019, Trooper Curlee saw a truck
stopped on the shoulder of the Carrollton Overpass on Interstate 10 in New
Orleans. Trooper Curlee pulled over behind the truck, as Louisiana law
prohibits leaving “unattended vehicle[s] on any state highway shoulder,
unless such stopping, parking, or standing is made necessary by an
emergency.” 5 Trooper Curlee, with his bodycam on, approached the vehicle
and observed Adam Kokesh standing by the truck and Elijah Gizzarelli
spraying the highway overpass wall. 6 Trooper Curlee told Kokesh to get back
in the truck and instructed Gizzarelli to come towards him. Trooper Curlee
immediately put Gizzarelli in handcuffs.
Trooper Curlee asked Gizzarelli whether he was spray painting the
wall. Gizzarelli said no and explained that he was pressure washing the word
“freedom” into the dirt on the wall to promote a book “that’s being
delivered to every household in New Orleans.” Trooper Curlee inquired
about weapons in the vehicle, and Gizzarelli said that he was unaware of any.
Trooper Curlee then saw Kokesh recording the encounter from the truck and
said, “Is this what y’all do? Trying to get attention?” Gizzarelli described
how the group had done research to make sure pressure washing the wall was
lawful and that they had already pressure washed two other locations.
Trooper Curlee then told Gizzarelli: “It looks like y’all are spray painting,
sir. If it’s not spray paint, that’ll be fine.” Trooper Curlee recommended that
they not pressure wash anywhere else because another law enforcement
officer might also mistakenly think that they were spray painting.
5
La. R.S. 32:296(A).
6
The remaining facts in this section all come from the bodycam video.
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Trooper Curlee’s bodycam was active during his nearly three-minute
interview with Gizzarelli. It shows that they stood only about a car’s length
away from the highway wall that Gizzarelli had just pressure washed. It shows
that ambient light from headlights and streetlights continuously lit up the
wall. And it even shows details about what the wall looked like from that
vantage point. The bodycam shows a slightly darkened, circular patch of wall.
The darkened patch extended downward from the wall and on to the street.
On the street, the patch culminated in a semi-circle of darkened asphalt. In
other words, the bodycam captured what appears as a wall that had been
sprayed with water, with the excess water having flowed downward and
pooling at the wall’s base. Drilling down to the patch itself, the bodycam also
shows its internal details. It shows apparent lettering inside the darkened
patch. And that lettering appears slightly lighter in color than the apparently
dry wall itself.
Trooper Curlee then approached the truck. Once he was only a few
feet away, he shone a bright flashlight onto the highway wall and left it there
to linger for about two seconds. In the center of its light the word
“FREEDOM!” clearly appears in the bodycam, its lettering distinctly
lighter than the rest of the concrete but revealing no paint. And surrounding
the lettering, the bodycam shows, was wet concrete. Trooper Curlee then
moved to the driver’s side of the truck and commanded the driver to get out.
The driver didn’t respond. Trooper Curlee asked Gizzarelli who was driving
the car, and Gizzarelli replied: “I’m not 100% sure of his name to be
honest . . . . He’s a friend.” Trooper Curlee again asked the driver to exit the
vehicle; the driver complied. Trooper Curlee asked for the driver’s
identification papers, and the driver said it was still in the car. As the driver
walked toward the car, Trooper Curlee followed him and saw Kokesh in the
front passenger seat. Kokesh was still recording the events on his cellphone.
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Trooper Curlee repeatedly asked Kokesh for his identification papers.
Kokesh refused each time.
Trooper Curlee called for backup. He relayed that a couple of people
were in the truck, it “looked like they were spray painting,” and one of the
passengers wasn’t cooperating. After asking the driver about Kokesh’s
identity, the driver provided Kokesh’s full name. The driver also explained
that Kokesh was a Libertarian candidate for President of the United States,
and the book promotion efforts were campaign activities. Trooper Curlee got
in his patrol car and ran Kokesh’s name on the computer. Trooper Curlee
turned off the mic on his bodycam and stayed in his car for several minutes
until a backup officer arrived.
The backup officer and Trooper Curlee approached Kokesh, who was
still sitting in the front passenger seat of the truck and recording the
encounter on his phone. After again asking for Kokesh’s identification
papers, and Kokesh again refusing to provide it, Trooper Curlee stated that
“the reason we are out here is because y’all are illegally stopped on the
shoulder of the road.” Trooper Curlee then warned Kokesh that Kokesh
could either provide identification papers or be put in handcuffs. Kokesh
asked what he would be charged with. And Trooper Curlee responded:
“Interfering with the investigation.” Kokesh asked how he was interfering,
and Trooper Curlee put him in handcuffs without answering the question.
One of Kokesh’s companions (it’s unclear from the video which one) stated
that Kokesh was being arrested for interfering with an investigation about the
truck being illegally stopped on the highway shoulder. Kokesh then asked
Trooper Curlee if that was an accurate description. Trooper Curlee replied:
“Something like that. I’ll let you know for sure in just a little bit.” The
backup officer placed Kokesh into the backseat of Trooper Curlee’s patrol
car. Trooper Curlee removed Gizzarrelli’s handcuffs, then walked over to
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where the pressure washing had occurred, inspecting the word
“FREEDOM!” on the wall.
After taking pictures, Trooper Curlee spoke again with the truck’s
driver. He asked whether Kokesh had a wallet in the car. As the driver was
looking for Kokesh’s wallet, he mumbled that he shouldn’t have stopped the
car on the highway shoulder for the other men to do the pressure washing.
The driver handed Trooper Curlee the wallet. Trooper Curlee then told the
driver: “I see that it’s not paint, which I guess there’s no law against cleaning
something.”
Back in his car, Trooper Curlee pulled out Kokesh’s identification
papers from the wallet the driver had retrieved. Only Trooper Curlee’s voice
is audible on the video at this point. In response to something Kokesh asks
from the backseat, Trooper Curlee says: “Like I said, I don’t come out here
to play games, bro. Oh, serious games like the one you were playing? You
don’t know what I do, bro. I do this for a living. I can’t hear you. You don’t
need to talk no more, bro.”
Trooper Curlee then got out of his patrol car to chat with the backup
officers (a third officer had arrived at some point), Gizzarelli, and the driver.
Once Trooper Curlee got back in his patrol car, Kokesh started speaking with
him again. Trooper Curlee responded: “Because you told your buddy to pull
over on the side of the road, he’s going to get a ticket for that.” After writing
the ticket and giving it to the driver, Trooper Curlee drove Kokesh to the
police station.
In his arrest narrative, Trooper Curlee wrote that he initially pulled
over because he thought the truck “was broken down.” He then explained
that he saw two of the truck’s occupants “us[ing] a pressure washer to clean
the area that the stencil was not covering,” and that “[a]fter removing the
stencil, the word ‘FREEDOM’ remained on the wall.” Trooper Curlee
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stated that he thought “they were painting on the wall,” so he “detained the
left rear passenger” who he thought was the driver. Trooper Curlee
recounted how he spoke with the driver and then saw Kokesh recording the
incident on his phone. According to Trooper Curlee’s narrative, he arrested
Kokesh for “Resisting Arrest—Not providing identification” in violation of
a Louisiana law, which requires a lawfully detained person “to give his name
and make his identity known to the arresting or detaining officer.” 7
II
I agree with the majority’s rendition of what happened next. Kokesh
sued, and a flurry of dismissal motions followed. Just two claims survived: an
unreasonable-seizure claim under the Fourth Amendment and a retaliatoryarrest claim under the First. Trooper Curlee then moved for summary
judgment based on qualified immunity. The district court said no, and
Kokesh’s claims survived—until today. 8
According to the majority opinion, Kokesh should have known better
than to have sued in the first place. “The Fourth Amendment and
42 U.S.C. § 1983 should not be employed as a daily quiz tendered by
videotaping hopefuls seeking to metamorphosize law enforcement officers
from investigators and protectors, into mere spectators, and then further
converting them into federal defendants.” 9 With greatest respect, I don’t
know what any of that means. Maybe that is why I don’t understand how, on
these hotly contested facts, the district court got this case wrong.
7
La. R.S. 14:108(B)(1)(c).
8
Ante at 11, 24.
9
Ante at 24.
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We are reviewing the district court’s denial of Trooper Curlee’s
immunity-based motion for summary judgment. In that context, the majority
opinion correctly states how we should review this case. Trooper Curlee’s
immunity defense turns on two questions: (1) did he violate Kokesh’s federal
rights; and (2) were those rights clearly established at the time? 10 If we can
answer “yes” to both questions, then the district court got it right and
Kokesh’s claims should go to a jury. But in answering these questions we are
“circumscribed” in our review. 11
Specifically, denial of summary judgment is an interlocutory order. 12
And under our prior decisions, we lack jurisdiction to review genuineness—
whether the district court correctly found a particular fact dispute genuine. 13
We are precedentially hemmed in. Our analysis centers on one thing:
whether the fact disputes identified by the district court are material. 14 And a
fact dispute is material anytime its resolution “might affect the outcome of
the lawsuit.” 15 That bears repeating: if it might affect the outcome. Moreover,
inferences must be drawn in Kokesh’s favor, not Trooper Curlee’s. 16 The
only facts that matter are those that Trooper Curlee knew at or before the
10
See ante at 13 (citing Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc), as
revised (Aug. 21, 2019), cert. denied sub nom. Hunter v. Cole,
141 S. Ct. 111 (2020)).
11
Ante at 13.
12
In re Corrugated Container Antitrust Litig., 694 F.2d 1041, 1042 (5th Cir. 1983)
(per curiam).
13
Ante at 12–13 (citing Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en
banc)).
14
Ante at 13 (citing Samples v. Vadzemnieks, 900 F.3d 655, 660 (5th Cir. 2018)).
15
Prim v. Stein, No. 20-20387, slip op. at 2 (5th Cir. July 27, 2021) (quoting
Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000) (citing Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 248 (1986))).
16
Ante at 14 (citing Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)).
31
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No. 20-30356
time that he arrested Kokesh. Those he learned later are immaterial. 17 And
we must be careful with facts in another regard. We cannot define this case’s
factual “context” by construing genuinely disputed facts in Trooper
Curlee’s favor. 18 Again, we must view the evidence in the light most
favorable to Kokesh. 19
Respectfully, the majority opinion rightly states these principles but
wrongly applies them. The district court properly found genuine disputes of
material fact as to whether Trooper Curlee violated Kokesh’s First and
Fourth Amendment rights. And because applicable law was clearly
established at the time of Kokesh’s arrest, the district court properly denied
summary judgment.
III
The Fourth Amendment guarantees “the people” freedom from
“unreasonable searches and seizures” of both their “persons” and their
“papers.” 20 We have noted before that, generally, Fourth Amendment
seizures are unreasonable without supporting probable cause. 21 The majority
says that Trooper Curlee had probable cause to arrest Kokesh. Invoking
Louisiana’s stop-and-identify law, the majority holds that Trooper Curlee
had probable cause to arrest Kokesh for “resisting an officer by refusing to
17
Ante at 14 (citing Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam);
White v. Pauly,
137 S. Ct. 548, 550 (2017); Cole, 935 F.2d at 456)
18
Ante at 14 (quoting Tolan v. Cotton, 572 U.S. 650, 657 (2014)).
19
Tolan, 572 U.S. at 657.
20
U.S. Const. amend. IV (emphasis added).
21
E.g. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993) (“The Supreme
Court has determined that warrantless searches and seizures are per se unreasonable unless
they fall within a few narrowly defined exceptions.” (citation omitted)).
32
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No. 20-30356
identify himself during a lawful detention.” 22 Indeed, the police charged
Kokesh with only this offense. By contrast, the district court found that fact
issues abounded on this issue, making summary judgment inappropriate. I
agree.
A
Arresting someone under a stop-and-identify law is constitutionally
dubious. That’s because the Supreme Court held in Hiibel v. Sixth Judicial
District Court of Nevada that it offends the Constitution to arrest someone
under these laws merely for failing to identify himself. 23 Two things must be
true before an officer may constitutionally make an arrest under a stop-andidentify law: (1) the initial stop must have been lawful (that is, with at least
reasonable suspicion); and (2) the “request for identification” must be
“reasonably related to the circumstances justifying” it. 24 The district court
found a genuine fact dispute under each prong.
(1)
As for Hiibel’s first prong, the district court found a fact issue
regarding “whether Curlee had reasonable suspicion supported by
articulable facts that Kokesh had engaged in criminal activity or was about to
do so.” The entire case boils down to this issue. Trooper Curlee must have
lawfully seized Kokesh before he could constitutionally demand identification
papers. 25 As the majority admits, a Terry stop’s constitutionality turns on the
22
Ante at 7–8 (footnote omitted); see also La. R.S. 14:108(B)(1)(c) (criminalizing
as resisting an officer the “[r]efusal by the arrested or detained party to give his name and
make his identity known to the arresting or detaining officer.”).
23
542 U.S. 177, 188 (2004).
24
Id. at 188 (emphasis added).
25
Hiibel, 542 U.S. at 188.
33
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No. 20-30356
officer having “reasonable suspicion of criminal activity.” 26 That means, in
the Supreme Court’s words, that Trooper Curlee had to “point to specific
and articulable facts” that, “taken together” with their “rational
inferences,” would warrant a reasonably cautious person to believe that
Kokesh was involved in “criminal activity.” 27 If Trooper Curlee can do so,
then he could have constitutionally demanded Kokesh’s identification
papers. If he cannot, then he may have violated Kokesh’s clearly established
rights. This is the very fact dispute that the district court found. And because
it might affect the outcome of Kokesh’s Fourth Amendment claim, it is
material.
But the majority opinion improperly rejects that finding. It holds that
the bodycam demonstrates that Trooper Curlee had “reasonable suspicion
that Kokesh participated in the defacement of public property.” 28 I’ll admit
that the bodycam shows Kokesh out of the truck and standing next to
Gizzarrelli when Trooper Curlee first arrived. But reasonable suspicion does
not persist forever. It lasts only for the “time needed” to dispel it. 29 And
when Trooper Curlee dispelled it is the central question in this case. Did he
dispel it before he demanded Kokesh’s identification papers, or after? The
majority opinion says that Trooper Curlee did not “confirm” that Kokesh
and the gang were not using spray paint until his “second, closer look at the
26
Ante at 21 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).
27
Terry v. Ohio, 392 U.S. 1, 21–22, 30 (1968) (citation omitted).
28
Ante at 18.
29
United States v. Pack, 612 F.3d 341, 350 (2010); see also Sharpe,
470 U.S. at 686
(considering “whether the police diligently pursued a means of investigation that was likely
to confirm or dispel their suspicions quickly, during which time it was necessary to detain
the defendant.”).
34
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No. 20-30356
‘freedom’ stencil.” 30 In other words, after Trooper Curlee arrested Kokesh.
Tucked away in the majority opinion’s fact section is its reasoning why
Trooper Curlee’s first look at the stenciling—the one he took before ever
demanding Kokesh’s identification papers—did not dispel his reasonable
suspicion. Trooper Curlee, in the majority opinion’s words, only “briefly
shined his flashlight . . . onto the site of the alleged pressure washing.” 31
Further, the “distance” between Trooper Curlee’s vantage point and the
“darkness of the night” made it “unclear” if Gizzarelli had been using
“white paint or a pressure washer.” 32
What was clear or unclear from Trooper Curlee’s vantage point given
the context of this case sure sounds like an inference to me. The majority
opinion admits that Trooper Curlee used his flashlight during his first
inspection of the stenciling. But then it infers against Kokesh that the
inspection was too brief, from too far away, and in too-dimly-lit conditions to
confirm that no spray paint was being used. I disagree. As noted above, the
bodycam shows that the highway wall was illuminated by headlights and
streetlights to such a degree that the stenciling was visible even without the
aid of a flashlight. Also, Trooper Curlee used his flashlight to inspect the
stenciling for about two full seconds. In that time the bodycam plainly shows
not a spray-painted wall but a spray-washed wall. That is enough for us to draw
an inference in Kokesh’s favor that Trooper Curlee dispelled his reasonable
suspicion during his first inspection. This is why a jury should decide this
issue. 33
30
Ante at 20.
31
Ante at 5.
32
Ante at 6.
33
Failing to draw inferences correctly has resulted in our reversal before. In Tolan
v. Cotton the district court granted an officer’s immunity-based motion for summary
35
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No. 20-30356
The majority opinion next introduces a grab-bag of reasons why
Trooper Curlee had reasonable suspicion or some other justification to
demand Kokesh’s identification papers. It claims that Trooper Curlee had
reasonable suspicion that maybe “drugs or alcohol had been involved,” “foul
play existed,” some “of the three men were held against their will,” or
“Kokesh was wanted or the subject of a warrant, given his steadfast refusal
to produce an ID.” 34 Boiled down, the trio’s “immediate intentions” were
unknown to Trooper Curlee. 35 But if any record evidence supports that
Trooper Curlee suspected any of these supposed crimes, the majority
opinion has failed to identify it. In fact, these are just more of the same ex post
rationalizations that the majority opinion uses throughout. And as I explain
more thoroughly below, by rationalizing Trooper Curlee’s actions the
majority opinion draws inferences the wrong way and exceeds our
jurisdiction to boot. And the rationalizations are rather feeble at that. Even
assuming that some or all of them amount to crimes, 36 reasonable suspicion
requires articulable facts. A hunch that a suspicious-looking character surely
must be violating some law in some criminal code somewhere is not good
enough. 37
judgment after he shot a prostrate teenager lying on his parent’s front porch. 572 U.S. 650,
652–53, 655 (2014). A panel of this court affirmed because it credited the officer’s version
of events (that the teenager was shrouded in darkness) over the teenager’s and his father’s
version (that the teenager was not).
Id. at 657–58. The Supreme Court reversed, holding
that we had “failed to view the evidence at summary judgment in the light most favorable
to the” non-movant teenager.
Id. at 657. Admittedly, Tolan did not involve video evidence.
But it does drive home how we must view the evidence we do have in these cases: in the
light most favorable to the non-movant.
34
Ante at 21.
35
Ante at 21.
36
If they do, the majority opinion fails to provide citations for them.
37
Terry, 392 U.S. at 22.
36
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The majority also seems to conflate Fourth Amendment doctrines. It
says that Trooper Curlee had a “responsibility to continue to investigate and
resolve the situation of a pickup truck stopped on the Pontchartrain
Expressway . . . until the traffic hazard had been abated.” 38 While the
majority opinion does not label it as much, what it is implying is that Trooper
Curlee’s power under the police’s community-caretaking function could
constitutionally trigger Louisiana’s stop-and-identify law. Not so. I’ll
concede what the Supreme Court has made plain: “The authority of police
to seize and remove from the streets vehicles impeding traffic or threatening
public safety and convenience is beyond challenge.” 39 But leaving aside that
Kokesh was neither the truck’s driver nor its owner, the Supreme Court has
also said that stop-and-identify laws are predicated on an officer having at
least reasonable suspicion of criminal activity—in other words, the police’s
criminal-investigation function. 40 Those two functions—community
caretaking and criminal investigation—are “total[ly] divorced” in the
Supreme Court’s eyes. 41 And the majority opinion cites no caselaw
suggesting they’ve since remarried. So Trooper Curlee may have had
authority to order Kokesh and crew to leave the highway shoulder under the
community-caretaking function. But that authority did not extend so far as to
38
Ante at 20.
39
South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
40
See Hiibel, 542 U.S. at 188 (“[A] Terry stop must be justified at its inception and
‘reasonably related in scope to the circumstances which justified’ the initial stop. Under
these principles, an officer may not arrest a suspect for failure to identify himself if the
request for identification is not reasonably related to the circumstances justifying the
stop.”).
41
Cady v. Dombrowski, 413 U.S. 433, 441 (1973).
37
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provide a lawful justification to demand Kokesh’s identification papers as
part of a criminal investigation. 42
Finally, the majority emphasizes how Kokesh “began reading what
would be his Miranda rights when Curlee approached” and “without any
request whatsoever to search . . . announced forthrightly that he did not
consent to a search of any kind.” 43 The majority holds that these “actions”
by Kokesh, “under these circumstances, also generated reasonable
suspicion.” 44 Respectfully, this is a dagger to the heart of the Fourth
Amendment.
Simply put, holding that an officer can form a reasonable suspicion
because a person anticipatorily invoked his constitutional rights 45 creates a
“Catch-22” 46 of constitutional proportions. Police are free to approach
42
That the community-caretaker function cannot trigger Louisiana’s stop-andidentify law is also why the majority opinion errs in judicially noticing facts about the
Carrollton Overpass. It holds that Federal Rule of Evidence 201(b)—the rule about judicial
notice—gives it authority to do so. See ante at 2, n.3. Not so. As I just explained, it uses
these facts to implicitly and erroneously hold that Trooper Curlee’s role as a community
caretaker could trigger Louisiana’s stop-and-identify law. Without any other purpose these
judicially noticed facts are not “of consequence in determining the action.” Fed. R.
Evid. 401. In other words, they aren’t “relevant” under Rule 401, making them
inadmissible. See Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”); see also
Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516, 519 (5th Cir. 2015) (discussing the district
court noticing “relevant facts”). Therefore, judicial notice is improper.
43
Ante at 19.
44
Ante at 19; see also ante at 21 (“A reasonable officer—indeed a reasonable
person—would wonder in that moment whether drugs or alcohol had been involved; [or]
whether other foul play existed . . . .”).
45
I agree with the majority, see ante at 19, that Kokesh’s anticipatory invocation of
Miranda was ineffective. See McNeil v. Wisconsin, 501 U.S. 171, 182 (1991) (“We have in
fact never held that a person can invoke his Miranda rights anticipatorily, in a context other
than ‘custodial interrogation’ . . . .”).
46
See Joseph Heller, Catch-22 46 (Paperback ed., Simon & Schuster 2004)
(1955) (“[C]oncern for one’s own safety . . . was the process of a rational mind. Orr was
38
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No. 20-30356
individuals and ask questions, ask for identification, or even ask to conduct a
search. They may do it with no suspicion at all. 47 What keeps these pre-reasonable-suspicion requests constitutional? Police cannot require
compliance. 48 Individuals are free to “decline the officers’ requests or
otherwise terminate the encounter.” 49 But under the majority’s view, there’s
a catch. As of today, if a vehicle passenger invokes his right not to comply
with an officer’s pre-reasonable-suspicion requests, then that gives the
officer what he lacks: reasonable suspicion. Add in a stop-and-identify statute
like Louisiana’s, and an officer now has a constitutional basis to demand
identification on pain of arrest. The passenger can avoid arrest only by
complying with the officer’s request for identification, which, of course, is
the very kind of forced compliance that the Fourth Amendment guards
against. That cannot be reasonable under the Constitution. 50 And that may
explain why the majority cites no supporting caselaw.
(2)
As for Hiibel’s second prong, the district court found a fact issue
regarding “whether Curlee’s demand that Kokesh provide documentary
identification was reasonably related in scope to the reason for the traffic
stop.” If Trooper Curlee’s request for Kokesh to identify himself related
reasonably to the stop, then Kokesh’s claim might fail. But if it did not, then
crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no
longer be crazy and would have to fly more missions.”).
47
Florida v. Bostick, 501 U.S. 429, 434–35 (1991) (citations omitted).
48
Id. at 435.
49
Id. at 436.
50
U.S. Const. amend. IV (“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .”).
39
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No. 20-30356
Kokesh’s claim might succeed. In short, reasonable relatedness might affect
the outcome of Kokesh’s claim. That makes it material. And that makes
summary judgment improper.
The majority opinion, rather than focusing on materiality, implies that
Trooper Curlee had probable cause as to some other crime. Like Louisiana’s
anti-graffiti statute. 51 Or, Louisiana laws relating to operating “portable
pressure washing equipment” and unlawfully “discharg[ing] industrial
wastewater [on] state highways.” 52 Or, using Trooper Curlee’s words,
“illegally stopp[ing] on the shoulder of the road.” 53 But Trooper Curlee does
not make these arguments in his brief. And he did not charge Kokesh with
them after the fact. Rather, the majority has searched the Louisiana criminal
code and inferred that Kokesh might have been guilty of these crimes.
That is a twofold error. First, as a general matter, Article III judges
are not in the business of rummaging through state criminal codes for ex post
justifications supporting officers’ actions. When we do in this context, we are
necessarily making inferences against the nonmovant. This is precisely what
we are forbidden from doing. Second, the majority opinion’s reasoning
collaterally attacks genuineness. Its implicit logical chain is straightforward:
probable cause may have existed for some other crime; it takes probable cause
for only one crime to lawfully arrest; thus, a genuine dispute over whether
Trooper Curlee lawfully arrested Kokesh cannot exist. Maybe. 54 But if we lack
51
Ante at 4 n.5 (quoting La. R.S. 14:56.4).
52
Ante at 5 n.6 (citing LA. R.S. 30:2075, 30:2076.2, 48:385).
53
Ante at 8; see also ante at 9 n.10 (quoting La. R.S. 32:296(A)).
54
Note that Louisiana courts have already clearly established that the stopping-onthe-highway statute applies only to completely “unattended” vehicles. Minor v. Bertrand,
693 So. 2d 292, 294 (La. Ct. App. 1997) (“Under its clear and unambiguous language,
La.R.S. 32:296(A) is not applicable. As stated in the statute, its applicability is triggered if
the vehicle is unattended.”); see also Hebert v. Maxwell,
214 F. App’x 451, 455 (5th Cir.
40
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No. 20-30356
jurisdiction to directly review genuineness then we certainly cannot do it
collaterally. Our lone analytical focus is materiality, and we must decide it
solely on what Trooper Curlee “knew at the time.” 55 And what Trooper
Curlee knew when he arrested Kokesh is clear from the video: no paint was
being used; “there’s no law against cleaning something”; Kokesh was not
the driver; and he arrested Kokesh for not turning over identification papers
on demand.
B
Putting everything together, only one question remains: Was
Kokesh’s right to refuse to identify himself clearly established when Trooper
Curlee arrested him? It was.
As we have previously noted, a right is clearly established when its
contours are sufficiently clear to the point that a reasonable official would
understand that his conduct violates it. 56 And as we explained less than a year
ago, that means Kokesh need only “identify a case . . . in which an officer
acting under similar circumstances was held to have violated the
Constitution.” 57
2007) (noting that the statue only applies to unattended vehicles). Leaving aside that
Kokesh neither owned the truck nor drove it, the video plainly shows the truck was never
unattended.
55
Ante at 14 (quoting Cole, 935 F.3d at 456).
56
Turner v. Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quoting Anderson v.
Creighton,
483 U.S. 635, 640 (1987)).
57
Joseph on behalf of Estate of Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020)
(quoting District of Columbia v. Wesby,
138 S. Ct. 577, 590 (2018)) (emphasis added)
(cleaned up).
41
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No. 20-30356
That case is Johnson v. Thibodaux City. 58 Its facts are straightforward.
An officer spotted a truck driving down the road and recognized its driver.
The officer knew the driver had an outstanding warrant. So, the officer pulled
over the truck, arrested the driver, and then asked the passengers for
identification. Two of them, including Johnson herself, refused. The officer
arrested them both for failing to identify themselves. He justified the arrest
using the very Louisiana stop-and-identify statute at issue in this case. 59 We
held that the officer violated Johnson’s rights under the Fourth Amendment
because the arrest did not meet Hiibel’s test. 60 The officer’s request for
Johnson’s identification “had nothing to do” with his justification for
stopping the truck. 61 Kokesh’s case is similar. He was a passenger in the truck
that Trooper Curlee stopped behind. And, as I’ve already discussed, the
district court found genuine fact disputes on both of Hiibel’s reasonable-suspicion and reasonable-relatedness prongs. Further, we decided Johnson in
2018. Trooper Curlee arrested Kokesh in 2019. Therefore, Kokesh’s rights
were clearly established when Trooper Curlee arrested him.
The majority opinion erroneously discounts Johnson’s applicability. 62
First, it attempts to distinguish the case by again attacking genuineness. The
majority says that Johnson is inapt since, “[u]nlike Kokesh, Johnson was
merely a passenger in the truck, said not a word to the officer, and took no
action whatsoever prior to the request for identification.” 63 Further, “the
58
887 F.3d 726 (5th Cir. 2018).
59
Id. at 729–30; see also
id. at 733 (citing La. R.S. § 14:108).
60
Id. at 733, 735.
61
Id. at 734.
62
See ante at 18–19.
63
Ante at 18.
42
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No. 20-30356
truck’s occupants in Johnson were not violating any laws or traffic
regulations” prior to the stop. 64 These are all immaterial distinctions. The
touchstone is similar. Not identical. 65 Johnson did not turn on how the officer
wound up behind a stopped truck. It turned entirely on the officer lacking
reasonable suspicion for the passenger—precisely the fact that the district
court here found to be genuinely disputed.
That brings me to the second way the majority tries to distinguish
Johnson. As I’ve already pointed out, the majority collaterally attacks
genuineness by holding that Trooper Curlee had independent reasonable
suspicion to request Kokesh’s identification papers. And since the officer in
Johnson did not, voilà—a distinction. But the majority’s distinction does not
work here. It can find it only after collaterally attacking genuineness and
drawing inferences against Kokesh. Because we have neither jurisdiction to
make our own appellate fact-findings in this context, nor authority under the
Federal Rules to draw inferences against Kokesh, I need not address it
further.
IV
When it comes to Kokesh’s retaliatory arrest claim, Kokesh needed to
first establish the absence of probable cause. 66 If he did, then he still had to
“show that the retaliation was a substantial or motivating factor behind the
arrest, and, if that showing is made, the defendant can prevail only by
showing that the arrest would have been initiated without respect to
64
Ante at 18.
65
Juarez v. Aguilar, 666 F.3d 325, 336 (5th Cir. 2011) (“That this court has not
previously considered an identical fact pattern does not mean that a litigant’s rights were
not clearly established.”).
66
Nieves v. Bartlett, 139 S. Ct. 1715, 1725 (2019).
43
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No. 20-30356
retaliation.” 67 Kokesh claims that “Curlee arrested and seized Kokesh in
retaliation for Kokesh’s use of a camera to record Curlee’s public activities.”
The district court, for its part, found that fact issues swirled around whether
Trooper Curlee had probable cause to arrest Kokesh. And those material
disputes precluded summary judgment on Kokesh’s First Amendment
retaliation claim. I agree.
A
In Turner v. Driver, we held that the “First Amendment right to
record the police does exist, subject only to reasonable time, place, and
manner restrictions.” 68 Suppose that Trooper Curlee had probable cause to
arrest Kokesh for a lawful reason. That “should generally defeat” Kokesh’s
retaliatory arrest claim since it would discount a retaliatory motive. 69 A
defense that generally defeats a claim certainly might affect its outcome.
Therefore, whether Trooper Curlee had probable cause is material to
determining if he violated Kokesh’s right to record the police.
The majority acknowledges that probable cause goes right to the heart
of a First Amendment retaliation claim. 70 But it wires around materiality by
doing precisely what it lacks jurisdiction to do: rejecting that this dispute is
genuine—in fact, branding it “frivolous.” 71 It spends pages building up an
inference that Trooper Curlee could not possibly have had a retaliatory
67
Id. (cleaned up).
68
848 F.3d at 688.
69
Nieves, 139 S. Ct. at 1727.
70
Ante at 22.
71
Ante at 22. Frivolous is not a word to be used lightly since it implies sanctionable
conduct. See Conner v. Travis Cnty., 209 F.3d 794, 801 (5th Cir. 2000) (per curiam) (“[W]e
can sanction an appellant for a frivolous appeal sua sponte . . . .”). As far as I can tell,
Kokesh’s arguments are anything but.
44
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No. 20-30356
motive. He had already switched on his bodycam. 72 He did not attempt to
stop Kokesh from recording him. 73 Plus, Trooper Curlee’s insistence on
seeing an “official means of identification” from Kokesh was reasonable
since only people “with something to hide” would refuse to identify
themselves. 74 Perhaps a jury would agree. Perhaps not. And that’s the point.
Again, we must draw inferences in Kokesh’s favor, not Trooper
Curlee’s. And here, a jury could infer that “retaliation was a substantial or
motivating factor behind the arrest.” 75 That’s because the first time Curlee
saw Kokesh recording a video, he asked Gizzarelli if the men were trying to
get attention. Then, as Curlee was demanding to see Kokesh’s identification
papers, Curlee stated: “Is this what y’all do? Videotape the police?” And
Curlee later told Kokesh: “I don’t come out here to play games, bro. Oh,
serious games like the one you were playing? You don’t know what I do, bro.
I do this for a living. I can’t hear you. You don’t need to talk no more, bro.”
A jury could find a retaliatory motive on these facts.
B
Turning to qualified immunity’s second inquiry—whether a
constitutional right was clearly established—we did more in Turner than
simply declare that the right to record police exists. We also cemented that it
was clearly established from then on. 76 As Turner was decided in 2017 and
Kokesh was arrested in 2019, 77 that made Kokesh’s rights clearly established
72
Ante at 23.
73
Ante at 23.
74
Ante at 23.
75
Nieves, 139 S. Ct. at 1725 (cleaned up).
76
Turner, 848 F.3d at 687–88.
77
Ante at 2.
45
Case: 20-30356 Document: 00516022065 Page: 46 Date Filed: 09/21/2021
No. 20-30356
at the time Trooper Curlee arrested him. Since that’s the case, and because
there are genuine disputes of material fact as to whether Trooper Curlee
violated this right, the conclusion is apparent: Trooper Curlee is not entitled
to summary judgment on this claim.
V
The Big Easy does not hide crazy, the saying goes; it parades it down
the street. This is a peculiar case, no question. But just because facts are
passing strange does not mean government’s response to those facts passes
muster. Trooper Curlee was not limited to “wish[ing] the three gentlemen a
nice evening . . . and driv[ing] away into the dark night.” 78 He had a safer,
simpler option: ordering Kokesh and crew to beat it. 79 Instead, Trooper
Curlee conducted a criminal investigation that arguably violated Kokesh’s
constitutional rights.
The district court got this case right. Genuine disputes of material fact
surround Kokesh’s Fourth and First Amendment claims. As odd as this case
is, I cannot conclude that Trooper Curlee acted constitutionally. Nor can I
conclude the opposite. All I can conclude is that a jury should decide.
78
Ante at 19 n.12.
79
See Opperman, 428 U.S. at 369 (“The authority of police to seize and remove
from the streets vehicles impeding traffic or threatening public safety and convenience is
beyond challenge.”).
46
