MARCOS RIOS v. CORPORAL CHRISTOPHER PEREZ (2021)

ORDER

On this day, the Court considered Corporal Christopher Perez, Officer Amanda Lara, Security Officer Joe Flores, Officer Thomas Sarinana, and Officer Jo Ann Gutierrez's (collectively “the Officers”) Motion for Summary Judgment, ECF No. 29. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

This case concerns Plaintiff Marcos Rios's claims that the Officers violated his constitutional rights in two separate incidents occurring in November 2021 and March 2022 in San Antonio, Texas. See generally 2d Am. Compl. ECF No. 31. The following facts are undisputed unless otherwise noted.

A. November 24, 2021, Incident

Marcos Rios, a self-proclaimed “First Amendment Auditor,” Resp. Ex. 1 (“Rios Aff.”) ¶ 9, ECF No. 35-1, was walking with another man, Daniel Tullos, near VIA Centro Plaza in San Antonio on November 24, 2021, Rios Aff. ¶ 2; Mot. Ex. A-8 (“Nov. 24 Incident Report”), at 2, ECF No. 29-1. Rios was holding a can of Cherry Coke Zero in a paper bag, which Rios claims he used to “insulate it.” Rios Aff. ¶ 2; Nov. 24 Incident Report 2. As they walked down the street, Rios and Tullos caught the attention of VIA Metropolitan Transit Police Department (“VMTPD”) Officer Lara and VIA Metropolitan Transit Security Officer Flores, who were both on duty at VIA Centro Plaza. Mot. Ex. B (“Lara Decl.”), at 1, ECF No. 29-1; Nov. 24 Incident Report 2–3; Mot. Ex. F(“Flores Decl.”), at 1, ECF No. 29-1. Lara and Flores claim that Rios acted erratically and as if he was drunk, and that he was shouting, howling like an animal, obstructing a bus lane, and fell to the ground. Nov. 24 Incident Report 2–3; Flores Decl. 1. Rios and Tullos claim that they acted normally, did not obstruct traffic, and did not shout or howl. Rios Aff. 1–2; Resp. Ex. 3 (“Tullos Aff.”), at 1–2, ECF No. 35-3.

It is undisputed that Lara and Flores then approached Rios and Tullos. Nov. 24 Incident Report 2–3, 4, 6. They state they did so because they were concerned for his welfare and believed that the beverage in the paper bag was alcoholic. Id. The parties also dispute whether the Officers gave any commands to Rios and Tullos before Flores activated his body worn camera. Compare Flores Decl. 2 (“Officer Lara shouted to Mr. Rios to ‘stop!’ Mr. Rios refused to stop.”), with Rios Aff. ¶ 4 (“When Officer Lara approached me from behind, I did not recognize her as an officer. She did not identify herself or explain why she was stopping me.”), and Tullos Aff. ¶ 5 (“Suddenly, [Lara] approached us. She did not identify herself as an officer or explain why she was stopping us.”).

At this point, body camera footage of the encounter, filmed from the perspective of the VMTPD officers, begins. The footage shows Flores and Lara approach Rios and Tullos silently from behind. Mot. Ex. A-1 (“Flores Bodycam Footage”) 00:00:00–00:00:34.¹ As Lara approaches, Rios steps back off of the sidewalk and tells her not to touch him, before returning to the sidewalk. Id. at 00:0034–00:0039. Lara grabs hold of his leftwrist and says, “you're drinking and you're intoxicated.” Id. at 00:00:34–00:00:44. Rios loudly and repeatedly tells her, “don't fucking touch me,” but does not pull away or otherwise resist physically. Id. He switches the can to his left hand and passively allows Lara to hold his right wrist. Id. Flores then grabs Rios's left arm, and Lara and Flores tackle Rios to the ground and handcuff him. Id. at 00:00:44–00:00:56. As he is tackled, Rios says, “ow, motherfucker, what the fuck is your problem,” and grunts. Id. For several minutes, Rios lays face down on the sidewalk in handcuffs, while Tulloscan be seen recording the incident on his phone. Id. at 00:00:55–00:05:00. Tullos and Rios repeatedly ask the Officers for their names and badge numbers and criticize them for “assault[ing]” Rios and detaining him before “investigat[ing]” whether he was violating the law. Id. From the ground, Rios states at least twice that his handcuffs are very tight. E.g., id. at 00:04:40–00:04:42. He also asks “when did it become illegal to drink,” and laments that he is being detained for “drinking a fucking soda.” Id. at 00:03:45–00:04:15.

VMTPD Officer Sarinana arrives on the scene next. Id. at 00:04:50; see generally Mot. Ex. A-5 (“Sarinana Bodycam Footage”). Sarinana's body camera footage shows him tell Lara to call her supervisor and inform them that “it's the auditors,” which she does. Sarinana Bodycam Footage 00:00:30–00:00:50. Shortly thereafter, Rios asks Sarinana why he is being arrested and Sarinana tells him, “I don't know if you're under arrest.” Id. at 00:01:56–00:02:15. He further tells Rios that he is “being detained” but he does not know the reason why. Id. Rios continues to ask why he is being arrested. Id. at 00:02:48–00:02:52. Sarinana then goes to inspect the paper bag and realizes that it only contains a soda. Id. at 00:03:00–00:04:00. Shortly thereafter Sarinana informs Lara that Rios is not drunk. Id. at 00:03:57. A discussion ensues about the circumstances leading up to Rios being detained, culminating with Sarinana informing Lara that Rios is “fishing for you” and “trying to get footage.”Id. at 00:04:30–00:05:05. Sarinana then informs Lara that the can apparently does not contain an alcoholic beverage and that she should release Rios if she does not have probable cause to arrest him. Id. at 00:04:30–00:05:05. Lara goes over to speak to Rios who tells her that he does not want to answer any questions and that he wants to be released. Id. at 00:05:28–00:05:48. VMTPD Officer Solari arrives shortly thereafter, as does VMTPD Officer Gonzalez. Flores Bodycam Footage 00:10:00; Mot. Ex. A-3 (“Solari Bodycam Footage”); Mot. Ex. A-8 (“Nov. 24 Supp. Incident Report”), at 11, ECF No. 29-1.

Approximately thirteen minutes after Rios was first detained, VMTPD Supervisor Perez arrives on the scene. Flores Bodycam Footage 00:14:00; Mot. Ex. A-4 (“Perez Bodycam Footage – Nov. 24 Incident”) 00:00:35. The officers brief Perez on the incident and Sarinana informs him that Rios is a known auditor who was apparently pretending to be drunk. Sarinana Bodycam footage 00:08:56–00:09:40. Perez proceeds to address Rios, telling him that he was “trying to attempt to get a reaction from police” and that he has now “got a reaction from police.” Flores Bodycam Footage00:15:04–00:15:10. Perez eventually tells him that his “presence isn't welcome here” and not to “come back to VIA,” pointing to various surrounding buildings that he tells him he is now prohibited from accessing. Id. at 00:15:24–00:15:30. Rios responds by telling Perez he's on “city property” and that Perez cannot ban him from public property. Id. at 00:15:32–00:15:46. Perez acknowledges that Rios is not on private property, id. at00:15:46, but proceeds to explain to Rios again that he is not allowed to access surrounding private property, id. at 00:16:30. Rios continues to protest, “don't tell me that I'm not allowed here at the public sidewalk.” Id. at 00:16:20–00:16:27. Rios is then released from handcuffs, having been detained for approximately sixteen minutes. Id. at 00:16:40. The bodycamera footage ends shortly thereafter.

Officer Gonzalez's Incident Report states that Rios was given a Criminal Trespass Warning (“CTW”) “for taking away police service from the public.” Nov. 24 Incident Report11. Lara's Incident Report lists the CTW as applying to: VIA Centro Plaza at 909 West Houston Street and 123 North Medina Street. Id. at 4. Rios testifies that he was left with facial injuries and a permanent scar after being tackled by Lara and Rios, Rios Aff. ¶¶ 12–13, while Defendants dispute that he did not appear to be injured during his detention. See, e.g., Sarinana Decl. 2; Lara Decl. 2.

B. March 8, 2022, Incident

On March 8, 2022, Rios returned to the VIA Centro Plaza area with the aim of “document[ing] VIA police activities.” Rios Aff. ¶ 14. Rios stated that before travelling to the area he looked at “zoning maps to identify what areas VIA owned or controlled,” and knew that he would not be on VIA property if he remained on the sidewalk. Id. ¶ 15. He was eventually arrested by VMTPD Officer Gutierrez for allegedly violating the CTW issued to him that previous November. Id. ¶¶ 14–16; Mot. Ex. A-9 (“Mar. 8 Incident Report”), at 5, ECF No. 29-1. Gutierrez testifies that she saw Rios filming through the window of a building at 909 West Houston Street and recognized him as the subject of a criminal trespass warning issued during the November incident. Mot. Ex. E (“Guttierez Decl.”), at 1, ECF No. 29-1.

Body camera footage of this encounter begins after Rios has already been detained in the back of a police car. Mot. Ex. A-6 (“Gutierrez Bodycam Footage”). It shows Gutierrez interacting with other officers, in which she refers to Rios as “one of the auditors.” Id. at 00:05:00–00:05:04. Perez eventually arrives and explains to Rios that he has been detained for violating the CTW. See generally Mot. Ex. A-7 (“Perez Bodycam Footage – Mar. 8 Incident”). The footage also shows Perez and Gutierrez confirming that Rios was on VIA property by reviewing CCTV footage at the location. Gutierrez Bodycam Footage 00:14:30–00:15:45; Perez Bodycam Footage–Mar. 8 Incident 00:06:19. Gutierrez then transports Rios to jail. Gutierrez Bodycam footage 00:25:00–00:26:10. Rios testifies that he was held in jail for eighteen hours before he was released. Rios Aff. ¶ 17. The charges against him were later dropped in May 2022. Id. He contends that he was targeted for arrest because of his activity as a “First Amended Auditor.”Id. ¶ 18.

C. Procedural History

Rios brought suit on October 16, 2023, alleging several constitutional violations against VMTPD Officers Lara, Flores, Sarinana, Gutierrez, and Perez (“the Officers”);VIA Metropolitan Transit; and Universal Protection Service, LP. See generally Compl., ECF No. 1. Riosasserted claims against Defendants for violations of his First, Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Id. ¶¶ 142–207. Specifically, as to the November 2021 incident, Rios asserted that Lara and Flores unlawfully seized him and used excessive force in violation of his rights under the Fourth Amendment. Am. Compl. ¶¶ 145–51, 159–66, ECF No. 6. Rios also asserted that Lara, Flores, Sarinana, and Perez seized him in retaliation for exercising his First Amendment rights. Id. ¶¶ 152–58. Rios further asserted that Lara, Flores, Sarinana, and Perez violated his rights under the Fourteenth Amendment by failing to provide medical care after detaining him. Id. ¶¶ 167–74. Finally, Rios asserted a supervisory liability claim against Perez. Id. ¶¶ 175–81.

In relation to the March 2022 incident, Rios brought the following claims against Perez and Gutierrez: (1) a First Amendment claim for retaliatory arrest and prosecution, id. ¶¶ 182–95, (2) a Fourth Amendment claim for unlawful arrest, id. ¶¶ 196–202, and (3) a Fourth Amendment claim for unlawful search and seizure, id. ¶¶ 203–10.²

Defendants filed two separate motions to dismiss. Mot. Dismiss, ECF No. 7; Mot. Dismiss, ECF No. 16. On July 1, 2024, the Court dismissed Rios's Monell liability claims against VIA Metropolitan Transit. July 1, 2024, Order 22–23, ECF No. 28. Rather than consider the Officers' other arguments at the motion to dismiss stage, the Court indicated that it intended to partially convert the Officers' motions to dismiss into a Motion for Summary Judgment and permitted them to refile it. Id. at 25–26. The Officers filed their Motion for Summary Judgment, ECF No. 29, on July 15, 2024, to which Rios filed a Response, ECF No. 35, and the Officers filed a Reply, ECF No. 37.Rios also filed a Second Amended Complaint, which provided further allegations in support of hisMonell claims against VIA Metropolitan Transit. See generally 2d Am. Compl. The claims against the Officers remain materially unchanged from the prior Amended Complaint. See id.Defendants also filed another Motion to Dismiss, ECF No. 34, seeking dismissal of the Monell claims against VIA, which remains pending.

II. DISCUSSION

A. Summary Judgment Standard

A court must enter summary judgment “if the movant shows 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996).

“[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046–47 (5th Cir. 1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ․ , admissions, interrogatory answers, or other materials[,]” or show “that the materials cited [by the movant] do not establish the absence ․ of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c). The court resolves factual controversies in favor of the nonmoving party, but factual controversies require more than “conclusory allegations,” “unsubstantiated assertions,” or “a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (enbanc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478–79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). Thus, the ultimate inquiry in a summary judgment motion is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.

B. Qualified Immunity Standard

The doctrine of qualified immunity shields government officials from liability “so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “When a defendant invokes qualified immunity, the burden shifts to the plaintiff to” show that the defense does not apply. Id. (quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)). A plaintiff seeking to defeat qualified immunity must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 847–48 (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)).

A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Lincoln, 874 F.3d at 848 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “This inquiry ‘does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.’ ” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The law can be clearly established despite “notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.”Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 400 (5th Cir. 2004)).

C. Analysis

The Officers seek summary judgment on all claims. See generally Mot. The Officers argue that Lara, Flores, Sarinana, Gutierrez, and Perez are entitled to qualified immunity as to all of Rios's claims. Id. at 10–22. The Officers further argue that Rios has failed to produce evidence showing that he experienced any physical injury and that his failure to provide medical care claim should be dismissed as a result. Id. at 15–17.

1. Fourth Amendment Claims

a. Unlawful Seizure During November 24, 2021, Incident

Rios alleges that he was unlawfully seized by Flores and Lara when they detained him in handcuffs for more than sixteen minutes on November 24, 2021. 2d Am. Compl. ¶¶ 128–34; Resp. 3–6. The Fourth Amendment protects individuals from unreasonable searches and seizures. United States v. Flowers, 6 F.4th 651, 655 (5th Cir. 2021). A person is “seized” for purposes of the Fourth Amendment when—under the totality of the circumstances—a law enforcement officer restrains or terminates a person's freedom of movement through means of physical force or show of authority such that a reasonable person would not believe they were free to leave. Id. (citations omitted).“The extent of [the Fourth Amendment's] constitutional protection[s] varies with the type of seizure at issue.” Lincoln, 874 F.3d at 840. While a brief investigatory stop must be supported by reasonable suspicion, a “full scale arrest” requires probable cause. United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014) (citing United States v. Zukas, 843 F.2d 179, 181–82 (5th Cir. 1988)).

The Officers argue that Rios was not arrested but rather “only detained pending investigation,” and that they had reasonable suspicion to do so. Mot. ¶ 22; Reply ¶ 10. Rios argues that Lara and Flores lacked both reasonable suspicion and probable cause in detaining him, and that—even if the initial stop was justified—his prolonged detention was not. Resp. 3.

i. A reasonable jury could conclude that Lara and Flores arrested Rios.

“The line between a valid investigatory stop [which requires only reasonable suspicion] and an arrest requiring probable cause is a fine one.” Zukas, 843 F.2d at 182 (citing United States v. Hanson, 801 F.2d 757 (5th Cir. 1986)). To conduct a valid investigatory stop, law enforcement must only seize an individual for as long as is necessary to investigate. Id. Further, law enforcement must also use the least intrusive means reasonably available to verify or dispel their suspicion of criminal conduct. Id. When determining whether an investigatory stop is valid, courts consider the extent to which “police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Short v. West, 662 F.3d 320, 327 (5th Cir. 2011) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). Thus, when law enforcement impermissibly prolong a stop or fail to use the least intrusive means of investigation, they transform an initially valid investigatory stop into a full scale arrest requiring probable cause. See United States v. Shabazz, 993 F.2d 431, 436–37 (5th Cir. 1993); Short, 662 F.3d at 327.

Here, the undisputed evidence establishes that Lara and Flores physically restrained Rios with handcuffs for approximately sixteen minutes. Mot. ¶ 6; Flores Bodycam Footage 00:00:35–00:17:00; Rios Aff. ¶¶ 4–5. During that time, Lara and Flores did not appear to take any actions to investigate whether Rios was drunk or had an open container of alcohol. See generally Flores Bodycam Footage. They did not attempt to conduct any sobriety tests, or even examine the can in the paper bag. See generally id. Indeed, for the majority of the stop, Lara and Flores either spoke to other Officers or stood silently while Rios and Tullos berated them with claims that Rios was being detained unlawfully. See generally id. Even when put on notice by Sarinana that Rios was not intoxicated and that the can contained only Cherry Coke, Lara and Flores continued to detain Rios, leaving him in handcuffs for almost nine more minutes. Sarinana Bodycam Footage 00:04:00–00:12:28.

In limited investigatory stops, “once an officer's suspicions have been verified or dispelled, the detention must end unless there is additional articulable, reasonable suspicion.” United States v. Valadez, 267 F.3d 395, 398 (5th Cir. 2001); see also McClain v. Delgado, --- F.4th ----, 2025 WL 868168, at *2 (5th Cir. 2025) (finding probable cause to escalate from investigative stop to arrest for driving while intoxicated when the officer performed field sobriety tests and observed several markers of intoxication).Here, Lara and Flores could have easily determined whether Rios was intoxicated and whether he was carrying an open container of alcohol within seconds of stopping him. Instead, for sixteen minutes, they took no investigatory actions. Thus, a reasonable jury could find that Lara and Flores's actions “were not reasonably related in scope to investigatory detention” and that Rios was therefore arrested. Short, 662 F.3d at 327;see also Johnson v. Thibodaux City, 887 F.3d 726, 734 (5th Cir. 2018); Turner v. Lieutenant Driver, 848 F.3d 678,694 (5th Cir. 2017) (finding that detention was arrest when officers did not take investigative steps related to the reasons for which he was stopped).

ii. A reasonable jury could conclude that Lara and Flores did not have probable cause to arrest Rios.

Rios's arrest was unlawful unless it was supported by probable cause. Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020) (citingHaggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004)). “To determine whether probable cause existed for an arrest, the court ‘examine[s] the events leading up to the arrest, and then decide[s] “whether these historical facts, viewed from the standpoint of a reasonable police officer, amount to ‘probable cause.’ ” Loftin v. City of Prentiss, 33 F.4th 774, 780 (5th Cir. 2022) (alterations in original) (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)). That said, “[a]n officer is due qualified immunity, ‘even if he did not have probable cause to arrest a suspect,’ so long as ‘a reasonable person in his position would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law.’ ”Perry v. Mendoza, 83 F.4th 313, 317 (5th Cir. 2023) (first quoting Voss v. Goode, 954 F.3d 234, 239 (5th Cir. 2020); and then citing Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)).

Here, the Officers point to two crimes as providing the basis for Lara and Flores's detention of Rios: (1) public intoxication and (2) violation of a San Antonio ordinance prohibitingopen containers of alcohol in the central business district. Mot. 3 & n.2.; Nov. 24 Incident Report 3–4.

Under Texas law, “a person commits the offense of public intoxication if ‘the person appears in a public place while intoxicated to the degree that the person may endanger [herself] or another.’ ”City of Houston v. Nicolai, 695 S.W.3d 489, 512 (Tex. App. 2024) (quoting Tex. Penal Code § 49.02(a)). To arrest someone for public intoxication, law enforcement officers must therefore have probable cause to believe both that someone is intoxicated and that they are a danger to themselves or others. See Prim v. Stein, 6 F.4th 584, 593 (5th Cir. 2021) (citing Gallagher v. State, 778 S.W.2d 153, 154 (Tex. App. 1989)). As to the first element, courts have considered the following factors: (1) physical symptoms of intoxication such as difficulty standing, slurred speech, and bloodshot eyes; (2) whether the individual failed tests for intoxication; (3) whether the individual admitted to drinking alcohol or police saw or had reason to believe someone had drunk alcohol; or (4) other circumstantial indicators of intoxication including the smell of alcohol on someone's breath or person and whether the individual is combative or belligerent. See Prim, 6 F.4th at 593; Livingston v. Texas, 632 F. Supp. 3d 711, 723 (S.D. Tex. 2022), aff'd, No. 22-40719, 2023 WL 4931923 (5th Cir. Aug. 2, 2023);MacCloskey v. City of Dallas, No. 97-cv-587, 1998 WL 119535, at *2 (N.D. Tex. Mar. 9, 1998); State v. Martinez, 569 S.W.3d 621, 629 (Tex. Crim. App. 2019). For the second element, courts consider factors that suggesta potential for danger, such as whether the individual was in the middle of the streetor unable to walk to their destination safely, ifthe individual had recently driven or indicated an intent to drive a car, or whether they physically resisted arrest or engaged in violent conduct. Martinez, 569 S.W.3d at 629; Simpson v. State, 886 S.W.2d 449, 455 (Tex. App. 1994);see also Raley v. Fraser, 747 F.2d 287, 290 (5th Cir. 1984).

Here, the parties dispute the circumstances leading up to Lara and Flores detaining Rios. Lara and Flores state that Rios displayed intoxicated behavior: that he had difficulty standing, spoke with slurred speech, and that he was loud and disruptive and “howl[ed] like a wild animal.” Lara Decl. 1; Flores Decl. 1–2; Nov. 24 Incident Report 2. The Officers' statements also indicate that Rios obstructed traffic and that he was playing with construction equipment and sandbags by the sidewalk. Lara Decl. 1; Flores Decl. 1–2; Nov. 24 Incident Report 2. For their part, Rios and Tullos testify that Rios did not obstruct traffic, nor did he fall to the ground or act erratically. Rios Aff. ¶¶ 2–3; Tullos Aff. ¶ 4. Flores's body camera footage of this incident begins when Lara and Flores approach Rios and Tullos, and it therefore does not capture any of the behavior that Lara and Flores testify preceded their detaining him. See generally Flores Bodycam Footage. Thus, simply put, there is a genuine dispute of material fact as to whether Rios was acting so erratically as to give the Officers probable cause to arrest him for public intoxication. See, e.g. Howard v. Forrest County, No. 19-cv-84, 2020 WL 4506787, at *4 (S.D. Miss. Aug. 5, 2020) (conflicting testimony presented genuine dispute of material fact as to whether there was probable cause for arrest that precluded summary judgment on false arrest claim); Graham v. Dallas Area Rapid Transit, 288 F. Supp. 3d 711, 739 (N.D. Tex. 2017) (same).

But the video does show three things that bear on probable cause. First, Riosenters the roadway when Lara and Flores approach him, but he does so only momentarily, and there is no traffic. Flores Bodycam Footage 00:00:34. Rios's brief step off the sidewalk thus does not furnish probable cause to arrest him for public intoxication. See, e.g., Simpson, 886 S.W.2d at 455 (probable cause to arrest for public intoxication where individual was “arguing violently in the middle of the street”). Second, Rios was carrying a can in a paper bag. Flores Bodycam Footage 00:00:33; see generally Rios Aff.; Tullos Aff. But mere possession of alcohol—or even intoxication, alone—does not go to whether an individual posed “a real possibility of danger to [themselves] or to the public”in violation of the public intoxication law. See Commander v. State, 748 S.W.2d 270, 272 (Tex. App. 1988); see also Simpson, 886 S.W.2d at 455 (“[P]hysical manifestations of alcoholic consumption alone are not sufficient to constitute public intoxication.”). Therefore, even if the Officers reasonably thought, at first, that the can contained alcohol, this would still not provide probable cause for arresting Rios for public intoxication.

Finally, when Lara and Flores approached Rios, he loudly and repeatedly told them to “get away from me” and “don't fucking touch me.” Flores Bodycam Footage 00:00:35. Profanity and talking loudly, alone, generally does not provide the basis for probable cause for public intoxication without other factorsnot present here. For example, in Livingston, there was probable cause to arrest for public intoxication a plaintiff who directed a “profanity-laden tirade” at police officers. 632 F. Supp. 3d at 723. But there, the officers were responding to reports of a fight, the plaintiff aggressively moved towards the officers when they arrived, and he also ignored multiple commands from the officers to calm down. Id. at 717–18, 723. Further, the police had also received independent verification that the defendant had been drinking from a witness and smelled alcohol on the defendant's breath. Id. at 723. Use of profanity, alone, did not suffice to establish that plaintiff was publicly intoxicated absent other factors that suggested both intoxication and potential danger. Id. Other cases in which there was probable cause to arrest similarly involved not only profanity but also additional indicators of intoxication and danger. See, e.g., Lago-Planas v. Crocker, No. 09-cv-2075, 2011 WL 588053, at *1–3 (N.D. Tex. Jan. 19, 2011), adopted, 2011 WL 588719 (Feb. 9, 2011); Padilla v. Mason, 169 S.W.3d 493, 503 (Tex. App. 2005).

Here, by contrast, there is a genuine dispute as to whether Rios's use of profanity was accompanied by other signs of intoxication and dangerousness. Rios testifies that he did not ignore any instructions from either Flores or Lara and the body camera footage does not show him resisting physically or pulling away from the Officers after Lara grabbed his arm. See generally Rios Aff.; Flores Bodycam Footage00:00:34–00:00:44. And as discussed, Rios disputes that he engaged in any of the reckless behavior described by the Officers prior to the beginning of the video recording. See generally Rios Aff. Because there is a dispute of material fact as to whether Rios was exhibiting behavior that would suggest he was intoxicated or a danger to himself or others, a reasonable jury could find that Lara and Flores did not have probable cause to arrest Rios for public intoxication.

Turning to the San Antonio city ordinance, it prohibits possession of an open container of alcohol or public consumption of alcohol within San Antonio's central business district, as defined within the ordinance. San Antonio, Tex., Ordinance, ch. 4, art. I, § 4-4; see Sowers v. State, No. 19-cr-875, 2020 WL 5535889, at *2 (Tex. App. Sept. 16, 2020). Rios argues that Lara and Flores did not have probable cause to detain him because it was “unclear” whether he was in the central business district when Lara and Flores detained him. Resp. 4 n.2. The incident report submitted by the Officers lists the location of the incident as “123 N Medina, San Antonio,” and states that Lara and Flores stopped Rios after he walked south on Medina Street from VIA Centro Plaza. Nov. 24 Incident Report 2. Lara also testifies that she approached Rios outside of 123 North Medina Street. Lara Decl. 1. Rios and Tullos do not dispute this—they both merely state that they were walking “near the Centro Plaza VIA station.” Rios Aff. ¶ 2; Tullos Aff. ¶ 2. Review of Flores's body camera footage confirms that the incident occurred directly south of the Centro Plaza VIA station. See generally Flores Bodycam Footage. The Court takes judicial notice that the 123 North Medina Street location and the portion of Medina Street south of the Centro Plaza VIA station are within the central business district of San Antonio as defined by the relevant provision of the ordinance. See Fed. R. Evid. 201; Kokesh v. Curlee, 14 F.4th 382, 386 (5th Cir. 2021) (supplying facts about location of police stop by judicial notice); Sowers, 2020 WL 5535889, at *2 (taking judicial notice that location of a stop was within central business district as defined by same San Antonio City Ordinance). Thus, there is no genuine dispute that the ordinance applied to the location where Rios was arrested.

As to whether Lara and Flores had probable cause to believe Rios had an open container of alcohol, it is undisputed that he was carrying a can in a paper bag. See generally Nov. 24 Incident Report; Lara Decl.; Rios Aff.; Tullos Aff. A review of cases analyzing the same or similar laws shows that probable cause generally requires more than merely possessing a can in a paper bag. See, e.g., Brown v. State, No. 18-cr-763, 2019 WL 3307910, at *1 (Tex. App. July 24, 2019) (finding probable cause for violation of law prohibiting drinking alcohol in store with an off-premises license where police confirmed that the beverage in a paper bag was beer before arresting defendant); People v. Bothwell, 690 N.Y.S.2d 231, 234 (N.Y. 1999) (there was “reasonable cause” for violation of city open container law where police saw that paper bag contained Heineken bottle before arresting defendant). Some courts have found that even reasonable suspicion requires more than mere possession of a can or bottle in a paper bag. See, e.g., People v. Britt, 74 N.Y.S.3d 207, 210 (N.Y. App. Div. 2018), aff'd, 145 N.E.3d 207 (N.Y. 2019) (reasonable suspicion where individual drank from can in a bag and ran away at approach from police); United States v. McPhatter, No. 03-cr-911, 2004 WL 350439, at *2 (E.D.N.Y. Feb. 24, 2004) (reasonable suspicion where defendant attempted to obscure bottle with paper bag, was in a high-crime neighborhood, and officer believed they recognized specific brand of beer bottle). To be sure, there are some instances where courts have held differently. See, e.g., United States v. Ortiz, No. 06-cr-6076, 2007 WL 925731, at *6 (W.D.N.Y. Mar. 26, 2007).

But, in the absence of controlling authority from the Texas Supreme Court or Fifth Circuit, the Court finds the first group of cases more persuasive. The Court assumes for purposes of this analysis that a can or bottle in a brown paper bag could furnish reasonable suspicion to stop and investigate for an open container violation. But police could easily confirm or dispel that suspicion by simply asking the suspect to take their beverage out of the bag. Therefore, a reasonable jury could find that a reasonable officer in Lara and Flores's position would not think they had probable cause to arrest Rios for an open container, without first taking the simple step of verifying whether the beverage in the bag was alcoholic.

Finally, and in the alternative, even if the can in the brown bag were to furnish probable cause initially, any suspicion whatsoever was dispelled as soon as Sarinana confirmed that Rios's beverage was nonalcoholic. “[A] police officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the basis for the arrest was unfounded.” Duckett v. City of Cedar Park, 950 F.2d 272, 279(5th Cir. 1992) (citing Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986)). Accordingly, once an officer ascertains that the “reasons which gave rise to the initial lawful arrest become invalid, the arrestee should be released.” Id. at 279 (citation omitted); see also McConney v. City of Houston, 863 F.2d 1180, 1185 (5th Cir.1989) (“[C]ontinued detention ․ after determination beyond reasonable doubt ․ that probable cause no longer exists raises obvious constitutional concerns.”). The Officers do not dispute that they realized that the can did not contain an alcoholic beverage “a few minutes” into Rios's detention. See Mot. 3. Because the Officers did not release Rios once they realized that he was only carrying a soda, a reasonable jury could determine that Rios's continued detention constituted a constitutional violation.

iii. A fact dispute precludes qualified immunity for Lara and Flores.

As to whether Lara and Flores are entitled to qualified immunity on the unlawful seizure claim, “[t]here can be no doubt that the right not to be arrested absent probable cause [is] clearly established.” Green v. Thomas, 129 F.4th 877, 884 (5th Cir. 2025)(citations omitted); see also Alexander v. City of Round Rock, 854 F.3d 298, 307 (5th Cir. 2017) (collecting cases). But “even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009) (cleaned up) (quoting Mendenhall, 213 F.3d at 230). The inquiry is whether it was objectively reasonable, in light of existing case law, for the Officers to conclude that they had probable cause to arrest Rios. Alexander, 854 F.3d at 307; see also Fraga v. City of Dallas, No. 11-cv-2404, 2012 WL 2679443, at *2 (N.D. Tex. June 14, 2012), adopted, 2012 WL 2688890 (July 6, 2012).

This Court and at least two others in this Circuit have held that it is clearly established that officers do not have the right to arrest someone for public intoxication under Texas law when they are not showing signs of being so intoxicated that they pose a danger to themselves or others. See Soto v. Monge, 735 F. Supp. 3d 792, 801–03 (W.D. Tex. 2024); Chapa v. City of Pasadena, No. 21-cv-3444, 2022 WL 3091546, at *8 (S.D. Tex. July 15, 2022); Bruce v. Ellis, No. 12-cv-1683, 2013 WL 1091241, at *9–10 (N.D. Tex. Mar. 15, 2013). And the Fifth Circuit has found that police could reasonably find probable cause to arrest for public intoxication only in much different circumstances. For instance, in Prim, it was undisputed that the suspects admitted to having consumed alcohol that night, were observed to have slurred speech and bloodshot eyes, and one of them failed a sobriety test. 6 F.4th at 593. Here, there is no such evidence of intoxication. Rios never admitted to drinking, no sobriety tests were conducted, and there is no assertion that his eyes were bloodshot or his speech slurred—indeed, his speech is clear and articulate, albeit crass, on the body camera footageSee, e.g., Flores Bodycam Footage 00:00:30–00:02:30. Far from being undisputed as in Prim, such indicia of intoxication are entirely absent from the record here. And critically, in Prim, it was also undisputed that the plaintiffs had a mile-long route that they planned to walk to get home, traversing several intersections, but they could not stand up without assistance. 6 F.4th at 593. Here, there is no such undisputed evidence that Rios was a danger to himself or others. Other Fifth Circuit decisions are similarly distinguishable on both the intoxication and dangerousness elements. See, e.g., Gibson v. Rich, 44 F.3d 274, 275–76 (5th Cir. 1995) (suspect exhibited inability to recall, physical violence, smell of alcohol, slurred speech, bloodshot eyes, and was in the driver's seat of a car). In light of these decisions, and on the undisputed evidence, no reasonable officer in Lara and Flores's position could believe they had probable cause to arrest Rios for public intoxication.

Regarding the purported open container violation, as discussed above, on the undisputed facts, Rios's brown bagged can supplied Lara and Flores with reasonable suspicion, at best. Shortly after taking Rios to the ground and placing him in handcuffs, the Officers discovered for certain that his beverage was nonalcoholic—a fact that it appears they could have safely and easily discovered even sooner. It has long been clearly established that the police may not continue to detain someone who they know, beyond a reasonable doubt, to be innocent. Duckett, 950 F.2d at 278; McConney, 863 F.2d at 1185;see also Green, 129 F.4th at 887 (denying qualified immunity for a false arrest claim when the officer “had information which would have undercut any reasonable belief that” the plaintiff had committed a crime). Simply put, no reasonable officer in Lara and Flores's position would think that they could continue to detain Rios for an open container violation once they determined that he did not have an open container. See Mendenhall, 213 F.3d at 230 (“[A] qualified immunity defense cannot succeed where it is obvious that a reasonably competent officer would find no probable cause.”).

In sum, genuine disputes of material fact preclude entry of summary judgment. Based on the video evidence and the parties' conflicting testimony about the events that preceded the recordings, the Court cannot determine qualified immunity as a matter of law. It will be for the finder of fact to assess the credibility of the witnesses and determine whether they believe that Rios was exhibiting signs of intoxication to such a degree that a reasonable officer could conclude, even mistakenly, that there was probable cause to arrest him. See Bruce, 2013 WL 1091241, at *10 (reaching same conclusion in same posture on similar false arrest claim). Therefore, the Motion is denied as to Rios's unlawful seizure claim against Lara and Flores.³

b. Excessive Force Claim Relating to November 24, 2021, Incident

i. A reasonable jury could conclude that Lara and Flores's use of force was excessive.

The Officers also seek summary judgment on Rios's excessive force claim. Mot. 23. Rios alleges Flores and Lara used excessive force when they tackled him and “forced [his] head to hit the cement ground.”2d Am. Compl. ¶¶ 142–49.

The Fourth Amendment governs “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen.” Graham v. Connor, 490 U.S. 386, 395 (1989). Courts analyze a claim for excessive force “without regard to whether the arrest itself was justified.” Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007) (collecting cases).

To state a claim for excessive force, a plaintiff must allege facts that show “(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable.” Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018) (quoting Windham v. Harris County, 875 F.3d 229, 242 (5th Cir. 2017) (internal quotation marks omitted)). This is a fact-intensive inquiry that depends on the “circumstances of each particular case.” Bagley v. Guillen, 90 F.4th 799, 803 (5th Cir. 2024) (quoting Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012)). And “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396 (citation omitted).

As to the injury element of an excessive force claim, “a de minimis injury is not cognizable” under § 1983. Sam, 887 F.3d at 713 (quoting Alexander, 854 F.3d at 309). But “[a]ny force found to be objectively unreasonable necessarily exceeds the de minimis threshold.” Id. (quoting Alexander, 854 F.3d at 309); Solis v. Serrett, 31 F.4th 975, 981 (5th Cir. 2022) (“[T]he extent of injury necessary to satisfy the injury requirement is ‘directly related to the amount of force that is constitutionally permissible under the circumstances.’ ” (quoting Alexander, 854 F.3d at 309)). Therefore, “as long as a plaintiff has suffered ‘some injury,’ even relatively insignificant injuries and purely psychological injuries will prove cognizable when resulting from an officer's unreasonably excessive force.” Bagley, 90 F.4th at 804 (quoting Solis, 31 F.4th at 982).

“The second and third elements collapse into a single objective-reasonableness inquiry.”Peña v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372, 381 (2007)). This inquiry is guided by the so-called Graham factors: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)); accord Peña, 879 F.3d at 619. Additionally, courts must “consider ‘not only the need for force, but also the relationship between the need and the amount of force used.’ ” Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2021) (quoting Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)).When dealing with “an uncooperative arrestee, officers properly use ‘measured and ascending actions that correspond to [the arrestee's] escalating verbal and physical resistance.’ ” Id. (alteration in original) (quoting Joseph, 981 F.3d at 332–33). But “[a]n officer cannot use force against a citizen who has ‘committed no crime, posed no threat to anyone's safety, and did not resist the officers or fail to comply with a command.’ ” Bagley, 90 F.4th at 803 (quoting Newman, 703 F.3d at 762, 764).

Beginning with the injury element, Rios testifies, together with his wife, Cecilia de la Luz, that Lara and Flores caused bruising to his right eye and a gash to his right eyebrow. Rios Aff. ¶ 5; Resp.Ex. 2 (“De La Luz Aff.”) ¶ 3, ECF No. 35-2. Rios further testifies that he has been left with a permanent scar above his right eyebrow. Rios Aff. ¶ 13. The Officers testify that Rios did not appear injured during his detention. Sarinana Decl. 2; Lara Decl. 2; Mot. Ex. C. (“Perez Decl.”), at 2, ECF No. 29-1; Flores Decl. 2. There is therefore a genuine dispute of material fact as to whether Rios sustained an injury that could form the basis for an excessive force claim. But if Rios's account is to be believed, because it is “some injury,” it suffices for the purpose of an excessive force claim. Bagley, 90 F.4th 804; Jacobson-Boettcher v. Dowdy, No. 18-cv-853, 2018 WL 3520506, at *7 (S.D. Tex. July 20, 2018).

Turning to the Graham factors, Rios states that “he did not commit any crime,” Resp. 7, but as discussed, excessive force claims are analyzed separately from unlawful arrest claims. Freeman, 483 F.3d at 417; see also Buehler v. Dear, 27 F.4th 969, 983& n.39 (5th Cir. 2022). The Court therefore considers the offenses for which the Officers claim they detained Rios: public intoxication and violating the San Antonio open container ordinance. Public intoxication or carrying an open container in violation of the San Antonio ordinance are both class c misdemeanors and are therefore considered minor crimes. Tex. Penal Code § 49.02(c); San Antonio, Tex., Ordinance, ch. 4, art. I, § 4-4(f); Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017) (citation omitted). The first Graham factor therefore weighs in favor of Rios. See Reyes v. Bridgwater, 362 F. App'x 403, 407 n.5 (5th Cir. 2010) (Graham “severity” factor weighs against use of force when crime at issue was “at most a misdemeanor”).

As to whether Lara and Flores's use of force was objectively reasonable—the second and third Graham factors—Riosstates that he “did not show any physical aggression” and was “not resisting or evading arrest when [Lara and Flores] grabbed and tackled him.” Resp. 8. At most, Rios argues, he was passively resisting, and passive resistance does not justify the use of force. Id. The body camera footage shows Rios back away from Lara and Flores and say, “get away from me” and “don't fucking touch me” as they approach him. Flores Bodycam Footage 00:00:35–00:00:44. Rios then quickly returns to the sidewalk and repeats “don't fucking touch me” as Lara grabs his arm. Id. at 00:00:37–00:00:39. Holding his arm, Lara says, “you're drinking and you're intoxicated,” but she does not give Rios any instructions or commands. Id. at 00:00:37–00:00:45. She does not, for example, ask him to show her what is in his can, to identify himself, to stop walking, or to put his hands up. Instead, without any further words and within seconds of encountering Rios, Lara and Flores tackle him to the ground, pin his hands behind his back, and handcuff him. Id. at 00:00:45–00:00:50.

Beginning with whether Rios posed an immediate threat to Lara and Flores or others, the Officers do not argue—nor does the bodycamera footage suggest—that Rios posed a danger to them. See generally Mot.; Flores Bodycam Footage. Although Rios was using profanity and speaking loudly, he did not make any threats or act violently. Flores Bodycam Footage 00:00:00–00:00:45; Guedry, 703 F.3d at 762; cf. Louis v. Lucas, No. 22-cv-1959, 2023 WL 4600455, at *3 (N.D. Tex. July 17, 2023) (use of taser on individual “merely argumentative and uncooperative” was excessive force).Certainly, a dispute of fact remains as to whether, prior to the start of the video recording, Rios acted intoxicated or erratically in a way that a reasonable police officer would be wary that Rios was a potential danger. Cf. Rendon v. Edwards, No. 21-cv-278, 2023 WL 11835510, at *6 (N.D. Tex. Sept. 5, 2023) (holding “erratic and threatening behavior” justified use of force). But based solely on the undisputed evidence, this factor cuts in favor of Rios.

Moving on to the final Graham factor, a suspect “actively resist[s] arrest—albeit mildly” if they back away from arresting officers. See Buehler, 27 F.4th at 984; but see Trammell, 868 F.3d at 341 (pulling away from police officers constituted only passive resistance that did not render use of force reasonable). But the situation here is distinct from cases in which backing away was found to constitute active resistance in that there is a factual dispute as to whether Flores and Lara ordered Rios to stop or otherwise issued any other instructions that he failed to obey before he backed away from them.⁴ Flores attests that before starting his body camera, Lara shouted to Rios to stop, and that he ignored the order and kept walking. Flores Decl. 2. But Rios and Tullos claim that Lara came up “[s]uddenly” from behind them without even identifying herself as a police officer or explaining why she was confronting them. Tullos Aff. ¶ 5; Rios Aff. ¶ 4. This disputed fact is critical, because the failure to comply with an explicit police instruction is essential to assessing resistance. See Buehler, 27 F.4th at 984 (plaintiff resisted arrest when he walked away after being ordered to turn around and told he was under arrest); Cadena v. Ray, 728 F. App'x 293, 296 (5th Cir. 2018) (plaintiff resisted arrest when he did not put his hands behind his back as instructed but instead backed away).

Moreover, once Lara grabbed Rios's arm, he did not pull away. By the time he was taken to the ground by both Officers seconds later, he was holding his arms passively by his sides and standing still, though protesting loudly. Flores Bodycam Footage 00:00:30–00:00:50. Thus, there is a factual question as to whether Rios's resistance was passive or active. See Starr v. Marion County, 573 F. Supp. 3d 1076, 1086 (S.D. Miss. 2021). And engaging in mere passive resistance—such as pulling away from police officers, using profanity, or refusing to obey instructions—alone, does not justify law enforcement use of force. Trammell, 868 F.3d at 342; Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009); cf.Polnac v. City of Sulphur Springs, 555 F. Supp. 3d 309, 335 (E.D. Tex. 2021) (finding plausible allegations of excessive force where plaintiff pulled his cup away from officer, failed to identify himself, and used profane language). Therefore, the third Graham factor also weighs in Rios's favor. Because all three Graham factors militate against force, a reasonable jury could find that Lara and Flores used excessive force against Rios.

Alternatively, even if a jury were to find that Rios had actively resisted arrest in some form, the speed with which Lara and Flores resorted to taking him down onto the concrete—without attempting to use other methods to ensure compliance—weighs in favor of Rios if his allegations are true. See Guedry, 703 F.3d at 763. Police officers are required to use “measured and ascending responses” to a suspect's noncompliance and are required to tailor the degree of force based on the circumstances. See Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012); Deville, 567 F.3d at 168; Trammell, 868 F.3d at 342. Here, Lara and Flores tackled Rios to the ground just over ten seconds after first approaching him and—taking his account as true for summary judgment purposes—without ordering him to stop or even identifying themselves. They also tackled Rios without attempting to secure compliance or investigate Rios without using force. See Heckford v. City of Pasadena, No. 20-cv-4366, 2022 WL 209747, at *6 (S.D. Tex. Jan. 21, 2022) (escalating from negotiation to force within twenty seconds was unreasonable when plaintiff engaged in only passive resistance). Accordingly, the Court finds that a reasonable jury could, based on the totality of the circumstances, Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013), find that Lara and Flores's use of force was excessive even if he actively resisted arrest by briefly stepping away from the Officers when they first encountered him.

ii. There is a fact dispute as to whether Lara and Flores are entitled to qualified immunity.

Turning to whether Lara and Flores are nonetheless entitled to qualified immunity on Rios's excessive force claim,⁵ Rios cites to three cases from the Fifth Circuit for the proposition that police may not use force against an individual who is merely passively resisting, and without an attempt to negotiate first. Resp. 8 (first citing Hanks v. Rogers, 853 F.3d 738, 746 (5th Cir. 2017); then citing Trammel, 868 F.3d at 341; and then citing Aguilar v. Robertson, 512 F. App'x 444, 450 (5th Cir. 2013)). Rios argues that it is clearly established that Lara and Flores's use of force was unreasonable because an officer “may not pull someone to the ground if they are only passively resisting.” Id.

Hanks dealt with an excessive force claim brought by a motorist who was pulled over for driving below the speed limit. 853 F.3d at 741. The plaintiff did not immediately exit his car when ordered and, once out of his car, refused to follow the police officer's instructions to place his hands on the car and kneel on the ground. Id. at 742. When the plaintiff did not follow the officer's instructions, the police officer administered a blow to the plaintiff's upper body that forced him down onto his car's trunk. Id. at 743. The Fifth Circuit held that the plaintiff's excessive force claim could proceed because there was no indication that the plaintiff was an immediate safety threat, he was arrested for only a minor offense, and he did not show any indication that he was resisting arrest or attempting to flee. Id. at 745–46.

In Trammel, the Fifth Circuit found a factual dispute as to whether police committed excessive force against a motorcyclist who had crashed and was believed to be intoxicated. 868 F.3d at 336, 342–43. A police officer arrived on the scene and questioned the plaintiff, who responded calmy but refused to answer some questions. Id. at 336–37. When the officer ordered the plaintiff to walk towards him and place his hands behind his back, he refused. Id. at 337. Less than three seconds later, the police officer grabbed the plaintiff's arm. Id. at 337, 342. The plaintiff pulled away and complained that the officer was hurting him. Id. Another police officer tried to grab the plaintiff's arm, which he again pulled away. Id. At this point, a third officer executed a “knee strike” to the plaintiff's thigh and another put him in a headlock before all three officers pulled the plaintiff to the ground. Id.

The Fifth Circuit found that there were several material factual disputes, including whether the plaintiff was a danger to himself or others and the extent to which the plaintiff posed a risk of flight. Id. at 340. The court also found that there was a factual dispute as to whether the plaintiff was actively resisting or merely engaged in passive resistance. Id. at 341. Finally, the court reasoned that the quickness with which the officers resorted to force—less than three seconds after the plaintiff stopped complying with instructions, and without any attempt at negotiation—also weighed in favor of excessive force. Id. at 342. Thus, the Fifth Circuit held that it was “objectively unreasonable for several officers to tackle an individual who was not fleeing, not violent, not aggressive, and only resisted by pulling his arm away from an officer's grasp.” Id. at 343.

Finally in Aguilar, the plaintiff testified that he was knocked off his motorcycle by police after being pulled over for speeding. 512 F. App'x at 445, 446. The parties agreed that the plaintiff had been ordered to stop—and was in the process of doing so—when he was intentionally struck by one of the police officers. Id. at 446. After he eventually came to a stop, another police officer tackled him off the bike without any warning and held him at gunpoint. Id. at 446–47. The Fifth Circuit granted qualified immunity to the first police officer who struck the plaintiff while he was still in motion because the plaintiff had not fully stopped after being ordered to do so. Id. at 448–49. But the court denied qualified immunity to the officer who tackled the plaintiff to the ground after he had stopped because by that point (1) the plaintiff was stopped and therefore not a flight risk, (2) he was not ignoring commands, and (3) he did not resist arrest. Id. at 449–50.

None of these cases match the factual circumstances underlying Rios's claim exactly. In Aguilar, at the point at which the plaintiff was tackled by the second police officer, he was not even passively resisting. And Trammel and Hanks involved a greater degree and different type of force than that used by Lara and Flores on Rios. But “[a] right may be clearly established without ‘a case directly on point.’ ” Hanks, 853 F.3d at 746–47 (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). All that is necessary is that “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quoting White, 580 U.S. at 79).

There are key similarities between this case and Trammel and Hanks. All three cases involved a minor offense, and a fact dispute as to the level of danger and flight risk posed by the plaintiff. All three cases involved the use of force against a suspect who was engaging in some form of uncooperative, passive resistance. And here, as in Trammel, the police resorted to the use of force within mere seconds and without any meaningful attempt at negotiation. Finally, in at least one important respect, force was even less justified here than in Trammel and Hanks. In both of those cases, the plaintiffs refused to follow police instructions. But here, the video shows and Rios attests that the Officers gave no instructions before tackling him to the ground. Certainly, the Officers testify that they instructed Rios to stop before the video recording began. Flores Decl. 2. But, as discussed, that is a question of fact for trial.

To be sure, the Fifth Circuit has held that “takedown procedures like pushing a suspect and bringing him to the ground are lawful ways to gain control of and arrest a suspect before he has been handcuffed and subdued.” Bailey v. Ramos, 125 F.4th 667, 682 (5th Cir. 2025) (citing Buehler, 27 F.4th at 988 n.67). This is sometimes the case, even when an individual is “not actively resisting arrest [but has] not given officers an obvious indication that he was subdued, such as kneeling with his hands in the air.” Id. at 683. But such takedown procedures may be used only “to gain control of suspects who ha[ve] disregarded lawful police orders or mildly resisted arrest.” Buehler, 27 F.4th at 989 (no excessive force in takedown of police-accountability activist who ignored police commands on at least three occasions); see also, e.g., Ramos, 125 F.4th at 682 (push and takedown of First Amendment auditor wass not excessive force when police had reasonable belief he had not obeyed command); Cadena, 728 F. App'xat 296 (takedown of intoxicated and erratic suspect who refused to obey orders was not excessive force); Griggs v. Brewer, 841 F.3d 308, 314 (5th Cir. 2016) (takedown of “drunken, erratic suspect who is resisting arrest” was not in violation of clearly established law); Poole, 691 F.3d at 629 (use of taser and takedown procedure on suspect who did not follow instructions and resisted arrest was not excessive force).

Again, as discussed, there is significant evidence with which a jury could determine that Rios was at most passively resisting the Officers and had not been given—much less refused to comply with—any instructions. Under those circumstances, it would have been clearly established for any reasonable officer in Lara and Flores's position that immediately escalating to a forceful takedown was excessive. See Trammell, 868 F.3d at 342. Accordingly, Lara and Flores are not entitled to qualified immunity from Rios's excessive force claim at this stage, and their Motion is denied in part as to that claim.

c. Unlawful Arrest, Search, and Seizure Claim Related to March 8, 2022, Incident

Rios also asserts claims for unlawful arrest, search, and seizure under the Fourth Amendment against Perez and Gutierrez related to the March 8, 2022, incident when he was arrested for criminal trespass and his handgun seized after he returned to the VIA Centro Plazaarea.2d Am. Compl. ¶¶ 179–185, 186–193. The Officers argue that Perez and Gutierrez are entitled to qualified immunity on this claim. Mot. 14–15.

Under Texas law, a person commits criminal trespass when they “enter[ ] or remain[ ] on or in property of another ․ without effective consent” and they “had notice that the entry was forbidden.” Tex. Penal Code § 30.05(a)(1). Notice includes “[o]ral or written communication by the owner or someone with apparent authority to act for the owner,” id.§ 30.05(b)(2)(A), while “entry” is defined as “the intrusion of the entire body,” id. § 30.05(b)(1). Rios's primary arguments appear to be that he had not received notice prohibiting him from entering the property where he was arrested and that, even if he had received notice, he did not actually enter the property because he remained outside the building. Resp. 9–10.

The parties dispute exactly where Rios was when he was detained. Rios testifies that he was detained outside of 230 North Medina Street. Rios Aff. ¶¶ 14-16. The incident report lists the location of the incident as 909 West Houston Street,⁶ Mot. Ex. A9 (“Mar. 8 Incident Report”), at 6, ECF No. 29-1, and Gutierrez similarly testifies that she detained him “on the property of 909 W. Houston.” Guttierez Decl. 1. But in any case, a supplemental report included with the incident report eventually concludes—based on review of property line diagrams and CCTV footage from VIA Centro Plaza that was conducted later—that Rios was not on VIA property when he was arrested. Mar. 8 Incident Report 9. Accordingly, the trespassing charges against Rios were dropped. Rios Aff. ¶ 17; Mar. 8 Incident Report 9 (stating that location where Rios was arrested was later determined not to be VIA property).Thus, it appears undisputed that Rios did not commit the trespassing crime for which he was arrested on March 8, 2022.

But the probable cause inquiry is not whether, with the benefit of hindsight, officers have determined that a crime was committed—it is whether a reasonable officer could believe that a crime had been or was being committed at the time of arrest. Terrell v. Allgrunn, 114 F.4th 428, 434 (5th Cir. 2024). And qualified immunity applies even more broadly, in instances where police officers “reasonably but mistakenly concluded that probable cause is present.” Ramos, 125 F.4th at 677 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). In fact, there “must ‘not even arguably be probable cause for the ․ arrest for the immunity to be lost.’ ” Id. (quoting Haggerty, 391 F.3d at 657). Rios therefore faces the “significant hurdle” of demonstrating that no reasonable officer could have concluded that there was probable cause that he was trespassing in this instance. Id. (quoting Haggerty, 391 F.3d at 657).

Gutierrez testifies that she detained and arrested Rios after she was informed by another officer that Rios was subject to an active criminal trespass warning for 909 West Houston Street and that she arrested Rios at a location that she understood to be on the property of 909 West Houston Street. Mar. 8 Incident Report 2; Gutierrez Decl. 1–2; see also United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999) (officers are entitled to rely on another officer's observations in determining whether there is reasonable suspicion). She further testifies that she verified the status of the criminal trespass warning with police dispatch and that she confirmed that Rios was apparently present on what the officers understood to be VIA property, by examining CCTV footage from VIA Centro Plaza. Id.; Gutierrez Decl. 1–2. On the body camera video, Perez and Gutierrez can be seen together viewing the CCTV footage and determining that they believe Rios is on VIA property. Gutierrez Bodycam Footage 00:14:34–00:16:17.

Rios does not dispute that Gutierrez was informed that he had an active CTW or that he was subject to a CTW that applied to VIA Centro Plaza. See generally Rios Aff. Under these facts, Gutierrez and Perez's belief that they had probable cause to arrest Rios was reasonable. See Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)); Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002); see also Defrates v. Podany, No. 17-cv-1290, 2018 WL 9561796, at *4 (N.D. Tex. Aug. 6, 2018) (police officer had objectively reasonable belief that he had probable cause to arrest plaintiff for criminal trespass when police officer knew plaintiff had been issued with criminal trespass warning), aff'd, 789 F. App'x 427 (5th Cir. 2019). Certainly, Gutierrez and Perez were ultimately mistaken. Rios was not trespassing—though barely. Examining a map ⁷ and reviewing Gutierrez's body camera footage shows that 230 North Medina and 909 West Houston Street are located immediately adjacent to each other. The properties are connected by a bricked walkway, and the boundary line between the two is not readily apparent.

Qualified immunity applies when police officers are reasonably mistaken about which side of a property line a suspect is on when encountered—the law does not “expect our police officers to carry surveying equipment ․ on patrol; they cannot be held to a title-searcher's knowledge of metes and bounds ․”See Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir. 1982). Errors such as the one made by Gutierrez and Perez here are thus within the realm of reasonable mistakes that qualified immunity is designed to shield. See id. Accordingly, the Court finds that Perez and Gutierrez are entitled to qualified immunity as to the March 8, 2022, unlawful arrest claim.

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested.” Bey v. Prator, 53 F.4th 854, 858 (5th Cir. 2022) (quoting Chimel v. California, 395 U.S. 752, 762–63 (1969)). Officers may also seize the personal property that he is carrying at the time. Riley v. California, 573 U.S. 373, 383–84 (2014) (citing United States v. Robinson, 414 U.S. 218, 236 (1973)). Thus, when a reasonable officer could determine that there is probable cause to arrest a plaintiff, that officer is ordinarily not only entitled to qualified immunity from a false arrest claim, but also any wrongful search and seizure claim arising from the same arrest.⁸ See Bey, 53 F.4th at 858. Therefore, the Officers are entitled to qualified immunity on all of Rios's Fourth Amendment claims arising out of the March 8, 2022, incident, and the Officers' Motion is granted in part as to those claims.

2. First Amendment Claims

Rios next claims that Lara, Flores, Sarinana, Gutierrez, and Perez all seized him in retaliation for his exercise of First Amendment rights. 2d Am. Compl. ¶¶ 135–41. The Officers argue that they are entitled to qualified immunity from these claims. Mot. 10–15. “The First Amendment prohibits not only direct limits on individual speech but also adverse governmental action against an individual in retaliation for the exercise of protected speech activities.” Bailey v. Iles, 87 F.4th 275, 288 (5th Cir. 2023) (quoting Keenan, 290 F.3d at 258). To state a First Amendment retaliation claim, plaintiffs must show “(1) they were engaged in constitutionally protected activity, (2) the defendants' actions caused them to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the defendants' adverse actions were substantially motivated against the plaintiffs' exercise of constitutionally protected conduct.” Id. at 289 (quoting Keenan, 290 F.3d at 258). The requisite injury need not be physical; rather, the injury “is the deprivation of a constitutional right.” Keenan, 290 F.3d at 259 (citing Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). Moreover, the extent of the deprivation “need not be great” because “there is no justification for harassing people for exercising their constitutional rights.” Id. (quoting Bart, 677 F.2d at 625).

With limited exceptions, when a First Amendment retaliation claim is predicated on an arrest, the plaintiff must adequately allege a lack of probable cause for the arrest. Nieves v. Bartlett, 587 U.S. 391, 398–99 (2019); Mayfield v. Butler Snow, L.L.P., 75 F.4th 494, 500 (5th Cir. 2023) (quoting Mayfield v. Currie, 976 F.3d 482, 486 n.1 (5th Cir. 2020)). Thus, in the mine run of cases, when probable cause supports an arrest, “any argument that the arrestee's speech as opposed to her criminal conduct was the motivation for her arrest must fail, no matter how clearly that speech may be protected by the First Amendment.” Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008). In other words, “when a plaintiff asserts a retaliatory-arrest claim, she ‘must first establish the absence of probable cause, and then demonstrate that the retaliation was a substantial or motivating factor behind the arrest.’ ” Zinter v. Salvaggio, 610 F. Supp. 3d 919,957 (W.D. Tex. 2022) (quoting Kokesh v. Curlee, 14 F.4th 382, 396 (5th Cir. 2021)).

a. November 24, 2021, Incident

i. There is a fact dispute as to whether Lara, Flores, Sarinana, and Perez retaliated against Rios in violation of the First Amendment.

Rios points to two ways in which Lara, Flores, Sarinana, and Perez, retaliated against him for exercising his First Amendment rights: (1) prolonging his detainment because they “considered him a First Amendment Auditor”;and (2) issuing him with a criminal trespass warning solely because of his auditor activities. Resp. 6.

As to probable cause, the Court has already determined above that there is a material dispute of fact as to whether Lara and Flores had probable cause to arrest Rios on November 24, 2021.

Turning, therefore, to the first element of a First Amendment retaliation claim, “lawfully conducted First Amendment auditor activities are protected by the First Amendment.” Miller v. Salvaggio, No. 5:20-cv-642-JKP, 2021 WL 3474006, at *5 (W.D. Tex. Aug. 6, 2021); Lieutenant Driver, 848 F.3d at 688 (“[A] First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.”). The Officers do not dispute that auditor activities are protected under the First Amendment. See generally Mot.

As to the second element, the issuance of a trespass warning or similar order preventing an individual from accessing particular geographic locations can constitute an injury that would chill an individual of reasonable firmness from exercising their First Amendment rights. See, e.g., Martin v. Middle Ga. State Univ., No. 24-cv-94, 2024 WL 2155124, at *5 (M.D. Ga. May 13, 2024) (plaintiff stated a First Amendment retaliation claim when he alleged that a university “indefinitely barred him” from campus for engaging in constitutionally protected speech); Bhattacharya v. Murray, 515 F. Supp. 3d 436, 456 (W.D. Va. 2021)(student adequately alleged First Amendment retaliation claim when alleging that university issued and then refused to remove a No Trespass Order), aff'd, 93 F.4th 675 (4th Cir. 2024). Further, while the parties dispute the scope of the criminal trespass warning issued to Rios, the video shows that Perez warned Rios not to “come back to VIA.” Flores Bodycam Footage 00:15:24. Given that VIA operates public transit in San Antonio, preventing an individual from accessing its services could have a significant impact on an individual's ability to conduct their everyday business. Cf. Brown v. Eppler, 725 F.3d 1221, 1226 (10th Cir. 2013) (individual had protected property interest under Due Process Clause in access to public transportation by transit authority as common carrier); cf. also VIA Metro. Transit v. Meck, 620 S.W.3d 356, 362 (Tex. 2020) (VIA is a common carrier under Texas law).

Additionally, “an arrest is a sufficient injury to chill a person of ordinary firmness.” Stafford v. Watson, No. 1:24-cv-779-DII-SH, 2024 WL 4575123, at *2 (W.D. Tex. Sept. 4, 2024), adopted, 2024 WL 4575294 (Oct. 24, 2024). So too, detaining an individual for “an unreasonable period of time.” Boone v. City of Los Angeles, No. 12-cv-9301, 2013 WL 12136800, at *5 (C.D. Cal. Sept. 25, 2013). The body camera footage provides a sufficient basis for a jury to reasonably conclude that Rios's detention was prolonged because of his status as an auditor. The footage shows Sarinana arriving approximately four minutes after Rios was first detained, Flores Bodycam Footage 00:04:56, and almost immediately telling Lara to call her supervisor and inform them that “it's the auditors.” Sarinana Bodycam Footage 00:00:30–00:00:38. Crucially, the officers continued to detain Rios even after they had discovered that the can in the paper bag did not contain alcohol and that Rios was not drunk. Id. at 00:04:00–00:05:05. They continued to detain Rios even after Sarinana notes that Rios should be released if Lara does not have probable cause to detain him. Id. at 00:04:00–00:05:05. Because it is undisputed that Rios was issued with a criminal trespass warning and a reasonable jury could conclude that his detention was prolonged, the Court therefore finds that a jury could reasonably conclude that the Officers' actions caused Rios to suffer an injury that would chill a person of ordinary firmness from continuing to engage in protected First Amendment activity.

Turning to the third and final element of a First Amendment retaliation claim, to prevail plaintiffs must establish that “the defendants' actions were substantially motivated as a response to the plaintiffs' exercise of protected conduct.” Keenan, 290 F.3d at 261. The same evidence that could lead a jury to reasonably conclude that Rios's detention was unnecessarily prolonged could also support a finding that the Officers' continued detention of Rios “would not have been [done] absent [a] retaliatory motive.”⁹ Hous. Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022) (quoting Nieves, 587 U.S. at 399 (2019)).

Further, courts have also held that a criminal trespass warning—if disproportionate in scope to the alleged activity precipitating the warning or issued without adequate explanation—can support an inference of retaliatory animus on the part of law enforcement. See Sheets v. Prummell, No. 24-cv-943, 2025 WL 712805, at *3 (M.D. Fla. Mar. 5, 2025) (the plaintiff's allegations sufficed to state First Amendment retaliation claim when trespass warning was issued following protected activity and no rationale for its issuance was given); Douglass v. Garden City Cmty. Coll., 652 F. Supp. 3d 1329, 1347 (D. Kan. 2023) (trespass notice was disproportionate to need to protect alleged victim of harassment and jury could reasonably conclude that this “over-react[ion]” was motivated by the plaintiff's protected First Amendment activity), appeal dismissed sub nom. Douglass v. Swender, No. 23-3027, 2023 WL 5179124 (10th Cir. Mar. 1, 2023). Although the parties dispute the precise scope of the criminal trespass warning issued to Rios, the parties agree that Rios was prohibited from accessing at least some VIA buildings. Nov. 24 Incident Report 4; Perez Decl. 1; Nov. 24 Supp. Incident Report 7. But Rios was detained on what Perez admitted was public property, Flores Bodycam Footage 00:15:44, and neither side contends that Rios accessed any VIA buildings prior to his detainment, see generally Mot.; Resp. It therefore does not necessarily follow why Rios was to be prohibited from accessing VIA facilities. The apparent lack of justification for the criminal trespass warning could lead a reasonable jury to infer a retaliatory motivation. There is therefore a material dispute of fact as to whether Lara, Flores, Sarinana, and Perez arrested Rios in retaliation for his exercise of First Amendment rights.

ii. There is a material issue of fact as to whether Lara, Flores, Perez, and Sarinana are entitled to qualified immunity.

The Fifth Circuit has held that “government retaliation against a private citizen for exercise of First Amendment rights cannot be objectively reasonable.”Keenan, 290 F.3d at 261 (citing Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996)); see also Miller, 2021 WL 3474006, at *5 (collecting cases). Further, First Amendment auditor activities and similar, such as recording the police, are clearly established as First Amendment protected activities within the Fifth Circuit. Miller, 2021 WL 3474006, at *5 (collecting cases); see also Ramos, 125 F.4th at 685; Lieutenant Driver, 848 F.3d at 688. But a law enforcement officer is nonetheless protected by qualified immunity against a First Amendment retaliatory arrest claim if probable cause existed or a reasonable police officer could have believed that probable cause existed. Rucker v. Marshall, 119 F.4th 395, 402 (5th Cir. 2024)(citing Roy v. City of Monroe, 950 F.3d 245, 255 (5th Cir. 2020)).

But as discussed in connection with Rios's Fourth Amendment unlawful seizure claim, a fact dispute prevents the Court from conclusively determining that a reasonable officer in Lara or Flores's position could have believed that probable cause existed to arrest Rios on November 24, 2021. This same fact dispute precludes entry of summary judgment for Lara and Flores on Rios's First Amendment claim on qualified immunity grounds. See Brooks v. City of W. Point, 639 F. App'x 986, 989 (5th Cir. 2016) (overturning summary judgment when the determination of qualified immunity as to First Amendment retaliation claim turned on disputed issues of fact as to whether there was probable cause for arrest); Keenan, 290 F.3d at 261.

As to Sarinana and Perez, they arrived on the scene after Lara and Flores. In a multi-defendant case, each officer's entitlement to qualified immunity must be made separately, considering their unique circumstances in relation to the incident. See Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007) (collecting cases). But although Sarinana arrived on the scene after Rios was originally detained, the evidence shows that he also had knowledge of the same facts from which a reasonable jury could conclude that there was no probable cause to arrest Rios. Footage from Sarinana's body camera shows that he recognized that Rios was a First Amendment auditor and communicated this fact to Lara. Sarinana Bodycam Footage 00:00:30–00:00:50. Further, Sarinana was the first Officer to realize that Rios was not drunk and that the can in the paper bag did not contain an alcoholic beverage. Id. at 00:03:57, 00:04:30–00:05:05. Indeed, Sarinana informed Lara she should release Rios unless she had probable cause to arrest or detain him. Id. at 00:04:30–00:05:05.

The evidence similarly shows that Perez was also aware of thesefacts. Footage from his body camera shows that shortly after he arrived on the scene, Perez was informed that Rios was an auditor, that the Officers “[did] not have anything [on Rios],” and that Rios was not drunk. Perez Bodycam Footage – Nov. 24 Incident 00:00:45–00:01:35. Not with standing this information, Perez proceeded to leave Rios laying handcuffed on the ground, further prolonging his detention, and issued him the CTW. Accordingly, none of the Officers are entitled to qualified immunity from Rios's First Amendment retaliation claim in connection with the November 24, 2021, incident, and the Court denies the Officers' Motion as to this claim.

b. Gutierrez and Perez did not retaliatorily arrest Rios in violation of the First Amendment on March 8, 2022, and Rios's retaliatory prosecution claim similarly fails.

Turning to the events of March 8, 2022, Rios alleges that Gutierrez and Perez arrested and then pursued charges against him in retaliation for exercising his First Amendment rights—namely, for filming police officers on a public sidewalk. 2d Am. Compl. ¶¶ 165–78.

Again, the right to record police is clearly established within the Fifth Circuit, Lieutenant Driver, 848 F.3d at 688, thus satisfying the first element of a First Amendment retaliation claim as to these allegations. And an arrest is sufficient to chill a person of ordinary firmness from engaging in that activity. Stafford, 2024 WL 4575123, at *2. But a review of the evidence does not establish that Rios's filming of the police was the “but-for” cause of his arrest and subsequent prosecution. See Nieves, 587 U.S. at 399.

For the reasons discussed above in connection with Rios's Fourth Amendment unlawful arrest claim related to the March 8, 2022, incident, a reasonable police officer in Gutierrez and Perez's position could find that there was probable cause to arrest Rios due to the active CTW against him, and his apparent location. And as established, the existence of probable cause generally precludes a claim for First Amendment retaliation, whether retaliatory arrest or prosecution. See Degenhardt v. Bintliff, 117 F.4th 747, 758 (5th Cir. 2024); Butler Snow, 75 F.4th at 499. But Plaintiff argues that even if probable cause did exist, an exception to the usual rule barring a retaliation suit should apply. Resp. 10.

In Nieves, the Supreme Court held that the existence of probable cause generally defeats a claim for a retaliatory arrest in violation of the First Amendment. 587 U.S. at 403–04. But the Court also established an exception in instances “where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Id. at 406. Thus, when a plaintiff presents “objective evidence” that he was arrested while “otherwise similarly situated individuals not engaged in the same sort of protected speech” were not, a plaintiff can still maintain a First Amendment retaliation cause of action even if there was probable cause. Id. at 407; see also Roy v. City of Monroe, 950 F.3d 245, 255 n.4 (5th Cir. 2020) (citingNieves, 587 U.S. at 406).

A plaintiff does not need to provide evidence of “virtually identical and identifiable comparators,” but a plaintiff must produce objective evidence that shows that they were arrested in circumstances where others not engaging in similar protected speech were not. Gonzalez v. Trevino, 602 U.S. 653, 658(2024) (per curiam). Importantly, as with a probable cause analysis, the subjective motivations of a particular police officer are “irrelevant.” Nieves, 587 U.S. at 407. For example, in Trevino, a city council member alleged she was arrested in retaliation for her efforts in attempting to orchestrate the removal of the city manager. 602 U.S. at 655–57. The city council member was charged with violating a Texas anti-tampering statute after she had allegedly mistakenly retained a copy of a petition. Id. at 657. Although she did not dispute that there was probable cause to arrest her, she surveyed the county's misdemeanor and felony data for the prior decade and alleged that the statute had never been used to criminally charge someone in these same circumstances. Id. The Supreme Court held that this was sufficient objective evidence to show that officers have “declined to arrest someone for engaging in such conduct in the past,” which would potentially give rise to a constitutional violation. Id. at 658.

In Miller v. Salvaggio, a man was charged with violating a Texas law that prohibited carrying firearms in court after he attempted to access a government building with a rubber gun to complain about what he perceived as unlawful enforcement of the same law. No. 23-50894, 2024 WL 5116799, at *1–2 (5th Cir. Dec. 16, 2024). After eventually submitting a complaint once he had removed the supposed firearm and was allowed to enter, he was arrested in a midnight raid on his home in which the city police chief himself participated. Id. at *2–3, 7–8. The chief also allegedly laughed at the plaintiff and indicated that the police officers were “sending [him] a message” by arresting him. Id. at *8. The plaintiffs submitted deposition testimony from one of the police officers indicating that she had not detained anyone for violating that Texas law previously, as well as testimony that the police's actions in conducting the midnight raid on the man's home were “highly irregular for a non-violent misdemeanor offense.” Id. Additionally, the plaintiffs also submitted evidence regarding the temporal connection between the plaintiff's arrest and the submission of his complaint, the statements made by and the behavior of the police chief, and his arrest warrant's focus on the man's status as an “auditor.” Id. This evidence did not show that police officers in that city would otherwise typically exercise their discretion and not arrest individuals for violating that Texas law. Id. Therefore, the Fifth Circuit held that this evidence was insufficient to establish that the plaintiffs' First Amendment claim fell within the Nieves exception. Id. Further, any evidence regarding the behavior or statements of the police chief or other officers was also insufficient because this spoke to their subjective motivations, which are disregarded by courts in determining whether the Nieves exception applies. Id. at *9. Because the objective evidence demonstrated that there was probable cause to arrest the man for violating the Texas statute, the Fifth Circuit affirmed the trial court's dismissal of the plaintiffs' claim. Id.

Here, the only evidence that Rios submits in support of his claims are the affidavits from himself, his wife, and Tullos. See generally Resp. Exs. And their testimony does not provide any evidence that VMTPD officers would typically exercise their discretion not to arrest for trespassing other individuals that were similarly situated to Rios but not engaged in protected activity. See generally id. Nor does any of the evidence submitted by the Officers. Further, although Rios alleges the existence of a policy of targeting auditors, see, e.g., 2d Am. Compl. ¶ 4, he submits no evidence of such a policy. And even if he did, he would also need to demonstrate that the VMTPD usually exercised their discretion not to arrest non-auditors in similar situations. See Salvaggio, 2024 WL 5116799, at *8. Finally, although Tullos and Rios's testimony indicates their belief that the Officers' behavior demonstrates that they treated Rios differently because of his status as an auditor, the subjective motivations of the police officers involved are irrelevant. See id. at *9. Here, the objective evidence demonstrates only that Rios had an active CTW against him and that a reasonable police officer in Perez's and Gutierrez's positions could conclude they had probable cause to arrest him. There is no evidence, such as that submitted in Trevino, about whether other people are arrested for trespassing by VMTPD. Accordingly, Perez and Gutierrez are granted summary judgment as to Rios's First Amendment retaliatory arrest and prosecution claims.

3. Fourteenth Amendment Claim for Denial of Medical Treatment

The Officers argue that Lara, Flores, Sarinana, and Perez are entitled to qualified immunity and dismissal of Rios's claims of denial of medical care because the evidence shows that Rios did not sustain physical injuries. Mot. 15–17. Rios counters that he sustained visible injuries and that the Officers ignored his complaints of pain. Resp. 8–9.

The Fourteenth Amendment protects an arrestee or pre-trial detainee's right “not to have their serious medical needs met with deliberate indifference on the part of ․ officials.” Brooks v. Taylor County, 592 F. Supp. 3d 550, 556 (N.D. Tex. 2022) (citing Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001)). “Deliberate indifference is an extremely high standard to meet.” Domino v. Texas Dep't of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001). To succeed on a deliberate indifference claim, a plaintiff must show that (1) the official was aware of facts that gave rise to an inference that a substantial risk of serious harm existed, and (2) the official drew this inference and disregarded the risk. Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (citing Domino, 239 F.3d at 755). Deliberate indifference cannot be inferred from a negligent or even grossly negligent response to a substantial risk of serious harm. Id. at 381. Thus, “an officer's failure to immediately recognize ambiguous symptoms as a medical emergency does not amount to deliberate indifference.” Trevino v. Hinz, 751 F. App'x 551, 555 (5th Cir. 2018).Absent a request for medical attention, only an obvious medical emergency suffices to put officers on notice. See Bias v. Woods, 288 F. App'x 158, 162 (5th Cir. 2008) (citing Farmer v. Brennan, 511 U.S. 825, 842 & n. 8 (1994)). Courts have applied the deliberate indifference standard in instances where an individual has not been formally arrested and taken into police custody. See, e.g., United States v. Mitchell, No. 10-cr-284, 2012 WL 1118599, at *7 (E.D. La. Apr. 3, 2012)(collecting cases for the proposition that “[a] plaintiff can maintain a denial of medical care claim even if the events that give rise to the claim occur before he is in custody”), aff'd, 538 F. App'x 369 (5th Cir. 2013).

Rios and Tullos both testify that Rios repeatedly asked for medical attention and that his requests were ignored. Rios Aff. ¶ 8; Tullos Aff. ¶ 8. They also testify that he had visible injuries after he was tackled to the ground and that the Officers failed to assess or treat them. Rios Aff. ¶ 8; Tullos Aff. ¶ 8. But although courts review evidence in the light most favorable to the moving party at the summary judgment stage, courts “assign greater weight ․ to the facts evident from video recordings taken at the scene.” Carna by v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (citing Scott v. Harris, 550 U.S. 372 (2007)). Courts need not defer to a party's description of the facts when they are shown by the video to be inaccurate. Id. The body camera footage shows that Rios said that he hit his head on the ground, Flores Bodycam Footage 00:01:22, and also that he said that the handcuffs were applied too tightly on multiple occasions, see, e.g., id. at 00:02:23; id. at 00:04:38–00:04:41. But the footage does not show Rios requesting medical attention or complaining that his head was in pain, beyond grimacing and grunting in a few instances. See, e.g., id. at 00:10:25. And Sarinana checked Rios's handcuffs, demonstrating that they were loose enough that he could fit his fingers between the cuffs and Rios's wrists. Sarinana Bodycam Footage 00:02:25–00:02:35. Once Rios was released from handcuffs, he can be seen standing up under his own power and without any blood or other visible sign of injury to his face. Mot. Ex. A-2 (“Lara Bodycam Footage”) 00:13:40–00:13:58; Solari Bodycam Footage 00:06:50–00:07:40.

In sum, the footage does not establish that Rios was seriously harmed or in danger of serious harm, much less that the Officers were aware of and disregarded such a danger. See Est. of Bonilla ex rel. Bonilla v. Orange County, 982 F.3d 298, 305 (5th Cir. 2020). None of the hallmarks of danger from other cases in which such claims have been allowed to proceed are present here. See, e.g., Brannan v. City of Mesquite, No. 19-cv-1263, 2020 WL 7344125, at *4–6 (N.D. Tex. Dec. 14, 2020) (inferring police officer's knowledge of substantial risk of harm to individual when plaintiff alleged that officers knew that individual had swallowed narcotics prior to her death). And far from disregarding any risk to Rios, the Officers were reasonably attentive to Rios's needs, checking the tightness of his handcuffs and, on at least two occasions, offering to sit him up or move him to a more comfortable position. See, e.g., Flores Bodycam Footage 00:03:30, 00:06:13; Sarinana Bodycam Footage 00:02:28–00:02:38. Rios responded to this by telling Sarinana not to touch him, which the Officers could reasonably interpret as indicating that Rios did not want or require assistance. Id.

Accordingly, the Court grants the Officers summary judgment as to Rios's Fourteenth Amendment Denial of Medical Care claim.

3. Supervisory Liability Claim

Finally, Rios asserts a claim for supervisory liability against Perez on the grounds that Perez continued his unlawful detention upon arriving at the scene on November 24, 2021, and then “preceded [sic] to enforce VIA's Auditor policy by issuing an overbroad and unconstitutional criminal trespass warning despite knowing that Rios was never on VIA-owned or controlled property.” Resp. 11. The Officers argue that Perez is entitled to qualified immunity on this claim. Mot. 22–23.

“There is no vicarious or respondeat superior liability of supervisors under section 1983.” Schwarzer v. Wainwright, No. 18-cv-34, 2023 WL 2950639, at *19 (S.D. Tex. Jan. 17, 2023) (citations omitted), adopted, 2023 WL 2645538 (Mar. 27, 2023). “A supervisory official may be held liable [for the actions of his subordinates] ․ only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (citing Gates v. Texas Dep't of Prot. & Reg. Servs., 537 F.3d 404, 435 (5th Cir.2008)).

Demonstrating liability under prong one of § 1983 supervisory liability requires that the supervisor in question was personally involved in the constitutional deprivation or engaged in wrongful conduct causally connected to the constitutional violation.¹⁰ See Lieutenant Driver, 848 F.3d at 696 (citing Mesa, 543 F.3d at 274). This “overt personal participation” in the violation of a plaintiff's constitutional rights generally requires a “command, signal, or ․ other form of direction to the [subordinate] officers” that prompts them to engage in the actions violating a plaintiff's rights. Mesa, 543 F.3d at 274. Accordingly—under the personal involvement prong—supervisory law enforcement officers arriving at a scene are not liable for acts committed by their subordinate officers before they arrived unless there is evidence that the subordinate officers engaged in these actions at the supervisor's direction. See Lieutenant Driver, 848 F.3d at 695–96; Chalmers v. City of Dallas, No. 22-cv-585, 2022 WL 17039086, at *5 (N.D. Tex. Nov. 16, 2022), adopted, 2022 WL 17069571 (Nov. 17, 2022).

Certainly, there is evidence that Perez personally participated in the November 24 incident—he arrived on scene last and was the one who issued the CTW. As discussed above, Rios's First Amendment retaliation claim against Perez, individually, for these actions is proceeding past summary judgment. But “supervisory liability under the ‘personal involvement’ theory requires something more than mere presence at the scene where subordinates allegedly violated the plaintiff's constitutional rights.” Mesa, 543 F.3d at 274. While Perez himself participated with the other Officers in detaining Rios for several minutes after he arrived, and while he himself issued the CTW to Rios, there is no evidence that he gave any “command” or “signal” to any of the other Officers, either before or after he arrived on scene, instructing them to violate Rios's constitutional rights. See id.

Accordingly, Perez is granted summary judgment as to this claim.

III. CONCLUSION

For the foregoing reasons, Defendants' Motion for Summary Judgment, ECF No. 29is GRANTED in part and DENIED in part.

The Motion is GRANTED as to Plaintiff's supervisory liability claim; Fourteenth Amendment denial of medical care claim; Fourth Amendment unlawful arrest, search, and seizure claims in relation to the March 8, 2022, incident against Gutierrez and Perez; and his First Amendment retaliatory arrest and prosecution claims in relation to the March 8, 2022, incident against Gutierrez and Perez.

The Motion is DENIED as to Plaintiff's Fourth Amendment unlawful seizure claim against Lara and Flores; his Fourth Amendment excessive force claim against Lara and Flores; and his First Amendment retaliatory arrest claim against Lara, Flores, Sarinana, and Perez related to the November 24, 2021, incident.

SO ORDERED.

FOOTNOTES

1.   Several exhibits, including the Flores Bodycam Footage, were submitted to the Court via a cloud-based file-sharing service. See Dec. 20, 2024, Order, ECF No. 40; Advisory, ECF No. 41.

2.   In his original Complaint, Rios also brought claims under state law for negligent hiring, supervision, training, and retention, and respondeat superior against Flores's employer, Universal Protection Service. Compl. ¶¶ 208–214, 215–218. He removed these claims when amending his complaint the first time. Compare Compl., with Am. Compl.

3.   When assessing qualified immunity, the Court must consider each defendant's entitlement to qualified immunity separately. Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007) (collecting cases). But “[s]eparate consideration does not require courts to conduct a separate analysis for each officer in those cases where their actions are materially indistinguishable, it merely requires them to consider each officer's actions.” Id. at 422 n.3 (emphasis in original). Because Lara and Flores encountered Rios together, tackled and handcuffed him together, and continued to detain him together, neither of them are entitled to qualified immunity from the unlawful seizure claim for essentially the same reasons. See, e.g., Goode v. Baggett, 811 F. App'x 227, 237 (5th Cir. 2020) (“The district court properly considered each [o]fficer's actions․ [A] separate analysis for each [o]fficer wasn't necessary.”).

4.   This creates a similar factual dispute as to whether Flores and Lara could reasonably view Rios as posing a flight risk.

5.   As with the unlawful seizure claim, the Court considers Lara and Flores's individual actions when determining their entitlement to qualified immunity on the excessive force claim but does so together because the evidence shows that both Officers took Rios to the ground together. Meadours, 483 F.3d at 422 n.3.

6.   The Court takes judicial notice of the fact that VIA Centro Plaza is located at 909 West Houston Street.

7.   As before, the Court takes judicial notice of these two locations and the distance between them.

8.   Other than the fact that the search and seizure was conducted incident to an unlawful arrest, Rios also appears to allege that the confiscation of his gun was unlawful because the fact that it was not “immediately” seized when he was placed under arrest shows that the Officers did not seize it due to safety concerns. 2d Am. Compl. ¶ 191. The notion that officers do not need to seize an arrestee's gun for safety reasons makes little sense. And in any event, “a search incident to ․ arrest requires no additional justification.” Riley, 573 U.S. at 384 (quoting Robinson, 414 U.S. at 235).

9.   To be sure, Rios himself demanded that the officers call a supervisor on multiple occasions. See, e.g., Flores Bodycam Footage 00:06:50. And Lara attests that it is VMTPD policy to contact a supervisor once an individual is detained. Lara Decl. 2. But to the extent that there are other plausible, non-retaliatory reasons for the fact and length of Rios's detention, the Officers' intentions are for a jury to determine.

10.   Rios appears to only assert a supervisory liability § 1983 claim against Perez under this affirmative participation prong.