Case 1:15-cv RP Document 43 Filed 05/25/16 Page 1 of 14

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1 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION PHILLIP TURNER, Plaintiff v. 1:15-CV-939-RP CITY OF ROUND ROCK, SERGEANT M. OSBORN, OFFICER P. HERNANDEZ, OFFICER M. SALINAS, OFFICER L. HARPER-HILL, and OFFICER D. JENNINGS, Defendants. ORDER Before the Court are Defendants Osborn, Hernandez, Salinas, Harper-Hill, and Jennings Motion to Dismiss (Dkt. 22) ( Officers Motion ) and the responsive pleadings thereto. After reviewing the pleadings, the relevant law, and the factual record, the Court issues the following Order. I. Background Plaintiff Phillip Turner ( Turner ) brings this civil action against Defendants City of Round Rock ( the City ), Sergeant M. Osborn ( Osborn ), Officer P. Hernandez ( Hernandez ), Officer M. Salinas ( Salinas ), Officer L. Harper-Hill ( Harper-Hill ), and Officer D. Jennings ( Jennings ). Turner is a student and part-time employee whose hobbies include photography and videography, including photographing police for the public s viewing on his website. (Pl. s Second Am. Compl., Dkt. 30, 13). 1 On July 20, 2014, around noon, Turner was on the sidewalk in front of the Round Rock Police Department Headquarters building videotaping the vegetation in front of the building and activity at the building. (Id. 15). He was not armed and was carrying only a video camera. 1 Though the Officers Motion was filed before Turner s Second Amended Complaint, the parties stipulated that Plaintiff s claims against the individual defendants that is, the officers are not being amended. (Stipulation, Dkt. 28, at 1). Based on the parties stipulation, the Court cites to the live pleading. 1

2 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 2 of 14 (Id. 17). He was wearing basketball shorts, a T-shirt, and some tennis shoes, (id. 16). As Turner videotaped, Hernandez and another officer approached him in a squad car, exited the vehicle, and asked him What s going on buddy? (Id. 21). Turner responded Not much, (id.), and Hernandez asked doing alright? Turner replied Yeah, I m just taking pictures. (Id.). Hernandez asked if the photos were for personal use, and Turner replied that they were. (Id.). Hernandez then asked Turner where he lived, and told him he wanted to know where Turner lived because we don t normally have people taking pictures. (Id. 22). Turner did not provide his address, and instead responded that he was taking pictures of the scenery, that s all. (Id.). Hernandez then asked Turner if he had identification. (Id. 23). Turner replied that he did. (Id.). When Hernandez asked to see Turner s identification, Turner asked Why? (Id.). Hernandez stated Turner was on private property; Turner responded that the property was public, it s a police station. (Id. 24). Hernandez continued to insist Turner identify himself, and Turner asked For what purpose? (Id. 25). Turner asked if taking photos at the site was illegal, (id.); Hernandez responded that it was not. (Id. 26). Turner then asked if he was free to go, and Hernandez responded that he was not. (Id. 26, 27). Turner replied that he would identify himself if Hernandez was accusing him of a crime. (Id. 27). Hernandez was not accusing Turner of a crime. Instead, Hernandez acknowledged that he knew Mr. Turner was a reporter but insisted that Turner identify himself in case something does happen, someday the building blows up or whatever the case may be. (Id. 27). Hernandez then threatened to place [Turner] in cuffs for failure to identify. (Id. 29). Turner insisted he had to be lawfully detained to be arrested for failure to identify; Hernandez responded that Turner was lawfully detained. (Id. 30). The predicate crime supporting detention was committing suspicious activity. (Id.). Hernandez suddenly and without warning grabbed Mr. Turner, bent Mr. Turner s arm hurting him, and handcuffed Mr. Turner.... (Id.). Hernandez took Turner s 2

3 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 3 of 14 camera and searched him. (Id. 32). Neither the officer who had approached Turner with Hernandez nor three other Defendant police officers who came to the scene prevented Hernandez from detaining Turner or otherwise d[id] anything to investigate whether there was any legal or factual basis for detaining, seizing, and arresting... Mr. Turner. (Id. 34). Defendant Sergeant Osborn arrived and began to question Mr. Turner about taking pictures. (Id. 35). Officers continued to question Turner and kept him in handcuffs until he provided his name and date of birth. (Id. 41). Turner filed suit in this Court on October 21, 2015 alleging violations of his First, Fourth, and Fourteenth Amendment rights. Turner asserts a First Amendment right to [o]bserv[e] public police activities in order to gather[] information for public dissemination, subject to reasonable time, place and manner restrictions and without interfering with police activity. (Id. 45). By detaining him for exercising his speech rights, Defendants allegedly violated Turner s First Amendment rights and chilled his exercise of speech. (Id. 50). Turner further asserts a Fourth and Fourteenth Amendment right to be free from unreasonable seizure, and a Fourth and Fourteenth Amendment guarantee that lawenforcement will not employ excessive force. By detain[ing] him and otherwise seizing him with sufficient force that Turner sustained minor physical injuries, Defendants allegedly violated Turner s Fourth and Fourteenth Amendment rights. 2 (Id. 53). Defendant Officers have moved to dismiss. They claim alternatively that they are entitled to immunity and that Turner has failed to state claims upon which relief can be granted. (Officers Motion, Dkt. 22). The parties have briefed the issues and they are ripe for review. II. Standard of Review Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of an action for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken 2 Turner further alleges the City is liable for his injuries. Because the claims against the City are not at issue in the Officer s Motion, the Court will not address them at this time. 3

4 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 4 of 14 as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court accepts all well pleaded facts as true, viewing them in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotes and citations omitted). Federal Rule of Civil Procedure 8 requires a plaintiff s complaint to contain nothing more than a short and plain statement of the claim showing that the pleader is entitled to relief. However, this standard demands more than a formulaic recitation of the elements of a cause of action, or naked assertion[s] devoid of factual enhancement. Bell Atlantic v. Twombly, 550 U.S. 544, (2007). Rather, a complaint must contain sufficient factual allegations, accepted as true, to state a claim to relief that is plausible on its face. Id. at 570. This standard is guided by two principles. First, the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id. at Thus, [a] court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. Id. at 664. However, [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. III. Discussion Turner seeks relief for violations of his federal constitutional rights. The federal civil rights statute, Section 1983 provides the vehicle for his civil action. See 42 U.S.C There are two essential elements to any Section 1983 claim. First, the conduct complained of must have been committed by a person acting under color of state law;... second, this conduct must have deprived the 4

5 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 5 of 14 plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Augustine v. Doe, 740 F. 2d 322, (5th Cir. 1984). The parties do not dispute that, at all relevant times, Defendant Officers acted under color of law. Instead, the parties dispute and the Court addresses whether Turner has sufficiently alleged the officials conduct deprived him of his rights or privileges secured by the Constitution or laws of the United States. As Turner brings suit by Section 1983, his claims are subject to its strictures. One such stricture is so-called qualified immunity. Contrasted with absolute immunity a complete protection from suit available to those with special functions or constitutional status, like legislators, judges, and certain executive officials qualified immunity is a more limited protection that balances the importance of a damages remedy to protect the rights of citizens with the need to protect officials who are required to exercise their discretion. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)) (internal quotation marks omitted). State officials performing discretionary functions under color of law are entitled to qualified immunity from civil suit if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 818. To determine whether qualified immunity applies, the courts apply the two-part test established in Saucier v. Katz. 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). Under the Saucier framework, the Court decides: (1) whether facts alleged or shown by plaintiff make out the violation of a constitutional right, and (2) if so, whether that right was clearly established at the time of the defendant's alleged misconduct. Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009). To be clearly established for purposes of qualified immunity, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Kinney v. Weaver, 367 F.3d 337, (5th Cir.2004) (en banc) (alteration in original) (quoting 5

6 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 6 of 14 Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). The Court will discuss Section 1983 and its limitations as it applies to each of Turner s constitutional allegations. Because both causes of action depend in part on the objective reasonableness of the Officers detaining Turner, the Court addresses Turner s causes of action in reverse order. Alleged Fourth Amendment Violations Turner alleges that Hernandez and the other Officers actions toward him constituted an unreasonable seizure or unlawful arrest. (See, e.g., Pl. s Second Am. Compl., Dkt. 30, 51). He alleges Hernandez unlawfully detained [him] and demanded to see his identification without reasonable suspicion to believe that Mr. Turner had engaged in, was engaging in, or was about to engage in any criminal conduct, and further that such detention required the use of excessive force. (Id.). According to Turner, [t]he other Defendants supported and continued the unlawful detention. (Id.). Defendants move to dismiss on the basis that they had the right to detain the Plaintiff, (Officers Mot., Dkt. 22, at 7 8), and that the force used to detain Turner was reasonable, (id. at 11). The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. See Davis v. Mississippi, 394 U.S. 721, 726 (1968) ( [T]he Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed arrests or investigatory detentions. ). [W]henever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person, and the Fourth Amendment requires that the seizure be reasonable. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (quoting Terry v. Ohio, 392 U.S. 1, 16 (1968)). An officer may temporarily detain people for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.... United States v. Sokolow, 490 U.S. 1, 6 (1989). An arrest, which is a more severe deprivation of individual liberty, must be based on probable cause, 6

7 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 7 of 14 which exists when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense. United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996). Turner alleges that, around noon on the day in question, he was on the sidewalk in front of the Round Rock Police Department Headquarters building videotaping the vegetation in front of the building and activity at the building. (Pl. s Second Am. Compl., Dkt. 30, 15). He carried only a video camera. (id. 17). He was wearing basketball shorts, a T-shirt, and some tennis shoes. (Id. 16). Turner remained on the public sidewalk at all times, (id. at 24), and throughout his eventual exchange with the officers he made no threats, was unarmed, and did not attempt to flee. (Id. 31). Despite this, the officers seize[d] Mr. Turner with force and arrest[ed] Mr. Turner by placing him in handcuffs. (Id. 40). Defendants respond that Turner s videotaping was suspicious. He was walking up and down a sidewalk apparently video recording officers entering and leaving the police station through a security gate. (Officers Mot., Dkt. 22, at 8). After Hernandez approached, Defendants argue Plaintiff s evasive responses to innocuous questioning heightened the officers concern and they found it necessary to exercise their authority to detain the Plaintiff for investigatory purposes. (Id.). Turner made a continued effort to impede the investigation by simply refusing to identify himself. (Id. at 9). Defendants admit they handcuffed Turner, but contest that Turner suffered injury therefrom. (Id. at 10 11). They further argue that, in any event, the amount of force used was appropriate under the circumstances. (Id. at 11). a. Unreasonable Seizure First, on a motion to dismiss courts are concerned only with whether plaintiffs have pleaded sufficient factual matter, taken as true, to state claims upon which relief can be granted. Twombly, 550 U.S. at 557. Turner pleaded that he, in the light of day and from a public sidewalk, filmed the façade of a 7

8 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 8 of 14 public building. (Pl. s Second Am. Compl., Dkt. 30, 38). That he was unarmed, in clothing that would make such readily apparent, and that he did not behave aggressively or furtively. (See Id. 16, 31). That he was detained with force, and suffered physical injuries therefrom. (Id. 53). Defendants dispute Turner s factual characterizations and the conclusions to be drawn. But the Court will not, on a motion to dismiss, resolve any factual disputes between the parties. Further, taking as the Court must Turner s factual allegations to be true, Turner has sufficiently pleaded facts to overcome Defendants assertions of qualified immunity at this early stage. Turner pleaded that Defendants violated his constitutional rights. He pleaded not only that the officers seizure was disproportional to their reasonable suspicion, but that the officers had no reasonable basis for suspecting criminal activity. (Id. 40). The requirement that officers possess reasonable, articulable bases for suspicion before exerting their authority to seize is clearly established. E.g., Delaware v. Prouse, 440 U.S. 648, 663 (1979). Turner alleges he was not trespassing, and that Defendants admitted as much, (Pl. s Second Am. Compl., Dkt. 30, 36); that he did not behave aggressively or furtively, (Id. 16, 31). Though Defendants indicated general fears about something happening someday the building blows up or whatever the case may be, (id. 27) nothing in the Complaint indicates that Turner could reasonably be implicated in a plot to harm the officers. Even taking Defendants allegations at face value which the Court does not do at this stage the allegations before the Court admit no basis for suspicion. Turner s concrete, articulable actions fall into two categories. First, he walked around the exterior of the Police Department Headquarters building filming and photographing; second, he refused to identify himself at Hernandez s request. The first apparently was not the basis for detention. Turner asked Hernandez if it was illegal to take pictures; Hernandez told him it was not. (Id. 25, 26). What is more, Turner alleges Hernandez affirmatively told Turner he had the right to photograph the station: you have that right; you really do.... (Id. 27). 8

9 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 9 of 14 The second category of actions appears to figure more prominently in the Officer s Motion. According to Defendants, Turner s continued refusal to identify himself was a continuing refusal to cooperate with their investigation, thereby justifying detention for further investigation. (Officers Mot., Dkt. 22, at 6). But it has long been clearly established that, absent an independent basis for lawful arrest, officers cannot detain for mere failure to identify. Brown v. Texas, 443 U.S. 47, 52 (1979) ( [E]ven assuming that purpose [of prevention of crime] is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. ). Indeed, Brown invalidated a Texas law enacted in 1974 allowing such demands for identification. St. George v. State, 197 S.W. 3d 806 (Tex. App. Ft. Worth 2006, pet. granted), affirmed by, 237 S.W. 3d 720 (2007). 3 Defendants are correct that the Fourth Amendment accommodates temporary detention for investigative purposes insofar as officers have a reasonable suspicion supported by articulable facts that criminal activity may be afoot.... Sokolow, 490 U.S. at 6. However, Defendants never articulate what sort of criminal activity they reasonably suspected. The Officers argument is circular they suspected Turner of being suspicious; he confirmed their suspicion by behaving suspiciously. The Fourth Amendment requires more. See Terry v. Ohio, 392 U.S. 1, 22 (1968) ( Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. ). Plaintiff has sufficiently alleged violations of his Fourth and Fourteenth Amendment rights. Defendants motion to dismiss these claims is denied. b. Excessive Force Turner argues Defendants deployed unconstitutionally excessive force when they seize[d] Mr. Turner with force and arrest[ed] Mr. Turner by placing him in handcuffs. (Pl. s Second Am. Compl., Dkt. 3 Texas later amended its failure to identify law to require a lawful arrest before a failure to identify was actionable in order to accommodate the Supreme Court s decision. See TEX. PENAL CODE 38.02(a). 9

10 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 10 of 14 30, 40). Defendants admit they handcuffed Turner, but contest that Turner suffered injury therefrom. (Officers Mot., Dkt. 22, at 10 11). They further argue that, in any event, the amount of force used was appropriate under the circumstances. (Id. at 11). The excessive use of force by a law enforcement officer in the context of an investigatory stop or arrest constitutes an unreasonable seizure in violation of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). To prevail on a Fourth Amendment excessive-force claim, a plaintiff must establish: (1) an injury; (2) that the injury resulted directly from the use of excessive force; and (3) that the excessiveness of the force was unreasonable. Carnaby v. City of Houston, 636 F. 3d 183, 187 (5th Cir. 2011) (quoting Freeman v. Gore, 483 F. 3d 404, 416 (5th Cir. 2007)). The determination of whether a plaintiff s alleged injury is sufficient to support an excessive force claim is context dependent, see Ikerd v. Blair, 101 F. 3d 430, 435 (5th Cir. 1996), but the fact that a detention or arrest is unlawful does not mean any force used to effectuate the detention or arrest was necessarily excessive, see Freeman, 483 F. 3d at 417. Excessive force claims are separate and distinct from unlawful arrest claims, and must be analyzed without regard to whether the arrest itself was justified. Freeman, 483 F. 3d at 417. Turner alleges that, in handcuffing him notwithstanding the lack of a reasonable basis for detention, Defendants deployed excessive force. (Pl. s Second Am. Compl., Dkt. 30, 40). He argues that Hernandez s bending Turner s arm, handcuffing him, and keeping him in handcuffs was excessive, as there was no indication that any force was necessary. (Id. 31). Turner alleges that he sustained minor physical injury therefrom. (Id. 63). Even accepting all of these facts as true, Turner s pleadings do not state a claim upon which relief can be granted. To state a claim for excessive use of force, the asserted injury must be more than de minimis, Freeman, 483 F. 3d at 416, and handcuffing too tightly, without more, does not amount to excessive force, Glenn v. City of Tyler, 242 F. 3d 307, 312 (5th Cir. 2001). Perhaps Turner s alleged minor physical injury was more than de minimis. Turner has not, however, pleaded sufficient factual 10

11 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 11 of 14 matter to state that it was. Cf. Freeman, 483 F. 3d at 417 (Finding that bruising on plaintiff s wrists and arms because handcuffs were applied too tightly is minor and incidental and did not give rise to a constitutional claim for excessive force). Turner s claim for unconstitutional use of excessive force is dismissed. Alleged First Amendment Violations Turner argues that Defendants detained him for exercising his speech rights, and in so doing violated his First Amendment rights and chilled his exercise of speech. (Pl. s Second Am. Compl., Dkt. 30, 50). Defendants move to dismiss on the basis that any argument that Turner s speech rights rather than a reasonable perception of suspicious behavior motivated the officers conduct must fail as a matter of law. (Officers Motion, Dkt. 22, at 6). This is because, if an officer has probable cause to believe a person is guilty of a crime, any argument that the arrestee s speech as opposed to her criminal conduct was the motivation for her arrest must fail. Mesa v. Prejean, 543 F. 3d 264, 273 (5th Cir. 2008). Two types of speech appear to be at issue in Turner s Complaint: the first is a right to film the police building and surrounding vegetation and the comings and goings of officers, (Pl. s Second Am. Compl., Dkt. 30, 25); the second is Turner s refusal to cooperat[e] with officers, (id. 35). The Fifth Circuit apparently has not explicitly noted a right to film police or outlined the contours of such a right. However, [t]he First Amendment protects a private citizen s right to assemble in a public forum, receive information on a matter of public concern - such as police officers performing their official duties - and to record that information for the purpose of conveying that information. Buehler v. City of Austin, 2015 WL *7 (W.D. Tex. Feb. 20, 2015) (citing Shillingford v. Holmes, 634 F. 2d 263, 264, 266 (5th Cir. 1981)). The right derives from the First Amendment right to receive information and ideas, Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757 (1976), with its corollary that news-gathering is entitled to first amendment protection, for without some 11

12 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 12 of 14 protection for seeking out the news, freedom of the press could be eviscerated. In re Express-News Corp., 695 F. 2d 807, 808 (5th Cir. 1982) (quoting Branzburg v. Hayes, 408 U.S. 665, 681 (1972)). Defendants do not deny Turner was free to film or photograph the façade of the Round Rock Police Department Headquarters. They instead argue it is not clearly established law that one has the right to video record all police activities under all circumstances.... (Officers Mot., Dkt. 22, at 6). 4 That is correct, see Davis v. East Baton Rouge Parish School Bd., 78 F. 3d 920, 928 (5th Cir. 1996) ( [N]either the First Amendment right to receive speech nor the First Amendment right to gather news is absolute. ), and Turner is not arguing otherwise. Instead, Turner argues that the right to gather information includes the right to record police without interfering with [police] duties, subject to reasonable time, place, and manner restrictions. (Pl. s Second Am. Compl., Dkt. 30, 45, 46). Turner s position has been endorsed by courts in other Circuits. 5 And though the Fifth Circuit has not expressly endorsed such a right, it has alluded to it. See Shillingford, 634 F. 2d at 264 (calling a policeman s assault on a man who photographed a police arrest unprovoked and unjustified, in retaliation for a bystander s photographing what the policeman did not want to be memorialized ). The Court finds that the right to film or photograph police in public, without interfering with police business and subject to reasonable time, place, and manner restrictions, is clearly established. The Court need not specify the contours of such a right beyond the facts pleaded in Turner s Complaint. 4 Defendants cite Gravolet v. Tason, an Eastern District of Louisiana case in which a man was arrested for stalking a police officer, for the proposition that running a video camera does not cure otherwise illegal conduct. (Officers Mot., Dkt. 22, at 6 7 (citing Gravolet v. Tason, 2009 WL *3 (E.D. La. June 2, 2009)). In this case, Defendants argue, Plaintiff was not arrested for videotaping..., he was detained for suspicious activities outside the secured gate of the police station and concerns he was videotaping the keypad of that gate. (Id. at 7). The Court has already addressed Defendants suspicion and found that Turner has sufficiently pleaded Defendants had no reasonable, articulable suspicion of ongoing or imminent criminal conduct. Accordingly, Gravolet is inapplicable. 5 See Am. Civil Liberties Union of Illinois v. Alvarez, 679 F. 3d 583 (7th Cir. 2012) (finding a First Amendment right to openly audio record the audible communications of law-enforcement officers... when the officers are engaged in their official duties in public places ); Glik v. Cunniffe, 655 F. 3d 78, (1st Cir. 2011) (noting an unambiguous[] constitutionally protected right to videotape police carrying out their duties in public); Smith v. City of Cumming, 212 F. 3d 1332, 1333 (11th Cir. 2000) ( [The Smiths] had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. ). 12

13 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 13 of 14 Turner filmed the exterior of a public building in the daytime from a public sidewalk. (Pl. s Second Am. Compl., Dkt. 30, 15). There is no indication in the Complaint or, looking beyond it, in the Officers Motion that Turner interfered with police business or otherwise put officers in danger. Indeed, the officers came out to him. (Pl. s Second Am. Compl., Dkt. 30, 21). Accordingly, Turner has sufficiently pleaded a right to gather information by filming police, and he has sufficiently pleaded that, by detaining him for exercising that right, officers violated his clearly established First Amendment rights. Moreover, to define Turner s speech as the mere act of filming police narrows the expression at issue in this case. The right to assert one s constitutional liberties is clearly established. The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. Enlow v. Tishomingo Cty., 962 F. 2d 501, 509 (5th Cir. 1992) (quoting City of Houston v. Hill, 482 U.S. 451, 462 (1987)). Indeed, [t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. Id. (quoting Hill, 482 U.S. at ). Turner asserted his claimed rights under the First and Fourth Amendments and, while Turner was in handcuffs, (Id. 30), Defendants lecture[d] him on cooperation. (Id. 35). Turner s allegations are sufficient to state a cognizable First Amendment claim, since his speech fails to rise above inconvenience, annoyance, or unrest, or constitute an incitement to immediate lawless action, Enlow, 962 F. 2d at 509, and Defendants detained nonetheless him therefor. The Officers Motion to dismiss Turner s First Amendment claims is denied. IV. Conclusion The Officers Motion to dismiss, (Dkt. 22), is hereby GRANTED in part and DENIED in part. 13

14 Case 1:15-cv RP Document 43 Filed 05/25/16 Page 14 of 14 The Court DISMISSES Turner s claim for excessive force. The Court DENIES the Officers Motion as regards Turner s seizure and First Amendment claims. SIGNED on May 25, 2016 ROBERT PITMAN UNITED STATES DISTRICT JUDGE 14