from the United States District Court for the Southern
District of Texas
KING, OWEN, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Jonathan Davidson was arrested during a protest of a Planned
Parenthood in Stafford, Texas. Davidson subsequently brought
suit under 42 U.S.C. § 1983 for violations of his rights
under the First and Fourth Amendments against Defendants
Officer Steven Flagg, Officer Dan R. Jones III, Chief of
Police Bonny Krahn, and the city of Stafford. The district
court held that the individual officers were entitled to
qualified immunity and that Davidson failed to create a
dispute of fact for municipal liability for the City of
Stafford. Davidson appeals. For the reasons discussed below,
we AFFIRM IN PART, REVERSE IN PART, and REMAND.
Factual and Procedural Background
March 31, 2013, Davidson arrived at the Planned Parenthood
clinic (the "Clinic") in Stafford, Texas to protest
and express his pro-life views. The Clinic is part of a
commercial strip center located along the southbound feeder
of U.S. 59. During his protest, Davidson stood in a green
space between the parking lot of the commercial strip center
and U.S. 59. The green space was bounded by the parking lot,
U.S. 59, and at least one entryway from U.S. 59 to the
protest consisted of standing in the green space, holding a
sign that said "Pray to End Abortion, " and waving
at cars both on U.S. 59 and in the parking lot. If a car
stopped, Davidson would speak to the passengers and offer
them a card with a phone number to a service that offers free
pregnancy tests and ultrasounds.
his protest, Davidson was approached by a Clinic employee,
Marilyn Chosed. Although the parties disagree on what exactly
happened, both agree that Chosed informed Davidson that he
had to leave. This exchange prompted Chosed to contact the
Stafford Police Department ("Stafford PD"). During
her phone call to Stafford PD, Chosed stated that "we
have a protester out here and he keeps coming off of the area
that he's supposed to and flagging down our patients
before they come in the clinic." Chosed also provided
the operator with a physical description of Davidson. The
operator subsequently put out a dispatch stating that there
was a "suspicious person call at Planned
Parenthood." The operator then said "There's a
white male . . . who is flagging down customers before they
Steven Flagg of the Stafford PD was dispatched to the Clinic
following the dispatch call. Upon arrival, he observed
Davidson standing in the green space outside the parking lot.
Officer Flagg proceeded to enter the Clinic and speak with
Chosed, who informed Officer Flagg that Davidson had been
walking in front of the Clinic and in the parking lot,
approaching patients on the sidewalk and in the parking lot,
and delaying or inconveniencing patients as they attempted to
enter the Clinic. Chosed also informed Officer Flagg that she
had warned Davidson that he was both trespassing on Clinic
property and harassing Clinic patients, and that he needed to
leave. Based on his conversation with Chosed, Officer Flagg
believed that Davidson was walking in the parking lot and
following patients to the entryway of the Clinic. Officer
Flagg clarified that Chosed did not inform him where exactly
Davidson had been walking. Officer Flagg also testified that
Chosed did not state anything about Davidson stopping
vehicles, and that, based on Chosed's description, he did
not believe Davidson was delaying vehicles.
second officer, Dan R. Jones III, was dispatched as a backup
unit to Officer Flagg and arrived shortly after Officer Flagg
arrived. Together, the officers approached Davidson and asked
him to come to them in the parking lot. Davidson responded
that he could not, but the officers again asked Davidson to
approach them. At this stage, the parties' facts diverge.
On the one hand, Davidson claims that the officers began
accusing him of harassing Clinic customers, to which Davidson
responded that he was there to pray, hold his sign, and hand
out cards. Davidson also claims to have informed the officers
that he had no way of knowing which people entering the
parking lot were Clinic customers. On the other hand,
Officers Flagg and Jones each claim that Officer Flagg asked
Davidson whether he was approaching patients or stopping
vehicles, to which Davidson responded in the
affirmative. The officers also claim that
Officer Flagg asked Davidson where he was approaching
patients, but Davidson did not provide a direct response.
Finally, Davidson's police report indicates that Officer
Flagg asked Davidson whether he was on business property, to
which Davidson stated that he knew what he was and was not
allowed to do.
point, Davidson backed away from the officers and acted as if
he was going to continue protesting. Officer Flagg asked
Davidson to come back and continue speaking to both officers.
Officer Flagg also asked Davidson for identification.
Davidson said he did not have any identification and that his
name was "Jonathan." Officer Flagg repeatedly asked
Davidson for identification or his last name, to which
Davidson responded with either "Jonathan" or
"Jon." Based on these responses, Officers Flagg and
Jones arrested Davidson. As they arrested Davidson, the
officers stated "you don't ID, you go to jail"
and "you fail to ID, you got to jail." Upon a
request from Davidson to know why he was being arrested, one
of the officers stated "fail to ID, when we're
conducting an investigation, did not identify yourself to the
police." Davidson again informed the officers that his
name was Jonathan and that he was not operating a motor
vehicle, but an officer stated "when we're
conducting an investigation, fail to give your name to the
police, you go to jail."
was charged with failure to identify under Texas Penal Code
§ 38.02 and taken to Fort Bend County Jail. He was
released later that night. Approximately a year later,
Davidson's attorney sent a letter to the City of Stafford
("the City") to confirm that Davidson would not be
subject to any present or future prosecution. The City
responded that it would not prosecute Davidson for his
previous conduct but did not state whether it would prosecute
Davidson for similar conduct in the future. Davidson
testified that he intends to protest the Clinic in the future
but had not returned because he does not want to end up back
subsequently filed suit, alleging claims under 42 U.S.C.
§ 1983 for violations of his rights to both freedom of
speech under the First Amendment and freedom from
unreasonable searches and seizures under the Fourth
Amendment. Davidson also asserted an as-applied challenge to
Texas Penal Code §§ 38.02 and 42.03. Davidson named
Officers Flagg and Jones, Chief of Police Bonny Krahn, and
the City as defendants. Davidson's complaint sought
damages, including punitive damages, as well as a declaration
that Defendants' actions, policies, and practices
violated the Constitution.
an answer by the Defendants and discovery, Defendants filed
motions for summary judgment. The district court ultimately
granted summary judgment in favor of the Defendants on all
claims. The district court held that (1) Officer Flagg,
Officer Jones, and Chief Krahn were entitled to qualified
immunity and (2) the City was entitled to summary judgment
because Davidson failed to demonstrate any policy that caused
Davidson's alleged constitutional violation.
Jurisdiction and Standard of Review
district court had subject matter jurisdiction over
Davidson's claim under 28 U.S.C. § 1331, and this
court has jurisdiction to review the final judgment under 28
U.S.C. § 1291.
appeal from a grant of summary judgment is reviewed de novo.
Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th
Cir. 2010). "The court shall grant 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). "When
considering a motion for summary judgment, the court views
all facts and evidence in the light most favorable to the
non-moving party." Howell, 827 F.3d at 522
(quoting Moss, 610 F.3d at 922).
appeal both challenges the district court's grant of
summary judgment on his § 1983 claims and argues that
the district court failed to address his claims that the
City's actions ...