* District Judge of the Eastern District of Missouri, sitting by

designation.

REVISED APRIL 29, 2002

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 01-50360

_______________________

RICHARD M. KEENAN and RAY PRZYBYLSKI,

Plaintiffs-Appellants,

versus

RUBEN TEJEDA, Bexar County Constable, Precinct Five,

Individually and in his Official Capacity,

JOSEPH MARTINEZ, Bexar County Constable, Precinct Five,

Individually and in his Official Capacity, and

BEXAR COUNTY, TEXAS, a political subdivision of the 

State of Texas,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas, San Antonio Division

_________________________________________________________________

April 23, 2002

Before JONES and DeMOSS, Circuit Judges, and LIMBAUGH, District

Judge.*

EDITH H. JONES, Circuit Judge:

Richard Keenan and Ray Przybylski alerted the Bexar

County district attorney and a San Antonio television station to

possible wrongdoing by a Bexar County constable, Ruben Tejeda.
2

After the television station aired a critical report on the

constable, Keenan and Przybylski were subjected to a “felony”

traffic stop by numerous officers with guns drawn, and Keenan was

prosecuted unsuccessfully for “deadly conduct” for allegedly

pointing a gun at the constable. Keenan and Przybylski then filed

this § 1983 action against Constable Tejeda, Deputy Constable

Joseph Martinez, and Bexar County. The district court granted

summary judgment for the defendants. We hold that (1) the

defendants were not entitled to summary judgment on the plaintiffs’

First Amendment retaliation claim, (2) fact questions exist as to

whether Constable Tejeda and Deputy Constable Martinez are entitled

to qualified immunity from suit, (3) the plaintiffs waived their

Equal Protection and Due Process claims by not properly presenting

them to the district court, and (4) Bexar County is not subject to

liability under § 1983.

I. FACTS AND PROCEDURAL HISTORY

Keenan and Przybylski worked for several months in 1995

as reserve deputy constables for Precinct Five of Bexar County.

During this time, Keenan and Przybylski observed on-duty deputy

constables serving notices to vacate premises and providing private

security services. In return for his deputies’ services, Constable

Ruben Tejeda would collect a small fee. Keenan and Przybylski
1 Op. Tex. Att’y Gen. No. 97-026 (1997); Op. Tex. Att’y Gen. No. 97-069

(1997). Both opinions were issued in response to queries from the Bexar County

Criminal District Attorney.

3

believed these practices were unlawful, a view confirmed by two

Texas Attorney General Letter Opinions.1

After resigning their positions, Keenan and Przybylski

reported these activities to the Bexar County district attorney and

a San Antonio television station, KENS-TV, which aired a highly

critical, six-part investigative report entitled “Constable Cash”

in November 1996. Richard Keenan appeared in the “Constable Cash”

series as a disguised informant. Despite the attempt to conceal

Keenan’s identity, Constable Tejeda and Deputy Constable Joseph

Martinez apparently believed (according to the chief deputy

constable) that Keenan and Przybylski were responsible for exposing

the improper practices in the constable’s office. Keenan and

Przybylski allege that Constable Tejeda and his deputies began

harassing them in retaliation for exercising their First Amendment

rights. The plaintiffs focus on two incidents.

First, in June 1997, Deputy Constable Martinez stopped

Przybylski’s car as Przybylski and Keenan were driving down a

heavily-traveled street in San Antonio at 11:45 p.m. on a Sunday

night. Chief Deputy Constable Michael Lacey stated in his

affidavit that he drove to the scene because he had heard a deputy

say over the precinct’s radio that he had “spotted Keenan and
2 Martinez and the other deputy constables have stated in affidavits

that they observed a traffic violation, that they did not know who was in the car

until one of the deputies asked Przybylski for his driver’s license, and that

they never drew their weapons. But, given the procedural posture of this case,

we view the evidence in the light most favorable to the plaintiffs. 

4

Przybylski,” and Deputy Martinez had said, “Let’s get them.” When

Lacey arrived, Martinez and three other deputies were holding

Keenan and Przybylski at gunpoint.2 Constable Tejeda arrived

shortly thereafter with several other deputy constables and four

officers from the San Antonio Police Department. The constables

detained Keenan and Przybylski for approximately 30 minutes to an

hour and cited Przybylski for driving without a rear license-plate

light. The police report suggests that Przybylski showed the

officers that the light was working, but Deputy Martinez wrote in

his report that the “light was inoperable at the time of the

offense.” The traffic ticket was later dismissed.

Second, in December 1997, Keenan attempted to videotape

Constable Tejeda using part-time constable employees illegally to

provide security services at a private facility. Constable Tejeda

noticed Keenan and ordered Deputy Constable Martinez to arrest him

on a misdemeanor “deadly conduct” charge. Constable Tejeda

maintains that Keenan pointed a gun at him. Keenan admits carrying

a 9mm pistol in the glove box of his car, but he insists that he
3 Keenan and Przybylski also allege that, at several times during 1997

and 1998, Constable Tejeda and Deputy Constable Martinez ordered or encouraged

other employees of Precinct 5 to file false or misleading police reports

involving Keenan and Przybylski. Most of these reports appear to have been filed

in connection with the traffic stop and deadly conduct incidents. The only other

evidence of false statements constitutes inadmissible hearsay.

5

was pointing a video camera, not a gun. Keenan was tried on the

deadly conduct charge and found not guilty.3

In 1999, Keenan and Przybylski filed this § 1983 action

against Constable Tejeda, Deputy Constable Martinez, and Bexar

County. The plaintiffs alleged that the defendants retaliated

against them for speaking out against corruption in the constable’s

office. The plaintiffs also asserted that the defendants’ actions

denied them due process and equal protection of the law.

The district court granted summary judgment for the

defendants and dismissed the plaintiffs’ § 1983 action. The

district court ruled that the plaintiffs had no First Amendment

claim for retaliation because the defendants’ actions did not

actually chill the plaintiffs’ exercise of their First Amendment

rights. The district court emphasized that Keenan and Przybylski

were not cowed by Constable Tejeda’s campaign of harassment because

they helped videotape other illegal activities and filed complaints

in 1998 and 1999. 

The district court concluded alternatively that the

traffic stop and false accusations would not have deterred a person

of ordinary firmness from engaging in speech activities. As for
6

the allegedly false prosecution of Keenan, the court noted that in

this circuit, a criminal prosecution in retaliation for the

exercise of First Amendment rights must satisfy the standards of

malicious prosecution. Colson v. Grohman, 174 F.3d 498, 513 n.8

(5th Cir. 1999); Johnson v. Louisiana Dept. of Agriculture, 18 F.3d

318, 320 (5th Cir. 1994). One of those standards is an absence of

probable cause to prosecute. The district court found that the

facts alleged by Keenan himself established probable cause for

Tejeda to believe Keenan was pointing a gun at him. The court also

found -- erroneously -- that a grand jury indictment had issued,

providing a further basis for probable cause.

Having concluded that the plaintiffs could not prevail on

their First Amendment retaliation claim, the court did not address

further the defendants’ affirmative defense of qualified immunity.

Nor did the district court analyze the plaintiffs’ due process and

equal protection claims, presumably because neither side argued

those issues in their briefs.

On the question of municipal liability, the district

court ruled that Bexar County could not be held liable for the

actions of Tejeda and Martinez because Constable Tejeda is not a

policy-maker for purposes of Monell liability, and the plaintiffs

presented no evidence of a failure to train or failure to

supervise. The plaintiffs have appealed.

II. DISCUSSION
7

We review the district court’s grant of summary judgment

de novo, applying the same substantive standard set forth in FED.

R. CIV. P. 56(c). Horton v. City of Houston, 179 F.3d 188, 191 (5th

Cir. 1999).

A. First Amendment Retaliation

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. Colson, 174 F.3d at 508. As this court explained in

Colson, if government officials were permitted to impose serious

penalties in retaliation for an individual’s speech, then the

government would be able to stymie or inhibit his exercise of

rights in the future and thus obtain indirectly a result that it

could not command directly. Id. at 509-10; Perry v. Sindermann,

408 U.S. 593, 597, 92 S.Ct. 2694, 2697 (1972).

Unlike most of this circuit’s First Amendment retaliation

cases, this case does not involve an employment or other

contractual relationship between the plaintiffs and the

governmental officials. The settled law of other circuits, which

we endorse, holds that to establish a First Amendment retaliation

claim against an ordinary citizen, Keenan and Przybylski must show

that (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
4 In the employment context, this court’s requirement of an adverse

employment action serves the purpose of weeding out minor instances of

retaliation. Colson, 174 F.3d at 510, 514.

8

in that activity, and (3) the defendants’ adverse actions were

substantially motivated against the plaintiffs’ exercise of

constitutionally protected conduct. Carroll v. Pfeffer, 262 F.3d

847, 850 (8th Cir. 2001); Smith v. Plati, 258 F.3d 1167, 1176

(10th Cir. 2001); Lucas v. Monroe County, 203 F.3d 964, 973 (6th

Cir. 2000). The issues presented by this appeal are concerned

exclusively with the second element.

The district court concluded that the defendants’

actions, even when viewed in the light most favorable to the

plaintiffs, were not so serious as to discourage a person of

ordinary firmness from continuing to speak out against corruption

in the constable’s office. Certainly, some retaliatory actions --

even if they actually have the effect of chilling the plaintiff’s

speech -- are too trivial or minor to be actionable as a violation

of the First Amendment.4 Colson, for example, involved a city

council member who alleged that the police chief and other city

officials had retaliated against her because of her criticism of

the police department’s budget. We held that the defendants’

alleged actions constituted, at most, a “steady stream of false

accusations and vehement criticism that any politician must expect

to endure;” consequently, an ordinary politician would not be
9

deterred from continuing to criticize police officials. See

Colson, 174 F.3d at 511-14. 

In this case, Keenan and Przybylski have presented

evidence of two disturbing incidents involving an undercurrent of

violence. First, several constables and other officers stopped

Przybylski’s car in June 1997 and detained both plaintiffs for an

inordinate period of time, allegedly with their guns drawn during

part of the traffic stop, and ultimately issued only a minor

traffic citation that was later dismissed. Second, Keenan was

charged with “deadly conduct,” a misdemeanor under Texas law, under

suspicious circumstances. Keenan was forced to spend thousands of

dollars to exonerate himself at trial and, at the time he executed

his affidavit, neither his pistol nor his concealed handgun license

had been restored to him. 

The question, to repeat, is whether a person of ordinary

firmness would have been deterred by these ominous events from

continuing to criticize the constable. Decisions of this and other

circuits have found that various concrete intimidating tactics

would have deterred ordinary persons from criticizing government

officials. See, e.g., North Miss. Comm., Inc. v. Jones, 951 F.2d

652, 653-54 (5th Cir. 1992)(county board’s decision to withhold

legal notice advertising); Bloch v. Ribar, 156 F.3d 673, 681 (6th

Cir. 1998)(release of confidential information regarding a rape

investigation); Nestor Colon Medina & Sucesores, Inc. v. Custodio,
5 See also Rolf v. City of San Antonio, 77 F.3d 823, 827-28 (5th Cir.

1996) (rejecting Rule 12(b)(6) dismissal of claim that condemnation of

landowners’ property was initiated in retaliation for their opposing construction

of the Applewhite Reservoir). Courts have not been reluctant to grant summary

judgment for hollow or trivial threats of retaliation. See e.g. Smith v. Plati,

supra; Sullivan v. Carrick, 888 F.2d 1 (1st Cir. 1989) (“I’m going to get you for

this, you little smurf!”).

10

964 F.2d 32, 40-41 (1st Cir. 1992)(denial of a land use permit).5

In light of these decisions, we hold that the actions of the

defendants in this case, if proved, are sufficiently intimidating

to chill the speech of a person of ordinary firmness.

Also with respect to the second element of the

retaliation claim, the district court concluded that Keenan and

Przybylski did not actually suffer an injury, inasmuch as they

persisted in exposing and challenging the constable. We are

mindful that § 1983 is a tort statute and that “[a] tort to be

actionable requires injury,” which, in this context, is the

deprivation of a constitutional right. Bart v. Telford, 677 F.2d

622, 625 (7th Cir. 1982). At the same time, “The effect on freedom

of speech may be small, but since there is no justification for

harassing people for exercising their constitutional rights it need

not be great in order to be actionable.” Id. The district court

correctly ruled that a retaliation claim requires some showing that

the plaintiffs’ exercise of free speech has been curtailed. See

Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000);

Spear v. Town of West Hartford, 954 F.2d 63, 67 (2d Cir. 1992);

Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989); but see
11

Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283,

1300 (9th Cir. 1999)(“[I]t would be unjust to allow a defendant to

escape liability for a First Amendment violation merely because an

unusually determined plaintiff persists in his protected

activity.”); Smith, 258 F.3d at 1177 (“The focus . . . is upon

whether a person of ordinary firmness would be chilled, rather than

whether the particular plaintiff is chilled.”).

The district court clearly erred, however, in finding

that the plaintiffs made no showing of an injury. In his

affidavit, Keenan explained that after the incidents in June 1997

and December 1997, he was afraid to travel in Precinct 5 and he

“backed off from direct involvement in helping expose unlawful

practices” in the constable’s office. (Keenan goes on to say,

though, that he videotaped one instance of suspected unlawful

activity and filed a complaint with a state agency against

Constable Tejeda.) Przybylski made similar assertions in his

affidavit. Thus, both plaintiffs have stated, without

contradiction, that they curtailed their protected speech

activities in response to the defendants’ actions. At this stage

of the litigation, the plaintiffs have sufficiently averred that

they were deprived of a constitutional right, even though they were

not completely silenced. A required showing of actual injury does

not necessarily mean that plaintiffs must cease criticizing the
6 The deadly conduct charge against Keenan was a Class A misdemeanor

and not an indictable offense. See Tex. Pen. Code § 22.05(a); Tex. Code Crim.

Proc. art. 2.05. 

12

government officials altogether in order to have a claim for

retaliation.

Finally, the district court articulated an alternative

reason for granting summary judgment with respect to claims arising

from the “deadly conduct” charge against Keenan. As noted above,

we have held that retaliatory criminal prosecutions in violation of

the First Amendment are actionable only if a plaintiff can also

prove the common-law elements of malicious prosecution, including

the absence of probable cause to prosecute. See Johnson, 18 F.3d

at 320; see also Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir.

1992) (“An individual does not have a right under the First

Amendment to be free from a criminal prosecution supported by

probable cause that is in reality an unsuccessful attempt to deter

or silence criticism of the government.”); Curley v. Village of

Suffern, 268 F.3d 65, 73 (2d Cir. 2001). The district court found,

however, that Constable Tejeda had probable cause to arrest and

that a grand jury indictment removed any doubt of probable cause.

The court was wrong about the indictment; there was none.6 And it

found probable cause entirely on Keenan’s own statements, accepting

those which militated in favor of probable cause and ignoring those

which did not.
13

The district court incorrectly drew its conclusion on

summary judgment despite the existence of fact issues concerning

the constable’s perception of Keenan’s actions. The court

emphasized that Keenan indisputably was pointing something at

Tejeda and that Tejeda could have believed it was a gun. Probable

cause, in the context of malicious prosecution claims, refers to

“The existence of such facts and circumstances as would excite the

belief, in a reasonable mind, acting on the facts within the

knowledge of the prosecutor, that the person charged was guilty of

the crime for which he was prosecuted.” Kerr v. Lyford, 171 F.3d

330, 340 (5th Cir. 1999). Constable Tejeda is entitled to summary

judgment only if the ultimate finding of probable cause is not the

subject of a genuine, material factual dispute. Id. But the only

fact supporting the deadly conduct charge is Constable Tejeda’s own

assertion that “I am a trained law enforcement officer, and I know

a gun when I see it.” Neither of the other two officers present

saw Keenan point a gun. (Deputy John Rothenbach stated in his

affidavit that he told Constable Tejeda that he thought he had seen

Keenan drive by earlier in the evening.) Chief Deputy Lacey and

another deputy conducted a re-enactment about a week after the

arrest, and they concluded it was unlikely that Constable Tejeda

could have seen someone in a moving vehicle and in the dark

pointing a gun at him. Moreover, the manner of the arrest – Keenan

was not hand-cuffed for quite some time; the pistol was removed
14

from his glove compartment; knives may have been planted in his

vehicle as additional incriminating evidence – may suggest that he

was not viewed as a threat despite the nature of the charge

eventually filed. For summary judgment purposes, there are genuine

issues of material fact concerning whether the deadly conduct

charge lacked probable cause.

B. Qualified Immunity

Whether a government official is entitled to qualified

immunity, to the extent that it turns on a question of law, is a

question that we review de novo, even where the district court has

not passed on the objective reasonableness of the defendants’

actions. See, e.g., Kennedy v. Tangipahoa Parish Library Bd. of

Control, 224 F.3d 359, 376-77 (5th Cir. 2000).

The Supreme Court recently emphasized that claims of

qualified immunity require a two step analysis. Saucier v. Katz,

533 U.S. 194, 121 S.Ct. 2155 (2001). The threshold question is

“whether the facts alleged, taken in the light most favorable to

the party asserting the injury, show that the officer’s conduct

violated a constitutional right.” Price v. Roark, 256 F.3d 364,

369 (5th Cir. 2001)(citing Saucier, 533 U.S. at 201, 121 S.Ct. at

2156). Viewing the facts in the light most favorable to Keenan and

Przybylski, the defendants’ actions violated the First Amendment.

As we discussed above, Keenan and Przybylski were engaged in

constitutionally protected activity and suffered an injury that
7 In some cases, the balancing of rights required by the First

Amendment – either to determine what constitutes protected speech or to balance,

e.g., the public employee’s rights against those of the employer – strongly

favors qualified immunity. See Noyola v. Texas Dept. of Human Resources, 846

F.2d 1021, 1025 (5th Cir. 1988). In this case, however, the protected nature of

appellants’ speech is undisputed. And if a jury finds that the constable and

deputy constable were substantially motivated to and did deter appellants’

efforts to expose official misconduct, then there is no immunity shield for their

obvious wrongdoing. Such official intimidation strikes at the heart of First

Amendment freedoms.

15

would chill a person of ordinary firmness. Further, because it is

reasonable to assume (at this stage of the litigation) that the

“Constable Cash” broadcast was both politically and financially

damaging to Constable Tejeda and his deputies, and because the

harassment followed a few months after the report was aired, there

is sufficient evidence that the defendants’ actions were

substantially motivated as a response to the plaintiffs’ exercise

of protected conduct.

The next question is “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. at 2156. If

the officer’s conduct was objectively reasonable in the light of

clearly established federal law, he is entitled to qualified

immunity from suit. This court has stated that government

retaliation against a private citizen for exercise of First

Amendment rights cannot be objectively reasonable. Rolf, 77 F.3d

at 828.7 The Rolf case did not, however, consider a situation in

which law enforcement officers might have a motive to retaliate but
16

there was also a ground to charge criminal conduct against the

citizen they disliked. In that situation, the objectives of law

enforcement take primacy over the citizen’s right to avoid

retaliation. See Mozzochi, 959 F.2d at 1179. The test for

qualified immunity, therefore, involves, though it does not end

with, the question of probable cause. If no reasonable police

officer could have believed that probable cause existed for the law

enforcement actions of Tejeda and Martinez against the plaintiffs,

then their retaliation violated clearly established law in this

circuit. See Rolf, 77 F.3d at 828; compare Click v. Copeland, 970

F.2d 106, 109 (5th Cir. 1992). If probable cause existed, however,

or if reasonable police officers could believe probable cause

existed, they are exonerated. Based on the several diametrically

opposed summary judgment affidavits before us, it is impossible to

determine whether qualified immunity stated in terms of probable

cause existed. Hence, qualified immunity turns on fact issues that

must be resolved by further proceedings in the trial court.

Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 842

(1996). 

C. Due Process and Equal Protection

Keenan and Przybylski included due process and equal

protection claims in their complaint, and they have briefed these

issues on appeal. These issues have not been preserved. Due

process and equal protection were not even mentioned, much less
17

argued, in the defendants’ motion for summary judgment, in the

plaintiffs’ response to the motion for summary judgment, or in the

district court’s memorandum opinion granting summary judgment. Nor

did the plaintiffs file a motion for reconsideration following the

court’s dismissal of the entire action. Because the due process

and equal protection arguments were not properly presented to the

district court, we may not consider them here. In a factually

analogous case, the First Circuit explained:

Even an issue raised in the complaint but ignored at

summary judgment may be deemed waived. “If a party fails

to assert a legal reason why summary judgment should not

be granted, that ground is waived and cannot be

considered or raised on appeal.” This is because “an

appellate court, in reviewing a summary judgment order,

can only consider those matters presented to the district

court.”

Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir.

1995)(quoting Vaughner v. Pulito, 804 F.2d 873, 877 n. 2 (5th Cir.

1986), and Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582

F.2d 333, 334 (5th Cir. 1978). The summary judgment is therefore

affirmed with respect to the plaintiffs’ due process and equal

protection claims.

D. Monell liability

The final issue is whether the district court erred in

granting summary judgment for Bexar County. A government entity

may be held liable under § 1983 only when the injury results from

the “execution of a government’s policy or custom, whether made by
18

its lawmakers or by those whose edicts and acts may fairly be said

to represent official policy.” Monell v. Deparment of Social

Services, 436 U.S. 658, 694 (1978). Keenan and Przybylski present

three arguments for subjecting Bexar County to Monell liability,

none of which is persuasive.

First, Keenan and Przybylski contend that Constable

Tejeda had policy-making authority for the county and,

consequently, that his decision to retaliate against the plaintiffs

may fairly be said to represent the county’s official policy.

Whether a county constable in Texas possesses final policy-making

authority for purposes of Monell liability is a question of state

law. McMillian v. Monroe County, Alabama, 520 U.S. 781, 786

(1997). In a case involving an unlawful arrest, this court held

unambiguously that, under Texas law, Texas county constables are

not considered policy-makers in the area of law enforcement. Rhode

v. Denson, 776 F.2d 107, 108-10 (5th Cir. 1985)(“We are unpersuaded

that a constable of a Texas county precinct occupies a relationship

to the County such that his edicts or acts may fairly be said to

represent official county policy.”). Pursuant to Rhode, Constable

Tejeda cannot be considered a policy-maker for Bexar County.

Second, Keenan and Przybylski contend that the June 1997

traffic stop was the result of the county’s “zero tolerance” policy

with respect to traffic violations on Southwest Military Drive.

According to this joint city-county policy, all Bexar County
19

officers -- whether from the sheriff’s office, constable’s office,

or city police department -- were instructed to issue citations for

all violations that the officers observed. Keenan and Przybylski

suggest that the county policy provided a pretext for Constable

Tejeda’s and Deputy Martinez’s decision to harass them. This

argument fails because the appellants do not complain about the

citation itself as much as the intimidating tactics and the length

of the detention, neither of which is attributable to the county’s

“zero tolerance” policy. More fundamentally, though, the

plaintiffs have not established the kind of “affirmative link”

between a clearly permissible county policy and the alleged

injuries that is required by our Monell caselaw. See Stokes v.

Bullins, 844 F.2d 269, 272-73, 276 (5th Cir. 1988)(citing City of

Oklahoma City v. Tuttle, 471 U.S. 808, 822-24 (1985)); see also

Board of County Comm’rs of Bryan County, Oklahoma v. Brown, 520

U.S. 397, 404 (1997)(“[A] plaintiff must show that the municipal

action was taken with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal action and

the deprivation of federal rights.”).

Third, Keenan and Przybylski contend that the county may

be held liable for its inadequate training and supervision of its

constables and deputy constables. See City of Canton, Ohio v.

Harris, 489 U.S. 378, 389 (1989)(“Only where a failure to train

reflects a ‘deliberate’ or ‘conscious’ choice by a municipality .
20

. . can a city be liable for such a failure under section 1983.”).

The plaintiffs presented no evidence of lack of training,

supervision or deliberate indifference.

III. CONCLUSION

We conclude that the district court erred in granting

summary judgment for the defendants, Constable Ruben Tejeda and

Deputy Constable Joseph Martinez, on the plaintiffs’ First

Amendment claim. Moreover, there are fact issues regarding the

appellees’ qualified immunity on this claim. In all other

respects, the judgment is affirmed. The case is remanded for

further proceedings not inconsistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.