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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

CHRISTOPHER RUSANOWSKY,

Plaintiff,

v.

CITY OF DALLAS and SGT.

ROGER A. RUDLOFF, individually 

and in his official capacity as a Dallas 

Police Department Police Officer,

Defendants.

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Civil Action No. 3:22-cv-1132

PLAINTIFF’S REPLY IN SUPPORT OF HIS

MOTION FOR PARTIAL SUMMARY JUDGMENT

Dated: June 30, 2023 

David W. Henderson 

Texas State Bar No. 24032292 

dhenderson@equalrights.law 

J. Sebastian Van Coevorden

Texas State Bar No. 24128101

svancoevorden@equalrights.law

ELLWANGER LAW LLLP 

400 S. Zang Blvd. Ste. 600 

Dallas, TX 75208 

Telephone: (469) 998-6775 

Facsimile: (469) 998-6775 

Respectfully Submitted, 

/s/ Thomas S. Leatherbury 

Thomas S. Leatherbury

Texas State Bar No. 12095275

Thomas S. Leatherbury Law, PLLC

Cumberland Hill School Building

1901 N. Akard Street

Dallas, Texas 75201

tom@tsleatherburylaw.com

Telephone: (214) 213-5004

/s/ Peter B. Steffensen 

Peter B. Steffensen 

Texas State Bar No. 24106464 

psteffensen@smu.edu 

SMU DEDMAN SCHOOL OF LAW

FIRST AMENDMENT CLINIC

P.O. Box 750116 

Dallas, TX 75275 

Telephone: (214) 768-4077 

Facsimile: (214) 768-1611 

Counsel for Plaintiff 

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CERTIFICATE OF SERVICE

I hereby certify that on June 30, 2023, I electronically filed the foregoing with the Clerk of 

the Court using the CM/ECF system which will send notification of such filing to all counsel of 

record.

/s/ Peter B. Steffensen 

Peter B. Steffensen 

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

CHRISTOPHER RUSANOWSKY,

Plaintiff,

v.

CITY OF DALLAS and SGT.

ROGER A. RUDLOFF, individually 

and in his official capacity as a Dallas 

Police Department Police Officer,

Defendants.

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Civil Action No. 3:22-cv-1132

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF HIS

MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 3:22-cv-01132-K Document 61 Filed 06/30/23 Page 3 of 24 PageID 833
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TABLE OF CONTENTS

I. Brief Factual Review .........................................................................................................1

II. Defendant’s Post Hoc Justifications for Plaintiff’s Arrest Do Not Make Up for His 

Lack of Particularized Knowledge on May 30, 2020......................................................3

a. Defendant Lacked Probable Cause to Arrest Plaintiff for Failing to Use a Sidewalk and 

Obstructing a Roadway. ..................................................................................................4

b. Defendant Lacked Probable Cause to Arrest Plaintiff for Riot Participation. ................9

III. The Summary Judgment Record Permits an Inference that Defendant was 

Substantially Motivated Against the Exercise of Plaintiff’s First Amendment Right 

to Record the Police in the Public Exercise of their Official Duties............................13

IV. Plaintiff’s Malicious Prosecution Claim Should Proceed if the Court Finds 

Defendant Lacked Probable Cause to Arrest Plaintiff.................................................16

V. Conclusion........................................................................................................................17

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TABLE OF AUTHORITIES

Cases

Adelman v. Dallas Area Rapid Transit, 2018 WL 3520426, (N.D. Tex. July 20, 2018), aff’d sub 

nom. Adelman v. Branch, 784 F. App’x 261 (5th Cir. 2019) .................................................9, 15

Bigford v. Taylor, 834 F.2d 1213 (5th Cir. 1988).............................................................................9

Bourgeouis v. Peters, 387 F.3d 1303 (11th Cir. 2004).....................................................................6

Club Retro, L.L.C. v. Hilton, 568 F.3d 181 (5th Cir. 2009) .........................................................3, 6

Crawford v. City of Houston, Tex., 260 F. App’x 650 (5th Cir. 2007).............................................2

Davidson v. City of Stafford, Tex., 848 F.3d 384 (5th Cir. 2017).....................................6, 7, 11, 12

Evett v. DETNTFF, 330 F.3d 681 (5th Cir. 2003)......................................................................8, 15

Guillory v. Domtar Indus. Inc., 95 F.3d 1320 (5th Cir. 1996).......................................................14

Hirschi v. State, 683 S.W.2d 415 (Tex. Crim. App. 1984) (en banc).............................................13

Imani v. City of Baton Rouge, La., 614 F. Supp. 3d 306 (M.D. La. 2022)................................6, 11

Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686 (5th Cir. Apr. 20, 2023) .......12

Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002) ......................................................................13, 15

Lee v. Metrocare Servs., 980 F. Supp. 2d 754 (N.D. Tex. 2013) .....................................................9

Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50 (E.D.N.Y. 2012) .......................................................9

Terwilliger v. Reyna, 4 F.4th 270, 282 (5th Cir. 2021) ....................................................................5

Turner v. Lt. Driver, 848 F.3d 678 (5th Cir. 2017) ........................................................................13

U.S. v. Garcia, 179 F.3d 265 (5th Cir. 1999).................................................................................12

U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976).................................................................................3

U.S. v. Valle-Pasillas, No. EP-19-CR-2710-PRM, 2019 WL 5196038 (W.D. Tex. Oct. 11, 2019) 7

Winston v. City of Shreveport, 390 F. App’x 379 (5th Cir. 2010)..................................................11

Ybarra v. Illinois, 444 U.S. 85 (1979) .............................................................................................6

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Statutes

Tex. Penal Code § 42.02..............................................................................................................5, 9

Tex. Penal Code § 42.04(a) .............................................................................................................8

Tex. Penal Code § 42.04(c)(3).........................................................................................................8

Tex. Transp. Code § 552.006(b) ......................................................................................................4

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I. Brief Factual Review

In Sgt. Rudloff’s haste to depict a chaotic scene of rioting, violence, and lawlessness on 

and near I-35E the evening of May 30, 2020, he attempts to create fact issues by emphasizing the 

false and misleading statements of other officers and by repeating his own conclusory statements 

about his memory of Plaintiff that night. Plaintiff documented the falsehoods and inconsistencies 

replete in Defendant’s evidence in his Response to Defendant’s Motion for Summary Judgment. 

Dkt. 56 at 15-27. But because of their prominence in Defendant’s Response to Plaintiff’s Motion, 

Plaintiff summarizes these falsehoods and inconsistencies. 

First, Defendant again falsely characterizes the sworn affidavits of DPD Sgt. Scott Transou 

and Officer Thomas Philip Hoffman as corroborative of his recollection of the events on May 30, 

2020. Dkt. 58 at 15, 16, 26, 42. But Sgt. Transou’s affidavit placed Plaintiff at the scene of an 

alleged riot nearly a mile away from where Plaintiff was actually arrested, and where Sgt. Transou 

says he witnessed Plaintiff nearly 90 minutes after Plaintiff had been taken into custody. Dkt. 56 

at 22-25. Officer Hoffman incorporated and swore to this narrative in his own arrest affidavit, 

which was presented to a magistrate judge to establish probable cause to further charge and detain 

Plaintiff. He swore to this testimony, having never personally witnessed the events Sgt. Transou 

allegedly observed, because Hoffman merely responded to the scene (a mile away from Sgt. 

Transou’s position) to transport Plaintiff and others and to fill out their arrest reports. Id.

Second, far from corroborating each other, the testimony of Sgt. Rudloff, Cpl. Barrett, and 

Cpl. Pillar present three competing narratives about what actually happened when Rudloff and his 

team arrived at I-35 on or around 8:30 P.M. that evening. They don’t agree on basic details about 

the sequence of events, the movements of protesters, or where Plaintiff was when they allegedly 

encountered him. Dkt. 56 at 15-20. And for all the (conflicting) details they can offer about that 

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night, their declarations are all conspicuously void of particularized facts about Plaintiff himself—

his activities, movements, whereabouts, and how these details taken together amounted to probable 

cause to arrest him. Id. at 20-22. Their declarations are therefore conclusory on that dispositive 

fact. See Crawford v. City of Houston, Tex., 260 F. App’x 650, 654 (5th Cir. Dec. 20, 2007)

(declarations were “conclusory and conjectural” when declarants purportedly observed a 

conversation but couldn’t “describe[] the contents of the conversation” or “even allege[] that 

[declarants] could hear what was being said”). 

Indeed, the sum total of Rudloff’s recollection of Plaintiff prior to his arrest is that he 

“witnessed a photographer on I-35 whom [he] later learned was” the Plaintiff. Dkt. 51-1 at 1. The 

recollections of Cpl. Barrett and Cpl. Pillar go no further. See id. at 7 (“[A]t one point, he was in 

front of me on I-35.”); but see id. at 4 (Cpl. Barrett “saw [him] coming from the freeway over the 

guardrails[,]” unlike Pillar who recalled seeing Plaintiff positioned in front of him). Rudloff stops 

well short of explaining why the singular fact that he saw Plaintiff on the highway supported his 

decision to arrest Plaintiff. Rudloff instead wipes his hands clean of Plaintiff’s arrest entirely, 

pointing the finger at Cpl. Pillar for initiating Plaintiff’s arrest despite record evidence showing 

that Rudloff initiated Plaintiff’s arrest. Dkt. 56 at 26-27, 28-29. Cpl. Pillar also declines to explain 

the basis for Plaintiff’s arrest—only that he “arrested him.” Dkt. 51-1 at 7. 

Finally, Plaintiff introduced evidence—contrary to Rudloff’s assertion that no record 

evidence exists, Dkt. 58 at 15—undermining his narrative that he and his team responded to scenes 

of mass violence and rioting on I-35. See Dkt. 56 at 36-38. Rudloff’s recollection of the scene is 

not supported by video, photographic, and testimonial evidence offered by Plaintiff. Moreover, it

would have been apparent to Rudloff and his team when they arrived on the scene—as it would 

have been apparent to any reasonable officer—that the mass of protesters there included a mix of 

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people on the roadway amid vehicle traffic, people standing on the shoulder away from vehicle 

traffic, and still others standing outside the highway’s lanes and supporting the protest activity 

from the sidelines. This made it more imperative, not less, that Rudloff and his team act with 

particularized knowledge when arresting people the moment they arrived to the grassy area on the 

highway’s east side. Despite multiple opportunities to say what that particularized knowledge was 

when he arrested Plaintiff, Rudloff continually fails to make that showing. All he can offer is that 

he “witnessed” Plaintiff on the highway. Not only is that statement too conclusory to be credited, 

it also fails as a matter of Fourth Amendment law to justify Plaintiff’s arrest.

II. Defendant’s Post Hoc Justifications for Plaintiff’s Arrest Do Not Make Up for His 

Lack of Particularized Knowledge on May 30, 2020.

The testimony of Rudloff, Barrett, and Pillar—and the sum and substance of Defendant’s 

Response—reveal an “arrest first, answer questions later” approach to policing the protests on May 

30, 2020 that deserves no quarter under the Fourth Amendment. As the Fifth Circuit has made 

quite clear, the facts supporting probable cause “must be known to the officer at the time of the 

arrest; post-hoc justifications based on facts later learned cannot support an earlier arrest.” Club 

Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009); see also U.S. v. Martinez-Fuerte, 428 

U.S. 543, 565 (1976) (the Fourth Amendment commands that we “prevent hindsight from coloring 

the evaluation of the reasonableness of a search or seizure”). As Plaintiff has explained, Rudloff’s 

whisper of a recollection that he saw Plaintiff on the highway deserves little credit amid the many 

factual discrepancies in his own testimony, and the testimony of Barrett and Pillar. But even if the 

Court were to credit those statements, Rudloff still lacked probable cause to arrest Plaintiff for any 

offense. 

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a. Defendant Lacked Probable Cause to Arrest Plaintiff for Failing to Use a Sidewalk 

and Obstructing a Roadway.

For one, Defendant’s Response fails to explain why seeing Plaintiff on the highway, 

without more, was enough to make Rudloff or any other officer suspect Plaintiff committed any 

offense. Perhaps implicitly recognizing this, Rudloff this time leads off by pointing to Section 

552.006 of the Texas Transportation Code, a Class C Misdemeanor offense, which he exclaims

Plaintiff admitted to committing twice (Plaintiff did no such thing). Dkt. 58 at 20-23. Rudloff 

seems to suggest that this argument—which has now been elevated from its original fallback 

position in his Motion, see Dkt. 50 at 28-31—excuses Rudloff’s, Barrett’s, and Pillar’s collective 

failure to say anything more about Plaintiff beyond the barest recollection that they saw him on 

the highway. Indeed, the way Rudloff frames it, Transportation Code Section 552.006 is a strict 

liability offense for which anyone can be arrested for their mere presence on a shoulder where no 

sidewalk is nearby. Thus, as Rudloff argues, even if all he and his officers saw of Plaintiff was his 

presence on the shoulder, surely that was enough to arrest him.

But this is the second time Rudloff has declined to meaningfully grapple with the language 

in the statute, which explicitly limits criminal liability only to situations where it was “possible” 

for Plaintiff to position himself on the proper side, or face and walk the proper direction. Tex. 

Transp. Code § 552.006(b); see Dkt. 50 at 28-31; Dkt. 58 at 20-23. In fact, from the moment 

Plaintiff stepped onto the improved shoulder for his safety after a crowd of protesters surrounded 

him while standing at the highway’s outer barrier, Plaintiff’s only and best option was to walk the 

direction that he did. That is because his closest egress point off the shoulder once he had cleared 

the crowd of protesters around him was to move in the direction of traffic toward the grassy area 

he eventually ended up on. Under Sgt. Rudloff’s proposed reading, not even a motorist whose car 

had broken down at that precise spot could walk with the flow of traffic to the closest haven off 

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the roadway because that too would violate the statute. That is precisely why the Transportation 

Code attaches criminal liability only when it is “possible” to walk in one of those designated areas.

A reasonable officer viewing the scene would have recognized that it would not have been possible 

to walk on any other side of the road, or travel any other direction, and Defendant does not even 

attempt to argue otherwise.

Frontloading this argument also accentuates the deeper problems with Rudloff’s assertions

that he had probable cause to arrest Plaintiff for Obstruction of a Roadway and Riot Participation. 

Dkt. 58 at 23-28; see Tex. Penal Code §§ 42.02, 42.03. The biggest problem, and the one he still 

has no clear answer for, is that he cannot offer particularized facts about Plaintiff’s conduct on the 

highway showing a “probability or substantial chance” that Plaintiff had committed either of these 

offenses. Terwilliger v. Reyna, 4 F.4th 270, 282 (5th Cir. 2021).

1 The noticeable void in Defendant’s 

evidence leads to an even more important question that looms over this summary judgment 

briefing: if Rudloff, Barrett, and Pillar all can swear that they indeed saw Plaintiff specifically 

“among the sea of individuals illegally causing havoc on I-35 and completely obstructing the 

roadway,” Dkt. 58 at 26, why are none of them able to swear to any other detail describing how 

Plaintiff specifically engaged in that conduct?

The answer: because they can’t. All three of these officers, through this briefing, had the 

opportunity to swear to particularized facts about Plaintiff’s conduct that would have concretized 

their claim of probable cause. But faced with that opportunity, they could not swear to any detail 

1 See Dkt. 51-1 at 1 (Rudloff Declaration) (stating only “I witnessed a photographer on I-35 whom I later 

learned was Mr. Rusanowsky”); id. at 4 (Barrett Declaration) (stating only “Another group of individuals 

then came up from the freeway from over the guardrails of I-35 towards us. This group included the 

photographer I later learned was Mr. Rusanowsky, whom I also saw coming from the freeway over the 

guardrails.”); id. at 7 (Pillar Declaration) (stating only “I recall seeing a man with two cameras within the 

group; at one point, he was in front of me on I-35.”). 

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other than, to paraphrase, “we saw him on the highway.” That should be fatal to Rudloff’s

argument. After all, even in mass arrest and mass protest environments, the Fourth Amendment 

still requires officers to proffer facts “particularized to the arrestee.” Club Retro, 568 F.3d at 204; 

Bourgeouis v. Peters, 387 F.3d 1303, 1311 (11th Cir. 2004) (“The text of the Fourth Amendment 

contains no exception for large gatherings of people.”); see Dkt. 56 at 34-35.

Defendant tries to tip the balance back in his favor by highlighting the conduct of others 

who did obstruct the highway and stating, “any law enforcement happening upon the scene could 

have concluded that Plaintiff had been among those who were committing these acts.” That type 

of guilt-by-proximity argument is constitutionally infirm, because “a person’s mere propinquity to 

others independently suspected of criminal activity does not, without more, give rise to probable 

cause . . . .” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In other words, Sgt. Rudloff cannot visit 

the sins of other protesters on Plaintiff; he still needed (and needs) some level of particularized 

knowledge about Plaintiff’s conduct in order to arrest him. See Imani v. City of Baton Rouge, La., 

614 F. Supp. 3d 306, 358 (M.D. La. 2022) (reasonable jury could find no probable cause from facts 

showing no refusal to comply with orders or acts of violence on part of plaintiffs; no knowledge 

among officers of which plaintiff committed any crime; little communications between arresting 

officers and officers who processed arrestees; and no actual description of any particular plaintiff’s 

illegal activity). 

For that reason, Rudloff’s discussion of Davidson v. City of Stafford, Tex., 848 F.3d 384 

(5th Cir. 2017), doesn’t help his cause. See Dkt. 58 at 28-30. He claims that Davidson’s 

requirement that a roadway be rendered “impassable or unreasonably convenient” was met here 

because “traffic was blocked and individuals were defacing vehicles.” Id. at 29. The use of the 

passive voice speaks volumes, because he still cannot say Plaintiff blocked traffic and that Plaintiff 

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defaced vehicles (or engaged in remotely similar conduct, for that matter). The fact that the officers 

in Davidson had no actual or constructive knowledge that the arrestee made the clinic pathway 

impassable underpinned the Court’s conclusion that no probable cause existed. 848 F.3d at 392-

93. And it is why, if the Court finds Defendant lacked probable cause, Defendant also violated 

clearly established law in this circuit. See id. at 391 (“A warrantless arrest without probable cause 

violates clearly established law defining an individual’s rights under the Fourth Amendment.”). 

Here, Rudloff’s knowledge that others rendered the roadway impassable is not a surrogate for

particularized knowledge that Plaintiff did the same.2

Defendant also has no answer for Plaintiff’s argument, Dkt. 46 at 31-32, that even if 

Plaintiff momentarily made the improved shoulder “impassable or unreasonably inconvenient,” 

Rudloff still lacked probable cause to arrest him because of Penal Code Section 42.04’s safe harbor 

for people engaged in constitutionally-protected activity. See Davidson, 848 F.3d at 392, n.4 

(noting the applicability of the provision, but not reaching it because Davidson’s conduct did not 

“otherwise violate” Penal Code § 42.03). That provision applied to Plaintiff at the time, because 

he was (indisputably) engaged in First Amendment-protected newsgathering activity and had not 

2 Defendant also cites U.S. v. Valle-Pasillas, No. EP-19-CR-2710-PRM, 2019 WL 5196038 (W.D. Tex. Oct. 

11, 2019), for his claim that “[w]hen DPD Officers saw [Plaintiff], they reasonably could assume he had 

been taking part in the melee.” Dkt. 58 at 30. In support, Defendant provides a parenthetical quotation

devoid of its proper context. A short excerpt of the Court’s findings of fact there shows why Valle-Pasillas 

is wholly irrelevant to this case and the proposition for which it is cited:

“[Valle-Pasillas’] Black SUV pulled over onto the unimproved shoulder of Interstate 

Highway 10 at mile marker 76. ... Immediately after the SUV stopped, a group of eight 

individuals immediately exited the Black SUV and fled the scene on foot. The Black SUV 

then fled the scene at a high rate of speed, reportedly at over 100 miles per hour. The driver 

of the Black SUV nearly hit a truck-tractor semi-trailer, cut off other vehicles, and drove 

on the shoulder of the road. Next, the driver attempted to exit the highway but lost control 

of the vehicle and rolled multiple times. Trooper Arellano approached the Black SUV after 

the crash and observed the driver exit from the rear of the vehicle. [Valle-Pasillas] fled on 

foot, and Trooper Arellano pursued him and made an arrest. ... On September 11, 2019, 

Defendant was charged in a superseding indictment with transporting aliens[.]” Id. at *2.

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“intentionally harmed the interests” of anyone attempting to use the improved shoulder. He was 

therefore required to be “ordered to move, disperse, or otherwise remedy the violation prior to his 

arrest[.]” Tex. Penal Code § 42.04(a). Assuming such an order was given—the parties dispute that, 

too, Dkt. 46 at 31-32, Dkt. 56 at 48, n.62—Plaintiff was arrested on the grassy area adjacent to the 

highway after spending approximately one minute on the improved shoulder. Dkt. 46 at 13-17. A 

reasonable officer under the circumstances would have understood, then, that there was no 

probable cause to arrest Plaintiff because an order to remedy the violation, “if given, was promptly 

obeyed.” Tex. Penal Code § 42.04(c)(3). 

Against Defendant’s dogged insistence that Plaintiff’s arrest was justified on the thinnest 

of factual foundations—and his claim that “Plaintiff attempts to hold Sgt. Rudloff and the other 

arresting officers to a standard of perfection in probable cause for arrests,” Dkt. 58 at 29—Rudloff 

has failed to address another of Plaintiff’s points: that by the time Rudloff arrested Plaintiff, the 

exigencies of the moment had dissipated, and a reasonable officer would have paused to develop 

the facts known to him before making an arrest determination. See Dkt. 46 at 23-24. Indeed, the 

sheer number of questions that needed answering to properly account for the fraught constitutional 

implications of Plaintiff’s arrest—Defendant’s lack of particularized knowledge, Plaintiff’s status 

as a member of the press, Plaintiff’s positioning off the highway in prompt compliance with any 

orders to disperse, and the large number of protesters in the area, many of whom never set foot on 

the shoulder or the highway—would have made at least a brief investigation imperative to a 

reasonable officer. Rudloff could have paused and asked any number of questions of Plaintiff, his 

fellow officers, or any other person nearby to shore up his knowledge of the situation; and he could 

have ensured that he was not “disregard[ing] facts tending to dissipate probable cause.” Evett v. 

DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003) (quoting Bigford v. Taylor, 834 F.2d 1213, 1218 (5th 

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Cir. 1988)). He did none of those things. Instead, Rudloff arrested Plaintiff without probable cause 

and in retaliation for Plaintiff photographing Rudloff’s breathtaking arrest of four protesters in the 

space of approximately one minute. Plaintiff is not asking for perfection; he is asking for 

reasonableness. Rudloff did not show him that when he arrested Plaintiff on May 30, 2020. See 

also Adelman v. Dallas Area Rapid Transit, No. 3:16-CV-2579-S, 2018 WL 3520426, at *5 (N.D. 

Tex. July 20, 2018 (fact issue on officer’s reasonableness precluded summary judgment), aff’d sub 

nom. Adelman v. Branch, 784 F. App’x 261, 266-67 (5th Cir. 2019).

b. Defendant Lacked Probable Cause to Arrest Plaintiff for Riot Participation.

Nor would a reasonable officer have believed that he had probable cause to arrest Plaintiff 

for Riot Participation. Tex. Penal Code § 42.02. Plaintiff’s video, photographic, and testimonial 

evidence reveals a scene that is a far cry from Defendant’s description that “hundreds of people 

had completely shut down a major highway and were defacing vehicles.” Dkt. 58 at 26. To the 

contrary, though it is true that protesters moved into the northbound traffic lanes of I-35 and 

impeded vehicle traffic, there is no video or photographic evidence in the record supporting 

Defendant’s, Barrett’s, and Pillar’s verbatim recollections of mass violence and lawlessness 

amongst the group.

The Officer Declarations are not credible on this point as well, and should be accorded 

little weight. Each declaration provides identical, word-for-word reproductions of the alleged 

violence and lawlessness on the scene that day, which—along with the many other factual 

inconsistencies contained within them—raises doubts about their trustworthiness. See Lee v. 

Metrocare Servs., 980 F. Supp. 2d 754, 760 n.1 (N.D. Tex. 2013) (“The fact that the Declarations 

contain virtually identical assertions goes to their weight and credibility[.]”) (citing Lujan v. 

Cabana Mgmt., Inc., 284 F.R.D. 50, 63 (E.D.N.Y. 2012) (“conclusory or cookie-cutter statements 

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... go to the credibility of the declarants and, by extension, the weight of the evidence”)). All three 

declarants state:

“On the way to the scene, I witnessed what appeared to be hundreds of individuals 

blocking I-35 North. We could see these individuals on the freeway defacing 

vehicles, such as breaking vehicle windows and spray-painting multiple vehicles.” 

Dkt. 51-1 at 1 (Rudloff Declaration), 4 (Barrett Declaration), 7 (Pillar Declaration). These officers 

do not say where precisely on I-35 North they observed these acts of vandalism occurring and 

whether they observed these acts at the same location as the portion of the highway they responded 

to.3 Likewise, the officers reproduce the same cookie-cutter narrative about the violence on the 

highway when they arrived:

“We began moving east towards the group of individuals who were on the freeway 

to get them off the freeway and to stop them from damaging vehicles, as well as to 

prevent potential violence. Many within the group on the freeway began throwing 

rocks, shaking cars, glass bottles, full water bottles, and other items at our group. 

Individuals within the group were shouting insults, like ‘Fuck the police’ and ‘fuck 

12.’ These bottles and rocks began hitting at our feet and going over our heads.”

Dkt. 51-1 at 1 (Rudloff Declaration), 4 (Barrett Declaration) (omitting “shaking cars” and “fuck 

12”), 7 (Pillar Declaration) (omitting “shaking cars”).

Plaintiff’s video and photographic evidence does not align with the Officer Declarants’ 

recollections. As Plaintiff previously explained, from his vantage point and during the short time 

that he observed the protesters on the highway, he did not observe any violence or vandalism. If 

he had, he would have attempted to capture it with his camera. The video evidence he provided 

3 Video evidence produced by Defendant also calls into question these recollections. Body cam footage of 

an officer who was part of Rudloff’s team shows Rudloff and others crossing a different section of I-35 

nearly a mile away at Continental Avenue, prior to their encounter near Reunion Boulevard. There, 

protesters cannot be observed engaged in the kind of widespread violence the Officer Declarants’ attempt 

to depict and, in fact, it is Sgt. Rudloff who appears to instigate violence by firing his pepperball weapon 

down into a crowd in apparent response to an expletive from a protester. Dkt. 46 at 11-12.

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appears to confirm that, while protesters certainly obstructed the road for several minutes, the 

group on the roadway did not collectively engage in mass violence or conduct resembling a riot.

So even if it is undisputed that the officers had probable cause to arrest those within their view 

who they personally witnessed obstructing a roadway, the Officer Declarants’ verbatim

recollections fall short of establishing the riotous conditions that Defendant alleges gave him 

probable cause to arrest Plaintiff.

And like his Obstruction of a Roadway argument, Defendant still cannot offer 

particularized facts that Plaintiff participated in this allegedly riotous behavior. Instead, he relies 

on Plaintiff’s proximity to this group, and the false narrative of Sgt. Transou—whom Plaintiff has 

already shown testified to seeing Plaintiff engage in the allegedly riotous conduct nearly a mile 

away from where he was arrested, and approximately ninety minutes after he had already been 

taken into custody. Dkt. 56 at 22-25.

Because of his thin argument, Defendant posits a capacious (and dangerous) theory of law 

enforcement power in the context of protests and other First Amendment-protected activity: that 

police have “significant leeway to effectuate arrests in restoring order.” Dkt. 58 at 27. That gets 

the requirements of the Fourth Amendment exactly wrong—police cannot effectuate an arrest to 

restore order; they must at all times have probable cause to arrest a person that is rooted in 

particularized facts showing some probability that the individual they arrested committed a 

criminal offense. See Imani, 614 F. Supp. 3d at 361-62; Davidson, 848 F.3d at 391. 

The cases Defendant quotes from stand for nothing less. In Winston v. City of Shreveport, 

390 F. App’x 379 (5th Cir. 2010)—which involved a “riot type situation” at a local night club 

where the club’s occupancy had exceeded its capacity and police ordered a group gathered outside 

the club to disperse for more than thirty minutes, id. at 381—the Court concluded probable cause 

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existed to arrest the plaintiff there because an order to disperse had been given and the plaintiff in 

deposition testimony acknowledged hearing the arresting officer’s order and not doing so. Id. at 

384. And in Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686 (5th Cir. Apr. 20, 

2023), as Defendant’s chosen quotation makes clear, officers showed facts particularized to the 

arrestee there that she had disobeyed officer directives and showed physical resistance before and 

after the arresting officer made contact with her. Id. at *10.

Neither of these cases or their underlying holdings apply to Plaintiff’s conduct here; nor do 

they support Defendant’s claim—which is unmoored from the Fourth Amendment—that he could 

lawfully arrest Plaintiff because of Plaintiff’s proximity to a (allegedly and disputedly) riotous 

scene in order to “restor[e] order.” Dkt. 58 at 27. Defendant has offered no facts particularized to 

Plaintiff that support more than a “bare suspicion”—based on nothing more than Plaintiff’s 

proximity to the scene and the conclusory and untrustworthy allegation that Defendant saw him

on the highway—that a crime was committed. U.S. v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999); 

see Davidson, 848 F.3d at 392-93 (officers lacked personal, particularized knowledge that 

Davidson had obstructed a roadway or committed any other offense). 

Also apparently lost on Defendant are the other pertinent indicators that should have given 

him clear warning that he lacked probable cause to arrest Plaintiff; to wit, the visual and oral 

indicators he was a member of the press; the fact that he was arrested on the grassy area adjacent 

to the highway in apparent compliance with any dispersal order that had been given; the 

(undisputed) fact that he only stepped onto the improved shoulder for approximately a minute for 

his own safety; and the fact that he maintained physical distance from groups of protesters and 

police while documenting their actions. A reasonable officer would have concluded on these facts 

that he lacked probable cause to arrest Plaintiff for Riot Participation because, setting aside the 

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factual dispute over whether riotous conduct actually occurred on the highway, it was still clear 

Plaintiff did not join in the “assemblage” of these individuals. See Dkt. 56 at 38-40; Hirschi v. 

State, 683 S.W.2d 415, 418 (Tex. Crim. App. 1984) (en banc) (requiring the “actor participate with 

those assembled”). For those reasons, Defendant lacked probable cause to arrest Plaintiff.

III. The Summary Judgment Record Permits an Inference that Defendant was 

Substantially Motivated Against the Exercise of Plaintiff’s First Amendment 

Right to Record the Police in the Public Exercise of their Official Duties.

Defendant’s Response reproduces nearly in its entirety his argument against Plaintiff’s First 

Amendment Retaliation Claim from his own Motion. Compare Dkt. 50 at 31-37 with Dkt. 58 at 

30-36. For the same reasons described in Plaintiff’s Response to Defendant’s Motion, Dkt. 56 at 

42-49, Plaintiff’s Retaliation Claim should proceed. Defendant also resists Plaintiff’s assertions 

that Rudloff’s actions were motivated by retaliatory animus towards Plaintiff’s exercise of his right 

to record the police in the public exercise of their official duties. See Turner v. Lt. Driver, 848 F.3d 

678, 688 (5th Cir. 2017). 

Plaintiff must establish that he was (1) engaged in constitutionally protected activity, (2) 

that Defendant’s actions caused him to suffer an injury that would chill a person of ordinary 

firmness from continuing to engage in that activity, and (3) that Defendant’s adverse actions “were 

substantially motivated against [Plaintiff’s] exercise of constitutionally protected conduct.” 

Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). For the reasons stated in his Motion, which 

Defendant does not dispute, Plaintiff has met the first two elements. See Dkt. 46 at 25-30.

To briefly review Plaintiff’s evidence on the third element, the summary judgment record 

shows that in the space of approximately one minute, Sgt. Rudloff arrested at least four protesters 

and used startling force on two of them—shooting one with his pepperball gun at point blank 

range, and kneeing another and forcing him to the ground. Plaintiff captured all of this on film, 

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moving around the scene from a safe distance and following Rudloff with his camera. Once 

Defendant completed these other arrests, Defendant acted quickly to arrest Plaintiff as well in 

apparent response to Plaintiff documenting his actions. Plaintiff’s professional-grade cameras and 

press badge were visible, and as Sgt. Rudloff approached to arrest him, Plaintiff held his hands up,

exclaimed that he was a member of the press, and attempted to show Sgt. Rudloff his press badge. 

Defendant acknowledged, but explicitly disregarded, Plaintiff’s claim of press status, responding 

“yeah, yeah, press, press.” He then placed his hands on Plaintiff, grabbed Plaintiff’s shirt, and 

threw him to the ground, where another officer—Cpl. Pillar—moved in to handcuff him. As 

Defendant arrested Plaintiff, Plaintiff’s witness Seipp recalled Rudloff threatening him and another 

journalist with arrest, too, which caused them to withdraw from the scene and move away.4 Dkt. 

46 at 15-17; Dkt. 56 at 10.

Against this backdrop, Defendant is correct that whether his actions in arresting Plaintiff 

were substantially motivated against the exercise of Plaintiff’s constitutional rights should be 

gauged from an objective lens. Dkt. 58 at 40; see also Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 

1326 (5th Cir. 1996) (noting “summary judgment is rarely proper when an issue of intent is 

involved”). And from that lens, the totality of the circumstances objectively show that Rudloff 

arrested Plaintiff because Plaintiff had his camera lens trained upon Rudloff. Indeed, it is 

“reasonable to assume (at this stage of the litigation)” that because Defendant arrested Plaintiff 

mere moments after Defendant realized Plaintiff had filmed him engaging in unprofessional and 

4 Bodycam footage showing Rudloff fire six shots from his pepperball weapon down at a crowd in apparent 

response to an expletive from a protester also tends to show that Sgt. Rudloff approached the crowd on I35E with a pre-existing animus towards the protesters in general. Dkt. 46 at 11-12. See Brooks v. City of 

West Point, Miss., 639 F. App’x 986, 989 (5th Cir. 2016) (denying qualified immunity where jury could 

conclude that officer who arrested plaintiff for cursing at him was substantially motivated against his 

exercise of protected speech).

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potentially unlawful conduct—conduct that, if publicized, could be personally and professionally 

“damaging”—“there is sufficient evidence that the defendants’ actions were substantially 

motivated as a response to [Plaintiff’s] exercise of protected conduct.” Keenan, 290 F.3d at 261. 

Defendant’s argument against Plaintiff’s showing of substantial motivation can be 

summarized as follows: (1) Plaintiff was arrested at the same time as others; (2) Defendant was 

not required to verify whether Plaintiff was a journalist; and (3) Rudloff’s verbal threats directed 

towards two other journalists somehow cut against Plaintiff, not Defendant. Each of these 

arguments deserves little oxygen. Dkt. 58 at 30-36.

First, it does not matter whether Plaintiff was arrested alone or with one-hundred other 

people; Plaintiff’s summary judgment evidence has shown Sgt. Rudloff acted with substantial 

motivation against the exercise of Plaintiff’s rights specifically, particularly because Rudloff only 

waited to arrest Plaintiff after he had arrested these others, after he used force against two of them, 

and after he realized Plaintiff had caught it all on film. Second, Defendant’s audacious claim that 

he was not “required to adjudicate in the field individuals’ claims of journalist status, even if they 

have tags on their belts and claim to be journalists,” id. at 38, defies both well-established Fifth 

Circuit law and the explicit and implicit duties imposed on him by Dallas Police Department’s own 

Press Relations policy. See Evett, 330 F.3d at 688 (Sgt. Rudloff cannot “disregard facts that tending

to dissipate probable cause”); Dkt. 47-4 at 18 (Pl. App’x 91, § 323.01(C)) (“Officers will not 

restrict movement of newspersons, unless their actions clearly and directly interfere with police 

operations or investigations.”); Adelman v. Branch, 784 F. App’x 261, 266-67 (5th Cir. 2019)

(officer constrained by department policy to permit photographers to take pictures as long as they 

do not interfere, lacked probable cause to arrest plaintiff for trespass because she lacked authority 

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under the policy to order photographer to leave).

5 Third, Defendant’s remarkably misleading 

assertion that Plaintiff’s story “has now changed” should not be countenanced. As Plaintiff has 

maintained from the beginning, he was the only journalist arrested at the scene, and Sgt. Rudloff 

offers nothing to respond to the substance of Seipp’s recollection: that Rudloff threatened him and 

Fox as well—a fact which also tends to show Rudloff’s discriminatory animus towards the 

journalists there who were exercising their fundamental newsgathering rights.

IV. Plaintiff’s Malicious Prosecution Claim Should Proceed if the Court Finds 

Defendant Lacked Probable Cause to Arrest Plaintiff.

Finally, Defendant also reproduces his arguments against Plaintiff’s Malicious Prosecution 

claim in his Response. For the reasons stated in Plaintiff’s Motion, Dkt. 46 at 30-32, and his 

Response, Dkt. 46 at 49-51, Plaintiff is entitled to summary judgment on this claim as well. Indeed, 

if the Court finds Defendant lacked probable cause to arrest Plaintiff, Defendant has offered no 

substantive response to Plaintiff’s argument that he meets the elements of the claim. Defendant 

alternatively falls back on his factually false claim that Plaintiff sued the wrong defendant. As 

Plaintiff explained, Sgt. Rudloff is Plaintiff’s true arresting officer because he laid hands on 

Plaintiff and ordered his arrest, after which Cpl. Pillar handcuffed him. Neither Officer Thomas 

Hoffman, mor Sgt. Transou were ever on the scene or witnessed any of the events pertaining to 

Plaintiff’s arrest, and Chief Thomas Castro, even if he issued a general arrest order, did not initiate 

the criminal prosecution against Plaintiff specifically.

5 See Pl. App’x 91-92, § 323.01(B) (“[T]he mere presence of a newsperson, the taking of pictures, or the 

asking of questions does not constitute unlawful interference.”) (emphasis added); id. § 323.02(B) (“In no 

case will members of the media be denied access to areas where the public is allowed to be present.”); id. 

§ 323.02(A) (“On more routine incidents where no Command Post is established, the ranking officer will 

not unduly restrict the movement of members of the media.”) (emphasis added); id. § 323.06(A) (“Pictures 

may be taken in or from any area to which media members have been granted access.”); id. § 323.06(B) 

(“Officers will not interfere with a photographer taking a picture of a prisoner.”).

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V. Conclusion

Sgt. Rudloff had no particularized knowledge of Plaintiff’s conduct on May 30, 2020 that 

remotely lent to a finding of probable cause to arrest him that day. His Response does not disagree

with, or even meaningfully resist, that simple fact. Instead, he asks for a judicial pass from the 

Fourth Amendment’s requirement of probable cause because without it, the only factual detail he 

and his fellow officers can offer about Plaintiff that day is the most conclusory of claims that they 

saw him on the highway. A reasonable officer under the circumstances would not have arrested 

Plaintiff acting on that information alone.

Sgt. Rudloff is therefore not entitled to qualified immunity on Plaintiff’s False Arrest and 

Malicious Prosecution claims. Nor is he entitled to qualified immunity on Plaintiff’s First 

Amendment Retaliation claim, because Plaintiff has provided an undisputed summary judgment 

record permitting an inference that Sgt. Rudloff was substantially motivated by a desire to arrest

him for capturing Rudloff on camera arresting four protesters, and using force against two of them.

The Court should grant Plaintiff’s motion, and deny Defendant’s motion.

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Dated: June 30, 2023 

/s/ David W. Henderson

David W. Henderson 

Texas State Bar No. 24032292 

dhenderson@equalrights.law 

J. Sebastian Van Coevorden

Texas State Bar No. 24128101

svancoevorden@equalrights.law

ELLWANGER LAW LLLP 

400 S. Zang Blvd. Ste. 600 

Dallas, TX 75208 

Telephone: (469) 998-6775 

Facsimile: (469) 998-6775 

Respectfully Submitted, 

/s/ Thomas S. Leatherbury 

Thomas S. Leatherbury

Texas State Bar No. 12095275

Thomas S. Leatherbury Law, PLLC

Cumberland Hill School Building

1901 N. Akard Street

Dallas, Texas 75201

tom@tsleatherburylaw.com

Telephone: (214) 213-5004

/s/ Peter B. Steffensen 

Peter B. Steffensen 

Texas State Bar No. 24106464 

psteffensen@smu.edu 

SMU DEDMAN SCHOOL OF LAW

FIRST AMENDMENT CLINIC

P.O. Box 750116 

Dallas, TX 75275 

Telephone: (214) 768-4077 

Facsimile: (214) 768-1611 

CERTIFICATE OF SERVICE

I hereby certify that on June 30, 2023, I electronically filed the foregoing with the Clerk of 

the Court using the CM/ECF system which will send notification of such filing to all counsel of 

record.

/s/ Peter B. Steffensen 

Peter B. Steffensen 

Case 3:22-cv-01132-K Document 61 Filed 06/30/23 Page 24 of 24 PageID 854