IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40040

BARBARA JEANNETTE SINGLETON, 

 Plaintiff - Appellant

v.

MICHAEL DARBY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:12-CV-935

Before DAVIS, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Barbara Jeannette Singleton (“Singleton”) filed this 

action under 42 U.S.C. § 1983 against Defendant-Appellee Michael Darby 

(“Darby”). Singleton claims that Darby retaliated against her for exercising her 

First Amendment rights. She also claims that Darby subjected her to excessive 

force in violation of the Fourth Amendment. Singleton appeals the district 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 21, 2015

Lyle W. Cayce

Clerk

 

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court’s order granting summary judgment in Darby’s favor on both of her 

claims. We affirm.

I.

On November 19, 2012, citizens opposed to the Keystone XL Pipeline

conducted a protest at Farm to Market Road 1911 in Cherokee County, Texas.

Approximately eighty people attended the protest, including Singleton, a 

retired schoolteacher who opposes the pipeline. Although a few of the 

protestors, including Singleton, were older persons, and a few of the protestors 

were confined to wheelchairs, a video taken at the protest demonstrates that a 

large number of the protestors were young and able-bodied.

The Cherokee County Sheriff’s Department dispatched a truck carrying 

a cherry picker to the site of the protest to remove protestors from nearby trees. 

The Sheriff’s Department also dispatched Darby, a deputy sheriff sergeant, to 

ensure that the protest remained under control.

The truck arrived at the scene first, with Darby following behind in his 

police car. Some of the protestors, including Singleton, became concerned that 

the truck was about to run over a young demonstrator. Accordingly, they 

entered the road and began screaming at the driver to stop. One protestor 

banged on the hood of the truck, jumped on the vehicle, and opened the door to 

make the driver stop. Upon witnessing the protestor climb on the truck, Darby 

exited his vehicle and began walking toward the protestor. Before the protestor 

reached the driver of the truck, he jumped off the truck and fled.

At some point, the young demonstrator in the path of the oncoming truck

stood up and moved out of the way. Several protestors nevertheless remained 

in or entered the road to prevent the cherry picker from reaching the protestors 

in the trees. The video shows several protestors leaning against the grill of the 

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truck and inviting about a dozen other protestors into the road to block the 

truck’s path. Singleton remained in the road during this time.

Darby walked toward the protestors blocking the truck, including 

Singleton, and ordered them to “[g]et out of the road.” The protestors did not 

obey his command. Approximately five seconds later, Darby leveled a stream 

of pepper spray toward Singleton and several other protestors in the road.

Darby did not spray any of the protestors on the sides of the road who were not 

obstructing traffic.

Singleton described the burning in her eyes as extremely painful. After 

Singleton left the protest, she visited her doctor, who treated and released her 

that same day.

Singleton alleged that Darby violated her constitutional rights under the 

First and Fourth Amendments by using pepper spray on her. The district court

concluded that Darby was entitled to qualified immunity from Singleton’s suit, 

and accordingly granted summary judgment in Darby’s favor.

II.

We review a district court’s grant of summary judgment de novo.1

Summary judgment is proper if the record demonstrates no genuine issue as 

to any material fact and the movant is entitled to judgment as a matter of 

law.2

Although we review evidence in the light most favorable to the 

nonmoving party, we assign greater weight, even at the summary 

judgment stage, to the facts evident from video recordings taken 

at the scene. A court of appeals need not rely on the plaintiff’s

1 Kitchen v. Dallas Cnty., Tex., 759 F.3d 468, 476 (5th Cir. 2014) (citing Deville v.

Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009); Burge v. Parish of St. Tammany, 187 F.3d 

452, 464 (5th Cir. 1999)).

2 Id. (citing Deville, 567 F.3d at 163-64; Burge, 187 F.3d at 464-65).

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description of the facts where the record discredits that description 

but should instead consider “the facts in the light depicted by the 

videotape.”3

III.

To survive summary judgment on her First Amendment retaliation 

claim, Singleton must, among other things, produce sufficient evidence that 

(1) she was “engaged in constitutionally protected activity;” (2) Darby’s 

actions caused her “to suffer an injury that would chill a person of ordinary 

firmness from continuing to engage in that activity;” and (3) Darby’s adverse 

actions “were substantially motivated against [her] exercise of 

constitutionally protected conduct.”4

We conclude that Singleton failed to demonstrate a genuine dispute of 

material fact as to the first of these elements. The First Amendment does not 

entitle a citizen to obstruct traffic or create hazards for others.5 A State may

therefore enforce its traffic obstruction laws without violating the First 

Amendment, even when the suspect is blocking traffic as an act of political 

protest.6 The video demonstrates that Singleton and her compatriots were 

obstructing traffic in violation of Texas law.7 Thus, Singleton was not 

engaging in constitutionally protected activity at the time Darby pepper 

sprayed her.

3 Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011) (quoting Scott v. Harris, 

550 U.S. 372, 381 (2007)).

4 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (citations omitted).

5 Cox v. Louisiana, 379 U.S. 536, 553-58 (1965); Frye v. Police Dep’t of Kan. City, Mo., 

260 F. Supp. 2d 796, 799 (W.D. Mo. 2003). 6 Cox, 379 U.S. at 553-58. 7 TEX. PENAL CODE ANN. § 42.03(c) (West 2014).

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The dissent contends that Singleton’s earlier protest on the side of the 

road constitutes the necessary protected activity. But Singleton never made 

this argument, and for good reason: Singleton was in the street by the time 

Darby arrived. Darby therefore never witnessed Singleton’s protected 

activity, so there would be no basis for finding he retaliated against that 

earlier roadside activity if Singleton had raised this claim.

Singleton has likewise failed to create a fact issue on the motivation

element. The record fails to show that Darby pepper sprayed the protestors 

for any reason other than to clear the road and to allow the cherry picker to 

get through the blockade. Darby did not disturb any of the protestors lawfully 

exercising their speech and assembly rights along the sides of the road.8

Moreover, Darby ordered Singleton and her fellow protestors to “get out of 

the road,” rather than to cease the protest entirely. This affirmatively

demonstrates that Darby pepper sprayed Singleton and her group not 

because they were protesting, but because they were blocking traffic in 

violation of Texas law.

For these reasons, the district court properly granted summary 

judgment in Darby’s favor on Singleton’s First Amendment retaliation claim.

IV.

We now consider Singleton’s excessive force claim. To survive summary 

judgment, Singleton must, inter alia, demonstrate that Darby’s use of force 

was objectively unreasonable under the circumstances and under current 

8 Compare McCarthy v. Barrett, 804 F. Supp. 2d 1126, 1138 (W.D. Wash. 2011) 

(holding that a jury could infer that defendant officers “desire[d] to silence the protestors’ 

speech” where officers “launch[ed] tear gas into an entire crowd” of protestors rather than 

solely at the “aggressive” protestors demonstrating “near the line of police officers”).

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law.9 “Once we have determined the relevant set of facts and drawn all

inferences in favor of the nonmoving party to the extent supportable by the 

record,” the objective reasonableness of Darby’s actions “is a pure question of 

law.”10 The qualified immunity doctrine, “even on summary judgment, ‘gives 

ample room for mistaken judgments by protecting all but the plainly 

incompetent or those who knowingly violate the law.’”11

“‘To gauge the objective reasonableness of the force used by a law 

enforcement officer, we must balance the amount of force used against the 

need for force,’ paying ‘careful attention to the facts and circumstances of 

each particular case.’”12 Even at the summary judgment stage, “[w]e must 

evaluate an officer’s use of force ‘from the perspective of a reasonable officer 

on the scene, rather than with the 20/20 vision of hindsight.’”13 “The calculus 

of reasonableness must embody allowance for the fact that police officers are 

often forced to make split-second judgments – in circumstances that are 

tense, uncertain, and rapidly evolving – about the amount of force that is 

necessary in a particular situation.”14

For the following reasons, Darby’s use of force was not objectively 

unreasonable. First, although Singleton’s crime was not particularly severe, 

9 Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (citing Goodson v. City of 

Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)).

10 Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (emphasis and internal quotations 

omitted).

11 Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (quoting Brumfield v. 

Hollins, 551 F.3d 322, 326 (5th Cir. 2008)).

12 Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (quoting Flores, 381 F.3d at 

399).

13 Poole, 691 F.3d at 628 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

14 Graham, 490 U.S. at 396-97.

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she was blocking traffic in violation of Texas law,15 and the State of Texas 

has an interest in keeping its roads free of obstructions.16

Secondly, a reasonable officer would have concluded that the protestors 

posed a threat to Darby, the driver of the truck, the truck itself, or to others. 

The protestors vastly outnumbered Darby. Darby saw one of the 

demonstrators climb onto the truck, bang on its hood, and open the truck’s 

door. The video shows several young protestors leaning against the grill of 

the truck and inviting other protestors to block the vehicle. Because 

numerous other protestors remained crowded around the truck, a reasonable 

officer could have believed that other protestors might climb on the truck or 

attack the driver. A reasonable officer in Darby’s position could have 

reasonably concluded that the protestors were out of control and that the 

situation required definitive action to move the truck past the demonstrators 

and out of danger.

Third, Singleton and her compatriots resisted Darby’s attempt to clear 

the road. Singleton admits that she heard Darby’s warning before he pepper 

sprayed her group. The video demonstrates that Darby gave Singleton 

sufficient time to at least begin walking out of the road before he deployed

the pepper spray. Singleton nevertheless did not move. Although Singleton 

testified in her deposition that Darby did not give her enough time to react, 

we must credit the video evidence over Singleton’s contrary testimony.17

Thus, Darby, as a reasonable officer, was justified in using some degree

of force to clear the road. The force Darby employed was not disproportionate 

to the need. Deploying pepper spray was not an unreasonable way to defuse 

15 TEX. PENAL CODE ANN. § 42.03(c) (West 2014).

16 See Cox, 379 U.S. at 554-55.

17 See Carnaby, 636 F.3d at 187 (quoting Scott, 550 U.S. at 381).

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the situation. Indeed, it was probably the least intrusive means available to 

Darby. To reiterate, the protestors vastly outnumbered Darby. As one of only 

two police officers on the scene,18 Darby could not have individually 

handcuffed and arrested each of the numerous protestors blocking the road. 

In addition to the obvious difficulty of one officer attempting to handcuff so 

many violators, Darby faced the likelihood that such an action could motivate 

a larger number of protestors lining the road to join in the road-blocking 

enterprise or otherwise retaliate against Darby. Darby’s decision to utilize 

pepper spray was therefore not an unreasonable way to gain control of a 

potentially explosive situation.

Moreover, even assuming arguendo that Darby’s use of force did violate

Singleton’s constitutional rights, Singleton would still need to also

demonstrate that those rights were “clearly established” at the time of her 

injury.19 The dissent contends that Singleton has satisfied this prong of the 

qualified immunity analysis because 

at the time of the pepper-spraying incident, Singleton had a clearly 

established right to be free from excessive force and it was clearly 

established that the amount of force that Darby could use 

depended on the severity of the crime at issue, whether the suspect 

posed a threat to the officer’s safety, and whether the suspect was 

resisting arrest or attempting to flee.20

18 The video depicts a second man in a white shirt and tie with a badge and a handgun 

in a holster accompanying Darby, but the record does not identify this man or his position

with law enforcement. Even though Darby was not alone, the protestors still greatly 

outnumbered law enforcement officers at the scene.

19 See Hernandez v. United States, --- F.3d ----, 2015 WL 1881566, at *1 (5th Cir. 2015) 

(en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

20 (Internal citations, brackets, and ellipses omitted.).

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However, the Supreme Court recently repeated its warning against defining 

the law in question “at a high level of generality.”21 In doing so, the Supreme 

Court rejected the lower court’s reliance on a generalized assessment of the 

Graham factors for overcoming qualified immunity in an excessive force case 

– the same analysis the dissent employs to try and defeat qualified immunity 

here.22 Instead, to overcome qualified immunity, the plaintiff must identify 

case law clearly establishing that the “official acted reasonably in the 

particular circumstances that he or she faced.”23 Notably, the dissent is 

unable to point to case law with facts anywhere close to the particular 

circumstances involved here – the use of pepper spray to clear a road filled 

with protestors who vastly outnumbered law enforcement – that would have 

placed Darby on notice that his conduct was unlawful.

Thus, viewing the facts through the deferential lens of qualified 

immunity and from the perspective of a reasonable officer on the scene, we 

conclude that Darby’s use of force was not objectively unreasonable under the 

circumstances. At a minimum, case law did not make it clear to every 

reasonable officer that use of pepper spray in this situation was 

unreasonable.24 The district court therefore properly granted summary 

judgment in Darby’s favor.

AFFIRMED.

21 Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting Ashcroft v. Al-Kidd, 131 

S. Ct. 2074, 2080 (2011)).

22 See id. 23 Id. 24 See Ashcroft, 131 S. Ct. at 2083.

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JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in 

part.

Respectfully, I concur in the judgment only insofar as it rejects 

Singleton’s First Amendment retaliation claim, and I dissent from the 

majority’s affirmance of summary judgment against Singleton on her Fourth 

Amendment excessive force claim. 

Regarding the Fourth Amendment claim, the majority incorrectly read 

the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372 (2007) to hold 

that in analyzing a motion for summary judgment in an excessive force case in 

which the record contains a videotape of crucial events in question, a court is 

not required to determine the relevant facts by adopting the plaintiff’s version 

of events and reading the record in the light most favorable to the plaintiff, 

but rather should decide whether the officer violated the Fourth Amendment 

solely in light of the facts depicted by the videotape. Scott v. Harris did not so 

hold. Rather, the Court so proceeded in that case only because the record 

contained a telling videotape that “blatantly” and “utterly” contradicted and 

discredited the plaintiff’s version of the facts, so that no reasonable jury could 

have believed him. Id. at 378-80. In a case, such as the present one, in which 

the record with a videotape does not contradict, but instead corroborates, 

plaintiff Singleton’s version of the facts, the court is required to apply standard 

summary-judgment principles, including accepting the plaintiff’s version of the 

facts as the basis for its decision and viewing the record and reasonable 

inferences in the light most favorable to her. The majority’s failure to do so 

skewed its entire decisional process, leading it to erroneously affirm the 

district court’s summary judgment.

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On the other hand, Singleton’s First Amendment claim falters, but only 

because she failed to present sufficient evidence to show that Sergeant Darby’s 

conduct was substantially motivated by her constitutionally protected speech 

activities against the XL pipeline. The majority’s additional reasons for 

affirming summary judgment on this claim erroneously disregard the fact that 

Singleton undisputedly had engaged in constitutionally protected speech 

against the pipeline on the side of the road just before she was pepper sprayed 

by Sergeant Darby. Thus, the majority reaches the right result on this claim, 

although its reasoning is partly flawed.

I.

In Scott v. Harris, 550 U.S. 372 (2007), Deputy Scott terminated a highspeed chase of Harris, a motorist clocked speeding, by bumping his car and 

causing it to crash, rendering Harris a quadriplegic. Id. at 374-75. Harris’s § 

1983 action alleging Scott’s use of excessive force in violation of the Fourth 

Amendment survived Scott’s motion for summary judgment on the basis of 

qualified immunity below, but the Supreme Court granted certiorari and 

reversed. 

In Scott, the Court stated that the threshold inquiry is whether Deputy 

Scott's actions violated the Fourth Amendment and that usually the first step 

in assessing the constitutionality of Scott's actions is to determine the “relevant 

facts.” Id. at 378. Upon motion for summary judgment, if there is a genuine 

issue as to a material fact, courts are required to view the facts and draw all 

reasonable inferences in the light most favorable to the party opposing the 

summary judgment motion. Id. “In qualified immunity cases, this usually 

means adopting . . . the plaintiff's version of the facts.” Id.

But in Scott, the Court stated that there was an “added wrinkle” that 

prevented a straightforward application of these regular summary-judgment 

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principles. Id. That “wrinkle” was the existence of a police videotape of the 

auto chase, which together with the whole record, so “blatantly” contradicted 

Harris’s version of the facts that no reasonable jury could believe it. Id. at 378-

80. According to the Court, in such a case, a court should not adopt the 

plaintiff’s version of the facts for purposes of ruling on a motion for summary 

judgment. Id. at 389. 

The present case is clearly distinguishable from Scott v. Harris, however, 

because Singleton’s version of the events, unlike that of Harris, is not 

“blatantly contradicted by the record, so that no reasonable jury could believe 

it[.]” Id. at 380. To the contrary, Singleton’s evidence of Darby’s use of 

excessive force on her is not contradicted, but is largely corroborated by the 

one-minute videotape and Darby’s own deposition testimony. Thus, the 

present case meaningfully differs from Scott, because there is no “added 

wrinkle,” id.at 378, of a videotape and record that “blatantly contradict” id. at

380, and “utterly discredit,” id., Singleton’s story. Rather, unlike the unusual 

situation in Scott, the present case is a more typical summary-judgment case 

in which this court is required to begin its analysis by adopting the plaintiff’s 

version of the facts and to view them and all reasonable inferences in the light 

most favorable to her. 

A proper application of the well-established summary judgment 

principles to the record in the present case leads to the following conclusions: 

based on the relevant set of facts, see Part II infra, Sergeant Darby violated 

clearly established Fourth Amendment law by pepper spraying Singleton in 

her face and eyes without providing her any warning or opportunity to comply 

with his command, see Part III infra, but Singleton has failed to produce 

sufficient evidence to establish that Darby’s conduct amounted to retaliation 

in violation of the First Amendment, see Part IV infra. 

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II.

On November 19, 2012, a group of protesters peacefully gathered along 

the side of Farm-to-Market Road 1911 in Cherokee County, Texas, in order to 

protest the construction of the Keystone XL pipeline on a site nearby. Among 

those in attendance was Singleton, a 75-year-old grandmother, retired school 

teacher, and long-time resident of Nacogdoches County, Texas. Singleton 

attended the protest with a group calling itself the Raging Grannies in 

Nacogdoches. The Raging Grannies intended to protest the pipeline by singing 

songs decrying its adverse environmental effects while dressed in oldfashioned clothes. Singleton, for example, wore “an old-fashioned lacy blouse 

and a big blue skirt.”

Sergeant Darby explained in his declaration that he and other members 

of the Cherokee County Sherriff’s Office were dispatched to various locations 

throughout Cherokee County due to protests occurring against the pipeline. 

Because some protesters reportedly were located in trees,1 the Sheriff’s 

Department also ordered and dispatched a semi-trailer truck hauling a “cherry 

picker” to be delivered to a protest site in order to remove those protesters from 

the trees. The truck transporting the cherry picker was driven by Danny 

Emerson, an employee of United Rentals. Sergeant Darby followed behind 

Emerson’s truck in his patrol car.

As Emerson’s truck slowly approached the area where Singleton and 

others were standing, the group became concerned that the truck might run 

over a young person who was in attendance. Some of the protesters, including 

1 The record is unclear whether those individuals reportedly located in trees were a 

part of the same group of protesters as Singleton, or whether they were affiliated with 

another pipeline protest nearby. 

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Singleton, therefore entered and spread across the roadway in order to flag 

down the truck. The protesters shouted multiple warnings to Emerson that, 

“[His] truck’s running over somebody.”2 In addition, some people also sought 

to stop Emerson’s truck by banging by hand on its hood. However, Emerson 

testified that none of the protesters ever touched him or damaged his truck, 

and he explained that Singleton was not among the protesters touching his 

truck. In response to the protesters’ warnings, Emerson stopped his truck in 

the road. One protester climbed onto the side of Emerson’s truck and tried to 

open its door. Darby, who had stopped behind the truck, exited his patrol car 

and walked toward the front of the truck along its left side. Before Darby 

reached the cab of the truck, that protester jumped off the truck and ran away.

Darby did not pursue that protester but instead continued to walk 

toward the other protesters who were still gathered in the roadway near the 

front of the truck. A one-minute video taken of the scene, which begins shortly 

before Darby came abreast of the truck’s cab, shows the following:3 After 

Emerson stopped his truck, a young protester crawled from near the front end 

of the stationary truck.4 Two protesters leaned against the truck’s front grill. 

2 Emerson himself testified that the protesters yelled warnings to him that his truck 

was running over someone. 

3 The video camera was located off the highway on the right side of and slightly in 

front of the stopped truck. Singleton submitted the video as an exhibit to her brief opposing 

summary judgment, and Darby does not contest its accuracy. However, as explained above, 

this is not a case where we may disregard the non-movant’s version of events in light of a 

video’s contrary portrayal, compare Scott, 550 U.S. at 380-81, because the video footage

contained in the record does not blatantly contradict or discredit Singleton’s version of the 

facts but instead substantially corroborates her and the other protesters’ testimony. 

4 This crawling protester appears within the first few seconds of the video. It is not 

evident from the video whether this young protester who can be seen crawling from near the 

front end of the truck was the same young protester whom the protesters thought the truck 

might hit. 

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Some of the protesters, including Singleton, stood in the road, and other 

protesters eventually began to join them, including a woman confined to a 

wheelchair.5 Many of the protesters held signs; some laughed, talked and 

called for others to join them. However, contrary to Darby’s attorney’s 

argument, the video does not show any protester screaming or making threats 

to Emerson or anyone else. Moreover, the video does not show that any 

protester raised his or her voice or complained to Darby until after he began to 

pepper spray the gathering.

Approximately twenty-three seconds into the video, Darby can be seen 

walking toward the protesters on the left side of the truck and near its front 

end. At this time, he twice shouted in short succession, “Get out of the road.” 

Approximately five seconds later, without warning the protesters that he 

would use pepper spray, Darby began deploying pepper spray at the protesters, 

including Singleton, in the roadway. Darby was about 10-to-15 feet from them 

at this time. In his deposition, Darby admitted that he discharged the pepper 

spray in a “steady stream.” Prior to unleashing the pepper spray, Darby did 

not attempt to use any less drastic measure to move the protesters out of the 

roadway. For example, he admitted in his deposition that did not warn the 

protesters that he would arrest them or use pepper spray or other force against 

them if they stayed in the road—he testified, “[t]here was no reason to tell 

them.” Thus, he did not warn them that he would give them only five seconds

to clear the road before he would use pepper spray on them. Nor did he call for 

backup by other officers to help him to move the protesters off the road or to 

5 The video shows that at least two of the protesters in attendance were confined to 

wheelchairs. 

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make arrests.6 The video footage shows that Darby aimed and then unleashed 

the pepper spray, sweeping it at approximately face-level in the direction of 

the protesters. After most of the protesters fled to avoid the pepper spray, 

Darby can be seen walking around among the stragglers and aiming the pepper 

spray directly at certain individuals. Approximately thirty-eight seconds into 

the video, Singleton can be seen exiting the road and rubbing her eyes; 

subsequently, the video shows her bent over and covering her eyes. Although 

the video does not capture the exact moment when Darby’s pepper spray hit 

Singleton in her face and both eyes, the protesters can be heard repeatedly 

yelling to Darby that he pepper sprayed an “old” or “elderly lady.” Thus, it was 

not until after Darby unleashed the pepper spray without warning that anyone 

challenged his actions, and then it was only verbally and non-violently.

The video footage corroborates the account of the pepper spraying given 

by Singleton and other protester-witnesses. For example, according to 

Singleton, Darby “pepper sprayed [her] immediately before [she] had time” to 

comply with his command. Significantly, Singleton testified that “[she] would 

have got out of the road if he had given us some time.”7 Another witness 

6 Notably, however, another peace officer in a white shirt and tie, with a badge and a 

handgun in a holster, can be seen in the video slowly and passively walking along and 

observing Darby pepper spray the protesters. Although he might have been another deputy 

sheriff, the record does not otherwise identify him. 

7 Singleton further elaborated as follows at her deposition: 

Q: “And you heard him say, ‘Get out of the road?’” 

A: “’Get out of the road,’ but he didn’t give me time to get out of the 

road.” 

Q: “Well, did you make any effort at all to get out of the road?” 

A: “I don’t think I did because I didn’t have time.” 

Q: “Well, did you make any movement like you were going to get out of 

the road?” 

A: “I don’t know. He didn’t say, ‘Get out’- - he did not give us a - - give 

me a warning.” 

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similarly testified that Darby “all of a sudden” began pepper spraying the 

protesters without any warning aside from ordering them to exit the road. 

Further, consistent with Singleton’s deposition testimony that Darby “was 

very close to [her],” the video shows Darby to be in close proximity of the 

protesters when he deployed the pepper spray. 

Numerous witnesses described the aftermath of the pepper spraying. 

One witness stated that Singleton was “incapacitated” after being hit, and 

another stated that Singleton was “in intense excruciating pain.” According to 

one witness, “I really thought [Singleton] was dying, her skin was yellow, her 

hands were clenched and she had yellow stains all over this lacy white blouse.” 

Photos from the scene show Singleton after being pepper sprayed. In one 

photo, Singleton is shown having her eyes washed with liquid. Singleton 

stated that the pepper spraying was “the most painful thing” she’s ever 

experienced, including childbirth. After being driven home by a friend because 

she was unable to drive, Singleton sought medical attention for her injuries 

because flushing her eyes with water did not alleviate her pain. 

III.

Singleton appeals the district court’s grant of summary judgment to 

Darby on her Fourth Amendment excessive-force claim. Summary judgment 

. . . 

Q: “So your testimony is, is that after he said, ‘Get out of the road,’ that 

if he had waited another 5 seconds, you would have walked out of the road?”

A: “Yes. I mean, I’ve never done anything illegal in my life.” 

Q: “Well, if all these other people stayed there in the road, and you’ve 

admitted you were caught up in the moment, your testimony is you still would 

have just walked on out of the road?”

A: “If he had given us some warning and told us what he was fixing to 

do, yeah.” 

Q: “Well, how much warning would you have needed?”

A: “A minute, at least a little bit of time to process. . . .” 

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on the basis of qualified immunity is appropriate only if, taking the facts in the 

light most favorable to Singleton, she has not established that Darby’s “conduct 

violated a constitutional right,” Saucier v. Katz, 533 U.S. 194, 201, (2001), or if 

“the right at issue was [not] clearly established at the time of [Darby’s] alleged 

misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation 

marks omitted).

Claims for excessive force are analyzed under the Fourth Amendment's 

prohibition against unreasonable seizures using the framework articulated in 

Graham v. Connor, 490 U.S. 386 (1989). The reasonableness of a seizure turns 

on “whether the officers’ actions are ‘objectively reasonable’ in light of the facts 

and circumstances confronting them.” Id. at 397. In order to determine 

whether an officer’s actions were “objectively reasonable” and therefore 

constitutionally permissible, we must first assess “the nature and quality of 

the intrusion on the individual’s Fourth Amendment interests” and then 

balance that particular intrusion “against the countervailing governmental 

interests at stake.” Graham, 490 U.S. at 396 (internal quotation marks 

omitted). 

If we determine that, taking the facts in the light most favorable to 

Singleton, Darby’s conduct amounts to a violation of the Fourth Amendment’s 

prohibition on excessive force, we then determine whether Darby is entitled to 

qualified immunity by assessing whether “the right at issue was clearly 

established at the time of defendant's alleged misconduct.” Pearson, 555 U.S. 

at 232 (internal quotation marks omitted).

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A. Nature and Quality of Intrusion

The gravity of the particular intrusion that a given use of force imposes 

upon an individual's liberty interest is measured with reference to the type and 

amount of force inflicted. See Tennessee v. Garner, 471 U.S. 1, 7-9 (1985). 

Singleton contends that Darby pepper sprayed her after ordering her and the 

other protesters out of the road but without giving her a reasonable chance to 

do so. “Unquestionably, infliction of pepper spray . . . has a variety of 

incapacitating and painful effects . . . and, as such, its use constitutes a 

significant degree of force.” Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010). 

Indeed, “[p]epper spray is designed to cause intense pain and inflicts a burning 

sensation that causes mucus to come out of the nose, an involuntary closing of 

the eyes, a gagging reflex, and temporary paralysis of the larynx, as well as 

disorientation, anxiety, and panic.” Young v. Cnty. Of Los Angeles, 655 F.3d 

1156, 1162 (9th Cir. 2011) (internal quotation marks omitted); see also Danley 

v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008) (observing that pepper spray is 

designed to disable the person sprayed “by causing intense pain, a burning 

sensation that causes mucus to come out of the nose, an involuntary closing of 

the eyes, a gagging reflex, and temporary paralysis of the larynx” (internal 

quotation marks omitted)), overruled on other grounds by Randall v. Scott, 610 

F.3d 701 (11th Cir. 2010); accord United States v. Neill, 166 F.3d 943, 949-50 

(9th Cir. 1999) (affirming district court finding that pepper spray is a 

“dangerous weapon” under the U.S. Sentencing Guidelines and describing trial 

evidence that pepper spray causes “extreme pain” and is “capable of causing 

‘protracted impairment of a function of a bodily organ’” as well as lifelong 

health problems such as asthma). 

In the instant case, Darby admits that he unleashed a “steady stream” 

of pepper spray that hit Singleton in the face and both her eyes. Singleton 

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testified that the ensuing pain was the most excruciating that she has ever 

experienced, including childbirth, and she was so incapacitated from the pain 

that she could not even drive home. Singleton was forced to seek medical 

attention for her injuries. 

As the foregoing makes clear, by pepper spraying Singleton, Darby used 

a significant amount of force that is known to cause and, in fact, did cause 

substantial pain. While pepper spray may be less severe than other forms of 

force, there is no question that streaming it into the face and eyes of a 75-yearold woman is a sufficiently serious intrusion that it must be justified by a 

proportionally serious governmental interest. 

B. Governmental Interest at Stake

In assessing the governmental interest at stake, we are guided by the 

“Graham factors,” which “include ‘the severity of the crime at issue, whether 

the suspect poses an immediate threat to the safety of the officers or others, 

and whether [she was] actively resisting arrest or attempting to evade arrest 

by flight.’” Martinez-Aguero v. Gonzalez, 459 F.3d 618, 626 (5th Cir. 2006) 

(quoting Graham, 490 U.S. at 396). However, “[b]ecause the test of 

reasonableness under the Fourth Amendment is not capable of precise 

definition or mechanical application,” Graham, 490 U.S. at 396 (internal 

quotation marks omitted), our ultimate inquiry must focus on “whether the 

totality of the circumstances justified [the] particular . . . seizure” at issue. 

Garner, 471 U.S. at 8-9. 

First, the severity of Singleton’s alleged crime was indisputably minimal,

if it was an offense at all. In Texas, it is a Class B misdemeanor8 to 

8 In Texas, a Class B misdemeanor is punishable by “(1) a fine not to exceed $2,000; 

(2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and 

confinement.” Texas Penal Code § 12.22. 

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intentionally, knowingly, or recklessly, obstruct a highway; or to disobey a 

reasonable request or order to move issued by a peace officer. Texas Penal 

Code § 42.03. Singleton testified that she entered the road with other 

protesters to warn the truck driver not to hit a young protester who had wound 

up in the road. She further testified that she would have obeyed Darby’s order 

to move if he had given her a chance to do so, but that he pepper sprayed her 

in her face and eyes immediately after his order, making it impossible for her 

to move before being incapacitated by the pepper spray. Even assuming 

Singleton was violating the law, the offense was at most a nonviolent 

misdemeanor, and her infraction was therefore minimal. Because Singleton’s 

alleged offense did not evince that she posed a danger to Darby or the public 

such that there would be a heightened interest in the use of pepper spray on 

her or the other protesters, the “severity of the crime at issue” weighs against 

a finding that the government had an interest in the use of pepper spray in 

this particular case. Although the alleged commission of a minor or 

misdemeanor offense is not to be taken lightly, we repeatedly have recognized 

that it militates against concluding that the use of significant force was 

objectively reasonable. See, e.g., Deville v. Marcantel, 567 F.3d 156, 167 (5th 

Cir. 2009) (“[The plaintiff] was stopped for a minor traffic violation. . . making 

the need for force substantially lower than if she had been suspected of a 

serious crime.”). 

Application of the second Graham factor—the individual’s threat to 

officer safety—likewise buttresses the conclusion that Darby’s use of pepper 

spray against Singleton was excessive and objectively unreasonable. Viewed 

in the light most favorable to Singleton, the evidence establishes that the 

pipeline protesters, including Singleton, had been entirely peaceful in their 

protest and had lawfully confined their speech activities to the side of the road 

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until they moved into the road in order to flag down Emerson’s truck before it 

ran over a young protester in the road. Although one protester reportedly 

responded by climbing onto the side of Emerson’s truck, Darby admitted that 

this protester jumped off the truck and ran away after he exited his patrol car 

and before he deployed the pepper spray. Moreover, the evidence shows that 

Singleton herself never made any contact with Emerson’s truck, and that none

of the protesters damaged the truck or ever touched Emerson. The video 

footage of the scene further reinforces the conclusion that neither Singleton 

nor the other protesters posed a threat to Darby. The video-audio footage 

reflects that the protesters did not threaten or scream at Darby or Emerson; to 

the contrary, some of the protesters can be seen laughing and talking with one 

another peaceably before Darby pepper sprayed them. In fact, the video does 

not show any of the protesters raising their voices at Darby until he hit 

Singleton with pepper spray, at which time the protesters can be heard 

repeatedly yelling to Darby that he had pepper sprayed an “old” and “elderly 

lady.” Moreover, although the protesters were allegedly committing a minor 

offense, the video shows that none of the protesters ever made an advance 

toward Darby. Further, nowhere in his sworn declaration or at his deposition 

did Darby himself ever contend that the use of pepper spray was necessary 

because of a threat of violence by the protesters; rather, he asserted that his 

“only purpose” in unleashing the pepper spray was to “clear the roadway.” 

Finally, but critically, it is important to note that Singleton was 75 years old 

at the time of the protest, and that the group of protesters who Darby pepper 

sprayed also included individuals who were confined to wheelchairs. See, e.g., 

Autin v. City of Baytown, 174 F. App’x 183, 185 (5th Cir. 2005) (“In judging the 

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objective reasonableness of [the] use of force, it should not be forgotten that 

[plaintiff] was fifty-nine years old and five feet two inches tall.”).9 

The third Graham factor—whether Singleton or anyone resisted 

Darby—further supports a conclusion that Darby’s use of pepper spray against 

her and the others was objectively unreasonable. Crediting all reasonable 

inferences in her favor, Singleton presented evidence that she and the other 

protesters did not have a reasonable opportunity to comply with Darby’s 

command to vacate the road before he pepper sprayed them, and, therefore, 

they did not actively resist him before he used pepper spray on them. Indeed, 

the video footage clearly demonstrates that Darby unleashed the pepper spray 

only about five seconds after shouting to the protesters to leave the road; thus, 

Singleton and the other protesters never had a reasonable opportunity to 

comply with his order.10 Moreover, Singleton testified at her deposition—

9 While it may not be dispositive of whether Singleton posed a reasonable threat to 

Darby or not, it is important to note that the video footage suggests that Darby had additional 

manpower with him at the scene. Specifically, the video shows that a man who accompanied 

Darby as he approached the protesters was neatly dressed in a dress shirt and tie with a 

badge, handcuffs and a holstered handgun at his waist. Although the record does not identify 

the man, drawing all reasonable inferences from the video in Singleton’s favor, Darby appears 

to have been accompanied by an armed law enforcement officer when he confronted the 

protesters, which further evinces that the protesters posed no threat that warranted the 

nearly immediate use of pepper spray. 

10 In this connection, the majority clearly fails to view the controverted facts in the 

light most favorable to Singleton by concluding: “The video demonstrates that Darby gave 

Singleton sufficient time to at least begin walking out of the road before he deployed the 

pepper spray. Singleton nevertheless did not move.” However, this material issue of fact, 

whether Darby gave Singleton and the other protesters reasonably sufficient time to vacate 

the roadway before he pepper sprayed them, is genuinely in dispute and must therefore be 

resolved in Singleton’s favor for purposes of summary-judgment analysis. First, Darby 

admitted that he gave no warning whatsoever to Singleton and the other protesters that he 

would pepper spray them if they remained in the road. Second, Singleton and her witness, 

Mr. Macinerney, (who said he was only 10 feet from her when she was pepper sprayed), both 

testified that Darby yelled “get out of the road” and then walked up to Singleton and, without 

any further warning, pepper sprayed her in the face; that no one was threatening or resisting 

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which we must credit in her favor at this stage of proceedings—that she would 

have exited the road if Darby had given her time to obey his command.11 When, 

as here, a police officer does not give sufficient time to comply with an order 

prior to utilizing force against a person, that person’s resulting failure to 

comply immediately with the order cannot, without more, give rise to a 

governmental interest in the use of significant force. Thus, viewed in the light 

most favorable to Singleton, the evidence therefore simply does not support a 

conclusion that it was reasonably necessary for a police officer in Darby’s 

position to use pepper spray or other significant force based on any resistance 

to Darby’s command by Singleton or any other protester. 

In addition to the foregoing Graham factors, other critical aspects of this 

case warrant highlighting, as they further evince the slightness of the 

governmental interest vis-à-vis the significance of the force Darby used against 

Singleton. First, the evidence establishes that Darby never attempted to 

utilize any less severe tactic to remove the protesters from the road prior to 

unleashing pepper spray on Singleton. For example, prior to using pepper 

spray, Darby could have called for backup; he could have requested that the 

additional peace officer on the scene help him order the protesters off the 

Darby; and that Singleton would have moved out of the road if Darby had given her a minute 

or at least a few more seconds to do so. Third, the videotape corroborates Singleton’s and 

Macinerney’s testimony: it shows that Darby yelled “get out of the road” twice and then, 4 to 

5 seconds later, began to pepper spray the protesters in the road at face level; that Singleton 

was not visible in the video at that exact time but about thirty-eight seconds into the video 

can be seen exiting the road after having been pepper sprayed and thereafter bending over 

on the side of the road. Thus, contrary to the majority’s conclusion otherwise, the summaryjudgment record amply supports a reasonable inference that Darby did not give Singleton 

“sufficient time” to move. 

11 Specifically, Singleton repeatedly emphasized: “[Darby] didn’t give me time to get 

out of the road” and “I would have got out of the road if he had given us some time.” Asked 

by Darby’s counsel how much of a warning she would have needed, Singleton testified: “A 

minute, at least a little bit of time to process.” 

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highway or make arrests; he could have warned the protesters that they would 

be arrested if they did not immediately comply with his command; or he simply 

could have attempted to arrest the protesters. But Darby chose none of these 

options, thus skirting a number of less painful and potentially injurious 

measures that would have been feasible and reasonable under the 

circumstances. Instead, he chose to immediately resort to a significant form of 

force that caused Singleton excruciating pain. Darby’s failure to first utilize 

such viable alternatives thus further illustrates how limited was the 

government’s interest in deploying the use of substantial force against 

Singleton. See, e.g., Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010) 

(emphasizing that “there were clear, reasonable, and less intrusive 

alternatives” than the use of taser, such as waiting for backup); Headwaters 

Forest Defense v. Cnty. of Humboldt, 240 F.3d 1185, 1203 (9th Cir. 2000) 

(“Because the protesters posed no immediate threat to the safety of anyone 

during the protests, the officers . . . were required to consider what other tactics 

if any were available to effect their arrest [aside from pepper spray].” (internal 

marks and citation omitted)), vacated on other grounds by 534 U.S. 801 (2001), 

affirmed on remand in 276 F.3d 1125 (2002). Moreover, Darby also never 

provided Singleton and the protesters a reasonable opportunity to comply with 

his command, nor did he provide any type of warning that pepper spray would 

be utilized if they did not immediately comply with his order to exit the road. 

See Nelson v. City of Davis, 685 F.3d 867, 882-83 (9th Cir. 2012) (“Additionally, 

there is nothing in the record that indicates that the group was told prior to 

the [use of the pepperball gun] how they should comply with the [officers’] 

orders . . . or that force would be used against them if they did not behave in a 

particular manner. Thus, failure to give sufficient warnings also weighs 

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against the government’s decision to use [a pepperball gun] against [plaintiff] 

and his associates.”). 

C. Balancing Intrusion against Governmental Interest at Stake

Finally, to “[d]etermine whether the force used [by Darby] is ‘reasonable’ 

under the Fourth Amendment,” we must “balanc[e] . . . the nature and quality 

of the intrusion on [Singleton]’s Fourth Amendment interests’ against the 

countervailing governmental interests at stake.” Graham, 490 U.S. at 396 

(internal quotation marks omitted). The force used by Darby indisputably 

constituted a substantial intrusion upon Singleton’s liberty. Indeed, pepper 

spray is known to cause significant pain and detrimental health consequences 

and, in fact, did cause Singleton the worst pain she said she has ever known—

necessitating medical care. In evaluating the countervailing governmental 

interest that we must balance against this intrusion, as explained supra, all 

three Graham factors militate against a finding that the force used in this case 

was reasonable. First, Singleton was at most committing the minor crime of 

obstructing a highway, which is a Class B misdemeanor and non-violent in 

nature. Second, viewing the evidence in the light most favorable to Singleton, 

“there was no reason to believe that her actions posed a threat to the officer[], 

herself, or [others].” Deville, 567 F.3d at 167. Third, there is no evidence that 

Singleton or any other protester actively resisted Darby, because the evidence 

shows that Darby did not give them a reasonable opportunity to comply with 

his command before he pepper sprayed them. Finally, Darby’s failure to try 

any of the less severe alternatives available before resorting to pepper spraying 

Singleton and the other protesters, and his failure to warn them that pepper 

spray would be used, further shows that the governmental interest in using 

the significant force of pepper spray under the circumstances was extremely 

limited or nonexistent. 

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Because the force imposed on Singleton by pepper spray was significant 

and the governmental interest in the use of that particular force was minimal, 

viewing the evidence in the light most favorable to Singleton, Darby’s use of 

pepper spray was excessive and in violation of the Fourth Amendment. 

Nevertheless, in order to deny Darby qualified immunity, it must also be

determined whether at the time of the incident it was “clearly established” that 

such conduct would violate Singleton’s Fourth Amendment rights. Id. at 169. 

“For a constitutional right to be clearly established, its contours must be 

sufficiently clear that a reasonable official would understand that what he is 

doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal 

quotation marks omitted). Critically, the “clearly established” standard “does 

not mean that officials’ conduct is protected by qualified immunity unless ‘the 

very action in question has previously been held unlawful.’” Kinney v. Weaver, 

367 F.3d 337, 350 (5th Cir. 2004) (quoting Hope, 536 U.S. at 739). Rather, the 

“central concept” of the standard “is that of ‘fair warning’: The law can be 

clearly established ‘despite notable factual distinctions between the precedents 

relied on and the cases then before the Court, so long as the prior decisions 

gave reasonable warning that the conduct then at issue violated constitutional 

rights.’” Id. (quoting Hope, 536 U.S. at 740). 

At the time of the pepper-spraying incident, “[Singleton] had a clearly 

established right to be free from excessive force . . . and it was clearly 

established that the amount of force that [Darby] could use depended on the 

severity of the crime at issue, whether the suspect posed a threat to the officer’s 

safety, and whether the suspect was resisting arrest or attempting to flee.” 

Deville, 567 F.3d at 169 (internal marks and citation omitted). Viewing the 

evidence in the light most favorable to Singleton, she and the other protesters 

posed no threat, were not resisting arrest, and were committing, at the very 

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most, a non-violent, minor offense when Darby almost immediately and, 

without any warning that he would do so, resorted to the significant force of 

pepper spray. “While the Fourth Amendment’s reasonableness test is ‘not 

capable of precise definition or mechanical application,’ the test is clear enough 

that [Darby] should have known that he could not [use pepper spray against 

Singleton and the other protesters under the particular circumstances.]” Bush 

v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (quoting Graham, 490 U.S. at 396). 

Accordingly, I would conclude that Darby is not entitled to qualified immunity 

on Singleton’s Fourth Amendment claim. 

In reaching the opposite conclusion, the majority erroneously contends 

that the Supreme Court’s recent decision in Plumhoff v. Rickard, 134 S. Ct. 

2012 (2014), requires us to find a case with nearly identical facts to the 

particular circumstances here in order to conclude that Darby’s conduct 

violated “clearly established” Fourth Amendment law. In so doing, the 

majority grossly misreads that decision and altogether ignores the longestablished principle that the lodestar in qualified-immunity cases is whether 

officers had “fair warning” that their conduct would violate a constitutional 

right. See, e.g., Hope, 536 U.S. at 740; Kinney, 367 F.3d at 350. 

In Plumhoff, the Court held that police officers who shot the driver of a 

fleeing vehicle in order to end a dangerous car chase were entitled to qualified 

immunity. 134 S. Ct. at 2016-17. In conducting the “clearly established law” 

prong of its qualified immunity analysis, the Court emphasized its precedents 

observing that deadly force cases “depend[] very much on the facts of each 

case,” meaning that a pure application of the Graham and Garner factors may 

not be appropriate in such a case. 134 S. Ct. at 2023 (discussing Brosseau v. 

Haugen, 543 U.S. 194, 199 (2004)). Accordingly, in light of the unique fact that 

the officers utilized deadly force in response to a high-speed car chase, the 

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Court held that Graham and Garner alone did not put the officers on notice 

that their conduct violated “clearly established” Fourth Amendment law. Id. 

at 2023-24. 

Contrary to the majority’s position, Plumhoff does not eviscerate the 

long-established principle that a police officer is not entitled to qualified 

immunity where, as here, he has “fair warning” based on existing precedents 

that his conduct would violate the constitutional rights of the plaintiff. Hope, 

536 U.S. at 740. Rather, as even a cursory review of Plumhoff reveals, the 

Court’s “clearly established law” analysis pivoted entirely upon the unique fact 

that the case involved “deadly force” in response to a dangerous “vehicular 

flight,” 134 S. Ct. at 2023, which is clearly not the case confronting us here. 

Indeed, unlike the instant case where there was no threat to Darby or the 

public whatsoever, the officers in Plumhoff “shot at Rickard to put an end to 

what had already been a lengthy, high-speed pursuit that indisputably posed 

a danger both to the officers involved and to any civilians who happened to be 

nearby.” Id. 

Moreover, in addition to ignoring these meaningful factual distinctions 

between Plumhoff and the instant case, the majority also errs in concluding 

that Plumhoff militates against applying a “generalized assessment of the 

Graham factors” in order to conclude that Darby violated “clearly established” 

Fourth Amendment law. Such logic further reflects the majority’s careless 

reading of Plumhoff. Plumhoff explicitly and repeatedly endorsed the Court’s 

earlier decision in Brousseau, wherein the Court made clear that, even in the 

fact-dependent context of deadly force cases, “Graham and Garner alone [can] 

offer a basis for decision” that officers violated “clearly established” Fourth 

Amendment law in “an obvious case.” Brousseau, 543 U.S. at 199. As 

explained above, this is an obvious case: in response to the alleged commission 

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of a non-violent and indisputably minor offense, Darby unleased pepper spray 

into the face and eyes of an elderly woman without providing her any warning 

or opportunity to comply with his command and without attempting to first 

utilize any less severe alternative whatsoever.12 Given these egregious facts, 

a reasonable officer in Darby’s position would have “fair warning” that his 

conduct violated the Fourth Amendment’s prohibition on excessive force 

pursuant to both Supreme Court and this Circuit’s precedents. See, e.g, 

Graham, 490 U.S. at 396; Bush, 513 F.3d at 502. 

IV.

Singleton also alleges that Darby’s use of pepper spray against her 

amounted to retaliation against her for engaging in protected speech activities 

opposing the pipeline in violation of the First Amendment. “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.” Keenan v. Tejeda, 290 F.3d 252, 258 

(5th Cir. 2002). “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. (citing Colson v. Grohman, 174 F.3d 498, 509 (5th Cir. 1999)). In 

12 The majority’s repeated reliance upon Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011) is 

similarly misplaced. Unlike here, Al-Kidd involved an entirely novel constitutional issue, 

viz., whether “pretext could render an objectively reasonable arrest pursuant to a materialwitness warrant unconstitutional.” Id. at 2083. Also unlike here, “not a single judicial 

opinion” had ever so held. Id. The Court’s language in Al-Kidd therefore must be read in 

light of the unique question confronting the Court. Here, by contrast, we are confronted with 

a run-of-the-mill question that we have, time and again, confronted: whether a police officer 

may utilize a significant amount of force in response to a minor offense and where the suspect 

poses no threat whatsoever and does not resist the officer. See Deville, 567 F.3d at 169. He 

cannot. 

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order to satisfy her burden under the first prong of the qualified-immunity test, 

Singleton must show that Darby’s conduct amounted to unconstitutional 

retaliation and, accordingly, she must produce sufficient evidence to establish 

that (1) she was “engaged in constitutionally protected activity”; (2) Darby’s 

actions caused her “to suffer an injury that would chill a person of ordinary 

firmness from continuing to engage in that activity”; and (3) Darby’s “adverse 

actions were substantially motivated against [her] exercise of constitutionally 

protected conduct.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). 

Here, contrary to the majority opinion’s analysis, it cannot seriously be 

disputed that Singleton engaged in constitutionally protected activity when 

she joined in the protest against the Keystone XL pipeline on the side of the 

road. The majority opinion erroneously and narrowly focuses only on 

Singleton’s conduct of standing in the roadway at the time of the pepper 

spraying. The majority thus elides the critical fact that Singleton had been 

engaged in constitutionally protected speech immediately prior to that point 

when she was lawfully protesting on the side of the road. 13 Regardless of 

13 The majority erroneously contends that Singleton never claimed that her earlier 

roadside speech activities served the basis for her retaliation claim, as opposed to her actions 

in the road itself. But even a cursory review of her brief belies the majority’s conclusion. For 

example, the heading of her brief’s section devoted to the retaliation claim uses the plural 

“protests,” indicating that she contends Darby retaliated against her series of speech 

activities speaking out against the construction of the pipeline, including her protest on the 

side of the road. In addition, in other sections of her brief, Singleton emphasizes her speech 

activities on the side of the road. See, e.g., Singleton Brief p. 3 (“Ms. Singleton, along with a 

number of other protestors lined the sides of a rural road . . .”); id. at 5 (“Ms. Singleton was 

doing what she had a lawful right to do during the afternoon of Nov. 19, 2012. Specifically, 

Ms. Singleton was in Cherokee County near the Goodman Bridge in Wells, Texas to protest 

and speak out on a matter of public concern: stopping the Keystone Pipeline.”). 

The majority derives its mistaken conclusion based on the fact that Singleton 

apparently was in the road prior to the time Darby exited his car and approached the 

protesters. According to the majority, because Darby never “witnessed” Singleton’s protest 

on the side of the road, there would be no reason for him to retaliate against those speech 

activities. But the majority wholly ignores that the record shows that Darby, as well as other 

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whether Singleton allegedly was violating state law when she moved from the 

side of the road into the road, our own precedents illustrate that a plaintiff may 

suffer unconstitutional retaliation motivated by speech activities that occurred 

long prior to the challenged retaliatory conduct. See, e.g., Keenan, 290 F.3d at 

261; Rolf v. City of San Antonio, 77 F.3d 823, 827-28 (5th Cir. 1996). In other 

words, a valid retaliation claim does not require that the plaintiff be actively 

engaged in constitutionally protected speech at the very moment a government 

agent engages in retaliatory conduct. 

Nevertheless, I ultimately agree that summary judgment was properly 

granted to Darby on Singleton’s retaliation claim, because Singleton has failed 

to produce sufficient evidence to create a genuine dispute as to the third 

element of her claim—i.e., that Darby’s use of pepper spray was “substantially 

motivated against her exercise of constitutionally protected conduct.” Id. 

Because Singleton has failed to produce sufficient evidence to establish that

Darby’s conduct included one of the essential elements of unconstitutional 

First Amendment retaliation, Darby is entitled to qualified immunity on the 

First Amendment claim. See McClendon v. City of Columbia, 305 F.3d 314, 

326-27 (5th Cir. 2002). 

V.

For these reasons, I respectfully dissent from the majority’s decision 

affirming the grant of summary judgment for Darby on Singleton’s Fourth 

Amendment claim. However, I concur in the judgment affirming the district 

court’s grant of summary judgment for Darby on Singleton’s First Amendment 

members of the Cherokee County Sheriff’s Department, were dispatched throughout the area 

in response to the protests against the pipeline. This raises a reasonable inference that 

Darby would have been aware of the protests against the pipeline before encountering 

Singleton and the other protesters obstructing the road itself. 

32

 

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No. 14-40040

claim, but only because Singleton presented insufficient evidence that Darby’s 

actions were substantially motivated by her speech against the construction of 

the pipeline. 

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 Case: 14-40040 Document: 00513051140 Page: 33 Date Filed: 05/21/2015