### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60693 Summary Calendar

TONIA MASSEY; GREG MASSEY, Plaintiffs–Appellees,
v. DEPUTY ROBERT WHARTON, Individually, Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:08-CV-243

Before DENNIS, OWEN, and HIGGINSON, Circuit Judges. PER CURIAM: * Defendant Robert Wharton, a deputy of the DeSoto Co unty Sheriff’s Department in DeSoto County, Mississippi, appeals the denial of his motion for summary judgment. Because material issues of fact exist, we affirm. I In January 200 8 , Olive Branch, Mississippi police officers engaged in a high-speed chase of a fleeing motorist, Chad Gammons. As Gammons neared U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 5, 201 2 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-60693 Document: 00511876978 Page: 1 Date Filed: 06/05/2012No. 11-60693

Olive Branch city limits, the DeSoto County Sheriff’s Department was notified that Gammons was heading into the county. Wharton was on d u t y that night and responded to the dispatch. Eventually, Gammons ran off the road and crashed into the side of a house occupied by Essie Talley, the mother of plaintiff Tonia Massey and the grandmother of plaintiff Greg Massey. After the crash, both DeSoto County Sheriff’s Department officers and Olive Br a n c h police officers were at the scene. The events that occurred after the crash are hotly disputed. As explained below, we cannot review the genuineness of those factual disputes, and we must accept the truth of the plaintiffs’ assertions. For clarity, however, we set forth both sides’ assertions below. According to the plaintiffs, Greg Massey, who lived nearby, drove an allterrain vehicle (ATV) to Talley’s house in order to survey the damage resulting from the crash. Multiple police officers testifi e d t h a t M a ssey was moving at a high rate of speed. Greg Massey asserts that when he arrived on the scene, he began talking to Tonia Masse y , his mother, and Talley, his grandmother. He claims that Wharton told him to get off the ATV but another officer yelled at him to drive it away and park it elsewhere. Wharton fired his taser at Greg almost immediately afterward. According to the plaintiffs, Greg did not say anything to Wharton before Wharton fired his taser, nor did Greg engage in any kind of physical altercation with Wharton. Greg testified that after Wharton deployed his taser, he told Greg to dr i v e t h e ATV up the hill and park it by his parents’ home. G r e g began to drive away slowly, but Wharton persisted in the altercation and a t t e m p t e d to spray Greg with pepper spray. After being sprayed, Greg asserts that he continued up the hill, consistent wi th the officers’ instructions. Wharton and other officers gave chase. At the top of the hill, Wharton allegedly deployed his taser again. Greg w a s t h en pulled off of the ATV, handcuffed, and arre s t e d. Wharton testified that, although he did not

2 Case: 11-60693 Document: 00511876978 Page: 2 Date Filed: 06/05/2012No. 11-60693

apply the handcuf

f s , h e was the arresting officer. Greg was taken to jail on charges of disorderly conduct and resisting arrest, both misdemeanor charges, which were subsequently dismissed. Wharton has a contrary view of Greg’s actio n s . According to Wharton, Greg was initially asked to leave the scene, and when he failed to do so, he was asked to dismount his ATV. Wharton argues that Greg became confrontational and refused to dismount. It was only then that Wharton decided to deploy his taser. Allegedly, a struggle over control of the taser ensued, and Wharton was finally able to fire the taser, but it failed. According to Wharton, Greg continued to refuse compliance, so Wharton attempted to use his pepper spray, which Greg tried to deflect. Greg then fled, driving the ATV quickly up t h e h ill. Wharton and other officers followed him. Wharton alleges that Greg was pulled off of the ATV at the top of the hill by other officers and arrested. With respect to Tonia Massey, the plaintiffs argue that she arrived at the top of the hill when Greg was already on the ground. She claims that she saw Wharton tase Greg as he was b eing pulled off of the ATV. She says that she begged the officers to leave her son alone and maintaine d t h a t he had done nothing wrong. Wharton allegedly told her to “shut u p,” which she did not do, but she maintains that she did not disobey any ot h e r c ommands from the officers—she was told to stay where she was and she did so. Tonia testified in her deposition that Wharton became angry, grabbed her by the neck, and threw her to the ground. He placed her in handcuffs and allegedly stomped his foot into the middle of her back. She was then placed in a police car for two-and-ahalf to three hours. She was subsequently released and not charged. Wharton asserts that he saw Tonia’s verbal disturbance and its effect on the already-volatile situation and that she ignored many requests to quiet down and stop inciting the situation. Other officers testified that she was moving toward the officers but was told to stop. She allegedly did not comply and

3 Case: 11-60693 Document: 00511876978 Page: 3 Date Filed: 06/05/2012No. 11-60693

officers tried to hold her back. Wharton advised her that she would be arrested

a n d c laims she struggled when he tried to apply handcuffs. With the help o f another officer, he placed her on the ground and applied the handcuffs. She was then put in a police car, but it was ultimately decided that no charges would be filed and she was released. Greg and Tonia Massey sued pursuant to 28 U.S.C. § 1983. Both Greg and Tonia claim that they were arrested without probable cause in violation of the Fourth Amendment and that they were unreasonably seized in violation of the Fourth Amendment. Greg also claimed that Wharton violated his constitutional right to be free from malicious prosecution. Tonia additionally c l a i m e d that Wharton violated h e r First Amendment right to be free from arrest for exercising her right to free speech. Wharton filed a motion for summary judgment asserting that he is entitled to qualified immunity. The district court granted the motion with respect to Greg’s malicious prosecution cla i m, but denied it with respect to all other claims, holding that genuine issues of material fact exist. II A Our jurisdiction to review denials of summary judgme n t on qualified immunity grounds is limited—we have jurisdic t i o n over such appeals “to the extent that [ t h e denial of summary judgment] turns on an issue of law.” 1 Accordingly, we lack jurisdiction to review the district court’s asse s s m e n t s regarding “whether there is enough evidence in the record for a jury to conclude that certain facts are true.” However, we can review “the purely legal question 2 whether the defendants are entitled to qualified immunity on the facts that the

Kinn ey v. Wea ve r , 367 F.3d 337, 346 (5t h Cir. 2004) (en banc) (al ter atio n in origi nal) 1 (int erna l q uota tio n m ark s om itt ed) ( cit ing Mi tchel l v. For syth , 472 U. S. 511 , 530 (198 5))

. Id. at347

. 2
4 Case: 11-60693 Document: 00511876978 Page: 4 Date Filed: 06/05/2012No. 11-60693

district court found sufficiently supported in the summary judgment record.” 3 Put simply, “we can review the materiality of any factual disputes, but not their genuineness .” 4 We review the materiality of the factual disputes de novo. In reviewing 5 the materiality of any factual disputes, we must as s u m e that the plaintiffs’ factual allegations are true and then determine whether the defe n d a n t i s entitled to qualified immunity based on those facts. “[A] defendant challenging 6 the denial of a motion for summary judgment on the basis of qualified immunity

‘ must be prepared to concede the best view of the facts to the pl a i n t i f f a n d discuss only the legal issues raised by the appeal.’” 7 I n this case, the district court did not state the facts that it found t o b e disputed. Instead, it deni e d Wharton’s motion for summary judgment on qualified-immunity grounds because “genuine issues of material fact exist as to whether defendant Wharton’s conduct was objectively unreasonable under the circumstances.” In these circumstances, “[w]e can either sc o u r t h e record and determine what facts the plaintiff may be ab l e t o p rove at trial and proceed to resolve the legal issues, or remand so that the trial court can clarify the order.” 8 In light of the limited record in this case, we will do the former. 9

He rna ndez v. Tex

. De

p’t of Protec tive & Regul ator y Serv s. , 380 F.3d 872, 878 (5t h Cir. 3 2004) ( cit ing Kinn ey , 367 F.3dat347 ).
Kinn ey , 367 F.3d at 346 (quo ting Wagne r v. Bay City , 227 F.3d 316, 320 (5t h Cir. 4 2000) ) (int erna l q uota tio n m ark s om itt ed)

. Id. at349

. 5
Free ma n v . Go re , 483 F.3d404 , 410 (5t h Cir

. 2007)

. 6
Id. ( quot ing Go nza le z v. D al la s Cnty. , 249 F.3d406 , 411 (5t h Cir

. 2001) ). 7
Ma nis v. Law son , 585 F.3d 839, 843 (5t h Cir. 200 9 ) ( q u o t i n g Thom ps on v. Up shur 8 Cnty., T ex. , 245 F.3d447 , 456 (5t h Cir

. 2001) ) (int erna l q uota tio n m ark s om itt ed)

. See id. 9 5 Case: 11-60693 Document: 00511876978 Page: 5 Date Filed: 06/05/2012No. 11-60693 B “The doctrine of qualified i m munity protects government officials ‘from liability from civil damages insofar as their conduct does not violate clea r ly established statutory or constitutional righ t s o f w h i c h a r e a s o n ab l e person would have known.’” We conduct a two-prong inquiry in deter m i ning whether an 1 0 official is e n t i t l ed to qualified immunity. First, we determine whether the official’s conduct violated a constitutional right of the plaintiff. Second, we 1 1 determine whether that right was clearly established a t t h e t ime of the violation. We may conduct this inquiry in either sequence.

1 2 1 3 Wharton readil y a dmits in his reply brief that he must concede the best view of the facts to the plaintiffs. However, his brief is replete with instances in which he appears to argue that the evidence supports his view of the facts and not the plaintiffs’. Therefore, he argues, he is entitled to summary judgment on the ground that he has qualified immunity. To the extent that Wharton challenges the sufficiency of the record evidence to support the plaintiffs’ view of the facts, we lack jurisdiction; we will not review the genuineness of factual disputes on appeal. Accordingly, w e t urn to the materiality of those factual disputes. 1 Wharton first argues that he had probable cause to arrest both Greg and Tonia Massey. He also argues that ev e n if he did not have probable cause, he

Pear son v. Cal la han , 555 U. S. 223, 231 (200 9) (quo ting Ha rl ow v. Fitz gera ld , 457 U. S. 1 0 800, 818 ( 1982) ).

Ma nis , 585 F.3dat843

. 1 1
Id. 1 2
Pear son , 555 U. S. at236

. 1 3 6 Case: 11-60693 Document: 00511876978 Page: 6 Date Filed: 06/05/2012No. 11-60693

reasonably but mistakenly concluded that probable cause was present, so he is entitled to qualified immunity. In order for an arrest to be lawful, it must be supported b y p r o b a b l e
cause. “Probable cause exists when the totality of fact s a n d c ircumstances

1 4 within a police offic e r ’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” A police offi cer has qualified immunity if he 1 5 “reasonably but mistakenly conclude[s] that probable cause is present.” If 1 6 Wharton could reasonably have believed Greg’s and Tonia’s arrests to be lawful in light of the clearly established l a w a t the time, then he has qualified immunity. 1 7 G r e g Massey was arrested and charged with resisting arrest and 1 8 disorderly conduct. Probable cause did not exist based on either crime—taking 1 9 the plaintiffs’ alleg a t i o ns as true, Greg was attempting to comply with police commands at all times. When he f i r s t d r o v e u p to the crime scene, he did not have time to “promptly comply with or obey” the officers’ contradic t o r y 2 0

Flor es v. City of Pal ac ios , 381 F.3d 391, 402 (5t h Cir. 2004) (c itin g Hi nsha w v. Doff er , 1 4 785 F.2d126 0, 1266 (5t h Cir

. 1986) ).

Id. (quo ting Uni ted States v. Lev ine , 80 F .3d 129, 132 (5t h Cir. 1996) ) (int erna l 1 5 quot atio n m ark s om itt ed)

.

Hu nter v. Brya nt , 502 U. S. 224, 227 (199 1) (quo ting Ande rso n v. Creighton , 483 U. S. 1 6 635, 641 ( 1987) ).

See id. 1 7
M ISS

. C ODE AN N

. § 97-9 -73 (“ It sha ll be unlaw ful for any per so n to obs tru ct or res ist 1 8 by for ce, or violenc e, or thr eats , or in any othe r man ner, his law ful arr es t or the law ful arr es t of anot her per so n by any s tat e, loca l o r fed eralla w enf orc em ent off

icer

. . . . ”)

. Id. § 97-3 5-7 (m ak ing it a cri me to “f ail[] or ref

use [] to pr om pt ly com ply wi th or obey 1 9
a r eques t, c om man d, oror derof a law en for cem ent off icer ” in a var iet y of

c irc ums tanc es ).
Id. 2 0 7 Case: 11-60693 Document: 00511876978 Page: 7 Date Filed: 06/05/2012No. 11-60693

commands, and when he drove away, he claims that he was not fleeing but was obeying Wharton’s order to drive the ATV up the hill. He was neither disobeying Wharton’s commands nor attempting to resist his lawful arrest. Accepting these facts as p r e s ent, probable cause did not exist, and no officer reasonably could believe otherwise. 2 1 Similarly, no officer reasonably could believe that a n a rrest of Tonia Massey would be lawful. Taking the plaintiffs’ allegations as true, Tonia Massey obeyed the officers at all time with the exception of remaining quiet, which, as

we discuss below, cannot support probable cause for arrest. She did not commit d isorderly conduct, nor did she resist the lawful arrest of either her s e l f o r h e r
son. No reasonable of f i c er could believe that probable cause existed to arrest Tonia Massey in this situation. Wharton appears to argue that Tonia Massey w a s not arrested, but was merely detained p u r s uant to Terry v. Ohio , which allows brief investigatory stops based on reasonable suspicion. However, it is clear that a detention of 22

s i g nificant length may transform an investigative detention into an arre s t

. 23 The investigative stop can “last no longer than is nece s s a r y t o effectuate the

See Sull iv an v. Al lr ed , 297 F. App ’x 339, 342 (5t h Cir. 2008) (unp ublis hed) (ho ldi ng, 2 1 wi th res pec t to act ions that pr eda te thos e at iss ue here in a cas e aris ing in Texas , that genuine is su es of mat eria l fac t exis t that pr eclu de sum mar y judgm ent on arr es t wi thou t pr obable caus e and exces sive for ce ground s wh en, acc ept ing the plai ntif f’ s view of the fac ts , the plai ntif f wa s app roac hed by a pol ice off icer , tol d t o l e ave, and as he wa s wa lk ing aw ay, the pol ice off icer em plo yed a c hok e h old , brou ght him t o t he flo or, andar res tedhi m)

. 392 U .S

. 1, 30 ( 1968) ; seea ls o Uni ted Sta tes v. Pl ac e , 462 U. S. 696 , 702 (198 3). 2 2
See United States v. Shabazz , 993 F.2d 431, 437 (5t h Cir. 1993) (“ We rec ognize that 2 3 a dete ntio n m ay be of

exc es sive ly lo ng d urat ion even thou gh the off icer s have notcom ple ted and co ntinu e to pur sue invest igatio n of the m att ers just ifyin g its init iati on. . . . A pr olonge d in v e s t i g a tive det enti on may be tant amo unt to a de fa cto arr es t, a mo re intr usi ve cus tod ial st ate wh ich mus t be bas ed upon pr obable cau se rat her than me re reas onable sus pic ion. ” (int erna l c itat ions om itt ed) ). 8 Case: 11-60693 Document: 00511876978 Page: 8 Date Filed: 06/05/2012No. 11-60693

purpose of the stop.” In United States v. Place , the Supreme Court held that 2 4

a seizure of a man’s luggage for ninety minutes required probable cause, not reasonable suspicion, and noted, “[A]lthough we decline to adopt any outside time limitation for a permissible Terrystop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so
on the facts presented by this case.” Tonia Massey was handcuffed and put in 2 5 the back of a police car, she claims, for two-and-a-half to three hours. There is no indication that the police were investigating her for anything. Under these circumstances, any reasonab le officer should have known that Tonia Massey’s seizure required probable cause, not reasonable suspicion. 2 6 2 Wharton also argues that Greg and Tonia Massey were not unreasonably seized in violation of the Fourth Amendment. He argues that he had probable

cause to a r rest them, and the seizure did not involve “deadly force, an unannounced entry into a home, entry into a home w i t h o u t a warrant, or p h y s ical penetration of the body.” He also argues that the plaintiffs o n l y 2 7 pleaded a claim for unreasonable seizure, but did not plead a claim of excessive force. However, if they did plead claims for excessive force, he asserts that his conduct in subduing both Greg and Tonia Massey was objectively reasonable. As an initial matter, we reject Wharton’s argument that the plaintiffs did not plead excessive force claims. The plaintiffs alleged that W h a r t o n v i olated

Flor idav . Roye r , 460 U. S. 491 , 500 (198 3). 2 4
462 U .S

. at 709- 10. 2 5
See Free ma n v. Go re , 483 F.3d 404, 413 (5t h Cir. 2007) (ho ldi ng that the plai ntif f had 2 6 been arr es ted , not me rely det ained , wh en the off icer thr eate ned the plai ntif f wi th arr es t, the plai ntif f invite d arr es t, and the of fic er hand cuf

fedher and put her in the back of a police car fort hirt y t o f

ort y-f ive mi nute s)

. See Atw ater v. City of Lago Vi sta , 195 F.3d 242, 244- 45 (5t h Cir. 1999) (en banc) , af f’ d , 2 7 532 U. S. 318 ( 2001)

. 9 Case: 11-60693 Document: 00511876978 Page: 9 Date Filed: 06/05/2012No. 11-60693

t heir “right to be free from arrest without probable cause and to be free from unreasonable seizure of the person” in violation of the Fourth Amendment. An excessive force cla i m i s a n a l y z e d u n d er the Fourth Amendment’s reasonableness standard, and the plaintiffs pleaded a claim for unreaso n a b l e seizure. The

2 8 plaintiffs have also pleaded facts showing that their claim is plausible. An excessive force claim is “separate and distinct from” a claim for unlawful arrest and must therefore be analyzed without regard to whether the arrest was justified, although the evidence may overlap. To prove a claim for 2 9 3 0 excessive force, the plaintiff must sho w “ ( 1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” In this case, Wharton has not argued that 3 1 the plaintiffs cannot show an injury resulting from the use of force. Rather, Wharton argues that his use of force was objectively reasona b l e . In assessing whether the use o f force was reasonable, we must assess the totality of the circumstances. Several impor t a n t f a c t ors are “the severity of the crime at 3 2 issue, whether the suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or attempting to evade

Gr aha m v. M

.S. Con nor , 490 U. S. 386 , 395 (198 9). 2 8
Free ma n , 483 F.3dat417

. 2 9
Cortezv . Mc Caul ey , 478 F.3d110 8, 1127 (10t h Cir

. 2007)

. 3 0
Eli zo ndo v. Gr een , 671 F.3d 506, 510 (5t h Cir. 2012) (quo ting Coll ie r v. Mo ntgome ry , 3 1 569 F.3d214 , 218 (5t h Cir

. 2009) ) (int erna l q uota tio n m ark s om itt ed)

.

Id. ( cit ing Ram ir ezv . Knoul ton , 542 F.3d124 , 128 (5t h Cir

. 2008) ). 3 2 10 Case: 11-60693 Document: 00511876978 Page: 10 Date Filed: 06/05/2012No. 11-60693

arrest by flight.” These factors were clearly established a t the time of the 3 3 events here. 3 4 We confronted a similar case involving a taser in Autin v. Baytown , decided almost two years before th e actions at issue here. In Autin , the 3 5 plaintiff, suspecting something was wrong, used a brick to knock on the door of her brother’s house. When he d i d n o t a n s wer, she called the police and 3 6 requested an officer’s help. The officer arrived and told her he could not help 3 7 her, and as she picked up the b r i c k a n d approached the door again, the officer deployed his taser on her. It malfunctioned, so he attempted a contact tase. 3 8 3 9 The taser malfunctioned again. He repeatedly contact tased the plaintiff while 4 0 f o r c i n g h er to the ground. She hit her head on a pole and suffered a 4 1 laceration. We affirmed the district court’s denial of the officer’s motion for

4 2
summary judgment because the p l a i ntiff was at most committing the minor crime of criminal mischief, was not a threat to the officer or others, and was not

Gr aha m , 490 U. S. at396 ( cit ing Tenn ess ee v. G ar ner , 471 U. S. 1, 8- 9 ( 1985) ). 3 3
See Bush v. Strai n , 513 F.3d492, 502 (5t h Cir. 2008) (app lying the Gr aha m fact ors 3 4 to event s that pr ece de those at iss ue here ); Auti n v. Baytow n , 174 F. App ’x 183, 186 (5t h Cir. 2005) ( unpub lis hed)

. 174 F. Ap p’x 183 (5t h Cir

. 2005) ( unpub lis hed)

. 3 5
Id. at183

. 3 6
Id. at184

. 3 7
Id. 3 8
Id. 3 9
Id. 4 0
Id. 4 1
Id. 4 2
11 Case: 11-60693 Document: 00511876978 Page: 11 Date Filed: 06/05/2012No. 11-60693

resisting arrest. Because none of the facto r s a b o v e supported the officer, we 4 3 held that the officer was not entitled to qualified immunity. 4 4 I n light of Autin and the clearly established Graham factors, no r e a s o n ab l e police officer would believe the force used against Greg Massey to be reasonable under the circumstances. Taking the plaintiffs’ assertions as true, Greg Massey

was arrested for disorderly conduct and resisting arrest althou g h he was attempting to comply with the officers’ commands, he was n ot a threat to the officers or others, and he was not attempting to flee, but was driving away at the

comma n d o f W harton. Nonetheless, Wharton used his taser twice and his
pepper spray once to subdue Greg. None of the three factors supports Wharton, so no reasonable officer would believe the force used here to be reasonable. For similar reasons, Wharton is present l y not entitled to qualified immunity on Tonia Massey’s excessive force claim. Taking all of the plaintiffs’ factual assertions as true, she was arrested for disorderly conduct and resisting arrest although she complied with the officers’ instructions, she did not pose a threat to the officers or anyone else, and she was not resisting arrest. Although the test for excessive f o r c e is quite fact-intensive, it is clear enough that no reasonable officer would believe the force used against her to be reasonable. 4 5

Id. at185

. 4 3
Id. at186

. 4 4
See Bush v. Strai n , 513 F.3d 492, 502 (5t h Cir. 2008) (ho ldi ng t h a t t h e law wa s 4 5 clea rly es t a b l i she d pr ior to the event s at iss ue here that “th e per mi ss ible degr ee of for ce dep ends on the se verit y of the cri me at iss ue, wh e t h e r t he sus pec t pos ed a thr eat to the off icer ’s saf

ety, and wh et h er the sus pec t wa s res ist ing arr es t or att em pt ing to fle e,” and cons equent ly that the off icer “s hould have kn ow n that he coul d not for cef ully s l a m [t he plai ntif f’ s] fac e into a vehicl e wh ile she wa s res tra ined and sub dued .” ); s e e a l s o B r o sse au v. H a ugen , 543 U. S. 194, 199 (200 4) (ho ldi ng that the cour t of app eals err ed in find ing “f air wa rnin g” i n the genera l tes ts of Gr aha m and Ga rne r , but noti ng that , in the obvious cas e, thes e ge nera l s tand ard s can clea rly es tabl isht he ans we r wi thou t fur therc ase la w)

. 12 Case: 11-60693 Document: 00511876978 Page: 12 Date Filed: 06/05/2012No. 11-60693 3 Finally, W harton claims that Tonia Massey cannot make out a violation of her Firs t A m e ndment rights. The Supreme Court has held that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” “The freedom of i n d i viduals verbally to oppose or 4 6 challenge police action without thereby risking arrest is one of the principal characteristics from which we distingu i s h a free nation from a police state.” 4 7 The validity of a First Amendment claim may depend on whether probable cause exists for the arrest. “If [probable cause] exists, any argum e n t that the arrestee’s speech as opposed to her criminal conduct was the motivation for her arrest must fail, no matter how clearly that speech may be protected by the First Amendment.” 4 8 We confro n t e d a somewhat similar situation in Enlow v. Tishomingo County, Mississippi

. In Enlow , the police initiated a gambling raid on a 49 building owned by the plaintiff. The fa c t s were substantially disputed. 5 0 Ac cording to the plaintiff, as the police were conducting the raid, he me r e l y asked two questions about the raid, remained silent after being told to be quiet, and took a picture of the raid with a bystander’s camera, a f t er which he was arrested. We held that because this speech failed to “rise above ‘inconvenience,

5 1

a n n o y a n ce, or unrest,’

. . . or constitute an incitement to immediate lawless

City of Ho uston, T

ex. v . Hi ll , 482 U. S. 451 , 461 (198 7). 4 6
Id. at462 -63. 4 7
Me sav . Prej ea n , 543 F.3d264 , 273 (5t h Cir

. 2008)

. 4 8
962 F. 2d 501 (5t h Cir

. 1992)

. 4 9
Id. at503

. 5 0
Id. at509

. 5 1 13 Case: 11-60693 Document: 00511876978 Page: 13 Date Filed: 06/05/2012No. 11-60693

action,” Enlow had stated a cognizable First Amendm e nt claim. We further 5 2 affirmed the district court’s denial of summary judgment on qualified-immunity grounds because the facts were disputed as to whether the defendant arrested the plaintiff because he feared that the plaintiff would incite a riot or because he had exercised his First Amendment rights. 5 3 Here, if Wharton had probable cause to arrest Ton ia Massey, then her First Amendment claims must fail. However, issues of material fact exist as to whether Wharton had probable cause to arrest Tonia M a s s e y . Accepting the plaintiffs’ allegations as true, then the plaintiffs have asserted a First Amendment violation. Tonia Massey did nothing but tell the polic e o f f icers to leave her son alone. Her speech neither rises above inconvenience, annoyance,
or unrest, nor does it constitute a n i n citement to immediate lawless action. Furthermore, the law was clea r l y e stablished at the time of the actions here. The validity of Tonia Massey’s First Amendmen t c l a im therefore “hinges on probabl e c ause for her arrest,” and this claim cannot be resolved on summary judgment. 5 4 * * * For the foregoing reasons, the district court’s denial of Wharton’s motion for summary judgment is AFFIRMED.

Id. ( quot ing Ter mi nie ll o v . City of Chic ago , 337 U. S. 1, 4 (194 9))

. 5 2
Id. at509 -10. 5 3
See Me sav . Prej ea n , 543 F.3d264 , 273 (5t h Cir

. 2008)

. 5 4
14 Case: 11-60693 Document: 00511876978 Page: 14 Date Filed: 06/05/2012