IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20264

DAVID ALLEN, 

 Plaintiff - Appellee

v.

A. H. CISNEROS; J. MONTELONGO, 

 Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before KING, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:

Plaintiff–Appellee David Allen participated in several demonstrations 

throughout the City of Houston that led to his detention and arrest by police 

officers, including Defendants–Appellants Aaron Cisneros and Juan 

Montelongo. Allen brought claims under 42 U.S.C. § 1983 against Sergeant 

Cisneros and Officer Montelongo, among others, alleging that the officers 

violated his constitutional rights. The district court denied the officers’ motion 

for summary judgment on qualified immunity grounds, and the officers 

appealed. Because we hold that the officers are entitled to qualified immunity, 

we REVERSE the district court’s order denying summary judgment.

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2016

Lyle W. Cayce

Clerk

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I. FACTUAL AND PROCEDURAL BACKGROUND

Since at least 2010, Plaintiff–Appellee David Allen has regularly 

engaged in street preaching throughout Houston, Texas, sounding a shofar as 

part of his preaching.1 After Allen’s activities led to his detention and arrest 

by police officers on multiple occasions, he filed a complaint in the United 

States District Court for the Southern District of Texas, alleging numerous 

violations of his constitutional rights arising out of several encounters with 

police officers. Two encounters are at issue in this appeal: Allen’s encounter 

with Officer Montelongo on October 31, 2011, and his encounter with Sergeant 

Cisneros on January 14, 2012.

A. Incident Involving Officer Montelongo

On October 31, 2011, Allen was street preaching at a bus stop in Houston 

with David Stokes—another street preacher—and two other individuals. 

Officer Montelongo arrived on the scene in response to a disturbance call. He

possessed a template that measured whether signs and objects used by 

demonstrators complied with Houston Ordinance § 28-33,2 which describes the 

 

1 A shofar is a trumpet-like instrument made from a ram’s horn. Shofars are

commonly used in Judaism to mark the holidays of Rosh Hashanah and Yom Kippur. Joseph 

Berger, In Brooklyn, Horn Lessons by a Rabbi Ring Out, N.Y. Times, Sept. 29, 2011, at A24. 

Sergeant Cisneros and Officer Montelongo did not know of the shofar’s religious significance, 

and the parties do not dispute on appeal that Defendants are entitled to qualified immunity 

for the seizure of Allen’s shofar.

2 The ordinance provides that:

(a) No person shall carry or possess while participating in any demonstration, 

rally, picket line or public assembly, any stick, board, pole, stave, rod, plank, 

pipe, stud, cane, staff, slat, or similar object unless that object conforms to the 

following specifications:

(1) All objects which are generally rectangular in shape shall not 

exceed one-fourth inch in thickness and two inches in width.

(2) All objects which are not generally rectangular in shape shall 

not exceed three-quarters inch in their thickest dimension.

(3) All objects must be constructed of wood, wood products, or 

other cellulose materials.

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items that may be carried at a demonstration. He measured the signs and 

informed Stokes that the signs did not comply with the ordinance. Officer 

Montelongo also informed Allen that he could not have his shofar, which 

measured approximately thirty-seven inches long and six inches in width, and 

which Allen possessed throughout the entire incident. As Officer Montelongo 

and Stokes argued about whether the signs complied with the ordinance, 

Officer Montelongo’s supervising officer arrived. While the officers discussed 

the situation, Stokes approached the officers, and the supervising officer 

detained Stokes. According to Officer Montelongo, Allen entered into the 

oncoming street traffic while Stokes was being detained. Officer Montelongo 

pulled Allen back onto the sidewalk, but Allen resisted and fell, leading to

Officer Montelongo and another officer handcuffing Allen for the officers’ and 

Allen’s safety. According to Allen, however, he never entered or tried to enter 

the street; instead, the officers detained and handcuffed Allen as he attempted

to use his cell phone to videotape Stokes’ treatment by the officers. The parties 

agree that Allen was placed in the back of a police car after being handcuffed. 

Officer Montelongo ultimately issued citations to Stokes and Allen for violating 

the city ordinance, and confiscated the signs and Allen’s shofar.3

B. Incident Involving Sergeant Cisneros

On January 14, 2012, Allen and Stokes protested in downtown Houston 

on the route of the Houston Marathon. Allen had his shofar and Stokes had 

several signs displaying controversial messages. A race official approached, 

stood in front of one of the signs, and exchanged words with Stokes. A police 

officer spoke with Stokes, and subsequently called for assistance because of 

 

Houston, Tex., Code of Ordinances ch. 28, art. 1, § 33.

3 The citation was later dismissed because it had been incorrectly completed.

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“two extremely uncooperative males” that were causing a disruption along the 

race route. 

Upon arriving at the scene, Sergeant Cisneros spoke with the other 

officer and the race official about the disruption. Sergeant Cisneros 

approached Stokes and Allen and directed them to move back from the edge of 

the race route, but Stokes verbally refused to move. Sergeant Cisneros told 

Stokes “[c]ome on with me” and escorted Stokes towards Sergeant Cisneros’

police car, which was parked on a street blocked off for the race. As Sergeant 

Cisneros detained Stokes, Allen videotaped the encounter, following Sergeant 

Cisneros and “com[ing] up behind him.” Sergeant Cisneros turned and told 

Allen, “I’m going to tell you. I do not want you near my police car. I’m going 

to order you to go away. If you do not go away, I’m going to put you in jail for 

interfering with a police investigation.” Allen began walking backwards while 

continuing to videotape. Sergeant Cisneros then told Allen that “[i]f we are 

going to play the step-by-step game, I’m going to put you in the backseat of the 

car also.” Allen verbally protested, claiming that he was on a public sidewalk 

and asking what he was doing wrong. Sergeant Cisneros confiscated the video 

camera from Allen, frisked him, and placed him in the backseat of the patrol 

car with Stokes.

After checking Stokes’ and Allen’s identification, Sergeant Cisneros 

released both men, returning their personal belongings. Allen began walking 

towards Sergeant Cisneros’ patrol car with the video camera. Sergeant 

Cisneros contends that he warned Allen to stay out of the street, although 

Allen disputes that such a warning occurred. After Allen entered the street, 

Sergeant Cisneros arrested him. Sergeant Cisneros issued Allen a citation for 

failure to obey a lawful order of a police officer directing traffic and for violating

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Houston Ordinance § 28-33 by possessing a staff while participating in a 

demonstration.4

C. Procedural History

On May 15, 2013, Allen filed his complaint seeking relief under 42 U.S.C. 

§ 1983. Allen alleged that Defendants seized him in retaliation for his exercise 

of his freedom of speech, in violation of the First Amendment, and that the 

seizures were without probable cause or other lawful authority, in violation of 

the Fourth Amendment.5 Defendants moved for summary judgment, asserting 

that they were entitled to qualified immunity. The magistrate judge issued a

memorandum and recommendation, advising that the district judge deny 

summary judgment on qualified immunity grounds as to the seizures of Allen 

by both Defendants.6 As to the incident involving Officer Montelongo, the 

magistrate judge found that there was a genuine factual dispute of whether 

Allen had entered the street when he was detained by Officer Montelongo. 

Similarly, the magistrate judge found that there was a genuine factual dispute 

of whether Allen complied with Sergeant Cisneros’ orders and whether Allen 

remained bound by Sergeant Cisneros’ prior orders. Both Defendants filed 

objections, but the district court adopted the magistrate judge’s memorandum 

and recommendation in its entirety. Defendants timely appealed the denial of 

their summary judgment motion based on qualified immunity.

 

4 The charges were later dismissed after Sergeant Cisneros missed Allen’s court date. 5 Allen also brought claims against the chief of the Houston Police Department, 

Charles McClelland, and the City of Houston, but the district court ultimately dismissed 

those claims. 6 The magistrate judge also advised that the district court grant summary judgment 

on qualified immunity grounds as to the seizure of Allen’s shofar by both officers, and the 

district court dismissed those claims relating to the seizures of the shofar.

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II. STANDARD OF REVIEW

An order denying summary judgment on qualified immunity “is a 

collateral order subject to immediate appeal.” Brauner v. Coody, 793 F.3d 493, 

497 (5th Cir. 2015). However, “[t]his court has jurisdiction over such an order 

only ‘to the extent that the district court’s order turns on an issue of law.’” 

Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014) (quoting Kovacic v. 

Villarreal, 628 F.3d 209, 211 (5th Cir. 2010)). Accordingly, we lack jurisdiction 

to review the genuineness of a fact issue but have jurisdiction insofar as the 

interlocutory appeal “challenges the materiality of [the] factual issues.” Bazan 

ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 490 (5th Cir. 2001). We review de 

novo the district court’s conclusions regarding the materiality of the facts, 

Gibson, 773 F.3d at 666, “consider[ing] only whether the district court erred in 

assessing the legal significance of the conduct that the district court deemed 

sufficiently supported for purposes of summary judgment,” Kinney v. Weaver, 

367 F.3d 337, 348 (5th Cir. 2004) (en banc). “Where factual disputes exist in 

an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’ 

version of the facts as true.” Id.

III. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY

“The doctrine of qualified immunity shields officials from civil liability so 

long as their conduct ‘does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.’” 

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 

U.S. 223, 231 (2009)). “Put simply, qualified immunity protects ‘all but the 

plainly incompetent or those who knowingly violate the law.’” Id. (quoting 

Malley v. Briggs, 475 U.S. 335, 341 (1986)). A plaintiff can overcome a qualified 

immunity defense by showing “(1) that the official violated a statutory or 

constitutional right, and (2) that the right was ‘clearly established’ at the time 

of the challenged conduct.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011) 

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(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Allen contends that 

Officer Montelongo and Sergeant Cisneros unlawfully seized him in retaliation 

for exercising his freedom of speech, in violation of the First and Fourth 

Amendments. However, because the genuine disputes identified by the district 

court are not material and Allen has failed to show that either officer violated 

his constitutional rights, Defendants are entitled to qualified immunity.

“[T]he First Amendment prohibits government officials from subjecting 

an individual to retaliatory actions, including criminal prosecutions, for 

speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). However, a 

retaliation claim is only applicable “when nonretaliatory grounds are in fact 

insufficient to provoke the adverse consequences.” Id. As a result, even where 

a citizen believes that he has been subject to a retaliatory detention or arrest, 

if there was reasonable suspicion or probable cause for an officer to seize the 

citizen, “the objectives of law enforcement take primacy over the citizen’s right 

to avoid retaliation.” Keenan v. Tejeda, 290 F.3d 252, 261–62 (5th Cir. 2002); 

see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is 

‘sufficiently clear that every reasonable official would have understood that 

what he is doing violates that right.’” (quoting Reichle v. Howards, 132 S. Ct. 

2088, 2093 (2012))).

Under the Fourth Amendment, “[p]olice officers may briefly detain 

individuals on the street, even though there is no probable cause to arrest 

them, if they have a reasonable suspicion that criminal activity is afoot.” 

United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994). Reasonable 

suspicion exists if there are “specific and articulable facts which, taken 

together with rational inferences from those facts, reasonably warrant [a 

detention].” Terry v. Ohio, 392 U.S. 1, 21 (1968). However, determining 

reasonableness is an objective inquiry where “[w]e ask whether ‘the 

circumstances, viewed objectively, justify [the challenged] action.’” Ashcroft, 

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131 S. Ct. at 2080 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). 

Accordingly, “[t]he Fourth Amendment requires only some minimum level of 

objective justification for the officers’ actions—but more than a hunch—

measured in light of the totality of the circumstances,” Michelletti, 13 F.3d at 

840, considering the facts available to the officer at the time of the detention, 

Davila v. United States, 713 F.3d 248, 258 (5th Cir. 2013).

A. Officer Montelongo

First, the district court erred in finding that Officer Montelongo was not 

entitled to qualified immunity because the genuine factual dispute identified 

by the court—whether Allen had entered the roadway—is not material to the 

determination of qualified immunity. Here, Allen’s possession of his shofar 

independently provided reasonable suspicion for his detention. The city 

ordinance specifically prohibited “carry[ing] or possess[ing] while participating 

in any demonstration” objects that “exceed three-quarters inch in their thickest 

dimension.” Houston, Tex., Code of Ordinances ch. 28, art. 1, § 33. The shofar, 

which was approximately six inches in width, clearly violated the ordinance. 

Moreover, Allen refused to relinquish the shofar to Officer Montelongo and 

continued to possess it until he was detained. Based on the totality of the 

circumstances, these facts provide a “minimum level of objective justification” 

for the detention of Allen by Officer Montelongo. Michelletti, 13 F.3d at 840. 

Officer Montelongo therefore did not violate Allen’s Fourth Amendment rights 

when he lawfully detained Allen for carrying or possessing the shofar in 

violation of the city ordinance. See Atwater v. City of Lago Vista, 532 U.S. 318, 

354 (2001) (“If an officer has probable cause to believe that an individual has 

committed even a very minor criminal offense in his presence, he may, without 

violating the Fourth Amendment, arrest the offender.”). Furthermore, Officer 

Montelongo did not violate Allen’s First Amendment rights because Allen’s 

possession of the shofar provided a legal, non-retaliatory ground for Allen’s 

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detention. Keenan, 290 F.3d at 261–62. Thus, the genuine factual dispute 

regarding whether Allen entered the roadway was not material to determining 

whether Allen’s constitutional rights were violated. See Gibson, 773 F.3d at

666. The district court therefore erred in holding that Officer Montelongo is 

not entitled to qualified immunity.

B. Sergeant Cisneros

Second, the district court also erred in denying qualified immunity to 

Sergeant Cisneros. Neither of the remaining factual disputes identified by the 

district court—whether Allen complied with Sergeant Cisneros’ orders and 

whether Allen remained bound by Sergeant Cisneros’ prior orders—is material 

for determining whether Sergeant Cisneros is entitled to qualified immunity 

for his detention and subsequent arrest of Allen.

Sergeant Cisneros had a lawful reason for detaining Allen independent 

of any potential failure to comply by Allen. During an investigation, police 

officers may “take such steps as [a]re reasonably necessary to protect their 

personal safety and to maintain the status quo during the course of the stop.” 

United States v. Campbell, 178 F.3d 345, 348–49 (5th Cir. 1999) (quoting 

United States v. Hensley, 469 U.S. 221, 235 (1985)). We only consider, on a 

case-by-case basis, “whether the police were unreasonable in failing to use less 

intrusive procedures to conduct their investigation safely.” Id. at 349 (quoting 

United States v. Sanders, 994 F.2d 200, 206–07 (5th Cir. 1993)). Here, while 

Sergeant Cisneros was in the process of detaining Stokes, Allen followed and 

“came up behind” Sergeant Cisneros, prompting Cisneros to order Allen to back

away. Based on those undisputed facts, we cannot say that Sergeant Cisneros’

detention of Allen was an unreasonable procedure for protecting the officer’s

safety and maintaining the status quo during the detention of Stokes. Thus, 

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whether Allen complied with Sergeant Cisneros’ order is immaterial because 

Sergeant Cisneros had an independent basis for lawfully detaining Allen.7

Sergeant Cisneros also had a lawful reason for arresting Allen unrelated 

to the genuine factual disputes. “[A] warrantless arrest by a law officer is 

reasonable under the Fourth Amendment where there is probable cause to 

believe that a criminal offense has been or is being committed.” Devenpeck v. 

Alford, 543 U.S. 146, 152 (2004); see also Cole v. Carson, 802 F.3d 752, 764 (5th 

Cir. 2015) (noting that in order to make out a Fourth Amendment claim for 

warrantless arrests, the Supreme Court has made clear that “the [officers]

must not be aware of facts constituting probable cause to arrest or detain the 

person for any crime.”). Allen possessed and carried his shofar while 

demonstrating with Stokes, a demonstration that ultimately led to Sergeant 

Cisneros’ involvement. And as previously discussed, the undisputed evidence 

shows that the shofar violated the Houston ordinance. See Atwater, 532 U.S. 

at 354 (“If an officer has probable cause to believe that an individual has 

committed even a very minor criminal offense in his presence, he may, without 

violating the Fourth Amendment, arrest the offender.”). Sergeant Cisneros 

therefore had probable cause to arrest Allen unrelated to the genuine factual 

disputes identified by the district court.8 Those factual disputes are therefore 

not material, and Sergeant Cisneros is entitled to qualified immunity. 

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order 

denying summary judgment on Allen’s § 1983 claims and REMAND for entry 

 

7 Allen also possessed his shofar during this incident involving Sergeant Cisneros, 

similar to the incident involving Officer Montelongo. 

8 Moreover, because Sergeant Cisneros had non-retaliatory grounds for his detention

and subsequent arrest of Allen, he did not violate Allen’s First Amendment rights. See 

Hartman, 547 U.S. at 256.

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of judgment in favor of Officer Montelongo and Sergeant Cisneros. Allen shall 

bear the costs of this appeal.

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