Planned Parenthood Protester Can Sue for Wrongful Arrest

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By Bernie Pazanowski

A Planned Parenthood clinic protester can sue the two police officers who arrested him while he was protesting, the Fifth Circuit held Feb. 7 ( Davidson v. City of Stafford, Texas , 2017 BL 36596, 5th Cir., No. 16-20217, 2/7/17 ).

The holding may make it more complicated for police when they arrest protesters. The officers should’ve known they were violating the protester’s rights, the opinion by Judge Catharina Hayes of the U.S. Court of Appeals for the Fifth Circuit said.

‘Pray to End Abortion.’

The protester was in the grass across the parking lot from the clinic, carrying a sign extolling passersby to “Pray to End Abortion.” A clinic employee called the police and complained that the protester was stopping cars and harassing clinic patients.

Two officers responded but when they asked the protester his name, he only gave his first name. Citing Texas Penal Code §38.02, they arrested him because he wouldn’t properly identify himself. He was also cited for violating Texas Penal Code §42.03 by obstructing traffic. He sued, claiming First and Fourth Amendment violations.

The district court granted the officers qualified immunity, but the appeals court reversed. Section 38.02 only applies after an arrest has been made and can’t be used as the reason for the arrest, the Fifth Circuit said. Moreover, the officers didn’t have sufficient evidence that the protester was actually blocking traffic, and they therefore didn’t have probable cause to arrest him, the court said.

At the time of the arrest in 2013, there was “fulsome case law clearly establishing that an arrest without probable cause violates both First and Fourth Amendment rights,” the court said.

Judges Carolyn Dineen King and Priscilla R. Owen joined the opinion.

Jerad Wayne Najvar, Houston, represented the protester. Gordon & Rees, LLP represented the officers.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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