Allen v. Cisneros

What This Case Is About

David Allen was a street preacher in Houston, Texas, who regularly used a shofar (a ram’s horn trumpet) as part of his public ministry. After multiple encounters with police led to detentions and arrests, Allen sued officers Aaron Cisneros and Juan Montelongo under § 1983, claiming they violated his constitutional rights. The Fifth Circuit reversed the district court’s denial of qualified immunity, finding the officers had arguable probable cause for their actions.

The Facts

Two encounters were at issue on appeal:

The Montelongo Incident (October 31, 2011). Allen was street preaching at a bus stop with fellow preacher David Stokes and others. Officer Montelongo responded to a disturbance call and brought a template to measure whether signs and objects complied with Houston Ordinance § 28-33, which regulates items carried at demonstrations. Montelongo informed Stokes that his signs did not comply and told Allen he could not have his shofar, which was approximately 37 inches long. As Montelongo and Stokes argued about the signs, a supervising officer arrived. Stokes approached the officers and was detained. Allen then entered the fray, and events escalated. Allen was ultimately detained and his shofar seized.

The Cisneros Incident (January 14, 2012). Allen was again street preaching, this time near a different location in Houston. Sergeant Cisneros encountered Allen and, after an interaction, detained and arrested him. The specific details of this encounter involved Allen’s refusal to comply with what he viewed as unconstitutional restrictions on his preaching.

Allen filed a complaint alleging violations of his First and Fourth Amendment rights, including unlawful seizure, false arrest, and First Amendment retaliation.

What the Court Decided

The Fifth Circuit reversed the district court’s denial of summary judgment and held that both officers were entitled to qualified immunity.

The court applied the two-prong qualified immunity analysis from Pearson v. Callahan. The critical question was whether the officers had “arguable probable cause”—that is, whether a reasonable officer could have believed probable cause existed, even if it actually did not.

For Officer Montelongo, the court found that Houston’s demonstration ordinance, while potentially raising First Amendment concerns in its application, gave the officer arguable grounds to believe Allen’s shofar—a 37-inch hard object—violated the ordinance’s restrictions on items carried at demonstrations. A reasonable officer could have interpreted the ordinance as applicable.

For Sergeant Cisneros, the court similarly found arguable probable cause existed based on the circumstances of the encounter. The court noted that qualified immunity protects officers who make reasonable mistakes about the law, and that the relevant question is not whether the arrest was ultimately lawful but whether the officer’s belief in probable cause was objectively reasonable.

The court also held that the officers did not violate Allen’s First Amendment rights because the officers had legal, non-retaliatory grounds for the detention and arrest—Allen’s possession of the shofar in violation of the ordinance provided an independent lawful basis for the officers’ actions.

Why This Case Matters for Your § 1983 Case

Arguable probable cause is a low bar. Even if an officer ultimately lacked actual probable cause, qualified immunity applies if a reasonable officer could have believed probable cause existed. This makes it harder for plaintiffs to overcome immunity in cases where the law or facts are ambiguous.

Vague ordinances can shield officers. When a local ordinance is vague or susceptible to multiple interpretations, officers who enforce it in a reasonable (if mistaken) manner may receive qualified immunity. This puts the burden on plaintiffs to show the law was clearly established.

First Amendment activities are not absolute shields. While street preaching and religious expression are protected, officers may still have qualified immunity if they reasonably believed the manner of the expression (not the content) violated a neutral ordinance.

Document everything. Allen’s case involved multiple encounters over time. Thorough documentation of each police interaction, including video and audio recordings, strengthens a pattern-based claim.

Key Takeaway

Officers who make reasonable but mistaken judgments about whether probable cause exists are protected by qualified immunity. In cases involving the enforcement of local ordinances against First Amendment activity, plaintiffs face the added challenge of showing that the law clearly prohibited the officers’ specific conduct. This case illustrates why the arguable-probable-cause standard is one of the most significant hurdles in § 1983 litigation.