Bailey v. Ramos

What This Case Is About

David Bailey and his friends went to downtown San Antonio specifically “to film the police” and provoke a confrontation. When their hostile behavior near an active crime scene led to Bailey’s arrest for interfering with the duties of a public servant, he brought § 1983 claims against Officer Oscar Ramos, including unlawful arrest, unlawful seizure, First Amendment retaliation, and excessive force. The Fifth Circuit reversed the denial of qualified immunity and ordered summary judgment for Ramos.

The Facts

On April 28, 2018, Bailey and three friends went to downtown San Antonio with a plan: one would “be the jerk” to a police officer while Bailey filmed, then Bailey would initially appear to be a “nice citizen” before revealing his true purpose—to say “f*** you” to the officer over a friend’s prior arrest.

Officers Oscar Ramos and Christopher Dech were on bike patrol and had responded to an assault at a bar. While paramedics treated the victim in an ambulance, the officers guarded the area and interviewed witnesses—it was an active crime scene.

Bailey and his group were immediately hostile, giving officers the middle finger and saying “f*** off.” After the initial confrontation, most of the group wandered away. Bailey’s friend Jack Miller then approached Ramos while openly carrying a gun, asking aggressively, “What are you shaking your f***ing head at?” When Dech returned, he told Bailey and Miller the area was an active crime scene and instructed them to stand behind a line on the sidewalk. Miller complied and moved away, but Bailey did not immediately comply.

Body camera footage showed Bailey continuing to film and remaining in the restricted area near the ambulance. When Bailey did not follow the direction to move back, he was arrested for interfering with the duties of a public servant.

What the Court Decided

The Fifth Circuit reversed the district court’s denial of summary judgment and ordered the case dismissed in Ramos’s favor on all claims.

Unlawful arrest and seizure. The court found Ramos had at least arguable probable cause to arrest Bailey for interfering with a public servant’s duties. Bailey was at an active crime scene, had been told to move back, and unlike his companion Miller, did not comply. A reasonable officer could have concluded Bailey was interfering with the investigation.

First Amendment retaliation. Applying Nieves v. Bartlett, the court held that the existence of probable cause generally defeats a retaliatory arrest claim. While Nieves recognizes a narrow exception for cases where officers typically exercise discretion not to arrest, Bailey’s conduct—confrontational behavior at a crime scene while refusing to move back—was not the type where officers would typically decline to act. The retaliation claim failed.

Excessive force. The court analyzed the force under Graham v. Connor’s objective reasonableness standard and found that the force used to arrest Bailey was not clearly excessive given the confrontational circumstances at an active crime scene.

Why This Case Matters for Your § 1983 Case

The right to record police has limits. While the First Amendment protects the right to film police in public, that right does not include the right to interfere with active police operations. Remaining in a restricted area near a crime scene after being told to move back can constitute interference.

Hostile intent can undermine your claims. Bailey’s group went out specifically to provoke police, and this was documented on their own recordings. Courts may view claims more skeptically when the plaintiff deliberately sought the confrontation.

Probable cause defeats retaliation claims. Under Nieves v. Bartlett, if officers have probable cause to arrest, a First Amendment retaliation claim will generally fail—even if the arrest was also motivated by the plaintiff’s protected speech. The narrow exception applies only where officers would normally exercise discretion not to arrest.

Comply first, litigate later. Bailey’s companion Miller complied with the officer’s direction to move back and was not arrested. Bailey did not comply and was arrested. Compliance with lawful orders—even if you believe they are wrong—can prevent an arrest and preserve your ability to challenge the order through legal channels.

Key Takeaway

Going out to deliberately provoke police and then refusing to comply with directions at an active crime scene is a recipe for arrest, not a winning § 1983 case. While the right to film police is real, it does not extend to interfering with active investigations. When officers have arguable probable cause for an arrest, qualified immunity will shield them from claims of unlawful arrest, retaliation, and excessive force.