Russell v. Altom

What This Case Is About

George Russell witnessed a utility crew trimming trees on his property during Hurricane Ike recovery operations and complained about their methods. After confrontations with the crew and police over two days, Russell was arrested for violating an emergency management order. A grand jury later indicted him on felony charges, which were dismissed three months later. Russell sued the arresting officer under § 1983, claiming his arrest violated his First Amendment right to free speech and his Fourth Amendment right against unlawful arrest. The Fifth Circuit affirmed summary judgment for the officer based on qualified immunity.

The Facts

In September 2008, in the aftermath of Hurricane Ike, Nirow, Inc., a tree-trimming company working under contract with Entergy Texas, was trimming trees near Russell’s property. Russell confronted the crew, complaining they should focus on restoring power rather than performing preventative maintenance and that their trimming methods were damaging his tree. An Entergy employee, Jason Riddle, instructed the crew to continue trimming despite Russell’s objections. When Russell refused to leave, Riddle called police. Officers Ron Cleere and Wesley Altom arrived, advised Russell not to interfere, and left believing the situation was resolved.

After leaving, Officer Altom consulted with District Attorney David Weeks about whether Russell had committed a crime. The next day, the same crew was trimming near another of Russell’s properties. Russell came and began photographing the crew’s work. Riddle again called police. Cleere and Altom responded, and a crew member stated Russell had ignored warnings to leave a dangerous area. Cleere arrested Russell for violating the emergency management order. Altom then consulted with DA Weeks on the proper charge. Weeks contacted the Texas Attorney General’s Office, which suggested charging Russell with interfering with public duties.

In November 2008, Weeks presented the case to a grand jury. The grand jury upgraded the charges from misdemeanor to felony and returned a true bill with six felony counts. Three months later, the indictment was dismissed.

What the Court Decided

The Fifth Circuit affirmed the district court’s grant of summary judgment to Officer Altom on all constitutional claims.

On Russell’s First and Fourth Amendment claims, the court held that a grand jury indictment is sufficient to establish probable cause. Because both claims require an absence of probable cause, the indictment defeated both claims. The court explained that when facts supporting an arrest are placed before an independent intermediary such as a grand jury, the intermediary’s decision “breaks the chain of causation,” insulating the officer from liability.

Russell argued the grand jury’s deliberations were tainted because DA Weeks: (1) was too involved in the arrest decision to be impartial, (2) presented charges under a statute carrying no criminal penalties, and (3) omitted vital facts. The court rejected all three arguments. First, prosecutors routinely participate in charging decisions—the grand jury, not the prosecutor, is the impartial intermediary. Second, including an inapplicable statute did not undermine the other valid charges. Third, “[t]he grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge,” and it is sufficient to hear only the prosecutor’s side.

Why This Case Matters for Your § 1983 Case

Grand jury indictments create a strong presumption of probable cause. If your case was presented to a grand jury and an indictment was returned—even if later dismissed—you face a significant hurdle in establishing that your arrest lacked probable cause.

Taint is hard to prove. To overcome the presumption created by a grand jury indictment, you must show that law enforcement officers withheld relevant information from the grand jury or otherwise corrupted its deliberations. Merely showing that the prosecutor was involved in charging decisions or made arguable errors in legal theory is not enough.

Speech-based arrests still require lack of probable cause. Even if you believe your arrest was motivated by your exercise of First Amendment rights, your retaliation claim fails if probable cause independently supported the arrest. The existence of probable cause forecloses the argument that speech rather than criminal conduct motivated the arrest.

Officer vs. prosecutor actions matter. If the officer did not personally control or influence the prosecutor’s presentation to the grand jury, the officer cannot be held responsible for any deficiencies in that presentation.

Key Takeaway

A grand jury indictment is a powerful shield for law enforcement officers facing § 1983 claims for false arrest or First Amendment retaliation. Once a grand jury returns a true bill, the plaintiff must demonstrate that the officer tainted the grand jury process by withholding relevant information or exercising improper influence—a heavy burden that mere disagreement with the charges or their eventual dismissal will not satisfy.