Fifth Circuit Clarifies Probable Cause in Pedestrian Highway Arrests: Safe-Crossing Irrelevant – Rusanowsky v. City of Dallas

Introduction

The Fifth Circuit’s decision in Rusanowsky v. City of Dallas addresses two intertwined constitutional questions arising from the arrest of a professional photojournalist during a protest. Christopher Rusanowsky, a ZUMA Press–affiliated photographer, was documenting George Floyd protests in downtown Dallas when he briefly stepped onto the right shoulder of Interstate Highway 35. Less than a minute later, Dallas Police Sergeant Roger Rudloff arrested him for violating the Texas Transportation Code. Rusanowsky alleged that the arrest lacked probable cause and was retaliatory against his First Amendment right to record police activity. He sued Sergeant Rudloff (individually and officially) and the City of Dallas (under a Monell theory). The district court granted summary judgment to the defendants on qualified immunity and lack of municipal liability. On appeal, the Fifth Circuit affirmed.

Summary of the Judgment

The panel, in a per curiam opinion, held:

Sergeant Rudloff had objective probable cause to arrest Rusanowsky for committing a misdemeanor by walking on the right shoulder of a highway in violation of Texas Transportation Code § 552.006(b).
The question whether the pedestrian could have safely crossed to the left shoulder did not factor into the probable-cause analysis. Once the officer observed the misdemeanor, a reasonable officer could conclude there was “a probability or substantial chance” of a violation, even if the pedestrian later proved free to cross.
Rusanowsky failed to show that the arrest was motivated “but for” his exercise of First Amendment rights. Although the photographer identified himself as press, he did not demonstrate that officers arrested only him and not similarly situated protestors or other bystanders.
Because there was no constitutional violation by Rudloff, municipal liability against the City of Dallas necessarily failed under Monell.
Summary judgment in favor of Rudloff and the City was affirmed.

Analysis

Precedents Cited

The court relied primarily on its own precedents interpreting qualified immunity and the Fourth Amendment’s probable-cause standard:

Martinez v. City of Rosenberg (2024): Held that a police officer had probable cause to arrest a pedestrian for walking on the righthand side of a road under the Texas Transportation Code, without considering whether the pedestrian could safely cross to the left. The Fifth Circuit in Rusanowsky emphasized that once the officer observes the statutory violation, it is immaterial for probable cause that the arrestee might later avoid culpability.
Joseph v. Bartlett (2020): Clarified the burden-shifting framework in qualified-immunity summary judgment: the officer’s invocation of immunity places the burden on the plaintiff to show (1) a constitutional violation and (2) that the right was clearly established.
Valderas v. City of Lubbock (2019): Reaffirmed the two-step qualified-immunity inquiry—first, whether a constitutional right was violated, and second, whether that right was clearly established at the time.
Bailey v. Ramos (2025): Defined the elements of a First Amendment retaliation claim in the context of an arrest: protected activity, injury sufficient to chill ordinary firmness, and the officer’s adverse action substantially motivated by the protected conduct.

Legal Reasoning

The Fifth Circuit’s reasoning can be distilled into three core points:

Objective Probable Cause for a Statutory Misdemeanor: Under the Fourth Amendment, a warrantless arrest requires probable cause—but that determination rests on an objective assessment of facts known to the officer at the time. Texas Transportation Code § 552.006(b) prohibits pedestrians from walking on the right shoulder when they “if possible” can walk on the left shoulder. Photographic and testimonial evidence indisputably showed Rusanowsky on the right shoulder. The court held that whether the statute’s “if possible” condition later proved satisfied did not affect the officer’s initial probable-cause assessment.
Qualified Immunity Shields Reasonable Mistakes: Even if Rusanowsky’s safe-crossing argument might have prevented actual conviction, an officer’s reasonable but mistaken belief that a misdemeanor was ongoing entitles him to qualified immunity. The court emphasized that officers are not required to explore every factual nuance—only to base arrests on an objectively reasonable interpretation of observed facts.
Retaliation Claim Must Show “But-For” Motivation: While photography of police is protected activity, a retaliation claim demands a showing that the arrest would not have occurred but for the protected conduct. Rusanowsky did not identify testimony or other evidence indicating that Rudloff targeted him for photographing rather than for the pedestrian violation. No direct evidence or pattern of arresting only journalists emerged.

Impact

This ruling carries significant implications for law enforcement and journalists:

Pedestrian Offenses: Police need not investigate nuances such as “could the pedestrian have safely crossed?” before concluding probable cause exists for a statutory violation. Observation of the offense itself suffices.
Qualified Immunity: Officers retain broad protection when they make reasonable mistakes about whether a misdemeanor is ongoing, reinforcing existing precedent that immunity turns on objective reasonableness, not outcome.
First Amendment Photography: Journalists documenting police cannot rely on their press credentials alone to avoid arrest when officers observe statutory violations. Retaliation claims will require concrete evidence that protected activity was the but-for cause of arrest.
Municipal Liability: Absent an underlying constitutional violation, Monell claims against cities for failure to train or supervise will falter.
Future Litigation: Plaintiffs challenging pedestrian arrests under similar statutes will need to focus on disputing the objective facts known to the officer at the arrest moment, or prove malice or bad faith going beyond a reasonable mistake.

Complex Concepts Simplified

Probable Cause: A legal standard requiring a reasonable belief, based on facts known at the time, that a person committed a crime. It is judged objectively—what a reasonable officer would conclude—rather than subjectively.
Qualified Immunity: A doctrine protecting government officials from civil liability when they commit constitutional violations, so long as their conduct did not violate a “clearly established” right that a reasonable officer would know.
Monell Liability: A claim against a municipal entity (e.g., a city) under 42 U.S.C. § 1983, requiring proof that an official policy or custom caused the constitutional violation.
First Amendment Retaliation: Occurs when government actors take adverse action against individuals for engaging in protected speech or expression—here, photographing police. Courts require proof that the protected activity was the “but-for” cause of the adverse action.
Texas Transportation Code § 552.006(b): A pedestrian statute making it a misdemeanor to walk on the right side of a highway if walking on the left shoulder is “possible.” The Fifth Circuit held that the “if possible” condition does not negate probable cause once the officer sees the pedestrian on the wrong side.

Conclusion

Rusanowsky v. City of Dallas reinforces and clarifies Fifth Circuit precedent on probable cause, qualified immunity, and First Amendment retaliation. It holds that an officer’s observation of a statutory pedestrian offense—walking on the right shoulder of a highway—provides objective probable cause for arrest, regardless of later arguments about the pedestrian’s ability to cross. The decision underscores that reasonable mistakes about a suspect’s guilt do not defeat qualified immunity, and press credentials do not immunize journalists from arrest if officers observe a violation. Finally, it confirms that municipal liability claims collapse when no constitutional violation can be shown. This ruling will guide both law enforcement practices and civil-rights challenges in the Fifth Circuit concerning pedestrian offenses, protest policing, and journalists’ rights.