Case 1:15-cv-00939 Document 1 Filed 10/21/15 Page 1 of 13

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS AUSTIN
DIVISION
PHILLIP TURNER
Plaintiff,
v.
SERGEANT M. OSBORN,
OFFICER P. HERNANDEZ,
OFFICER M. SALINAS,
OFFICER L. HARPER-HILL,
and OFFICER D. JENNINGS,
Defendants

CIVIL ACTION NO. 1:15-cv-00939

PLAINTIFFS ORIGINAL COMPLAINT AND JURY DEMAND TO

THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, Phillip Turner [Mr. Turner], complaining of Defendants, Sergeant M. Osborn
[Sergeant Osborn], Officer P. Hernandez [Officer Hernandez], Officer M. Salinas [Officer
Salinas], Officer L. Harper-Hill [Officer Harper-Hill] and Officer D. Jennings [Officer
Jennings], hereby files Plaintiffs Original Complaint and Jury Demand and respectfully shows
the following:
I.

NATURE OF THE ACTION

1. This is a civil rights action for declaratory relief and damages arising under the
Constitution of the United States and under the laws of the United States. Mr. Turner was
lawfully exercising his First Amendment rights under the Constitution by using his video
camera to observe and videotape foliage, scenery and activity of the City of Round Rock,
Texas, Police Department from a public sidewalk in daylight hours and in plain view,
without interfering with traffic or with any activities of Round Rock Police Department.
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This was not a crime. Nonetheless, Defendant Officers treated Mr. Turner as if it were.
Defendant Officers harassed, detained, seized and arrested (by handcuffing) Mr. Turner
without reasonable suspicion or probable cause merely because Mr. Turner was lawfully
using his video camera to observe and record the Round Rock Police Department
building and activities.
II.

DEMAND FOR JURY TRIAL

2. Plaintiff demands a trial by jury.

III.

PARTIES

3. Mr. Turner is a black male citizen and adult resident of Texas, U.S.A.
4. Defendant Sergeant M. Osborn, Badge No. 816, is a white male adult resident of Texas
and at all relevant times was employed by the City of Round Rock as a Police Sergeant.
He is sued in his individual capacity and can be served with Summons at his work
address at the City of Round Rock Police Department, 2701 N. Mays Street, Round
Rock, TX 78665.
5. Defendant Officer P. Hernandez, Badge No. 1964, is a white male adult resident of Texas
and at all relevant times was employed by the City of Round Rock as a Police Officer. He
is sued in his individual capacity and can be served with Summons at his work address at
the City of Round Rock Police Department, 2701 N. Mays Street, Round Rock, TX
78665.
6. Defendant Officer M. Salinas, Badge No. 3397, is a white male adult resident of Texas
and at all relevant times was employed by the City of Round Rock as a Police Officer. He
is sued in his individual capacity and can be served with Summons at his work address at

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the City of Round Rock Police Department, 2701 N. Mays Street, Round Rock, TX
78665.
7. Defendant Officer L. Harper-Hill, Badge No. 3920, is a white male adult resident of
Texas and at all relevant times was employed by the City of Round Rock as a Police
Officer. He is sued in his individual capacity and can be served with Summons at his
work address at the City of Round Rock Police Department, 2701 N. Mays Street, Round
Rock, TX 78665.
8. Defendant Officer D. Jennings, Badge No. 4262, is a white male adult resident of Texas
and at all relevant times was employed by the City of Round Rock as a Police Officer. He
is sued in his individual capacity and can be served with Summons at his work address at
the City of Round Rock Police Department, 2701 N. Mays Street, Round Rock, TX
78665.
IV.

JURISDICTION

9. This action to vindicate Plaintiffs rights protected by the First, Fourth and Fourteenth
Amendments to the U.S. Constitution is brought under 42 U.S.C. 1983 and 1988. This Court
has jurisdiction to hear the merits of Plaintiffs claims under 28 U.S.C. 1331 and 1343(a)(3)
and (4). This Court also has jurisdiction under 28 U.S.C. 2201 and 2202 to declare the rights
of the parties and to grant all further relief found necessary and proper.
V.

VENUE

10. Venue is proper under 28 U.S.C. 1391(b) because one or more Defendants reside in the Western
District of Texas.

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11. Venue is also proper under 28 U.S.C. 1391(b) because all of the events or omissions giving rise
to the claims occurred in the Western District of Texas.
VI.
A.

FACTS

INTRODUCTION
12. Mr. Turner is employed part-time and is a part-time student. Photography and
videography are hobbies of Mr. Turner.
13. Mr. Turner decided to videotape the foliage, scenery and activity at the Round Rock

Police Department headquarters offices located at 2701 N. Mays Street, Round Rock, TX 78665.
14. On July 20, 2015 around noon, Mr. Turner was walking on the sidewalk in front of the
Round Rock Police Department Headquarters building and videotaping the vegetation in
front of the building and the activity at the building.
15. Mr. Turner was not violating any laws and was not acting suspiciously or furtively, as he
was standing on the sidewalk in plain view wearing some basketball shorts, a T-shirt, and
some tennis shoes. He was not armed and was only carrying a video camera.
16. Mr. Turner was not interfering with traffic or with any activities of the police. Mr. Turner
never threatened anyone or made any threatening gestures.
B.

POLICE HARRASSMENT AND ILLEGAL DETENTION

17. At all times relevant to the acts alleged in this complaint, Defendants were acting under
the color of the statutes, ordinances, regulations, customs, and usages of the City of
Round Rock and the State of Texas and under the authority of their respective offices as a
police sergeant and police officers.
18. While he was videotaping, Mr. Turner observed Officer Hernandez drive up in a squad
car with another officer and immediately get out and walk up to Mr. Turner and ask Mr.
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Turner Whats going on buddy? Mr. Turner replied Not much. Officer Hernandez
replied you doing alright? Mr. Turner said, Yeah, Im just taking pictures. Officer
Hernandez then asked
Mr. Turner, Are you taking pictures for your personal use? Mr. Turner said Yeah.
19. Officer Hernandez then asked Mr. Turner Where do you live at? Mr. Turner did not
immediately reply and Officer Hernandez then said I was just asking because we dont
normally have people taking pictures. Mr. Turner responded that he was just taking
pictures of the scenery, thats all.
20. Officer Hernandez then asked Mr. Turner if he had any ID on him. Mr. Turner said I do.
Officer Hernandez then said to Mr. Turner Can I see that please (meaning Mr. Turners
ID)? Mr. Turner asked Officer Hernandez Why?
21. Officer Hernandez then responded because you are on private property. Mr. Turner
replied that it was public, its a police station.
22. Officer Hernandez then said I just need to identify you to see who you are. Mr. Turner
then said For what purpose? Officer Hernandez then said to see whos taking pictures
here.
Mr. Turner then asked is that illegal?
23. Officer Hernandez then said Its not illegal but you are here on our property. Mr. Turner
again reminded Officer Hernandez that Its public property. Officer Hernandez then
said So we can ask you to leave, we can ask you to do stuff; we have that authority. Mr.
Turner then said OK so am I free to go?
24. Officer Hernandez said no, I need you to identify yourself. Just like I said, Mr.

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Turner said its not illegal. Unless you are accusing me of a crime, then I will give you my ID.
Officer Hernandez then went on talking about people doing bad things to the police department
all the while acknowledging that he knew Mr. Turner was a reporter and informing Mr. Turner
that when we see people taking pictures of stuff that they dont normally do we are just going to
identify you, see who you are, then you are free to go. Mr. Turner then said he was taking
pictures of the plants, the front of the station. Officer Hernandez then said you have that right;
you really do; however I need to identify you to see who you are in case something does happen,
someday the building blows up or whatever the case may be. Mr. Turner then said Like I said,
if Im not committing a crime, then I dont see any reason for showing you my ID.
25. Officer Hernandez then said You either show me an ID or I place you in cuffs for failure
to identify.
26. Mr. Turner asked Do you know what failure to identify is? Officer Hernandez said I
do. Mr. Turner said I have to be detained first. I have to be lawfully detained first.
Officer Hernandez said you are being lawfully detained. Mr. Turner then asked what
crime he was committing to be detained. Officer Hernandez then said you are committing
suspicious activity.
27. Mr. Turner then asked is being suspicious a crime?
C.

POLICE ILLEGAL SEIZURE AND ARREST

28. Mr. Turner had taken no aggressive actions whatsoever and was only videotaping. Instead of
answering Mr. Turners question and with no objectively factual basis for suspecting that Mr.
Turner would take any actions to harm Officer Hernandez or anyone else, Officer Hernandez
suddenly grabbed Mr. Turner, bent Mr. Turners arm, and handcuffed Mr. Turner, effectively
illegally arresting Mr. Turner. This action was committed by Officer Hernandez without
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reasonable suspicion that Mr. Turner had committed a crime, was engaged in any crime or was
about to commit any crime and without probable cause. Officer Hernandez applied excessive
force that hurt Mr. Turners arm.
29. Officer Hernandez then took Mr. Turners camera away without Mr. Turners consent and
searched Mr. Turner without a warrant or consent. Officer Hernandez told Mr. Turner that a
supervisor was on his way.
30. There was another officer who drove up with Officer Hernandez and he did not stop Officer
Hernandez or in any way try to prevent Officer Hernandez from violating Mr. Turners civil
rights.
31. After Officer Hernandez handcuffed Mr. Turner, three other Defendant police officers came to
the scene. None of these newly arrived Defendant officers listened to Mr. Turners side of the
story nor did they appear to do anything to investigate whether there was any legal or factual
basis for detaining, seizing, and arrest (by handcuffing) Mr. Turner, but instead they participated
in the continued illegal actions of Officer Hernandez apparently with no concern for the rights of
Mr. Turner. All Defendant officers thereby violated Mr. Turners civil rights.
32. After some time passed, Sergeant Osborn arrived and began to question Mr. Turner about taking
pictures. Upon information and belief, upon the arrival of Sergeant Osborn and other Defendant
Officers, Officer Hernandez did not report to them any criminal conduct or reasonably suspicious
conduct of Mr. Turner that would merit the continued seizure, detention and arrest by said
officers. Nonetheless, when they arrived, the other Defendants continued the illegal public
seizure, detention and arrest of Mr. Turner on the sidewalk for all to observe and continued
harassing Mr. Turner by giving him a lecture on cooperation.

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33. Mr. Turner responded to Sergeant Osborn similar to what he had said to Officer Hernandez. Mr.
Turner asked whether he was trespassing on private property. Sergeant Osborn replied generally
that at the time Mr. Turner was not trespassing but that the officers could give Mr. Turner a
criminal trespass warning to tell him that he was not welcome to come back on the property until
they got it resolved. Instead of listening to Mr. Turner and immediately telling him he was free to
leave, Sergeant Osborn merely continued the violation of Mr. Turners civil rights with no basis,
factual or legal.
34. During the entire time that Mr. Turner was handcuffed and held in custody, he was on the public
sidewalk or right beside the sidewalk in plain view during daylight hours for all persons driving
by or arriving to observe.
35. Mr. Turner had to suffer the humiliation of being handcuffed and held in custody by multiple
police officers as if he were a common criminal.
36. No actions of Mr. Turner would have provided a reasonable officer with reason to believe that
the officer had legal cause to detain Mr. Turner, seize Mr. Turner with force and arrest Mr.
Turner by placing him in handcuffs.
37. Round Rock Police Department internal affairs department admitted that Officer Hernandez
violated Mr. Turners rights under the Fourth Amendment and Officer Hernandezs supervising
Lieutenant Grant Golden reprimanded Officer Hernandez for violating Mr. Turners Fourth
Amendment rights by illegally detaining and handcuffing Mr. Turner and telling him that he was
only free to leave if he identified himself first.
38. Upon information and belief, none of the Defendants had information in the form of objective
facts that would have allowed a reasonable officer to initially detain, seize and arrest Mr. Turner
by handcuffing him and none of the Defendants had information in the form of objective facts

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that would have allowed a reasonable officer to continue the illegal detention, seizure, and arrest
(by handcuffing) for any amount of time.
VII.

ACTION AGAINST ALL DEFENDANTS UNDER 42 U.S.C. 1983 FOR

VIOLATIONS OF THE FIRST, FOURTH, AND FOURTEENTH AMENDMENTS

39. Mr. Turner adopts by reference the facts and allegations set forth in paragraphs 1- 38 as
though fully set forth herein.
40. Observing public police activities, without interfering with those duties, is a legitimate
means of gathering information for public dissemination and is expressive conduct
protected by the First Amendment.
41. This First Amendment right to gather information includes the right to record actions of
police, subject to reasonable time, place, and manner restrictions.
42. In this instance, Mr. Turner was standing on a public sidewalk videotaping apparently
normal activities of the police during broad daylight from a public sidewalk, which
activity is protected by the First Amendment to the United States Constitution.
43. Mr. Turner was not engaged in any unlawful activity or interfering with the duties of
public police activities.
44. None of Mr. Turners activities were being conducted in an unreasonable time, place or
manner.
45. The entire incident was caused by Officer Hernandezs attempts to illegally chill Mr.
Turners exercise of his First Amendment rights and the other Defendants continuation
of the chilling of Mr. Turners First Amendment rights.
46. Defendants acting under color of law deprived Mr. Turner of certain constitutionally
protected rights as follows:

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a. Officer Hernandez unlawfully initially detained Mr. Turner and demanded to see his
identification without reasonable suspicion to believe that Mr. Turner had engaged in,
was engaging in, or was about to engage in any criminal conduct;
b. Officer Hernandez unlawfully and unreasonably seized Mr. Turner using excessive force
and arrested Mr. Turner by placing handcuffs on him without probable cause, without a
warrant, without consent, and without exigent circumstances; and
c. The other Defendants supported and continued the unlawful detention, seizure and arrest
in public view in broad daylight for approximately another twenty minutes without
reasonable suspicion to believe that Mr. Turner had engaged in, was engaging in, or was
about to engage in any criminal conduct and without probable cause, without a warrant,
without consent, and without exigent circumstances.
47. Defendants acted willfully, deliberately, maliciously, or with reckless disregard for Mr.
Turners exercise of his clearly established rights protected by the First Amendment, Fourth
Amendment and Fourteenth Amendment to the U.S. Constitution.
48. As a direct and proximate result of the Defendants unlawful detention, seizure, and
arrest, Mr. Turner sustained physical injuries. In addition, Mr. Turner sustained damages
for pain and suffering, mental anguish, and other damages as pled herein.
VIII. LACK OF QUALIFIED IMMUNITY
49. Mr. Turner adopts by reference the facts and allegations set forth in paragraphs 1- 48 as
though fully set forth herein.
50. Defendants did not observe Mr. Turner engage in any criminal conduct and had no
reasonable suspicion or probable cause to believe that Mr. Turner had committed, was

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committing or was about to commit any criminal conduct. Mr. Turner was nonviolent at
all times, was unarmed, and made no threats to the safety of Defendants or anyone else at
any time. Mr. Turner at no time made any attempt to flee the scene.
51. Mr. Turner was merely videotaping the police at work which was protected by the First
Amendment to the U.S. Constitution, a clearly established right. In addition, the right to
be free from unreasonable seizure is a clearly established right under the Fourth
Amendment to the Constitution.
52. Defendants actions violated Mr. Turners clearly established statutory and
constitutional rights of which a reasonable officer would have known.
53. No reasonable officer confronting a situation where the officer had not observed a person
engage in any criminal conduct and had no reasonable suspicion based upon objective
facts to believe that a person had committed, was committing or was about to commit any
criminal conduct and where the need for any force was clearly absent would have
concluded that detaining Mr. Turner, seizing Mr. Turner, handcuffing Mr. Turner and
deploying any force under such circumstances was reasonable, and therefore Defendants
should not be entitled to any protection of Qualified Immunity to avoid accountability in
this case.
IX.

DAMAGES AND ATTORNEYS FEES

54. Mr. Turner adopts by reference the facts and allegations set forth in paragraphs 1- 53 as
though fully set forth herein.
55. As a direct and proximate result of Defendants unlawful actions, Mr. Turner suffered
deprivations of his constitutional rights guaranteed by the First, Fourth and Fourteenth
Amendments to the United States Constitution.
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56. Mr. Turner incurred damages for loss of reputation, shame, embarrassment, humiliation,
mental anguish, pain and suffering, and such other compensatory and tangible
consequential damages as the law entitles Plaintiff to recover.
57. Mr. Turner seeks punitive damages against Defendants for their intentional, willful and
wanton acts violating clearly established statutory and constitutional rights of which a
reasonable officer would have known.
58. Mr. Turner hereby sues for these damages, and prays for just and fair recovery thereof.
59. Mr. Turner is entitled to an award of attorney fees and costs under 42 U.S.C. 1988(b).
X.
60.

PRAYER FOR RELIEF

For the foregoing reasons, Plaintiff respectfully requests the following:

a. Enter a declaratory judgment that the Defendants violated Plaintiffs First

Amendment rights to observe and videotape police activity;

b. Enter a declaratory judgment that the Defendants violated Plaintiffs Fourth and
Fourteenth Amendment rights to be free from unreasonable seizure;
c. Award compensatory damages against all Defendants, jointly and severally, in an
amount to be determined at trial;
d. Alternatively, award nominal damages for the violations of Plaintiffs
Constitutional rights;
e. Award punitive damages against Defendants;
f. Enter an award for costs, expenses, and counsel fees pursuant to 42 U.S.C.
1988(b); and
g. Enter such other relief as this honorable Court may deem just and deserving.
DATED this 20th day of October 2015.

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Respectfully submitted,
By: /s/ Kervyn B. Altaffer Jr.
Kervyn B. Altaffer Jr.
State Bar No. 01116575
Law Office of Kervyn B. Altaffer Jr.
4054 McKinney Ave Ste 310
Dallas, TX 75204
Tel: 972-234-3633
Fax: 972-947-3663
Email: kervyn@altafferlaw.com
ATTORNEY FOR PLAINTIFF PHILLIP TURNER

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