Case: 20-60297     Document: 00515600274         Page: 1     Date Filed: 10/13/2020




              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                       October 13, 2020
                                  No. 20-60297
                                                                        Lyle W. Cayce
                                Summary Calendar                             Clerk


   Christopher Seth Simmons,

                                                           Plaintiff—Appellant,

                                       versus

   Mike Fair, in his individual capacity; Tracy Barnett, in
   his individual capacity; Town of Shannon, Mississippi,

                                                         Defendants—Appellees.


                  Appeal from the United States District Court
                    for the Northern District of Mississippi
                            USDC No. 1:19-CV-38


   Before King, Smith, and Oldham, Circuit Judges.
   Per Curiam:*
          Defendant police officers Mike Fair and Tracy Barnett approached a
   residence in the middle of the night and asked for the driver of a vehicle
   parked outside, which the officers said had been observed speeding. Plaintiff



          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
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                                      No. 20-60297


   Christopher Simmons and two of his friends met the officers outside, and one
   of the friends, Brandon Howell, admitted that he had recently driven the
   vehicle. After Howell disagreed with the officers about how recently the
   vehicle had been driven, the officers returned to Fair’s patrol car to review
   the footage from his dashboard camera. Before returning to the patrol car and
   while reviewing the footage, the officers repeatedly instructed Simmons and
   his friends to stay where they were. Nevertheless, Simmons approached the
   officers. After directing him to go back to where he had been standing, the
   officers arrested him. Ultimately, Simmons sued the officers and their
   employer, the Town of Shannon, Mississippi, for violating his Fourth and
   First Amendment rights. 1
          The district court granted summary judgment to the defendants.
   Reviewing body-camera footage of the incident, the court concluded that the
   video evidence demonstrated that Simmons had failed to comply with the
   officers’ commands. Accordingly, the court ruled, the officers had probable
   cause to arrest Simmons for disorderly conduct. See Miss. Code Ann. § 97-
   35-7(1). Observing that the disorderly-conduct statute prohibits refusing to
   comply with a lawful order “under such circumstances as may lead to a
   breach of the peace,”

that the fact that “the officers
   were outnumbered by the three men during the nighttime[,] . . . viewed in
   concert with Simmons’[s] continuous disregard for the officers’
   commands,” sufficed to establish “that his conduct could have led to a
   breach of the peace.” Because the officers thus had probable cause, the court




          1
             The First Amendment claim was based on the theory that Simmons’s arrest was
   actually motivated by a previous dispute with Fair.




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Case: 20-60297         Document: 00515600274                Page: 3       Date Filed: 10/13/2020




                                           No. 20-60297


   ruled that there had been no Fourth Amendment violation. We agree with
   the district court’s well-reasoned conclusion. 2
           Apart from his disagreement with the district court’s analysis of the
   video evidence, Simmons raises two principal arguments on appeal. Neither
   is persuasive. First, Simmons argues that there is no evidence in the record
   that the officers knew the elements of the disorderly-conduct statute. But
   “probable cause is an objective standard.” District of Columbia v. Wesby, 

, 584 n.2 (2018). As such, “an arresting officer’s state of mind
   (except for the facts that he knows) is irrelevant to the existence of probable
   cause.” Devenpeck v. Alford, 

, 153 (2004). Second, Simmons
   argues that “a person cannot commit the offense of breach of the peace on
   private property.” For this proposition, Simmons cites Taylor v. State, 

(Miss. 1981), in which the Mississippi Supreme Court construed a
   statute that prohibits “disturb[ing] the public peace.”

(quoting Miss.
   Code Ann. § 97-35-15(1)). Taylor does not address the disorderly-conduct
   statute under which Simmons was arrested, and that statute makes no
   reference to breaches of the public peace. Accordingly, Simmons’s citation to
   Taylor is inapposite. 3
           The judgment of the district court is affirmed.




           2
            The district court also concluded that the existence of probable cause was fatal to
   Simmons’s First Amendment claim. Simmons does not raise this issue on appeal, so we do
   not address it. But cf. Nieves v. Bartlett, 

, 1727 (2019) (establishing exception
   to general rule that “probable cause should . . . defeat a retaliatory arrest claim”).
           3
               The defendants ignore Simmons’s private-property argument, leading Simmons
   to assert in reply that we “should treat it as undisputed[] that probable cause could exist
   . . . only if a breach of the peace occurred on public property.” While as a general matter
   we do not recommend that appellees disregard their opponents’ arguments, their doing so
   does not require us to countenance an inaccurate statement of the law.




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