From Wednesday’s report and recommendation by Magistrate Judge David Fannin (W.D. Tex.) in Flash v. Jeff Davis County, a summary of the allegations in plaintiff’s Complaint (recall that, at this point. these are just allegations):
David Flash … is an independent journalist who covers regional events and public affairs in West Texas. In September 2023, Flash’s news outlet, the Big Bend Times, published investigative news stories centered around the conduct of multiple County officials. The stories accused the officials of misusing county resources and questionable law enforcement practices.
Flash faced backlash after the stories were published. Defendant Lisa Dennison, an employee for the County Attorney’s Office, confronted him and told him he was under investigation. A few months later, an anonymous poster released Flash’s mugshots—which were private under a Texas Government Code Chapter 411 non-disclosure order—and characterized him as “not a trusted media source.” He later discovered Dennison had been the one who had obtained his mugshots.
Defendant Glen Eisen, Dennison’s supervisor, was apparently aware that Dennison had misappropriated Flash’s mugshots but did not take disciplinary action. As Flash was beginning to face backlash in Fall 2023, Defendant King Merritt filed a police report detailing an incident with Flash at the County Attorney’s Office between Eisen and Flash. Eisen had asked Merritt to arrest Flash for “causing problems at the Jeff Davis County Attorney’s Office.” Merritt attempted to detain Flash, but Flash left before he could do so and no further action was taken.
On October 20, 2023, Flash returned to the County Courthouse. Defendant Mary Ann Luedecke, a justice of the peace for the County, attempted to detain him after he photographed a sign outside her office. Two days later, Luedecke sent out an alert to regional law enforcement agencies that labeled Flash as a “First Amendment auditor.” Luedecke and Eisen also called the District Attorney’s Office to warn them that a “First Amendment auditor” was “on the loose.”
Although no charges had been filed against Flash by this point, Luedecke issued a mock-warrant notice to law enforcement against him at his home address. Luedecke claimed this was part of a training exercise for officials practicing with new software. Luedecke also filed a “failure to appear” notice against Flash that resulted in Flash’s driver’s license renewal being blocked. Flash was the target of seven separate criminal investigations during this time, none of which resulted in criminal charges.
At this point, Flash and Defendants did not have any affinity with each other and Defendants began strategizing how they could keep Flash out of their affairs. They discussed playing Disney music during public meetings to prevent Flash—through copyright restrictions—from monetizing his recordings. Eisen authored a memorandum to the County Commissioners Court proposing an ordinance that would criminalize photographing any county employee without their consent but allow employees to grant consent to favorable media outlets.
On April 23, 2024, Flash returned once more to the County Courthouse to record a public county commissioners court meeting. This time, Defendant Curtis Evans—a county judge—ordered Flash physically removed for covering the meeting. As he was being escorted out, one of the County deputies told him to “get a lawyer and sue.” The next day, Evans issued a written order that banned Flash from being within 300 feet of any County building or official, under penalty of arrest and jail time. Flash did not receive notice of the ban or the opportunity to be heard, and it was unclear what legal authority, if any, Evans had been acting under in issuing the ban. Criminal charges had also been filed against Flash for harassment and terrorism.
Two days later, Flash was arrested on a warrant issued by the County and placed in the Van Horn Jail for sixteen hours before posting bond. After he returned to his home in Fort Davis, he was stopped by Merritt near his house and told that he would be arrested if he approached the County Courthouse, pursuant to Judge Evans’s trespass order. Flash filed a habeas motion challenging the order as a violation of his First, Fifth, and Fourteenth Amendment rights. On June 10, 2025, a court struck down the ban, finding it violated Flash’s constitutional rights and was issued without legal authority.
With the order now lifted, Flash returned to the County Courthouse on June 27 to photograph a budget meeting. There were no written rules that prohibited recording or photography, but Flash was asked to move his camera to the back of the room—a request he complied with. Defendant Victor Lopez, a county sheriff, then approached Flash and told him his photography was interfering with his ability to listen to the meeting. Defendant Adriana Ruiloba, a county deputy, also approached Flash and told him to back off and not come in her personal space. Flash left the room and continued recording the meeting from outside.
Upon reentering the room to photograph Ruiloba, Flash was grabbed, handcuffed, and forcibly removed by Ruiloba and Joseph Giesbrecht, a fellow … police officer. Flash was nonresistant throughout the duration of his removal, and he made this clear to the officers. Flash was questioned for 30 minutes and cited for disorderly conduct under Texas Penal Code § 42.01. The citation did not identify which of the eleven subsections Flash had violated. The same day he was arrested, Flash went to an urgent care center for injuries stemming from Ruiloba and Giesbrecht’s force. Flash’s medical records documented bruising and wrist abrasions on his arms, pain in his upper back and chest, and an elevated heart rate.
After his arrest, Defendants made various statements to the media about Flash and his arrest. Evans called him “crazy” and “not suitable for public settings” and brought up the possibility of additional criminal charges. Evans also endorsed an anonymous anti-David Flash website called BigBendTimes.org (unaffiliated with Flash’s news outlet, Big Bend Times). Evans and Lopez both conducted an in-person interview with BigBendTimes.org and released body cam footage of Flash’s arrest to the website. All criminal charges against Flash were eventually dropped. His disorderly conduct charge was dropped due to insufficient evidence. The harassment charge filed by Defendant Luedecke was dismissed on August 10, along with an outstanding traffic citation against Flash….
The court allowed Flash’s First Amendment, Fourth Amendment, and conspiracy claims to go forward against defendants Ruiloba and Giesbrecht, despite their claims of qualified immunity:
Flash was engaged in a constitutionally protected activity—photographing the police…. The Fifth Circuit recognized in 2017 that the “First Amendment right to record police does exist” and is “clearly established henceforth ….”…
To state a claim for Fourth Amendment false arrest, a plaintiff must show that the defendant could not have reasonably believed they had probable cause to arrest the plaintiff for any crime…. Flash was arrested and cited for disorderly conduct under Texas Penal Code § 42.01. Under § 42.01, a person commits an offense if he:
- uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
- makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
- creates, by chemical means, a noxious and unreasonable odor in a public place;
- abuses or threatens a person in a public place in an obviously offensive manner;
- makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
- fights with another in a public place;
- discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
- displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
- discharges a firearm on or across a public road;
- exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or
- for a lewd or unlawful purpose enters on the property of another and looked into a dwelling on the property through any window or other opening in the dwelling.
Nothing from Flash’s Complaint indicates probable cause existed to arrest him for any of these acts. Taking his allegations as true, he was not threatening or fighting anyone, and he certainly was not exposing his genitals in a public place. Flash has therefore alleged sufficient facts to show a lack of probable cause at this stage.
Flash also makes out a violation of a clearly established right. There is robust authority giving police fair notice that it is unconstitutional to arrest without probable cause for filming or photographing police….
Flash has [also] sufficiently pled facts that, taken as true, make out a claim for excessive force under the Fourth Amendment against Ruiloba and Giesbrecht as to overcome their qualified immunity. Ruiloba and Giesbrecht’s Motions should be denied as to Flash’s excessive force claim….
Flash has [also] pled that the individual Defendants conspired and agreed to use their state authority to suppress his journalism through retaliation and prior restraint. There is a demonstrated commitment to a common end here—suppressing Flash’s First Amendment rights using state authority—and enough facts to raise the suggestion of a preceding agreement.
Flash alleges a “coordinated, multi-agency effort to develop counterstrategies against Flash’s journalism ….” Seldomly do such sensational claims have support to back them up, but Flash provides facts to push this over the line from speculative to plausible. After Flash began reporting on the individual Defendants, he was the target of seven separate criminal investigations, none of which resulted in any formal charges. County officials discussed playing copyright restricted music over public meetings to prevent Flash from monetizing his recordings; they also floated the idea of a policy by which journalists could be refused reporting access based on favorability of coverage.
Then—in an extrajudicial proceeding—Flash was banned from coming within 300 feet of any County building or employee. After that ban was struck down, Flash was arrested for the same conduct which had led to the ban—attempting to record and cover a County Commissioners Court meeting that was open to the public.
Throughout the conspiracy’s duration, many of the parties alleged to have been involved made statements expressing their animus toward Flash and his journalism. Defendant Evans called him “crazy” and “not suitable for public settings.” Defendant Dennison called him a “spoiled toddler” and speculated that he could be carrying a concealed weapon. Defendant Eisen described Flash’s Big Bend Times as a “megaphone” and said that Flash “brought it on himself” through his journalism. Critically, Eisen also stated that the County’s actions against Flash were “motivated by our coverage[,]” suggesting a collective response motivated by his First Amendment activity.
Flash also pled links between the individual Defendants. Defendants Ruiloba and Giesbrecht arrested Flash under Defendant Evans’s directions and with Lopez present. Immediately prior to the arrest, Lopez had expressed disapproval toward Flash’s photojournalism, telling Flash “it was interfering with his ability to listen to the meeting.” Later, Defendants Evans and Lopez jointly provided body camera footage to and participated in an interview with the anonymous anti-Flash smear website.
Lamar Treadwell, Elise Smith (Smith & Smith Advocates, PLLC), and James Bradley Vinson and Jarrod Lee Smith (Smith & Vinson Law Firm, PLLC) represent plaintiff.
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