[music] >> On the night of April 11th, 2024, Officer Thomas Rivas of the San Antonio Police Department stopped a pickup truck in San Antonio, Texas after a caller reported that one of its occupants had committed a robbery. The truck pulled into the parking lot of a gas station, and Officer Rivas began detaining the two occupants while waiting for additional units to arrive. Kevin Berg pulled into the same lot to fuel his vehicle, and after observing the encounter, began recording with his cell phone. The events that followed were captured on Mr. Berg's phone and on officer body camera. >> License and registration. >> Show me your hands. Hands. Step out. Driver, step out. Stay right there. You stay right there, passenger. Face away from me. Face that way. Hands behind your back. >> What's going on with you now? >> Yeah, listen to your dude. Stay right there. Hold on. You stay right there. Keep your hands out. Keep your hands out. >> What are the assistant >> You stay right here. Stay right here. >> Tristan, record him. Tristan, record him. Record him. >> Give me your weapon, buddy. >> Nothing, man. >> Okay. Grab a seat. Grab a seat. >> I can't get in with this thing here. >> Get your feet in. Step out. Hands behind your back. >> What are the reasons, sir? >> Because you guys are suspects in a robbery. Step out the vehicle. Step out the vehicle. >> May I step out? >> Step out the vehicle. >> Yes, sir. >> Step out. >> What happened to my phone, sir? >> Hands behind your back. >> There you go, sir. >> Hands behind your back. >> There you go. Yes, sir. In a robbery. And whose house was robbed, sir? Or what was robbed, sir? Now, please go. What was I stopped, sir? >> See if they're going. I got super cam. >> Okay, yes, sir. >> He took that guy out and arrested him? >> Uh-huh. Huh. >> Your phone is right there on the truck, man. They're not letting you get it. >> Thank you, sir. >> Did he even tell you what you did, partner? >> He didn't tell me anything. >> He didn't tell you nothing. He just pulled you over and put you in cuffs, right? >> That was it. For what, sir? >> For what, sir? >> For interfering. >> Mhm. This isn't interfering. >> It is, right? Okay, look, you're the suspect in a robbery, okay? You understand? So, that's why you're in handcuffs. So, just shut up, okay? And I'll come talk to you right now, okay? Just shut up right now. Do you understand? >> Yes, sir. >> Stop acting like you're a like you're a know-it-all. You don't know [ __ ] Just shut up, okay? >> I don't know nothing. Well, then shut up. >> Shut up, buddy. >> All right. All right. >> All right, get out of the >> Think about it. >> No, you don't. >> You don't have a goddamn card, do you? >> No, you're going to do this. >> Officer Rivas repeatedly tells the detained individual to, quote unquote, shut up and secures him in the back seat of a patrol vehicle. In the 1987 case of City of Houston v. Hill, the Supreme Court struck down a municipal ordinance making it unlawful to oppose, molest, abuse, or interrupt an officer in the execution of duty in any manner, holding that the ordinance unconstitutionally criminalized a substantial amount of constitutionally protected speech. In reaching this conclusion, the court explained that the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers, and that the First Amendment requires that officers respond with restraint in the face of verbal challenges to police action. Here, a court would almost certainly conclude that the detainee's speech constituted protected expression, and that by ordering the detainee to stop talking, Officer Rivas was ordering him to refrain from exercising his First Amendment right to criticize the police. >> Hey bro, can you get out of here? Huh? Can you get out of here? Can you get out of here or no? >> Why are you talking to me? >> Why are you recording? >> Why are you asking me why I'm recording? Why are you even asking me that? >> do with your life, right? Get out of here, dude. >> Hey, can you watch him? >> Yeah. >> That's the suspect over there. Put him in your car. >> What's up? >> Can you hear me? You don't want to talk? Okay, since you don't want to talk, I'm going to talk to you. Listen, okay? Your son is a suspect in a possible robbery, so that's why I put you Your vehicle matches the suspect description, that's why you're you're pulled over, and that's why you're detaining handcuffs. Do you understand? If everything checks out good, right, and y'all are not Y'all did not commit any crimes, I'm going to cut you guys loose. That's why you're in handcuffs. Do you understand? Okay, are you going to talk or no? >> I don't have anything to >> Do you have any insurance on your vehicle? Where's the insurance at? >> It's probably on my phone. >> Okay. Well, if you can't provide it, you don't have anything like that, then I'm going to tow your vehicle, okay? You don't want to cooperate, then it's fine. Are you going to talk? >> It's on the phone. >> Are you going to talk to me, yes or no? Huh? No, they're just They're not recording. He's saying cut cut that loose. You can take the truck. Uh is there anything in the trunk there? I checked. He said he might have it on the phone. But uh my phone here now he tried to record you. He started recording. No, no, the son. The suspect. And then you start started him. That was one of my dudes. I'm trying not to piss his off right now. Yeah, they got no they got no >> Oh, hey. Get over here. If you get near this traffic stop, you're going to go to jail. >> Let me let me He shined his light in my camera. That's That's a You should care. That's a first amendment violation. >> Okay, that's fine. >> That's not fine. >> Okay. >> So, I moved I moved out of the way. >> I'm telling you, if you get closer to this traffic stop, you're going to go to jail. >> I moved out of the way of his light. >> I want to make it very clear to you that if you get closer to this traffic stop, you're going to go to jail. Do you understand that? >> After unsuccessfully ordering Mr. Berg to leave, Officer Rivas activates his patrol vehicle's spotlight and aims it toward Mr. Berg. When Mr. Berg re-positions to escape the glare, Officer Manuel Gondara warns him several times that he will go to jail if he gets any closer to the traffic stop. The Fifth Circuit Court of Appeals, which has jurisdiction over Texas, held in the 2017 case of Turner v. Driver that the First Amendment protects the right to film police officers conducting their official duties in public, subject only to reasonable time, place, and manner restrictions. Because filming the police is protected activity, the First Amendment prohibits officers from taking retaliatory actions against a filmer because they're recording. As the Supreme Court explained in the 2019 case of Nieves v. Bartlett, if an officer takes adverse action against a citizen because they're filming, the injured individual may seek relief by bringing a First Amendment retaliation claim. In the 2021 case of Bachikova v. Degy, the Fifth Circuit detailed three elements that a plaintiff must establish to successfully bring a First Amendment retaliation claim. First, that they were engaged in constitutionally protected activity. Second, that the officer's action caused them to suffer an injury that would chill an individual of ordinary firmness from continuing to engage in that activity, and third, that the officers' adverse actions were substantially motivated by their exercise of constitutionally protected activity. Now, the use of a light to interfere with a camera as first amendment retaliation was specifically addressed by the 10th Circuit Court of Appeals in the 2022 case of Irizarry v. Yehea, where an officer stood directly in front of a journalist and obstructed his filming, shined a flashlight into his camera, and then drove a police cruiser at him. The court concluded that standing in front of a camera and shining a flashlight into it made it difficult, if not impossible, to continue recording a potentially critical moment of the police activity, that this injury alone would chill an individual of ordinary firmness from continuing to film, and that the complaint stated a First Amendment retaliation claim under clearly established law. So, the officer was not entitled to qualified immunity. However, this case is distinguishable from the actions taken against Mr. Berg, as the officer in the Irizarry case placed his body directly in front of the camera at close range and aimed a handheld flashlight into the lens. While Officer Rivas activated a vehicle-mounted spotlight from a distance, and no officer physically blocked the camera or directed a vehicle toward Mr. Berg, who was then able to relocate and keep recording. Additionally, decisions of the 10th Circuit are considered so-called persuasive authority, rather than legally binding in Texas. So, a court reviewing this encounter would not be obligated to reach the same conclusion as the Irizarry case. Despite this, there is a reasonable argument that the officers' actions, which included telling Mr. Berg to leave, aiming the spotlight at Mr. Berg, berating him for filming, and then threatening to arrest him if he got any closer, all constituted retaliatory actions that were motivated by his exercise of his First Amendment rights. >> Particularly if you're trying to do an investigation and you don't have a light. >> You shouldn't be afraid of a camera. >> Oh, I'll trust me, we're not afraid of you. >> He shouldn't shine his light in my He shouldn't shine his light in my camera. >> We're having to worry about something else and then you right next to us recording. >> Shouldn't worry about me. >> Well, obviously you've never done this job before. But you clearly doesn't know what what comes with it. >> Hey sir, give us a few minutes and uh we're going to let you go, okay? >> I'm going to go >> Did you want me to go? >> I don't understand what the problem was. >> I I explained to you what the problem was. >> Okay. >> Did I not? >> I don't I don't remember sometimes. >> So check this out. This is your son? >> Yes, he is. >> Is he going through a divorce right now? Or a separation or something like that? >> Yes. >> Okay. So ex- wife, whatever you want to call her, wife? >> Negative. >> Okay, ex-wife? >> Okay. >> So wife called saying that your son robbed her >> My niece >> and he took her wallet. So that's the reason >> No, no, no, I I I I I understand, but uh you know, they they say one thing and it's another and of course >> Yeah, but so so here's the thing, we have to treat it >> No, I know. I I understand >> that's what it is. >> But uh >> So look, you're not under arrest, okay? You're just detained. Does that make sense? >> Yeah, okay. All right, then. >> Well, okay, what don't you understand so I can clear this up for you? What don't you understand? Your son's going to be going down to jail tonight cuz he has a couple of ticket warrants, he'll probably be out tomorrow. Okay? Cuz I had officers ticket warrants. >> Oh. >> Traffic tickets. >> Oh. >> So >> Yeah, I >> My partners over there where his wife is at >> Mhm. >> they went over there, they talked to her and they told me, right, that it was not a robbery nothing like that. So he's not going to be getting charged with that. >> Sometimes somebody's telling you to let go, man. Just let it go, man. >> How long is he been there? >> Uh [ __ ] about 11 years. >> Do they have kids? >> They have two. >> Where are the kids at? >> They're with my wife. >> Okay. >> Yeah, I mean >> Okay. >> live at? Let me have you step out, sir. I'm going to take the handcuffs You face away from me. I'm going to talk to my I'm going to go over there real quick just to confirm that you're good to go and we'll cut you loose, okay? Appreciate you being cooperative for the most part, but like at the same time you have to you have to look at things from our perspective, right? Cuz we don't know the full story. That's the reason why we're here, right? And I'm not trying to be I'm not trying to be with you. I'm not trying to be a victim, sir. You got to drop to the ground. I got to drop to the ground. Once we finally communicate and figure out this is not a robbery, like I said, the handcuffs are off. Okay? You can stand right here and give me a give me a second, okay? I'm going to talk to my partner. You have any questions right now? Hey, sir. Um you're good to go. Okay, but like I said, your son's going to be going down tonight for the 5150 >> He's a veteran. 15 D V 90. I hear he's a veteran. >> Ooh, I'll talk to him now. What up, boss? Hey, what branch are you? >> You know, you shouldn't shine your light on someone who's filming you like that. You know that's a First Amendment violation. >> What's um what branch are you? >> I don't want to talk to you. I don't want to talk to you. >> Okay. Fine. Talk to my partner. >> I'm I'm a veteran, too. All right. You're the sergeant here? Sergeant? You're the sergeant here? You should tell your guys not to shine a light when we're filming like this. You should You should tell him that he shouldn't be shining his bright light in my face like that. That's not good. >> The driver was released at the scene after officers determined that no robbery had occurred, and his son was taken to jail on outstanding traffic warrants. Neither was charged with robbery. Mr. Berg filed a formal complaint with the San Antonio Police Department, and it was determined that the only issue with the encounter was officer Rivas's use of profanity with no other misconduct being identified. On June 12th, 2025, Mr. Berg filed a federal pro se civil rights lawsuit against Officer Rivas and the city of San Antonio asserting a First Amendment retaliation claim. And on October 2nd, he filed an amended complaint that added Officer Gondara as a defendant. All three defendants moved to dismiss and on January 28th, 2026, the district court granted all three motions and dismissed the case. The court found that both officers were entitled to qualified immunity concluding that the actions Officer Rivas and Officer Gondara took against Mr. Berg would not have chilled a so-called person of ordinary firmness from continuing to record the detention and that the complaint did not, quote unquote, plausibly allege that the actions taken were substantially motivated by Mr. Berg's filming. On February 6th, 2026, Mr. Berg filed a motion under Rule 59E of the Federal Rules of Civil Procedure which permits a party to ask the court that entered a judgment to alter or amend it. On February 23rd, the court denied the motion and Mr. Berg filed a notice of appeal on February 24th. The appeal was docketed in the Fifth Circuit Court of Appeals and as of the date of writing this episode, the appeal is fully briefed and remains pending before the Fifth Circuit. Overall, Officer Rivas and Officer Gondara get an F for ordering a citizen who was lawfully filming them to leave and then threatening him with jail for aiming a patrol vehicle spotlight at his camera and for treating both a handcuffed detainee and an uninvolved bystander with open hostility and contempt. Regardless of whether a court ultimately concludes that their conduct amounted to First Amendment retaliation for the purposes of a civil rights claim, the officers' words and actions captured during this encounter, they reflect a complete disregard for the constitutional rights of citizens. Officer Rivas ordered a handcuffed individual to stop speaking when he objected to his detention. He berated Mr. Berg for silently filming, directed him to leave, and aimed a spotlight at him, presumably to disrupt his recording. While Officer Gondara belittled Mr. Berg for holding a camera, and then repeatedly threatened him with jail. Neither officer articulated any safety or interference concern for a single one of these actions, and neither showed any recognition that the criticism and the filming that they so plainly resented were activities that the First Amendment expressly protects. This interaction highlights that the rights to criticize and to record the police, they do not depend on whether an officer finds their exercise convenient, and that the required police response to challenging or irritating First Amendment expression is restraint, rather than retaliation. Mr. Berg gets an A for recording a police detention from a lawful vantage point without approaching or interfering, responding to profanity and repeated threats of arrest with a calm and measured demeanor, and pursuing every available avenue of accountability after the encounter ended. Mr. Berg stood beside his own vehicle at a gas pump, filmed, and voiced objection to Officer Rivas aiming the spotlight at his camera. Despite the use of insult and profanity by the officers, Mr. Berg did not lose control or escalate the encounter to a physical altercation. Rather, Mr. Berg raised the issue with the on-scene supervisor, and then when he did not receive a response, he filed a formal complaint, and then ultimately took the matter to federal court on his own. I commend Mr. Berg for filming quietly and without provocation, and for carrying his objection into the courts, rather than pressing it in the parking lot. Let us know if there is an interaction or legal topic that you would like us to discuss in the comments below. Thank you for watching, and don't forget to check out Audit the Court if you're interested in exploring the legal nuance beyond the body cam. >> [music] [music] >> Oh.