ORDER AND REASONS

MARTIN L. C. FELDMAN, District Judge.

Before the Court are two motions: (1) Jefferson Parish's motion for summary judgment; and (2) Jefferson Parish Sheriff Deputy Micah Blange's and Sheriff Newell Normand's motion for summary judgment. For the reasons that follow, the Parish's motion is GRANTED insofar as it is entitled to judgment as a matter of law dismissing the plaintiff's facial vagueness challenge to the animal cruelty ordinance, and the law enforcement defendants' motion is DENIED without prejudice.

Background

On April 11, 2015, shortly after noon in Jefferson Parish, Louisiana, the temperature was in the low 70s with overcast skies.1 Catheryn Babin was driving her two-door Mini-Cooper convertible. Riding as passenger was her two-year-old Catahoula/Labrador mix, Peyton Legion, a trained service dog. Ms. Babin and Peyton Legion were on their way home from a senior citizen center, where Peyton Legion had spent the morning working with residents there suffering from Alzheimer's disease. On the way from the center to her house, Ms. Babin stopped at Big Lots on Veterans Boulevard in Jefferson Parish to buy dog food. Leaving the windows rolled down, the car doors unlocked, and the convertible top pulled back to expose the front seats,2 Ms. Babin went into the store; Peyton Legion waited in the car.

Meanwhile, at 12:12 p.m., while Ms. Babin was shopping in Big Lots, a woman named Ashley McMurry3 called the Jefferson Parish 911 operator to complain that a dog was left unattended for 10 minutes. Ms. McMurry apparently told the operator that the dog was panting and looked "uncomfortable," although she also told the operator that the windows were down, it was "not that hot," and that the dog did not appear to be in distress.4 Jefferson Parish Sheriff's Office dispatched a law enforcement officer to the scene.

When Ms. Babin exited Big Lots, Ms. McMurry confronted her, complaining that the dog was left alone in the car. Ms. Babin showed her that the door was unlocked; as soon as she opened the car door, Peyton Legion came to Ms. Babin and he was then on-leash at Ms. Babin's side in the parking lot. Nevertheless, Ms. McMurry continued to complain and berate Ms. Babin.

At about 12:25 p.m., Jefferson Parish Sheriff's Office Deputy Micah Blange, in full police uniform, arrived on the scene in his marked vehicle. He first spoke with an unidentified individual as well as Ms. McMurry (whom "hurried after" Blange when he pulled into the parking lot).5 Soon thereafter, another Jefferson Parish Sheriff's deputy, Michael Voltolina, Jr., arrived at Big Lots. Unlike Blange, Voltolina drove up to where Ms. Babin had parked, examined Ms. Babin's car, and explained to her that deputies were required to come to the scene to investigate, but that he did not see cause for issuing a summons.6 After Voltolina left Ms. Babin, Deputy Blange drove over to where her car was parked and where she was standing next to her car with Peyton Legion. Blange parked his police cruiser to the rear and perpendicular to Ms. Babin's vehicle, blocking her into the parking space. Blange did not exit his vehicle, but instead called Ms. Babin over to his car, telling her "I need to see your driver's license," which she retrieved from her car and handed to him. Blange then asked her a couple questions regarding her identity, and then asked why she had not left her dog at home. Ms. Babin explained that she and Peyton Legion were on their way home from visiting a senior center.

Without more, Blange told Ms. Babin that he was issuing her a criminal misdemeanor summons. Ms. Babin asked why, to which Blange responded that it was "two against one" (ostensibly referring to Ms. McMurry and the other "concerned citizen"). After completing the summons, Blange exited his car to hand it over to Ms. Babin. He then returned her driver's license, and got back in his car. At that point, Blange indicated to Ms. Babin (without verbalizing) that their encounter was over and that she could go. Ms. Babin asked if it was okay to, or suggested that she would, speak to the other officer (Voltolina) who was still somewhere in the Big Lots parking lot. Blange then left the scene in his car. Ms. Babin went to speak to Voltolina, apparently to complain about being issued a summons, but Voltolina simply said, "That's not under my control."

Blange had issued Ms. Babin a criminal misdemeanor summons for violating of Jefferson Parish ordinance proscribing animal cruelty. Section 7-126 of the ordinance provides:

(emphasis added). Two weeks after issuing the summons, Blange drafted a report to support the citation.

On May 15, 2015, the Jefferson Parish District Attorney's Office filed a bill of information in the First Parish Court for the Parish of Jefferson, charging Ms. Babin with cruelty to animals in violation of Code Section 7-126. Ms. Babin made three separate court appearances and ultimately retained a criminal defense attorney to defend her against the charge. On March 3, 2016, when she and her attorney appeared for the trial, the charge was dismissed.7

Shortly thereafter, Ms. Babin filed this civil rights lawsuit under 42 U.S.C. § 1983, naming as defendants Jefferson Parish, Deputy Micah P. Blange, in his individual capacity, and Newell Normand, in his official capacity as Sheriff of Jefferson Parish. Ms. Babin advances several claims. She alleges two claims against Blange: that her Fourth Amendment right to be free from unlawful seizure was infringed when Blange seized her without probable cause, subjecting her to false arrest;8 and that Blange defamed her under Louisiana law.9 Ms. Babin also alleges that Sheriff Normand is liable under the theory of respondeat superior for her Louisiana claims because Blange was acting in the course and scope of his employment. Finally, Ms. Babin alleges that Jefferson Parish is liable because Section 7-126 violates her right to substantive due process; the provision is unconstitutionally vague on its face, Ms. Babin alleges, because it defines neither "acceptable weather condition" nor "proper temperature control." Ms. Babin seeks three types of relief. First, Ms. Babin seeks declaratory relief with respect to the vagueness of the ordinance. Second, Ms. Babin seeks to enjoin the Parish and Sheriff Normand from enforcing the vague provision to prevent future deprivations of Ms. Babin's and other parties' rights to substantive due process. Finally, Ms. Babin seeks to recover money damages and attorney's fees from Jefferson Parish; she also seeks money damages from Blange for the emotional and mental distress, reputational damage, and attorney's fees she incurred defending the criminal charge.

Jefferson Parish moved for summary judgment dismissing the plaintiff's claims against it, and the plaintiff cross moved for partial summary judgment that certain terms in the animal cruelty ordinance are unconstitutionally vague. On January 11, 2017, the Court denied both motions "[b]ecause neither the Parish nor the plaintiff persuades the Court that the plaintiff may pursue a facial challenge to the ordinance, and because neither has submitted any evidence that could serve as a factual predicate to analyze the plaintiff's `as applied' challenge." See Order and Reasons dtd. 1/11/17.

Jefferson Parish now (again) seeks summary judgment insofar as the plaintiff advances a facial challenge to the ordinance. Jefferson Parish Sheriff Newell Normand and Deputy Micah Blange also seek summary judgment in their favor dismissing the plaintiff's Section 1983 claim on the grounds that: the alleged Fourth Amendment violation fails as a matter of law because the plaintiff was not "seized;" Deputy Blange is entitled to qualified immunity; and the plaintiff lacks standing to challenge prospective application of the ordinance.10

I.

Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Ultimately, "[i]f the evidence is merely colorable . . . or is not significantly probative," summary judgment is appropriate. Id. at 249 (citations omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted) ("[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.").

Summary judgment is also proper if the party opposing the motion fails to establish an essential element of a claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must adduce competent evidence, including but not limited to sworn affidavits and depositions, to buttress his claims. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). However, affidavits or pleadings which contradict earlier deposition testimony cannot create a genuine issue of material fact sufficient to preclude an entry of summary judgment. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992).

In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted). Although the Court must "resolve factual controversies in favor of the nonmoving party," it must do so "only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation marks and citation omitted).

II.

Standing is a threshold issue and, yet, it is raised as an apparent afterthought in only the law enforcement defendants' motion. Sheriff Normand and Deputy Blange challenge Ms. Babin's standing; their challenge is limited to her request for prospective relief, but they merely reiterate the core component of the standing requirement. Ms. Babin counters that she has satisfied the requirements for Article III standing. Ms. Babin submits that she does not merely allege a generalized citizens' interest in good government as suggested by the defendants. Like each of the issues presented by the parties' motions (whether the parties have identified relevant issues, or, more often, not), this issue is inadequately briefed and — if there is evidence in the record directed to supporting or undermining the factual predicate for standing — neither side points it out.

"Article III of the Constitution limits federal courts' jurisdiction to certain `Cases' and `Controversies.'" Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1146 (2013)("The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches."). "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal court-jurisdiction to actual cases and controversies." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)(citation omitted). "One element of the case-or-controversy requirement" — standing to sue — commands that a litigant must have standing to invoke the power of a federal court. See Clapper, 133 S.Ct. at 1146 (citation omitted); see also National Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011).

"To establish Article III standing," the Supreme Court has written on numerous occasions, "a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision." Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2341 (2014)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). "Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is certainly impending." Clapper, 133 S.Ct. at 1147 (citation omitted, emphasis in original). "Allegations of possible future injury are not sufficient." Id. (citation omitted, emphasis in original). Put differently, "an allegation of future injury may suffice if the threatened injury is `certainly impending,' or there is a `substantial risk' that the harm will occur." Driehaus, 134 S.Ct. at 2341 (citing Clapper, 133 S.Ct. at 1147, 115, n.5).11

The party invoking federal jurisdiction, here, Ms. Babin, bears the burden of establishing standing as to each claim alleged. Clapper, 133 S.Ct. at 1146; DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Miss. State Democratic Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008); Doe v. Tangipahoa Parish School Bd., 494 F.3d 494, 499 (5th Cir. 2007)("Standing to sue must be proven, not merely asserted, in order to provide a concrete case or controversy and to confine the courts' rulings within our proper judicial sphere."). Critically, "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Driehaus, 134 S.Ct. at 2342 (citing Lujan, 504 U.S. at 561).

To meet the irreducible constitutional minimum of standing to seek injunctive relief, the plaintiff must establish that "[s]he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)(citations and internal quotations omitted).12 However, the plaintiff may not simply rely on past injury to satisfy the injury requirement; she must show a likelihood that she will be injured in the future. See O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)(holding that "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing present adverse effects).

Here, the plaintiff argues that she meets the irreducible constitutional minimum of standing: because she was detained, summoned, and prosecuted (her injury) by virtue of (and therefore traceable to) the allegedly inartfully drafted Jefferson Parish's animal cruelty ordinance and its unreasonable application to her, she submits that her injury will be redressed by a Court ruling (that the ordinance is unconstitutionally vague and that Deputy Blange violated her Fourth Amendment right) and an injunction issuing against its enforcement. It is clear in the record that Ms. Babin has supplied a predicate for retrospective relief for her detention, summons, and prosecution; however, the present state of the record does not permit a finding that Ms. Babin's past exposure to allegedly illegal conduct is accompanied by continuing, present adverse effects. And the Court will not speculate that Ms. Babin fears a repeat encounter with Jefferson Parish Sheriff's Office deputies.13 Nevertheless, because the Court finds that the briefing and the record is likewise inadequate to resolve other issues raised by the parties' motions for summary judgment, the Court will allow supplemental briefing on the standing issue. Whether the plaintiff can satisfy her evidentiary burden on standing is one issue to be addressed and, if she cannot, the parties must address which claims fail for her lack of standing to seek prospective relief. To be sure, if Ms. Babin lacks standing, the Court lacks subject matter jurisdiction to entertain a request for prospective relief.

III.

Title 42, U.S.C. § 1983 creates a damages remedy for the violation of federal constitutional or statutory rights under color of state law; it provides:

Because Section 1983 merely provides a remedy for designated rights, rather than creating any substantive rights, "an underlying constitutional or statutory violation is a predicate to liability." Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997)(citation omitted). To establish § 1983 liability, the plaintiff must satisfy three elements:

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).

Ms. Babin's Section 1983 claims are based on alleged deprivations of two constitutional rights: (1) the right to be free from unreasonable seizure secured by the Fourth Amendment, which she says Deputy Blange violated when Blange arrested her without probable cause; and (2) the right to due process secured by the Fourteenth Amendment, of which she says Jefferson Parish deprived her because the animal cruelty ordinance is so vague that it failed to give her, and fails to give ordinary people, fair notice of the conduct it punishes and that is so standardless that it invites arbitrary enforcement. Deputy Blange seeks summary judgment on his defense of qualified immunity,14 and the Parish seeks summary judgment that Ms. Babin cannot demonstrate that the ordinance was unconstitutionally vague.

IV.

When a plaintiff seeks money damages from government officials for alleged violations of constitutional or statutory rights, officials sued in their individual capacities may invoke the defense of qualified immunity. Because it is an immunity from suit and not a defense to liability, courts are advised to resolve the issue "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per curiam). Once the defense of qualified immunity is "properly raised," the burden of negating the defense shifts to the plaintiff. See Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)(citation omitted); Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)("To negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present `absolute proof,' but must offer more than `mere allegations.'"); see also Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997)("We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.").

"Qualified immunity shields government officials from civil damages liability," the U.S. Supreme Court has reiterated, "unless the official violated a statutory or constitutional right that was clearly established that the time of the challenged conduct." Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012)(citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)(This doctrine protects government officials against individual civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."). "Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009)(noting that "[t]he protection of qualified immunity applies regardless of whether the government official's error is `a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'"). "[T]he qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)(citations omitted); see also Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir. 2001)("even law enforcement officials who reasonably but mistakenly commit a constitutional violation are entitled to immunity")(citation omitted); see also Brady v. Fort Bend County, 58 F.3d 173, 174 (5th Cir. 1995)(observing that "[q]ualified immunity represents the norm" and "is designed to shield from civil liability all but the plainly incompetent or those who violate the law.").

Put simply, a public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the official's conduct violates a statutory or constitutional right, and (2) that the right was "clearly established" at the time of the challenged conduct. al-Kidd, 563 U.S. at 735 (citation omitted).15 Although the Supreme Court has left to the district court's discretion the sequence for undertaking these two inquiries, the Supreme Court has increasingly indicated a preference for first considering whether a purported right was clearly established by prior case law "without resolving the often more difficult question whether the purported right exists at all." See al-Kidd, 563 U.S. at 735 ("Courts should think carefully before expending `scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will `have no effect on the outcome of the case.'"); see also Reichle, 132 S.Ct. at 2093 ("This approach comports with our usual reluctance to decide constitutional questions unnecessarily."); see also Camreta v. Greene, 563 U.S. 692, 705 (2011)(observing that "our usual adjudicatory rules suggest that a court should forbear resolving this issue")(emphasis in original); see also Pearson, 555 U.S. at 238-39 (listing circumstances in which courts might be best served to bypass the first step of the Saucier process, such as "when qualified immunity is asserted at the pleadings stage, the precise factual basis for the plaintiff's claim or claims [is] hard to identify").

"A right may be clearly established without `a case directly on point,' but `existing precedent must have placed the statutory or constitutional question beyond debate.'" Hanks v. Rogers, 853 F.3d 738, 746-47 (5th Cir. 2017) (quoting White v. Pauly, 137 S.Ct. 548, 551 (2017)). "[C]learly established law must be `particularized' to the facts of the case [and] should not be defined `at a high level of generality.'" Id. (citations omitted). "In other words," the Fifth Circuit recently explained, "outside of an obvious case, the law is only clearly established if a prior case exists where an officer acting under similar circumstances. . . was held to have violated the Fourth Amendment." Id. (citation and internal quotation omitted).

Ms. Babin claims that Deputy Blange violated her Fourth Amendment right to be free from false arrest. Tailored to the wrongful arrest context:

Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)(citations and internal quotations omitted).

The Fourth Amendment guarantees "the right of the people to be secure in their persons . . . against unreasonable searches and seizures . . . and no warrants shall issue, but upon probable cause." U.S. CONST. amend. IV. The Fourteenth Amendment extends this protection against "unreasonable searches and seizures" to the states. Dunaway v. New York, 442 U.S. 200, 207 (1979). "[T]he ultimate touchstone of the Fourth Amendment is `reasonableness.'" Heien v. North Carolina, 135 S.Ct. 530, 536 (2014)(quoting Riley v. California, 134 S.Ct. 2473, 2482 (2014)).

Central to a Section 1983 claim for wrongful arrest is a "seizure" of a person. California v. Hodari D., 499 U.S. 621, 624 (1991)("[T]he Fourth Amendment's protection against `unreasonable. . . seizures' includes seizure of the person."). A determination of whether an unreasonable seizure has occurred, as with all Fourth Amendment issues, may only be resolved by considering the particular facts of the case. "A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." Id. at 627-28. "A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied." Brendlin v. California, 551 U.S. 249, 254 (2007)(citations and internal quotation marks omitted).

In support of his qualified immunity defense, Deputy Blange submits that "a criminal summons without custodial arrest or accompanying restrictions on an individual's liberty, coupled with a voluntary appearance . . . does not amount to seizure." The sound legal premise of this argument aside, the plaintiff's sworn deposition testimony squarely removes the facts of this case from the law invoked by Blange. The plaintiff stated that Deputy Blange "drove up behind [Ms. Babin's parked] car" and blocked her into the parking spot before proceeding to demand to see her driver's license and question her identity and business at Big Lots.16 Standing alone, as it does on this sparse record, this fact defeats Deputy Blange's suggestion that Ms. Babin merely received a summons and therefore was not seized within the meaning of the Fourth Amendment. See United States v. Jones, 678 F.3d 293, 298-99 (4th Cir. 2012)(considering the totality of the circumstances and determining that, when an officer who is armed and in uniform "blocks a defendant's car from leaving the scene . . . the officer demonstrates a greater show of authority than does an officer who just happens to be on the scene and engages a citizen in conversation," a reasonable person would not have felt free to leave). The implications of Deputy Blange's failure to address, acknowledge, or respond to the plaintiff's arguments raised in opposition to his motion (in which she features the very evidence Blange submitted into this record that is suggestive of a Fourth Amendment seizure) are unclear. To be sure, the plaintiff has the burden to defeat a "properly raised" qualified immunity defense. The Court assumes without deciding, however, that attorney professional responsibility demands that attorneys representing individuals invoking qualified immunity defenses, like all attorneys, have the professional obligation to advance arguments in support of their defenses, tailored to the facts of the case, and to submit any evidence that would assist the Court in resolving qualified immunity defenses.

This case epitomizes the practical difficulties presented when the Court is asked to resolve an assertion of qualified immunity that is not only poorly briefed, but also where there is no factual predicate in the record to support an assertion of immunity. If Deputy Blange's position is that he is immune from suit here because no custodial arrest occurred, he nevertheless fails to identify any facts that undermine the plaintiff's characterization that she was seized within the meaning of the Fourth Amendment. Equally troubling, neither side briefs what appears to this Court to be a threshold issue: whether, assuming as the only record evidence demonstrates, in blocking Ms. Babin's car in her parking spot for a few minutes to ask her some questions and issue a summons, Deputy Blange merely detained Ms. Babin for investigatory purposes such that the reasonable suspicion framework for a Terry stop applies to his actions, or, instead, whether the facts are more indicative of a de facto arrest such that probable cause — or, in the qualified immunity context, arguable probable cause — must be proved to justify the seizure. See United States v. Sharpe, 470 U.S. 675, 685 (1985)("Admittedly [Supreme Court precedent] may in some instances create difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest.").17 Regardless which label best captures what occurred here, the reasonable suspicion or probable cause determination are both fact-driven inquires that this Court is presently ill-equipped to tackle.

An attempt to resolve the qualified immunity defense without the benefit of adversarial briefs and without a developed summary judgment record falls flat. To withstand summary judgment in favor of Deputy Blange on his qualified immunity defense, Ms. Babin must demonstrate that her arrest (if it was an arrest and not an investigative stop) was unlawful (that is, not based on probable cause) and that the unlawfulness of Blange's conduct in arresting her was clearly established (that is, that no reasonable officer would have believed that there was probable cause to arrest her for leaving her dog unattended in her car without reasonable containment during acceptable weather conditions or proper temperature control). "Probable cause and the ensuing qualified immunity analysis turn on [the arresting officer's] reasonable beliefs and knowledge, including information received from eye witnesses." See Bone v. Dunnaway, 657 Fed.Appx. 258, 261 (5th Cir. 2016)(citations omitted).

Adams v. Williams, 407 U.S. 143, 148 (1972)(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). If Deputy Blange had probable cause to seize Ms. Babin, then Ms. Babin's wrongful seizure claim fails.

On this record, the qualified immunity issue is patently academic. Given that probable cause and the qualified immunity determination turn on fact-intensive inquiries, and there is no evidence in the record to inform the Court as to the information Blange had in arresting Babin, summary judgment is premature. There are no facts in the record indicating the facts and circumstances within Deputy Blange's knowledge at the time he "seized" Babin. Although Ms. Babin alludes in her deposition testimony to a 911 call made by a complaining witness and also alludes to the fact that there were at least two complaining witnesses who spoke to Deputy Blange,18 there is nothing in the record to indicate what was said on the 911 call or what these "eyewitnesses" told Blange when he arrived at Big Lots to investigate.19 Having not been advised as to the totality of the circumstances confronting Deputy Blange, there is no factual predicate to enable this Court to resolve whether Blange had the requisite probable cause or reasonable suspicion to render Babin's seizure "reasonable" under the Fourth Amendment.

The Court's attempt to resolve the clearly established prong of the qualified immunity analysis fares no better. This inquiry also depends on historical facts, in particular, on what happened in factually similar circumstances. "This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition." Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). "The relevant inquiry is whether existing precedent placed the conclusion that [the arresting officer] acted unreasonably in these circumstances `beyond debate.'" Id. at 309 (citation omitted). This Court can hardly determine whether it was clearly established that the Fourth Amendment prohibited Deputy Blange's conduct in the situation he confronted, when what he confronted is absent from the summary judgment record. See Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)(noting that the judge's function at summary judgment is to view the facts in the light most favorable to the party asserting the injury and to determine whether there is a genuine issue for trial). Deputy Blange's request for judgment as a matter of law on his defense of qualified immunity must be denied without prejudice.20

To withstand Deputy Blange's qualified immunity defense, assuming the parties submit the requisite evidence, the plaintiff must identify a case where an officer acting under similar circumstances as Deputy Blange was held to have violated the Fourth Amendment. In addressing the clearly established prong, the parties should take care not to define the qualified immunity inquiry too abstractly and, in attempting to identify clearly established law, the plaintiff should identify factually similar cases that speak to the circumstances of this case. See White v. Pauly, 137 S.Ct. 548, 552 (2017)(noting the frequency with which the Court has reversed federal courts in qualified immunity cases and finding that "[t]he panel majority misunderstood the `clearly established' analysis" in that it "failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment."); see also City and County of San Francisco, Calif. V. Sheehan, 135 S.Ct. 1765, 1776 (2015)("Qualified immunity is no immunity at all if `clearly established' law can simply be defined as the right to be free from unreasonable searches and seizures."); see also Tolan, 134 S.Ct. at 1866 ("courts must take care not to define a case's `context' in a manner that imports genuinely disputed factual propositions"); see also Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2094 (2012)("the right allegedly violated must be established, not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official")(internal quotation marks and citations omitted).

V.

Ms. Babin's Section 1983 claim against the Parish must be analyzed in accordance with the Monell framework.21 Municipalities are "persons" within the meaning of Section 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). But, it has been cautioned, "[t]hey are liable only for their own acts and not those attributed to them by principles of respondeat superior." Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)(citing Monell, 436 U.S. at 691-92). Imposition of Section 1983 liability against a municipality under Monell is appropriate in the limited circumstance of when a constitutional tort is caused through the execution of a policy or custom of the municipality. See Bowen v. Watkins, 669 F.2d 979, 989 (5th Cir. 1982)(citation omitted). "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694.

To determine whether municipal liability attaches, the Court looks to whether unconstitutional conduct is directly attributable to the municipality through some official custom or policy; "isolated unconstitutional actions by municipal employees will almost never trigger liability." See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)(citations omitted); Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008)(citation omitted)("The municipality must cause the constitutional tort, which occurs `when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.'"). Indeed, the rules for imposing municipal liability are well-settled; proof of three elements is vital: (1) a policy maker; (2) an official policy or custom; and (3) causation: a violation of constitutional rights whose "moving force" is the policy or custom. Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694).1 Official municipal policy, the U.S. Supreme Court has observed, "includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." See Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011)(citations omitted)("These are `action[s] for which the municipality is actually responsible.'"). The Fifth Circuit has defined an official policy for Section 1983 purposes as:

Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)(en banc).

Babin alleges that her arrest for animal cruelty violated her Fourteenth Amendment right to due process because the animal cruelty ordinance is so vague that it failed to give her, and fails to give ordinary people, fair notice of the conduct it punishes and that is so standardless that it invites arbitrary enforcement. The Parish seems to contend that Babin fails to demonstrate that the ordinance is vague on its face. The Parish also seems to suggest, in a footnote, that it would not be the proper defendant to answer any as-applied challenge to the ordinance. The Parish misapprehends the law and deals a blow to common sense in advancing the second argument.

The Fourteenth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property without due process of law." U.S. Const. amend. XIV. "Vagueness doctrine is an outgrowth of the Due Process Clause." United States v. Williams, 553 U.S. 285, 304 (2008). Due process requires that statutes providing for criminal prosecution be drafted "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983); Johnson v. United States, 135 S.Ct. 2551, 2557-58 (2015); Munn v. City of Ocean Springs, Miss., 763 F.3d 437, 439 (5th Cir. 2014)("The Due Process Clause requires that a law provide sufficient guidance such that a man of ordinary intelligence would understand what conduct is being prohibited.").

An ordinance is unconstitutionally void for vagueness under the due process clause of the Fourteenth Amendment if its lack of definitive standards either (1) fails to apprise persons of ordinary intelligence fair notice of the prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement. See Williams, 553 U.S. at 304. The Fifth Circuit has instructed that the Court "must strike down [an] ordinance if . . . it does not sufficiently define the line between legal and illegal conduct." Munn, 763 F.3d at 439.

The Supreme Court has instructed that the Court, in considering a facial vagueness challenge,

See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19 (2010). "In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered." Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). These principles fail to resolve what the Court identified previously as an impediment to summary judgment when cross motions were pending on the plaintiff's facial challenge to the animal cruelty ordinance.

The parties (for a second time) fail to brief the ambiguity bearing on whether facial vagueness challenges are limited to challenges based on the First Amendment. At least the Second Circuit has noted that there is "confusion in the law" regarding "[w]hether a facial void-for-vagueness challenge can be maintained when . . . a challenge is not . . . based on the First Amendment." Dickerson v. Napolitano, 604 F.3d 732, 743 & n.10 (2d Cir. 2010).22 The Second Circuit goes on to observe that there are two potential standards governing non-First Amendment based vagueness challenges. Id. at 743-44 (declining to resolve which standard should apply because the plaintiffs would not be permitted to bring a facial challenge under either). The first potential standard — that such challenges are permitted only when "no set of circumstances exists under which the [law] would be valid" — as a practical matter "eliminates facial challenges outside the First Amendment context that could not also be brought as an as-applied challenge." Id. As for the second potential standard, the Second Circuit determined that the Supreme Court in Morales "suggest[ed] that facial challenges are permissible outside of the First Amendment context, but . . . only in the presence of a constitutionally-protected right." Id. (citing City of Chicago v. Morales, 527 U.S. 41, 53 (1999)).

Like the Second Circuit, the Court finds that, regardless of which standard applies to the plaintiff's facial challenge, her facial vagueness challenge must be dismissed. If the first standard governs, then Ms. Babin is restricted to an as-applied challenge; if the second standard governs, then Ms. Babin cannot succeed on her facial vagueness challenge because she has identified no fundamental constitutional right infringed by the animal cruelty ordinance.

Although the plaintiff's facial challenge to the ordinance's vagueness must be dismissed, the Court is compelled to note Jefferson Parish did not move for summary judgment as to any as-applied vagueness challenge advanced by Ms. Babin. The Parish seems to suggest that it is not the proper defendant to an as-applied vagueness challenge, arguing "[w]hether an ordinance as applied to Babin under the particular circumstances as alleged and/or to be proven at trial deprived Babin of her constitutional rights is not what is before this Court as to Defendant the Parish of Jefferson." It offers no argument or legal citation in support of this assertion. If indeed it is suggesting that it is not the proper defendant to answer to Ms. Babin's as-applied vagueness challenge, the Parish's suggestion defies commonsense and misapprehends municipal liability.23 There can be no dispute that the Jefferson Parish animal cruelty ordinance reflects the official policy of the municipality. See Connick v. Thompson, 563 U.S. 51, 61 (2011)("[o]fficial municipal policy" includes the "decisions of a government's lawmakers"); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)(official policy for Section 1983 municipal liability purposes includes an ordinance passed by the municipality's law makers). If the ordinance is unconstitutional as applied to Ms. Babin's conduct, there is unconstitutional conduct attributable to the Parish, which may be subject to liability under Section 1983.24 See Galbreath v. City of Oklahoma City, 568 Fed.Appx. 534, 538-39 (10th Cir. 2014)(citing Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1279 (10th Cir. 2009)(if ordinances are unconstitutional as applied to the plaintiff, the liability falls on the city)).

Thus, insofar as the plaintiff alleges that the ordinance is unconstitutionally vague as applied to her, that claim remains viable. Even if the Court wanted to take up the issue, Jefferson Parish failed to heed this Court's prior admonition regarding placing evidence in the record that would facilitate a ruling on the as-applied challenge. See Order and Reasons dtd. 1/11/17. Because the determination as to whether the Parish's animal cruelty ordinance is unconstitutionally vague as applied to Ms. Babin is necessarily tethered to the factual context in which the ordinance was applied, on this record, summary judgment is patently inappropriate.

Accordingly, for the foregoing reasons, IT IS ORDERED: that the Parish's motion for summary judgment is GRANTED insofar as it seeks dismissal of the plaintiff's facial vagueness challenge (but the plaintiff's as-applied challenge, if any, remains viable against the Parish), and the law enforcement defendants' motion for summary judgment is DENIED without prejudice. Because the Court was unable to resolve issues that should be resolved prior to trial, in particular, standing for prospective relief and qualified immunity, IT IS FURTHER ORDERED: that the pretrial conference and trial are hereby continued, to be reset by the Court. Any properly supported motions for summary judgment must be filed within 30 days of this Order and Reasons. All counsel must be mindful of 28 U.S.C. § 1927.