PATRICIA MINALDI, District Judge.
Before the court is the Motion for Summary Judgment Based on Qualified Immunity [Doc. 23], filed by the City of Sulphur, Lewis Coats, Chief of Police for the City of Sulphur, Officer Chester Gremillion and
On August 6, 2012, the plaintiff alleges that he went to the C.S.E. Credit Union on Swisco Road, in Sulphur, Louisiana, for the purpose of discussing a discrepancy regarding a federal tax lien on behalf of a friend, Mr. Victor Chaisson, who was at the time out of the country.
On August 7, 2012, the plaintiff again met with Vaussine.
On August 8, 2012, the plaintiff was phoned by Detective Breaux at the CPSO who asked the plaintiff to come down to the sheriff's substation.
On August 9, 2012, Officer Chester Gremillion pulled the plaintiff over near Frasch Elementary School, on South Huntington Street, in Sulphur, Louisiana.
The Official Notification of Trespass Warning [Doc. 23-4], which bears the signature of the plaintiff, states that the signee "understand[s] that if [he] return[s] to this property for any reason [he] will be subject to arrest under Louisiana RS 14:63.3."
On September 5, 2012, Sulphur Police Chief Lewis Coats received the first of several letters in this matter from the plaintiff inquiring as to why the no trespass order was issued.
"Around the same time," Chief Coats was advised by the District Attorney that there was "insufficient evidence to pursue any charges against [the plaintiff]."
The plaintiff filed suit against the defendants in the Fourteenth Judicial District Court for the Parish of Calcasieu on December 10, 2012, under 42 U.S.C. § 1983, initially seeking compensatory and exemplary damages for alleged violations of the plaintiff's rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution.
A grant of summary judgment is appropriate when the movant has shown that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. PRO. 56(a). The moving party bears the initial burden of showing that there is no genuine issue of material fact, and must support its motion by "identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the movant sufficiently demonstrates the absence of a genuine dispute of material fact, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine [dispute] for trial." Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir.2004) (citation omitted). Where material facts are in dispute, "the Court must view the facts and draw reasonable inferences in the light most favorable to the plaintiff." Priority Staffing, Inc. v. Regions Bank, No. 5:11-0667, 2013 WL 5462239, at *2 (W.D.La. Sept. 30, 2013) (citation omitted). However, where "critical evidence is so weak or tenuous as to an essential fact that it could not support a judgment in favor of the nonmovant, then summary judgment should be granted." Webb v. Arbuckle, No. 09-615, 2011 WL 1002109, at *2, 2011 U.S. Dist. LEXIS 28259, at *7 (W.D.La. Mar. 18, 2011) (citing Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005)).
42 U.S.C. § 1983 "provides a cause of action against an individual who, acting under color of state law, has deprived a person of a federally protected statutory or constitutional right." Whittington v. Maxwell, 455 Fed.Appx. 450, 455-56 (5th Cir.2011) (citing 42 U.S.C. § 1983). "[Q]ualified immunity — which shields Government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,' is both a defense to liability and a limited `entitlement not to stand trial or face the other burdens of litigation.'" Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). "Qualified immunity serves to ensure government employees are not impeded from their public work to defend frivolous actions." Porter v. Valdez, 424 Fed.Appx. 382, 386 (5th Cir.2011) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.1994)).
"When an officer argues that he is entitled to qualified immunity from suit, [the court] first view[s] the evidence `in the light most favorable to the party asserting the injury' and decide[s] if `the facts alleged show the officer's conduct violated a constitutional right.'" Mesa v. Prejean, 543 F.3d 264, 269 (5th Cir.2008) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In order to overcome a claim of qualified immunity, a plaintiff must plead facts showing "(1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818,
The actions of a law enforcement officer violate clearly established law when, "at the time of the challenged conduct, `[t]he contours of [a] right [are] sufficiently clear' that every `reasonable official would have understood that what he is doing violates that right.'" Id. at 2083 (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). While a case directly on point is not necessarily required, "existing precedent must have placed the statutory or constitutional question beyond debate." Id. (citations omitted).
The plaintiff has asserted a violation of the following constitutionally protected rights: due process under the Fifth and Fourteenth Amendments, freedom of speech, freedom of association, right to petition the government for the redress of grievances, equal protection, the right against unlawful search and seizure, and the right to travel.
Although there is little discussion in the parties' briefs as to the statutory authority for the no trespass warning, it should be noted that the written warning issued to the plaintiff relied on the authority of Louisiana Revised Statute § 14:63.3, which provides in pertinent part that
LA.REV.STAT. ANN. § 14:63.3 (1978). Louisiana law is "well settled that criminal statutes are strictly construed in favor of the accused and must not be extended by analogy or implication to cover acts not expressly proscribed by such statutes." Melancon v. Trahan, 645 So.2d 722, 726 (La. Ct.App.1994) (citing State v. Gonzales, 241 La. 619, 129 So.2d 796 (1961) (additional citations omitted)). Leaving alone for the moment the fact that no argument has been made demonstrating that the officers herein were properly "authorized person[s],"
This statute is typically used to evict disruptive persons from private property — or, occasionally, government buildings — after such persons have been given a reasonable contemporaneous warning and thereafter refused to comply. See, e.g., State in the Interest of J.A.V., 558 So.2d 214, 215 (La.1990). See also State ex rel. of J.D., 63 So.3d 153, 156 (La.Ct.App.2011); State v. Ceaser, 859 So.2d 639, 644 (La.2003) (applying the statute to find probable cause for arrest wherein the defendant refused to leave a private residence after police were summoned to a domestic disturbance); State ex rel. E.D.C., 903 So.2d 571, 577-78 (La.Ct.App.2005) (applying the statute to affirm the juvenile adjudication of a high school student who was told to leave his former campus, refused, and was arrested the same day). In State in the Interest of J.A.V., the Louisiana Supreme Court stopped short of striking down the statute as unconstitutionally vague, but nevertheless granted the juvenile's motion to dismiss where the court found that no "reasonably contemporaneous request to leave" had been made. J.A.V., 558 So.2d at 215 (citing LA.REV.STAT. ANN. § 14:63.3 (1978); State v. Johnson, 381 So.2d 498 (La.1980)). There, several weeks prior to the juvenile's arrest, he had been banned from a local K-Mart store for suspicion of shoplifting. Id. at 215. While there was insufficient evidence to prosecute for the suspected shoplifting, the juvenile was arrested for and charged with violation of Louisiana Revised Statute § 14:63.3 upon his return to the store several weeks later. Id. The Louisiana Supreme Court stated that
In Mesa v. Prejean, 543 F.3d 264 (5th Cir.2008), one of the two plaintiffs asserted federal claims against several police officers under 42 U.S.C. § 1983, as well as various state law claims — including false arrest, malicious prosecution, battery, false imprisonment, and defamation — after she was arrested for failing to vacate a public street after being ordered to do so by a police officer. Id. at 269-71, 273, 275. Dealing specifically with the statute's applicability to public streets and sidewalks, the court noted that state court "precedents at least raise doubt that a sidewalk can be the situs for application of this specific statute." Id. at 270. The court ultimately reversed the district court's dismissal of the plaintiff's federal and state claims, finding that there were unresolved issues of fact and that "summary judgment based on qualified immunity should not have been granted." Id. at 271-72.
There is also the problem of whether the officers in question possessed sufficient authority under state law to ban the plaintiff from public property. In State v. Miller, 703 So.2d 125 (La.Ct.App.1997), for instance, the defendant was charged under Louisiana Revised Statute § 14:63 for having refused to leave an Amtrak station after having been ordered to do so by an Amtrak officer. Id. at 126. The court noted that, while there may have been an argument to be made as to the applicability of Louisiana Revised Statute § 14:63.3, the statute in question herein, "it [was] not clear whether the officer was possessed of any authority to bar anyone from using the admittedly public facilities." Id. at 127. As such, it seems that, under Louisiana law, it is not necessarily a given that a police officer is an "authorized person" under the statute to summarily ban individuals from public property.
Regardless of the debatable authority granted to law enforcement officers in this regard under Louisiana Revised Statute § 14:63.3, the defendants will be entitled to qualified immunity unless the plaintiff can show that the defendants committed a constitutional violation of a clearly established right. See Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life, liberty, or property without due process of law." U.S. CONST. amend. XIV, § 1. To prevail on a procedural due process claim, a plaintiff must show 1) that he suffered a deprivation of a constitutionally protected interest in "life, liberty, or property," and 2) that such deprivation occurred without due process of law. Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (citations omitted). "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in `life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Id. at 125, 110 S.Ct. 975 (citation omitted). See also Morris v. Livingston, 739 F.3d 740, 749-50 (5th Cir.2014) (citations omitted).
The principle that an individual possesses a constitutionally protected liberty interest
In Morales, the Supreme Court, addressing a vagueness challenge to a Chicago statute that "prohibit[ed] `criminal street gang members' from `loitering' with one another or with other persons in any public place," stated that "[i]f the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law [the Court] held invalid in Shuttlesworth v. Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965)."
Id. at 53-54, 119 S.Ct. 1849 (some internal citations omitted). As such, the plaintiff herein certainly may be said to have suffered the deprivation of a constitutionally protected liberty interest. However, such a deprivation is only actionable under, and in violation of, the Fourteenth Amendment if it occurred without due process of law.
The defendants argue that the plaintiff's interviews with Sheriff's Deputies and police officers constituted sufficient due process.
The private interest, already discussed, is one of liberty and a basic freedom to move about on publicly-owned property as any other citizen is legally able to do. The risk of an erroneous deprivation of that interest would be unacceptably high if police officers were given complete and unilateral discretion to determine which citizens, without criminal charges of any kind being brought, may, for instance, visit public parks, attend governmental meetings, conduct business at the assessor's office or the Office of Motor Vehicles, visit polling stations on election days, or go swimming at the community pool. This principle has been well-established. See generally Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir.2010); City of Chicago v. Morales, 527 U.S. 41, 54, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999); Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). See also Anthony v. State, 209 S.W.3d 296 (Tx.Ct.App.2006).
Here, the plaintiff was given no opportunity to have his deprivation reviewed by the judiciary nor was he able to have counsel of his choosing cross-examine his accusers. See Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). He was provided with no neutral or impartial hearing body or officer. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See also Cuellar v. Bernard, No. SA-13-CV-91-XR, 2013 WL 1290215, 2013 U.S. Dist. LEXIS 43145 (W.D.Tex. Mar. 27, 2013) (finding a procedural due process violation where the police chief and the city attorney summarily issued a no trespass warning to the plaintiff, banning him from city-owned buildings, pursuant to a state statute, following repeated reports of the plaintiff's threatening behavior). While there are certainly instances in which a full evidentiary hearing is not required prior to certain adverse administrative actions, see, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citations omitted), the police are not empowered to conduct their own hearings and summarily deprive an individual of a constitutionally-protected liberty interest without the filing of criminal charges for a period of time that is indeterminate at the time the order is issued.
Presuming that the officers were acting in good faith, they were attempting to protect the safety and welfare of those that the plaintiff had allegedly threatened.
Secondly, if the officers' possessed a genuine belief that the plaintiff presented an imminent danger, it is unclear why he was not arrested. Louisiana law provides that "[w]hoever commits the crime of public intimidation or retaliation against an elected official shall be fined not more than one thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both." LA.REV.STAT. ANN. § 14:122(C) (2003). Louisiana has also specifically criminalized the threatening of a public official. See LA.REV.STAT. ANN. § 14:122.2 (1984). Perhaps the officers thought that the plaintiff was mentally unbalanced, in which case Louisiana law provides for judicial commitment where a court finds that an individual "is either dangerous to himself or dangerous to others." LA.REV.STAT. ANN. § 28:454.6 (2005). Further, it is troubling both that there are allegations herein that suggest a prior relationship existed between the plaintiff and the alleged targets of his threat — Mayor Duncan and Councilman Koonce — and the fact that it was not until the Mayor gave his consent that the no trespass order was lifted.
The officers had a battery of constitutionally permissible options available to them in the event that they deemed that the plaintiff was a threat. Instead, they unilaterally made the decision as to where the plaintiff could, and could not, venture on his own. The court is certainly sympathetic to, and has great respect for, the difficulties and complexities faced by law enforcement officers in an increasingly legally complex environment. However, the practice of providing police officers with complete and total discretion to ban citizens who have been convicted of no crime from accessing public property for an indeterminate period of time would produce far too great a risk of an erroneous deprivation of a citizen's liberty interest. The plaintiff's constitutional rights were violated. Thus, the second prong of the qualified immunity test, whether the right was clearly established at the time, must be considered.
"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." James v. Dallas Hous. Auth., 526 Fed.Appx. 388, 392 (5th Cir.2013) (citing Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir.2009)). This inquiry focuses "on the specific circumstances of the incident" in question. Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 n. 1 (5th Cir.2009) (citing Brosseau v. Haugen, 543 U.S. 194, 199-200, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The court "will not deny immunity unless `existing precedent ... place[s] the statutory or constitutional question beyond debate.'" Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.2013) (citing Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083,
In Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900), the Supreme Court stated that,
Id. at 274, 21 S.Ct. 128. Nearly seventy years later, in striking down a Jacksonville, Florida, vagrancy ordinance that empowered police to arrest individuals for, among other things, "wandering around from place to place without any lawful purpose or object," Papachristou v. City of Jacksonville, 405 U.S. 156, 156 n. 1, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (citing former JACKSONVILLE, FLA. ORDINANCE CODE § 26-57), the Supreme Court stated that, were it to uphold such a statute, it would "result[] in a regime in which the poor and unpopular are permitted to `stand on a public sidewalk ... only at the whim of any police officer.'" Id. at 170, 92 S.Ct. 839 (citing Shuttlesworth v. Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965)). In Kennedy, the Sixth Circuit stated that the Supreme Court's decisions in Papachristou, Fears, Morales, and Kent made it "apparent that [the plaintiff] had a clearly established right to remain on public property." Kennedy, 595 F.3d at 337 (citations omitted).
In Cuellar v. Bernard, No. SA-13-CV-91-XR, 2013 WL 1290215, 2013 U.S. Dist. LEXIS 43145 (W.D.Tex. Mar. 27, 2013), the plaintiff, a former employee of the San Antonio Fire Department, "threatened to strangle and kill employees in the purchasing office because his requests had not yet been processed." Id. at *1, 2013 U.S. Dist. LEXIS 43145, at *1-2. After exhibiting other, similar behavior, and tendering his resignation, he began requesting emails from his former coworkers' email accounts, credit card records, and other information. Id. at *1, 2013 U.S. Dist. LEXIS 43145, at *2. In response, and pursuant to a state statute then in effect, the police chief and city attorney issued a notice of criminal trespass to the plaintiff banning him from city-owned property. Id. at *1 n. 1, 2013 U.S. Dist. LEXIS 43145, at *3 n. 1. The court, finding for the plaintiff, noted that "individuals have a liberty interest in being in a public place of their choice." Id. at *4, 2013 U.S. Dist. LEXIS 43145, at *12. See also Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir.2011) (citation omitted) (recognizing a citizen's "constitutionally
Given the clear precedents of the Supreme Court, the Sixth Circuit, the Eleventh Circuit, other district courts in this circuit, the decisions of the state courts of Louisiana and Texas, the questionable application of Louisiana Revised Statute § 14:63.3, as well as the other options available to the officers at the time, the court is convinced that a police officer's constitutional inability to summarily ban an individual from public property for a prolonged and indeterminate period of time constituted clearly established law at the time of the alleged events herein. Accordingly,
"Substantive due process `bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.'" Hamilton v. Foti, 372 Fed.Appx. 480, 485 (5th Cir.2010) (citing Zinermon, 494 U.S. at 125, 110 S.Ct. 975). The Supreme Court has repeatedly held that "the touchstone of due process is protection of the individual against arbitrary action of government." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). A plaintiff seeking to recover for a substantive due process violation must show "(1) that he was deprived of a life, liberty, or property interest (2) in an arbitrary and capricious manner." Saucedo-Falls v. Kunkle, 299 Fed.Appx. 315, 319 (5th Cir.2008) (citing Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)). "In the context of law enforcement, the requisite conduct proscribed by the substantive due process clause has been described as that which `shocks the conscience' when the conduct is `brutal and offensive to human dignity' and is among the `most egregious official conduct.'" Vicknair v. La. Dep't of Wildlife & Fisheries, No. 6:11-0184, 2013 WL 1180834, at *14, 2013 U.S. Dist. LEXIS 39000, at *45 (W.D.La. Jan. 28, 2013) (citations omitted).
Accepting all of the plaintiff's allegations as true, the police officers in question appear to have been attempting to handle what they likely reasonably believed was a threat to public safety. Even if the police were acting on erroneous intelligence, or if, for instance, the credit union employee manufactured the plaintiff's allegedly threatening statements, that does not make the police's conduct any less
While it would be a mistake on the part of the defendants to misconstrue the dismissal of the plaintiff's substantive due process claims as an endorsement of the extended extrajudicial exclusion of American citizens from public property by the police, "in order to state a viable substantive due process claim the plaintiff must demonstrate that the state official acted with culpability beyond mere negligence." McClendon v. City of Columbia, 305 F.3d 314, 325 (5th Cir.2002) (citation omitted). This, the plaintiff has failed to do. As a result, the plaintiff has not set forth a cognizable constitutional violation of his substantive due process rights. Accordingly,
The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." U.S. CONST. amend. I. The First Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. S.E.I.U., Local 5 v. City of Houston, 595 F.3d 588, 595 (5th Cir. 2010) (citation omitted). The plaintiff here has alleged that he has been "denied his freedom of speech, freedom of association[,]"
The Supreme Court of the United States
Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009) (citing Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (additional citation omitted)). Accordingly, governmental entities, including law enforcement officers, "are strictly limited in their ability to regulate private speech in such `traditional public fora.'" Id. (citing Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).
"[T]he First Amendment protects the right to speak in a public forum, and exclusions of individuals from a public forum cannot be based on the content of the individuals' speech alone." King v. Haas, No. C2-00-1411, 2002 WL 32882706, at *4, 2002 U.S. Dist. LEXIS 28731, at *11
The plaintiff alleges that he was specifically denied access to "`city hall,' `old city hall,' `city council chambers/building,' `city of sulphur [sic] city council meetings,' city of sulphur [sic] police station,' `city of sulphur court house,' `city of sulphur [sic] business center across from the new city hall,' `West Calcasieu business center,' and `ward 4 marshal's office.'"
There are three recognized types of forums: (1) traditional and designated public forums; (2) limited public forums; and (3) nonpublic forums. Id. at 757-58 (citations omitted). "Traditional public forums include sidewalks, streets, and parks that the public since time immemorial has used for assembly and general communication." Id. at 758 (citing Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)). For a regulation on speech in a traditional public forum to pass constitutional muster, it must be narrowly tailored to serve a compelling governmental purpose. Id. (citing Chiu, 260 F.3d at 344-45). Limited public forums are those which are reserved "for public expression of particular kinds or by particular groups." Id. (citations omitted). Regulation of limited public forums is permissible provided that it "(1) does not discriminate against speech on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum." Id. (citation omitted).
The defendants have not briefed the issue of qualified immunity as it pertains to the plaintiff's free speech claims.
The Fourteenth Amendment states that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. This is "essentially a direction that all persons similarly situated should be treated alike." Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 212 (5th Cir.2009) (citing Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir.1993)) (internal quotations and additional citations omitted). To plead such a claim, "a plaintiff typically alleges that he `received treatment different from that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent.'" Id. at 212-13 (citing Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir.2001) (additional citations omitted)).
Gibson v. Tex. Dep't of Ins., 700 F.3d 227, 238 (5th Cir.2012) (internal citations omitted).
The plaintiff has not argued that he is a member of a protected class.
The plaintiff has also asserted a violation of his Fourth Amendment right against wrongful search and seizure.
An officer must possess "an objectively reasonable suspicion that some sort of illegal activity ... occurred, or is about to occur, before stopping the vehicle" in order for the traffic stop to be justified at its inception. United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (citation omitted). Reasonable suspicion is something less than probable cause, but something more than an officer's "hunch," that requires, when assessing the totality of the circumstances, a "`particularized and objective basis' for suspecting legal wrongdoing." Id. (citations omitted). "[R]easonable suspicion exists when the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[s] the ... seizure." Id. (citing United States v. Santiago, 310 F.3d 336, 340 (5th Cir.2002)).
"A Terry stop is a brief investigative stop or detention, made for the purpose of verifying or dispelling a law enforcement officer's suspicion of criminal activity." United States v. McQuagge, 787 F.Supp. 637, 644 (E.D.Tex.1991) (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)) (emphasis added). Here, however, it does not appear that the officers stopped the plaintiff for investigative purposes at all, although that certainly would have been reasonable given that the officers were supposedly operating under the impression that the plaintiff had just made death threats against several public officials.
The plaintiff alleges that Officer Gremillion informed him at the time of the stop that the plaintiff was not being detained for any traffic violations or criminal wrongdoing, but rather was being stopped so that the officers could inform the plaintiff of the "No Trespass Order" that was being
It is well-established that the Fourth Amendment permits law enforcement officers to approach individuals in public places in order to ask questions and seek out the voluntary cooperation of the public in the investigation of criminal activities. See Ill. v. Lidster, 540 U.S. 419, 425, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (citing Fla. v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). However, the application of this principle to traveling motorists is complicated by the fact that traffic stops necessarily constitute a "seizure" for Fourth Amendment purposes, whereas a verbal request to stop and respond to an officer's request for information on a public street generally does not. Id. (citing City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)).
In Illinois v. Lidster, the Supreme Court found that the practice of conducting investigatory traffic stops of motorists for the purpose of gathering information regarding a recent homicide was not presumptively unconstitutional. Id. at 426-28, 124 S.Ct. 885. Rather, "in judging reasonableness," courts should consider "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 427, 124 S.Ct. 885 (citing Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 450-55, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (additional citation omitted)).
The defendants rely on Lidster for the proposition that police may also conduct traffic stops for the purpose of conveying information as a matter of course.
In United States v. Faulkner, 450 F.3d 466 (9th Cir.2006), a case relied on by the defendants,
Faulkner has no application to the instant facts. The plaintiff was not detained as part of a mass — albeit, brief — detention of motorists as occurs in a checkpoint, nor was he detained for investigative purposes, as he was immediately informed of upon being pulled over and as the defendants herein affirm; thus, Lidster is also inapplicable. Likewise, as previously noted, Terry stops are conducted for the purpose of investigating criminal activity, yet no investigation was contemplated at the stop's inception. The plaintiff was pulled over for the sole and singular purpose of delivering a no trespass warning to him. The limited case law permitting traffic stops for the sole purpose of transmitting information, see, e.g., Lidster, 540 U.S. 419, 124 S.Ct. 885, is distinguishable from the facts herein because those cases all address circumstances wherein law enforcement officers are seeking information rather than disseminating it. Were the court to approve of a rule wherein law enforcement officers were free to conduct a traffic stop of any individual with whom an officer has something to say, the Fourth Amendment protections presently available to motorists would be immediately and greatly diminished. Thus, the plaintiff's Fourth Amendment right to be free from unreasonable seizure was violated in the instant case.
Nevertheless, it is difficult to say that this was clearly established law at the time. The plaintiff has failed to cite either controlling precedent on point, or a consensus of persuasive authority that would support his position. Given the Supreme Court's opinion in Lidster, and the fluidity and complexity of the case law addressing the constitutionality of traffic stops for informational purposes in the absence of probable cause or reasonable suspicion, see, e.g., id.; Edmond, 531 U.S. 32, 121 S.Ct. 447; Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the ease with which the officers in question could have mistaken the stop here for a proper Terry stop given their beliefs as to the plaintiff's alleged threatening statements, despite the lack of any true investigative motive, and also considering the lack of case law directly on point, it cannot be said that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." James v. Dallas Hous. Auth., 526 Fed.Appx. 388, 392 (5th Cir. 2013) (citing Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir.2009)). As the court "will not deny immunity unless `existing precedent ... place[s] the statutory or constitutional question beyond debate,'" Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.2013) (citing Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)), a grant of qualified immunity as to the Fourth Amendment claim is appropriate. Accordingly,
The plaintiff next alleges a violation of his right to travel, as the no trespass
The plaintiff herein has alleged a violation of his right to travel. However, there is no allegation that his right to interstate travel was impeded, as is required to set forth a constitutional violation of one's right to travel. Furthermore, the plaintiff was informed by the police at the time the warning was issued that "public thoroughfares and right-of-ways were not included in the no trespass order."
The plaintiff has also sued the City of Sulphur.
"[M]unicipal liability under Section 1983 requires proof of three elements: a policymaker; an official policy;
The defendants have argued that the claims against the City of Sulphur fail first because there was no underlying constitutional violation.
The defendants' Motion [Doc. 23] addresses the matter of municipal liability primarily from the standpoint that the City may not be held liable under a "failure to train" theory.
Here, however, it appears that the constitutional violation alleged was done pursuant to the decision of a policy-making official — namely, Chief Coats. Several undisputed facts support this conclusion. As to whether Chief Coats is a policymaking official, other courts have stated that the "Chief of Police is the final policy maker with regard to the day-to-day supervision of the police force and the enforcement of state laws and municipal ordinances." World Wide St. Preachers' Fellowship v. Town of Columbia, No. 05-513, 2008 WL 920721, at *8, 2008 U.S. Dist. LEXIS 26929, at *24 (W.D.La. Apr. 3, 2008) (citing LA.REV.STAT. ANN. § 33:423; St. Louis v. Praprotnik, 485 U.S. 112, 125, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)).
Several facts also support the finding that the police chief's decisions herein, as policymaker, led to the deprivation of the plaintiff's right to procedural due process. First, it is noteworthy that the Official Notification of Trespass Warning [Doc. 23-4] that was issued to the plaintiff was on a pre-printed form, in which an officer need only fill in the blanks, supporting the inference that
Ceaser, 859 So.2d at 648 n. 6 (Knoll, J., dissenting). This is not to suggest that the instant case contains any allegations of improper motives based upon race; rather, it is simply to demonstrate the potential for the abuse of such statutes, and to remember the importance of viewing with skepticism any governmental attempt to ban individual citizens from either participation in public discourse or access to public places, offices, and services.