Rickey Carthon v. Steve Prator, et al

Filing

UNPUBLISHED OPINION FILED. [09-31100 Affirmed ] Judge: HRD , Judge: FPB , Judge: JWE Mandate pull date is 11/22/2010 [09-31100]

Rickey Carthon v. Steve Prator, et al Case: 09-31100

Document: 00511281116 Page: 1 Date Filed: 11/01/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 1, 2010 N o . 09-31100 Lyle W. Cayce Clerk

R I C K E Y CARTHON, P la in t if f -A p p e lla n t , v. S T E V E PRATOR, Individually and in his official capacity as Sheriff of Caddo P a r is h ; ROBERT MONTOYA, Individually and is his official capacity as d e p u t y sheriff of Caddo Parish; VICTOR BORDELON, Individually and in his o ffic ia l capacity as deputy sheriff of Caddo Parish; WADE JACOBS, I n d iv id u a lly and in his official capacity as deputy sheriff of Caddo Parish; A D A M JACOBO, Individually and in his official capacity as deputy sheriff of C a d d o Parish; CALVARY BAPTIST CHURCH OF SHREVEPORT L O U IS IA N A , D e fe n d a n t s -A p p e lle e s .

A p p e a ls from the United States District Court fo r the Western District of Lousiana 5 :0 8 -c v -0 1 2 3 8

B e fo r e DeMOSS, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* R ic k e y Carthon appeals the district court's summary judgment on his fa ls e -a r r e s t claims. He argues that the arresting officers are not entitled to

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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Dockets.Justia.com

Case: 09-31100 Document: 00511281116 Page: 2 Date Filed: 11/01/2010

No. 09-31100 q u a lifie d immunity for their decision to arrest him, and that Calvary Baptist C h u r c h is vicariously liable as the officers' employer. Because Carthon has fa ile d to bring forth evidence to demonstrate that the officers lacked probable c a u s e for his arrest, we AFFIRM. I. W e present the facts of the case in the light most favorable to Carthon, the n o n m o v i n g party. On November 2, 2007, Carthon attended a high school

fo o t b a ll game at a stadium owned by Calvary Baptist Church, where a number o f off-duty local law enforcement officers were providing security. The turnout a t the game greatly exceeded the stadium's seating capacity. As a result, many fa n s had to stand at the fences in front of the bleachers. Unable to find a seat, C a r t h o n was watching the game from an aisle in the seating area. Because h a v in g fans blocking the aisles poses a fire hazard, Deputy Montoya instructed C a r t h o n to move. Rather than move, Carthon replied, "Officer, if you can show m e a place to sit, I would gladly sit there." Carthon then asked Deputy Montoya t o assist him in obtaining a refund for his ticket because there was no place for h im to watch the game. Deputy Montoya responded that this was not his r e s p o n s ib ilit y and insisted that Carthon clear the aisle. A lth ou g h Carthon finally acquiesced, he continued to make his displeasure k n o w n . At some point later in the game, he approached Deputy Montoya and b e g a n staring at him from several feet away. Deputy Montoya asked him n u m e r o u s times to move along and enjoy the game. Deputy Jacobs, who was n e a r b y , testified that Deputy Montoya was "just short of begging [Carthon] to m o v e on, to let it go." Unmoved, Carthon continued to "stand there in a dead s t a r e ." Deputy Jacobs attempted to intervene, telling Carthon, "You need to m o v e on." Carthon completely ignored Deputy Jacobs, continuing to stare

u n r e s p o n s iv e ly at Deputy Montoya.

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No. 09-31100 D e p u t y Jacobs then told Carthon that he had lost his chance to enjoy the g a m e , and ordered him to leave the premises immediately. Carthon kept staring a t Deputy Montoya, just as before. Seeing no change in Carthon's behavior or a n y indication that he would eventually comply, Deputy Jacobs arrested him s e v e r a l seconds later. C a r t h o n sued the defendants in federal court, asserting state and federal c la im s for false arrest, among other things.1 Carthon claimed that Calvary B a p t is t Church employed the officers and, therefore, was vicariously liable for t h e their actions. The district court concluded that the officers are entitled to q u a lifie d immunity and that, because Carthon's rights were not violated, C a lv a r y Baptist Church could not be held vicariously liable. The district court t h e r e fo r e granted defendants' motions for summary judgment. Carthon timely a p p e a le d . II. We review a district court's summary judgment de novo. Rivers v. Cent. & S.W. Corp., 186 F.3d 681, 683 (5th Cir. 1999). Summary judgment is

a p p r o p r ia te when "the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact a n d that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c ); Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009). We take all the facts and evidence in the light most favorable to Carthon, the n o n m o v in g party. Id. Q u a lifie d immunity "protects government officials from liability for civil d a m a g e s insofar as their conduct does not violate clearly established statutory o r constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).
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Thus, in order to decide

Although Carthon raised other claims in the district court, his appeal does not challenge the dismissal of those claims.

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No. 09-31100 w h e t h e r a defendant is entitled to qualified immunity, the court considers w h e t h e r the "officer's conduct violated a constitutional right," as well as " w h e t h e r the right was clearly established." Saucier v. Katz, 533 U.S. 194, 201 (2 0 0 1 ). A government official is "entitled to qualified immunity if his or her c o n d u c t was objectively reasonable in light of the legal rules that were clearly e s t a b lis h e d at the time of his or her actions," even if the conduct violated the p la in t iff's constitutional right. McClendon v. City of Columbia, 305 F.3d 314, 3 2 3 (5th Cir. 2002) (en banc). Once a government official invokes qualified im m u n it y , the plaintiff bears the burden of showing that the defense does not a p p ly . Id. T h e Fourth Amendment right to be free from arrest without probable c a u s e has long been clearly established.2 See Club Retro, L.L.C. v. Hilton, 568 F .3 d 181, 206 (5th Cir. 2009). "Probable cause exists when the totality of the fa c t s and circumstances within a police officer's knowledge at the moment of a r r e s t are sufficient for a reasonable person to conclude that the suspect had c o m m it t e d or was committing an offense." United States v. McCowan, 469 F.3d 3 8 6 , 390 (5th Cir. 2006). An arresting officer who "reasonably but mistakenly c o n c lu d e s " that probable cause exists is entitled to qualified immunity for the a r r e s t . Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005). Thus, in order t o overcome the defense of qualified immunity, the plaintiff must demonstrate t h a t the officer "lacked arguable (that is, reasonable but mistaken) probable c a u s e " for the arrest. Club Retro, 568 F.3d at 207. I n this case, the officers assert that they had probable cause to arrest C a r t h o n for, among other things, the offense of entering and remaining after b e in g forbidden. Louisiana law provides that "[n]o person shall without

a u t h o r it y go into or upon or remain in or upon . . . any . . . immovable property,
Carthon concedes that the same standard applies to his false arrest claims under both state and federal law.
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No. 09-31100 w h ic h belongs to another, . . . or any part, portion, or area thereof, after having b e e n forbidden to do so, either orally or in writing, . . . by any other authorized p e r s o n ." La. Rev. Stat. § 14:63.3(A). In reviewing a conviction under the statute, t h e Court of Appeal of Lousiana decided that "a defendant must be accorded a r e a s o n a b le time to actually accomplish his departure." State v. Kology, 785 So. 2 d 1045, 1048 (La. App. 3d Cir. 2001). At the same time, the court recognized t h a t "the statute would lose its force altogether if a demand or request to leave n e e d not be met with expedition." Id. at 1049. C a r t h o n argues that the officers did not afford him a reasonable o p p o r t u n it y to comply with their order to leave. According to Carthon,

" m o m e n t a r y and reasonable hesitation" following an order to leave does not a m o u n t to probable cause for the offense of entering and remaining after being fo r b id d e n . We agree that momentary and reasonable hesitation, standing alone, m ig h t not constitute probable cause. The facts of this case present no such s it u a t io n , however. A lt h o u g h only seconds elapsed between Deputy Jacobs's order to leave and C a r t h o n 's arrest, those seconds cannot be considered in a vacuum. Rather, the p r o b a b le -c a u s e analysis focuses on the "totality of the facts and circumstances w it h in a police officer's knowledge at the moment of arrest." McCowan, 469 F.3d a t 390. Deputy Montoya repeatedly requested that Carthon move along and e n jo y the game, but instead, Carthon merely stared at him and refused to r e s p o n d or acknowledge the requests. This behavior continued when Deputy J a c o b s asked Carthon to move along: Carthon just ignored him while still s t a r in g at Deputy Montoya. In the seconds after Deputy Jacobs commanded t h a t Carthon leave the premises, nothing changed. Carthon, still staring, did n o t change his behavior. Nothing about his conduct suggested that the order to le a v e would alter this pattern of ignoring the officers' directions and staring at D e p u t y Montoya. Under these circumstances, a reasonable person could 5

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No. 09-31100 c o n c lu d e that Carthon was committing the offense of entering and remaining a ft e r being forbidden. Probable cause requires nothing more. C a r t h o n 's reliance on Kology is unavailing. As an initial matter, the court in Kology was reviewing the sufficiency of the evidence for a conviction, not a d e t e r m in a t io n of probable cause. Kology, 785 So. 2d at 1047. Thus, the court w a s evaluating whether a reasonable factfinder "could have found the essential e le m e n t s of the crime proven beyond a reasonable doubt." Id. Proof beyond a r e a s o n a b le doubt is not required for probable cause, which deals with on-the-spot d e c is io n -m a k in g by reasonable officers considering the totality of the c ir c u m s t a n c e s . Even leaving aside the differing levels of certainty required, h o w e v e r , the facts here are markedly different from those in Kology. As the c o u r t emphasized, Kology's delay "was not recalcitrance because manifestly it w a s not inconsistent with a willingness to comply with the request that he l e a v e ." Here, by contrast, Carthon established a pattern of disregarding the o ffic e r s ' requests, which led them to believe that his delay was a continuation of t h a t pattern--a pattern that was manifestly inconsistent with a willingness to c o m p ly with their requests. S im ila r ly , this court's decision in Mesa v. Prejean, 343 F.3d 264 (5th Cir. 2 0 0 8 ) is inapposite. Although the court was faced with the issue of whether p r o b a b le cause existed for an arrest under the same statute, it ultimately held t h a t summary judgment was inappropriate, in part, because of disputed fact is s u e s regarding "how quickly [the defendant] moved" following the officer's c o m m a n d .3 Id. at 271. In that case, there was "some evidence that [the

d e fe n d a n t ] complied with the one clear request and, arguably, moved within a

In addition, the court concluded that there was a disputed fact issue as to whether the defendant was asked to move from a sidewalk or from a street. Id. at 270. The Lousiana Court of Appeal has decided that the statute "does not prohibit standing on a public sidewalk," but has not yet addressed how the statute applies on public streets. Id. This case raises no such difficulties, as Carthon was asked to leave Calvary Baptist Church's private property.

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No. 09-31100 r e a s o n a b le time." Here, even taking the facts in the light most favorable to C a r t h o n , there is no evidence to suggest that he manifested any intention of c o m p ly in g with Deputy Jacobs's command to leave. In short, Carthon has not shown that the officers lacked probable cause for h is arrest. Accordingly, they are entitled to qualified immunity. In addition, b e c a u s e the officers acted reasonably, even assuming that Calvary Baptist C h u r c h maintained control over the officers, it cannot be held vicariously liable fo r their actions. A F F IR M E D .

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