Shane Foster v. Ivy Woods

Filing

UNPUBLISHED OPINION FILED. [16-30756 Affirmed] Judge: JES, Judge: EBC, Judge: LHS. Mandate pull date is 05/11/2017 [16-30756]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30756

United States Court of Appeals
Fifth Circuit

FILED
April 20, 2017

SHANE LEE FOSTER,

Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
IVY WOODS, in his individual & official capacities,
Defendant - Appellee

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:15-CV-2094
Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The plaintiff, a private investigator, followed a vehicle into a high school
parking lot, stopped for several minutes, then soon drove away after becoming
aware he had been detected. A few minutes later, he stopped on a private road.
He was subsequently arrested by the defendant sheriff at the sheriff’s office.
The charges brought against him were later dropped. The issue on appeal is
whether there was probable cause to arrest him. He brought this Section 1983

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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action based on the arrest. The district court granted summary judgment for
the sheriff on the basis of qualified immunity, and the plaintiff appealed. We
AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Shane Lee Foster is a licensed private investigator. His assignment on
the day he was arrested was to gather information on a personal-injury
claimant who lived in Jennings, Louisiana. Foster had his handgun with him,
stowed in the center console of his vehicle. Foster is a Louisiana State Police
certified handgun instructor; he carried his concealed-handgun permit with
him.
On May 15, 2015, Foster drove to the surveillance-target’s residence.
Upon arriving, Foster drove back and forth in front of the residence looking for
a place from which to watch the house. He saw a vehicle pull out of the
driveway and decided to follow in order to determine whether his target was
driving the vehicle. He would later learn that the driver was his target’s
teenaged son on his way to school. Foster maneuvered behind the vehicle,
followed it into the school parking lot, and stopped several rows behind it in
order to observe the driver exit the vehicle.
The parking lot was for students only. According to Foster, the lot was
not enclosed. Foster states he “did not notice a sign that the parking lot was a
student parking area,” nor did he notice the other signs around the lot. The
lot was posted with a sign indicating the school was a drug-free and firearmfree zone. Another sign, with its constant capitalization removed for ease of
reading here, said this: “No trespassing[.] Unauthorized persons found on
school property from dusk to dawn will be prosecuted.” After following the
teenager’s vehicle into the lot, Foster waited in the parking lot for several
minutes without leaving his vehicle or removing his firearm from the console.
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The boy noticed he was being followed as he drove to school. After
parking, he decided to remain in his vehicle. He called over a fellow student,
who was the son of Sheriff Ivy Woods, and told him about being followed. The
boys called Woods, who told them to stay in the vehicle and he would try to
return to the school. Realizing he had been detected, Foster decided to leave.
On his way out, he drove in front of the vehicle and determined that the driver
was not the target of his surveillance.
After leaving the school, Foster drove back to the surveillance target’s
residence and turned onto a road across the highway from the house. He
claimed he intended to stop so he could look at a map of his location using his
cell phone and establish a position for surveillance. The road was in a rural
area, was not gated, and had no signs. The nearest house, according to Foster,
was about 100 yards away. The road, however, was a private road. Foster
claims he drove just over 100 feet down the road, turned around, and was there
for “about a minute” before Woods arrived and activated his vehicle’s flashing
blue lights.
Woods ordered Foster to exit the vehicle and put his hands on the hood.
Foster identified himself as a private investigator. Foster claims that after
Woods patted him down, Woods said, “You don’t follow kids to school. My kid
goes to that school.” Woods noticed Foster’s concealed handgun permit, and
Foster informed Woods he had a firearm in the console of his vehicle. By that
time, Deputy Derrick Miller had arrived. The officers informed Foster that
Foster violated the firearm-free school zone law when he entered the school
parking lot with a handgun. Foster pointed out an exception to the law for
firearms contained entirely within a vehicle. After some discussion, Foster
gave his cell-phone number to Deputy Miller and was allowed to leave. Foster
understandably decided to end his surveillance. While driving home, though,
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he received a phone call from Deputy Miller asking him to come to the Sheriff’s
office for questioning.
At the office, Foster met with Woods and other officers. He was informed
that he would be charged with a violation of a statute that defines “firearmfree zone” as “an area inclusive of any school campus and within one thousand
feet of any such school campus, and within a school bus.” LA. REV. STAT.
§ 14:95.6(A) (1993). The only part of that statute helpful to Woods is the
definition we just quoted. The only criminal conduct identified in
Section 14.95.6 is “to cover, remove, deface, alter, or destroy” any sign
identifying a firearm-free zone. Id. § 14:95.6(F)(1). Foster did not tamper with
any sign. Foster relies on another provision in that same statute declaring the
statute to be inapplicable to “[a]ny constitutionally protected activity within
the firearm-free zone, such as a firearm contained entirely within a motor
vehicle.” Id. § 14:95.6(B)(5). Nonetheless, Foster was charged with violating
Section 14:95.6, booked, and released.
Foster suggests Woods was motivated more by pursuing a personal
quarrel than by law-enforcement objectives. In his deposition, Foster stated
that before beginning his surveillance assignment, he was told that the target
of the surveillance was a long-time friend and political supporter of Woods and
that the person’s wife worked in the Sheriff’s office. He was also told that the
surveillance target had been arrested at one point but immediately released
due to his relationship with Woods. Foster further claims that, during the
discussion in the Sheriff’s office, Woods stated Foster was “going to be in the
paper tomorrow” and that school authorities wanted “to make an example” out
of him. Immediately after Foster was released, the Sheriff’s office issued a
press release announcing Foster’s arrest. Two days later, a local newspaper
ran a front-page story titled “PI busted with pistol after following student.”
The article featured Foster’s mug shot and indicated he was “charged with
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carrying a firearm or dangerous weapon by a student or non-student on school
property, at school-sponsored functions, or in a firearm-free zone.”
In June 2015, the district attorney dropped the charges against Foster.
On July 24, 2015, Foster filed suit against Woods and Commander Christopher
Ivey for violating his rights under the Fourth and Fourteenth Amendments.
Foster sued Woods in his personal and official capacities.

Foster alleged

liability under 42 U.S.C. § 1983 for arresting him without probable cause and
for supervisory liability. He also alleged liability under Louisiana state law for
false or wrongful arrest, negligent or intentional tortious conduct for failing to
supervise deputies, and liability under the principle of respondeat superior for
the actions of the deputies.

In a second amended complaint, he added a

defamation claim.
After discovery, the parties filed cross-motions for summary judgment.
On June 7, 2016, the district court granted the defendants’ motion and
dismissed all claims.

The court determined that Woods was entitled to

qualified immunity on the Section 1983 claims because he had probable cause
to arrest under a statute that provides the “[i]llegal carrying of weapons” is the
“intentional possession or use by any person of a dangerous weapon on a school
campus during regular school hours or on a school bus.”

LA. REV. STAT.

§ 14:95(A)(5)(a) (2014). The district court determined that Foster failed to
make the required showing for his defamation claim, and the remaining statelaw claims failed because Woods had probable cause to arrest. Foster’s timely
appeal seeks reversal only as to his claims against Sheriff Woods, not his
claims against Commander Ivey.
DISCUSSION
We review a district court’s grant of summary judgment de novo.
Crostley v. Lamar Cnty., 717 F.3d 410, 422 (5th Cir. 2013).
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inferences arising from the evidence are made in a manner favorable to the
opponent of the motion. Evans v. City of Marlin, 986 F.2d 104, 107 (5th Cir.
1993). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a).
In dismissing the claims against the defendants in their individual
capacities, the district court determined that they were entitled to qualified
immunity. That doctrine “protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’’’
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). A plaintiff overcomes the immunity if he can show:
“(1) that he has alleged a violation of a clearly established constitutional right,
and (2) that the defendant’s conduct was objectively unreasonable in light of
clearly established law at the time of the incident.” Waltman v. Payne, 535
F.3d 342, 346 (5th Cir. 2008). The court may exercise its discretion in deciding
which of those two requirements to address first. See Pearson, 555 U.S. at 236.
Foster, as the plaintiff, bears the burden of demonstrating the inapplicability
of the qualified-immunity defense. See Crostley, 717 F.3d at 422.
Foster claims his constitutional rights were violated by his arrest
without probable cause. “The right to be free from arrest without probable
cause is a clearly established constitutional right.” Mangieri v. Clifton, 29 F.3d
1012, 1016 (5th Cir. 1994). “[T]he test for whether the ‘police officer had
probable cause to arrest is if, at the time of the arrest, he had knowledge that
would warrant a prudent person’s belief that the person arrested had already
committed or was committing a crime.’” Id. (alterations omitted) (quoting
Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir. 1992)).
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We do not limit our review to the basis alleged when the arrest occurred.
The subjective reason the officer had to justify the arrest at the time is not the
issue; probable cause for the arrest will exist “if the officer was aware of facts
justifying a reasonable belief that an offense was being committed, whether or
not the officer charged the arrestee with that specific offense.” Club Retro,
L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (citing Devenpeck v. Alford,
543 U.S. 146, 153–54 (2004)). We also do not weigh the possible unfortunate
personal motives of Woods, as our only question is whether objectively there
were sufficient grounds for the arrest. See Sorenson v. Ferrie, 134 F.3d 325,
328 n.5 (5th Cir. 1998).
It is not argued that the grounds stated at the time of the arrest, a
statute providing a definition of a gun-free zone and criminalizing the defacing
of related signs, supports the arrest. See LA. REV. STAT. § 14:95.6 (1993).
Instead, Woods’s principal argument is that he had probable cause to arrest
under a statute that prohibits the “intentional possession or use by any person
of a dangerous weapon on a school campus during regular school hours or on a
school bus.” Id. § 14:95(A)(5)(a) (2014). Woods also argues, as he did in the
district court, that he had probable cause to arrest under two additional
Louisiana statutes, one of which is Louisiana’s criminal trespass statute. See
id. § 14:63 (2012). The district court did not discuss probable cause under these
additional statutes.
“We may affirm a grant of summary judgment on grounds other than
those offered by the district court.” Izen v. Catalina, 398 F.3d 363, 366 (5th
Cir. 2005). We conclude there was a basis to arrest for trespass, so we do not
consider the propriety of the arrest under the gun-free-zone statutes. We also
review Foster’s remaining state-law claims.

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I.

Probable Cause to Arrest for Trespass
Sheriff Woods argues that he had probable cause to arrest for trespass

because Foster entered and remained in a student-only parking lot.

The

district court did not analyze the trespass question, but it observed in a
footnote that it is “likely that [Woods] had probable cause to arrest Foster for
trespassing when he entered the high school parking lot.” The trespass statute
simply involves entry without authorization:
B. No person shall enter upon immovable property owned by
another without express, legal, or implied authorization.
C. No person shall remain in or upon property, movable or
immovable, owned by another without express, legal, or implied
authorization.
LA. REV. STAT. § 14:63 (2012). Foster denies this statute reaches him, saying
that as a matter of “[c]ustom and circumstance” he had implied authorization
to enter the parking lot. In one case on which he relies, a Louisiana court
stated that “[t]he mere fact that the defendant was walking through the
housing development [did] not constitute trespassing.” State v. Mulder, 76 So.
3d 1241, 1245 (La. Ct. App. 2011). In another, a Louisiana court held that
officers did not have probable cause under a previous version of Section 14:63
where the suspects pulled a few feet off the road into a gravel area, the area
was close to the home of one of the suspects, and there was no evidence the
suspects intentionally entered the property knowing their entry was
unauthorized. See State v. Rack, 585 So. 2d 1215, 1219–20 (La. Ct. App. 1991).
There are other cases suggesting a different result.
One example not discussed by Foster is a case in which the defendant
argued there was no evidence to show he was trespassing in a park because he
was parked on a public street. State v. Woods, 982 So. 2d 157, 161 (La. Ct.
App. 2008). The court determined the officer had probable cause to arrest for
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trespassing because the defendant parked “almost to the end of the parking
spots in [the park] after dark without authority when there were signs posted
indicating that the park was closed.” Id. at 163. In another case, the court
upheld a trespass conviction of a high-school student for trespassing on school
grounds. See State ex rel. C.J., 63 So. 3d 1133, 1138–39 (La. Ct. App. 2011).
The court determined the arresting officer in that case had probable cause to
arrest for trespassing “upon hearing [the school administration manager]
inform [the student] that he was not allowed on the property.” Id. at 1138. In
yet another case, the Louisiana Supreme Court determined officers had
probable cause to arrest for trespassing in a housing development containing
several “no trespassing” signs after the suspect produced identification that
established he did not live in the development. See State v. Lampton, 110 So.
3d 557, 562 (La. 2013).
Relevant here, Woods knew that Foster was not a student, that he
followed a student’s vehicle into a student parking lot posted with a “no
trespassing” sign, and that Foster remained in the lot for some time as
students were arriving for school. It is true that one of the signs stated that
those who are on the property from dusk to dawn, i.e., during nighttime hours,
would be prosecuted. That limitation is not part of the trespass statute, and
Foster denies even reading that sign. 1
Given the facts known to Woods, he had knowledge that would warrant
a reasonable officer to believe that Foster violated the trespass statute.

Foster emphasizes that Woods had “no clue” what the parking lot “no trespassing”
sign said. Nevertheless, he concedes that “Woods knew that the school had a no-trespass
sign[.]”
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II.

Remaining Claims
Foster asserted a defamation claim against Woods in a second amended

complaint. The district court dismissed the claim. Foster did not discuss the
defamation claim in his appellate brief, so he waived that claim. See Diaz v.
Kaplan Higher Educ., L.L.C., 820 F.3d 172, 175 n.1 (5th Cir. 2016). Foster did
not discuss his municipal liability claim in his initial appellate brief, so he has
also waived that claim. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994).
Woods suggests that Foster waived his remaining state-law claims for
failure to brief them. Although Foster does not discuss his state-law claims in
his initial appellate brief, he argues that he preserved them because those
claims depend on whether probable cause existed and he discussed that issue
on appeal. Even so, Foster explains that “[i]f the Sheriff had probable cause,
then Mr. Foster has no claims.” We conclude that Foster has failed to show
that there was no probable cause to arrest him. Foster’s remaining claims
therefore fail.
AFFIRMED.

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