Babin et al v. Jefferson Parish et al
ORDER AND REASONS granting in part and denying in part Jefferson Parish's 34 Motion for Summary Judgment, denying law enforcement defendants' 43 Motion for Summary Judgment. Further Ordered that the pretrial conference and trial are hereby continued, to be reset by the Court. Signed by Judge Martin L.C. Feldman on 5/19/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE PARISH OF JEFFERSON, ET AL.
ORDER AND REASONS
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.
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.
The facts are summarized in the light most favorable to Ms. Babin.
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 McMurry 3 called the Jefferson Parish
911 operator to complain that a dog was left unattended for 10
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
Whether or not the convertible top was left open is “disputed,”
according to Jefferson Parish. As the record stands now, however,
there is no evidence indicating that the convertible top was
closed. The only evidence in the summary judgment record is the
plaintiff’s deposition transcript and her sworn declaration. She
says the convertible top was open over the front seats.
3 A one “Ashley McMurry” is identified in the plaintiff’s complaint
as the complaining witness in the Big Lots parking lot. However,
the Court notes that the witness lists filed by all parties
reference an Ashley McWhirter.
No affidavit or deposition
transcript or any statement by this complaining witness is of
that the dog did not appear to be in distress. 4
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.
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
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
Because no party has submitted the audio recording or transcript
from the 911 call, nor is any complaining witness statement or
deposition transcript of record, this information is drawn from
the plaintiff’s complaint, the plaintiff’s deposition transcript,
or the plaintiff’s sworn declaration; the only items in the summary
Babin could not hear what was being discussed among the
complaining witnesses and Deputy Blange.
Apparently, they were
not having their discussion near Ms. Babin’s vehicle. Nor does
this Court have before it any evidence indicating what was said to
Blange by any complaining witnesses.
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.
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
referring to Ms. McMurry and the other “concerned citizen”). After
completing the summons, Blange exited his car to hand it over to
He then returned her driver’s license, and got back in
At that point, Blange indicated to Ms. Babin (without
verbalizing) that their encounter was over and that she could go.
This information is drawn from the plaintiff’s deposition
transcript and her sworn declaration, the only evidence in the
summary judgment record.
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
Section 7-126 of the ordinance provides:
Sec. 7-126. - Cruelty in general.
(a) No person shall ill-treat, neglect, abandon, or
cruelly treat an animal. No person shall unnecessarily
or cruelly beat, mutilate, kill, torture, inflict
injury, or abuse, or cause or procure to be cruelly
beaten, mutilated, killed, tortured, injured, or
abused, any animal or commit any act which under any
other law constitutes cruel treatment, or fail to
provide obviously necessary veterinary care.
(b) No animal shall be tethered as a means of
stationary confinement; such stationary confinement by
tethering shall be considered as cruel treatment.
(c) No animal shall be denied access to proper food,
water, shelter, sanitary and safe environment, or
proper veterinary care as is provided in section 7-16
and in Division 6 of Chapter 7.
(d) No domesticated animal shall be transported or
carried in or upon any vehicle in a cruel, inhumane, or
dangerous manner. Any animal transported in the open
bed of a vehicle must be safely and securely located in
a secure crate or carrier that is fastened to the bed
of the vehicle to prevent the animal from jumping out
of such vehicle or otherwise injuring itself. Any other
such transport shall be considered animal neglect. No
animal shall be left inside a vehicle or in a
conditions or the animal is provided proper temperature
control with regular monitoring conditions, including
but not limited to during American Kennel Club
(e) When a person is charged with cruelty to animals,
said person's animal may be seized. Any animal so seized
shall be impounded in the custody of the Jefferson
Parish Animal Shelter or other location approved by the
Director of the Jefferson Parish Animal Shelter.
(f) All charges subject to Division 6 are subject to
the jurisdiction of the bureau of administrative
adjudication and also the Jefferson Parish District
Attorney's Office for criminal prosecution under
relative procedures and law.
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
attorney to defend her against the charge.
On March 3, 2016, when
she and her attorney appeared for the trial, the charge was
Shortly thereafter, Ms. Babin filed this civil rights lawsuit
under 42 U.S.C. § 1983, naming as defendants Jefferson Parish,
She later had it expunged.
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
It is unclear whether Ms. Babin is alleging a false arrest claim
under Louisiana law in addition to her Section 1983 claim based on
a Fourth Amendment violation.
9 Ms. Babin challenges as false and defamatory certain statements
Blange wrote in his report supporting the summons:
That he was “dispatched to . . . Big Lots [to respond to]
several anonymous complaints calling 9-1-1”
That the callers advised that “a dog had been left in a car
with the windows up for approximately 20 minutes”
That when he approached Ms. Babin, he “observed a full size
dog in the front seat”
That “the passenger side window was barley (sic) open and the
window on the driver’s side of the vehicle was not open at
That he spoke “to several complainants, that wished to remain
anonymous, who all advised Babin had been parked at the
location for approximately 20 minutes, if not longer”
That “[o]ne complainant stated that she was scared for the
dog and even tried to open the door to Babin’s vehicle, for
fear the dog was suffering too much, but was unable to due to
the door being locked”
That “[t]he same complainant further stated that the dog was
panting very heavily and appeared to be in some distress”
That the temperature was in “the mid 80’s”
That Peyton Legion was nine years old.
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
“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
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
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
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
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
prospective application of the ordinance. 10
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).
Deputy Blange does not appear to move for summary judgment
dismissing the plaintiff’s defamation claim.
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).
mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion.
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.
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of a claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
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)
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).
Standing is a threshold issue and, yet, it is raised as an
apparent afterthought in only the law enforcement defendants’
Sheriff Normand and Deputy Blange challenge Ms. Babin’s
standing; their challenge is limited to her request for prospective
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.
jurisdiction to certain 'Cases' and 'Controversies.'"
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-ofpowers principles, serves to prevent the judicial process from
being used to usurp the powers of the political branches.”).
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
"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
omitted, emphasis in original).
injury are not sufficient.”
“Allegations of possible future
Id. (citation omitted, emphasis in
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.”
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
Where threatened action by government is concerned, the Supreme
Court “ha[s] held that a plaintiff satisfies the injury-in-fact
requirement where he alleges ‘an intention to engage in a course
of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of
prosecution thereunder.’” Driehaus, 134 S.Ct. at 2342 (citation
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
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.”
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.”
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.
No party here cites Lyons, which squarely addresses standing in
the prospective relief context.
There, the Supreme Court held
that Lyons, who was placed in a chokehold by a LAPD officer during
a minor traffic stop, did not have standing to seek prospective
injunctive relief barring officers from indiscriminately using
chokeholds. That one chokehold episode did not translate into a
real and immediate threat of future injury and, therefore, the
past injury did not supply a predicate for prospective equitable
relief sought by Lyons. Id.
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
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
Nor will the Court advise as to whether or not this would suffice
to demonstrate standing to seek prospective relief, if the record
ultimately supports such an assertion by the plaintiff that she
plans to drive Peyton Legion back to Big Lots and leave him in the
Court finds that the briefing and the record is likewise inadequate
to resolve other issues raised by the parties’ motions for summary
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.
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:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the
car while she buys dog food.
See Kolender v. Lawson, 461 U.S.
352, 356 n.3 (1983)(noting that no party had challenged the
plaintiff’s standing to seek prospective relief, but observing
that the plaintiff had been stopped 15 times in two years pursuant
to the challenged California statute, thus finding “there is a
‘credible threat’ that [the plaintiff] might be detained again
[under the statute].”).
To have standing to seek prospective
relief, Ms. Babin must show a genuine, credible threat of future
injury, a realistic likelihood that she could be detained and
prosecuted for future violations of the animal cruelty ordinance.
Lyons, 461 U.S. at 104-06; Ellis v. Dyson, 421 U.S. 426 (1975).
“The injury or threat of injury must be both ‘real and immediate,
not ‘conjectural’ or ‘hypothetical.’” O’Shea, 414 U.S. at 494.
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured.
Because Section 1983 merely provides a remedy for designated
underlying constitutional or statutory violation is a predicate to
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.
To establish § 1983 liability, the
plaintiff must satisfy three elements:
deprivation of a right secured
Constitution or federal law,
that occurred under color of state law, and
was caused by a state actor.
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
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.
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.”
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
Deputy Blange and Sheriff Normand also move for summary judgment
that the plaintiff has not proved a constitutional deprivation,
but the analysis of this ground overlaps with, and is doomed by,
the same deficient briefing and submission bearing on the qualified
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.”
(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
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
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
al-Kidd, 563 U.S. at 735 (citation omitted). 15
In resolving a government official’s qualified immunity defense,
articulated in Siegert v. Gilley, 500 U.S. 226 (1991) and confirmed
by the Supreme Court again in Saucier v. Katz, 533 U.S. 194 (2001).
First, the Court must determine whether the plaintiffs have shown
a violation of a constitutional right. Id. at 201. The second
inquiry requires the Court to consider “whether the right at issue
was ‘clearly established’ at the time of the defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009)(holding
that the sequence identified in Saucier is not mandatory; courts
have discretion to decide which of the two prongs of the qualified
immunity analysis to address first).
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
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
“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.
‘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.”
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:
When an individual asserts a claim for wrongful arrest,
qualified immunity will shield the defendant officer
from suit if a reasonable officer could have believed
[the arrest at issue] to be lawful, in light of clearly
established law and the information the [arresting]
officer possessed. Even law enforcement officials who
reasonably but mistakenly conclude that probable cause
is present are entitled to immunity. Thus, a qualified
immunity defense cannot succeed where it is obvious that
a reasonably competent officer would find no probable
On the other hand, if officers of reasonable
competence could disagree on this issue, immunity should
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
Dunaway v. New York, 442 U.S. 200, 207 (1979).
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.”).
of whether an unreasonable seizure has occurred, as with all Fourth
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.
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
(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.”
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
See United States v. Jones, 678 F.3d 293, 298-99 (4th
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
Curiously, the transcript from the plaintiff’s deposition (in
which this fact appears) was submitted by Deputy Blange in support
of his motion in which he argues a legal proposition divorced from
the facts contained in the transcript.
conversation,” a reasonable person would not have felt free to
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.
professional responsibility demands that attorneys representing
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
If Deputy Blange’s position is that he is immune from
suit here because no custodial arrest occurred, he nevertheless
characterization that she was seized within the meaning of the
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
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
There is no “litmus-paper test for distinguishing a consensual
encounter from a seizure or for determining when a seizure exceeds
the bounds of an investigative stop.” Florida v. Royer, 460 U.S.
491, 498 (1983)(“there will be endless variations in the facts and
circumstances, so much variation that it is unlikely that the
courts can reduce to a sentence or paragraph a rule that will prove
the unarguable answers to the question whether there has been an
unreasonable search or seizure in violation of the Fourth
Again, underscoring the indispensability of a
developed record to facilitate characterizing and resolving Fourth
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
“Probable cause and the ensuing qualified
immunity analysis turn on [the arresting officer’s] reasonable
beliefs and knowledge, including information received from eye
See Bone v. Dunnaway, 657 Fed.Appx. 258, 261 (5th
Cir. 2016)(citations omitted).
Probable cause to arrest depends upon whether, at the
moment the arrest was made...the facts and circumstances
within (the arresting officers’) knowledge and of which
they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that
the (suspect) had committed or was committing an
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
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.
circumstances within Deputy Blange’s knowledge at the time he
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
Having not been advised as to the totality of the
In issuing the summons, Babin says Blange told her “it’s two
19 The record reveals only:
Blange arrived at Big Lots after
dispatch received a call from a concerned citizen regarding a dog
that had been left alone in a car. Upon arriving on scene, he
went to speak with the complaining witness and another woman. The
Court cannot simply speculate that Blange relied on complaining
witness descriptions of the potential violation of the animal
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.
also depends on historical facts, in particular, on what happened
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
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
cruelty ordinance; the Court must view what little evidence there
is in the light most favorable to Babin.
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
assuming the parties submit the requisite evidence, the plaintiff
circumstances as Deputy Blange was held to have violated the Fourth
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
Sheriff Normand’s request for judgment as a matter of law was
derivative of Deputy Blange’s and, thus, it is likewise denied
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
particularized sense so that the contours of the right are clear
to a reasonable official”)(internal quotation marks and citations
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.
of Soc. Servs., 436 U.S. 658, 690 (1978).
Monell v. Dep’t
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
circumstance of when a constitutional tort is caused through the
Jefferson Parish neglects to mention this governing framework.
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 §
Monell, 436 U.S. at 694.
To determine whether municipal liability attaches, the Court
looks to whether unconstitutional conduct is directly attributable
“isolated unconstitutional actions by municipal employees will
Houston, 237 F.3d 567, 578 (5th Cir. 2001)(citations omitted);
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
municipality is actually responsible.’”).
The Fifth Circuit has
defined an official policy for Section 1983 purposes as:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality’s lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy.
Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)(en
Proof of these three elements is necessary “to distinguish acts
of the municipality from acts of employees of the municipality,
and thereby make clear that municipal liability is limited to
action for which the municipality is actually responsible.” Burge
v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999)
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.
misapprehends the law and deals a blow to common sense in advancing
the second argument.
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.”
553 U.S. 285, 304 (2008).
United States v. Williams,
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
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
ordinary intelligence fair notice of the prohibited conduct, or
(2) encourages arbitrary and discriminatory enforcement.
Williams, 553 U.S. at 304.
The Fifth Circuit has instructed that
sufficiently define the line between legal and illegal conduct.”
Munn, 763 F.3d at 439.
considering a facial vagueness challenge,
should uphold the challenge only if the enactment is
impermissibly vague in all of its applications.
plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law
as applied to the conduct of others.
A court should
therefore examine the complainant’s conduct before
analyzing other hypothetical applications of the law.
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
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
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 the Supreme Court has observed the following suggests that
only an as-applied vagueness challenge may be made when the
challenged statute does not implicate the First Amendment: “It is
well established that vagueness challenges to statutes which do
not involve First Amendment freedoms must be examined in the light
of the facts of the case at hand.” See, e.g., United States v.
Mazurie, 419 U.S. 544, 714 (1975).
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
As for the second potential standard, the Second
Circuit determined that the Supreme Court in Morales “suggest[ed]
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
standard governs, then Ms. Babin is restricted to an as-applied
challenge; if the second standard governs, then Ms. Babin cannot
identified no fundamental constitutional right infringed by the
animal cruelty ordinance.
Although the plaintiff’s facial challenge to the ordinance’s
Jefferson Parish did not move for summary judgment as to any asapplied vagueness challenge advanced by Ms. Babin.
seems to suggest that it is not the proper defendant to an asapplied 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
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
misapprehends municipal liability. 23
There can be no dispute that
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
The argument is tantamount to suggesting that one may never
pursue an as-applied vagueness challenge, considering that a
police officer cannot possibly be the appropriate defendant to
answer for the sins of an unconstitutional parish ordinance.
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
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
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the Parish’s motion for summary judgment is GRANTED insofar as it
The Court need not address other issues that have not been
properly raised, such as what becomes of the plaintiff’s vagueness
challenge if she lacks standing for prospective relief, or if it
is later determined that Deputy Blange did not violate her
constitutional right to be free from unreasonable seizure (that
is, if the Heller rule applies, see City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986)).
seeks dismissal of the plaintiff’s facial vagueness challenge (but
against the Parish), and the law enforcement defendants’ motion
for summary judgment is DENIED without prejudice.
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
Any properly supported motions for summary judgment must
be filed within 30 days of this Order and Reasons.
must be mindful of 28 U.S.C. § 1927.
New Orleans, Louisiana, May 19, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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