Babin et al v. Jefferson Parish et al
ORDER AND REASONS granting in part and denying in part 66 Motion for Summary Judgment; granting in part and denying in part 70 Motion for Summary Judgment as stated herein. FURTHER ORDERED that counsel for each party shall certify in the record that all clients have been given a copy of this Court's Order and Reasons. Signed by Judge Martin L.C. Feldman on 2/7/2048. (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; (2) Jefferson Parish Sheriff Deputy
Micah Blange’s and Sheriff Newell Normand’s motion for summary
For the reasons that follow, the Parish’s motion is
GRANTED in part (insofar as it is entitled to judgment as a matter
of law dismissing the plaintiff’s claim for prospective relief for
lack of standing) and DENIED in part (insofar as it fails to
demonstrate entitlement to judgment as a matter of law as to the
enforcement defendants’ motion is GRANTED in part (insofar as
Deputy Blange is entitled to qualified immunity on the plaintiff’s
Section 1983 claim) and DENIED in part (because the defendants
fail to adequately brief the plaintiff’s state law false arrest
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.
Legion, a trained service dog.
Ms. Babin and Peyton Legion were
on their way home from a senior citizen center, where Peyton Legion
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 partly retracted to expose the
front seats, Ms. Babin went into the store; Peyton Legion waited
in the car. 2
The facts are summarized in the light most favorable to Ms. Babin.
Whether or not the convertible top was retracted is disputed:
Deputy Blange testified that the convertible top was closed, but
Ms. Babin has testified that the convertible top was partially
open, exposing the front two seats. There also appears to be some
dispute concerning whether and when the windows were rolled down
and, if so, how far. Deputy Blange testified that the window on
the passenger side was rolled up and that if the window on the
driver’s side was down, it may have been cracked only a couple of
inches, he was not able to see it from his vantage point on the
passenger side of the car. He stated that Ms. Babin placed her
groceries inside the car and rolled down the windows after she
shopped at Big Lots. Because there is a dispute in the record,
the Court takes the plaintiff’s sworn version as true for the
purposes of the pending motions.
Meanwhile, at 12:12 p.m., while Ms. Babin was inside Big Lots
and her dog was unattended in her car, a woman named Ashley McMurry 3
called the Jefferson Parish 911 operator to complain that a dog
was left unattended for 10 minutes.
Ms. McMurry apparently told
the operator that the dog had been locked in a car for at least 10
minutes, that the dog was panting and looked “uncomfortable,”
although she also told the operator that the windows were down, it
was “not that hot,” and that the dog did not appear to be in
Jefferson Parish Sheriff’s Office dispatched a law
enforcement officer to the scene.
When Ms. Babin exited Big Lots, Ms. McMurry confronted her,
complaining that the dog was left alone in the car.
says that she showed Ms. McMurry that the door was unlocked and
that, 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
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
Ashley McMurry is identified in the plaintiff’s complaint as the
complaining witness in the Big Lots parking lot, but the parties
now identify her by her married name, Ashley McWhirter.
affidavit or deposition transcript or any statement by this
complaining witness is of record.
marked vehicle. 4
He first spoke with an unidentified individual
as well as Ms. McMurry (whom “hurried after” Blange when he pulled
into the parking lot). 5
Soon thereafter, another Jefferson Parish
Sheriff’s deputy, Michael Voltolina, Jr., arrived at Big Lots.
Unlike Blange, Voltolina drove up to where Ms. Babin had parked,
examined Ms. Babin’s car, and explained to her that deputies were
required to come to the scene to investigate, but that he did not
see cause for issuing a summons. 6
After Voltolina left Ms. Babin,
Deputy Blange drove over to where her car was parked and where she
was standing next to her car with Peyton Legion.
his police cruiser to the rear and perpendicular to Ms. Babin’s
vehicle, blocking her into the parking space.
Ms. Babin submits
Deputy Blange and Ms. Babin dispute whether or not Ms. Babin had
returned to her vehicle prior to his arrival.
Babin could not hear what was being discussed among the
complaining witnesses and Deputy Blange.
This information is drawn from the plaintiff’s deposition
transcript and her sworn declaration.
Deputy Blange testified
that he spoke with both complaining witnesses near the passenger
side of Ms. Babin’s car and that Ms. Babin arrived at her car after
he had arrived on the scene and had parked behind her.
Blange testified that he had observed Peyton Legion unattended
inside the vehicle before Ms. Babin emerged from Big Lots; Deputy
Blange testified that the dog was moving back and forth from the
front passenger seat to the rear seat, panting, appearing
“nervous,” and “seemed to be in somewhat distress.”
arrived at Big Lots, Deputy Blange testified, he spoke to both
complaining witnesses near the passenger side of Ms. Babin’s car
and after about five minutes of speaking with them, Ms. Babin
exited Big Lots, went to the driver’s side of her car, where she
deposited her groceries and rolled down the windows, at which time
Deputy Blange observed that the complaining witnesses “express[ed]
their displeasure [toward Ms. Babin for] her leaving the dog in
that 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.
asked her a couple questions regarding her identity, and then asked
why she had not left her dog at home. 7
Ms. Babin explained that
she and Peyton Legion were on their way home from visiting a senior
Without more, according to Ms. Babin, Blange told Ms. Babin
that he was issuing her a criminal misdemeanor summons.
asked why, to which Blange responded that it was “two against one”
(ostensibly referring to Ms. McMurry and the other concerned
After completing the summons, Blange exited his car to
hand it over to Ms. Babin.
and got back in his car.
He then returned her driver’s license,
At that point, Blange indicated to Ms.
Babin (without verbalizing) that their encounter was over and that
she could go.
Ms. Babin asked if it was okay to, or suggested
that she would, speak to the other officer (Voltolina) who was
Deputy Blange testified that he “got her side of the story” but
that it was his “opinion that the dog was in enough distress and
that the period of time that I understood from the witnesses that
the dog was in danger, at that point I decided to issue her a
misdemeanor summons in lieu of making a physical arrest.” He went
on to say, “You know, I don’t believe her intention was to harm
the dog. However, that doesn’t negate, you know, the situation
that she placed the dog in.”
8 According to Deputy Blange’s testimony, Ms. Babin told him that
she could not leave her dog at home because he suffered from
still somewhere in the Big Lots parking lot.
scene in his car.
Blange then left the
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, in which she advanced several claims
against Jefferson Parish, Jefferson Parish Deputy Micah P. Blange,
in his individual capacity, and Newell Normand, in his official
She later had it expunged.
capacity as Sheriff of Jefferson Parish. 10
Ms. Babin alleges
three 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; that Blange
defamed her under Louisiana law by misrepresenting facts he wrote
subjected her to false arrest under Louisiana law.
Ms. Babin also
alleges that the sheriff is liable under the theory of respondeat
superior for her Louisiana claims because Blange was acting in the
course and scope of his employment.
Ms. Babin alleges that
Jefferson Parish is liable because Section 7-126 violates her right
to substantive due process; the provision is unconstitutionally
vague on its face, Ms. Babin alleges, because it defines neither
“acceptable weather condition” nor “proper temperature control.”
Ms. Babin seeks three types of relief.
vagueness of the ordinance.
Second, Ms. Babin seeks to enjoin the
Parish and Sheriff Normand from enforcing the vague provision to
prevent future deprivations of Ms. Babin’s and other parties’
rights to substantive due process.
Finally, Ms. Babin seeks to
Since this litigation was instituted, Newell Normand stepped
down as Sheriff of Jefferson Parish Sheriff’s Office. No party
has moved to substitute the interim sheriff.
defendants 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. 11 Jefferson Parish then filed a second motion
for summary judgment to dismiss the plaintiff’s facial challenge
to the ordinance, and the Sheriff and Deputy Micah Blange, again,
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.
On May 19, 2017, the
Insofar as the Parish moved for summary relief dismissing the
plaintiff’s substantive due process and equal protection claims,
the plaintiff conceded that she is not pursuing such claims.
Court granted the Parish’s motion for summary judgment as to the
enforcement defendants’ motion. 12
Now, for still a third time, 13
the Parish and the law enforcement defendants seek summary judgment
in their favor: Jefferson Parish submits that the plaintiff is
precluded from bringing an as-applied vagueness challenge to the
ordinance, Deputy Blange moves for summary judgment on his defense
of qualified immunity, and the Sheriff appears to move for summary
judgment dismissing the plaintiff’s false arrest claim based on
Louisiana law. 14
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
The Court noted that neither side had briefed the threshold issue
of whether the facts indicate a Terry stop or a de facto arrest;
the Court also observed that the qualified immunity issue was
“patently academic” considering that there were no facts in the
record indicating the facts and circumstances within Deputy
Blange’s knowledge at the time he “seized” Babin.
13 Although this is the third round of briefing on these issues,
the papers are only marginally, if at all, better than prior
14 Curiously, Deputy Blange did not then and does not now move for
summary judgment dismissing the plaintiff’s defamation claim.
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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).
The Court first considers a threshold issue leftover from
prior motion practice: whether Ms. Babin has standing to assert a
claim for prospective relief. 15 Jefferson Parish submits that Ms.
Babin has no standing to assert a claim for prospective injunctive
relief on behalf of herself or third parties.
to dismiss her claim for prospective relief.
Ms. Babin has agreed
Because Ms. Babin
has agreed to dismiss her claim for prospective relief, Jefferson
Parish’s motion for summary judgment on this issue will be granted.
This issue was raised by the law enforcement defendants in the
last round of motion practice, but it was inadequately briefed.
The plaintiff’s claim for prospective equitable relief relative to
the animal cruelty ordinance is dismissed.
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
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.
The law enforcement defendants
seek summary judgment dismissing Ms. Babin’s Fourth Amendment
false arrest claim and the Louisiana false arrest claim on the
ground that she has failed to prove a constitutional deprivation
and because Deputy Blange enjoys qualified immunity.
Parish seeks summary judgment that, if Ms. Babin is asserting an
as-applied challenge to Section 7-126, she would be precluded from
bringing such a challenge based on the same arguments asserted in
her failed facial challenge to the ordinance.
In its May 19, 2017 Order and Reasons, the Court thoroughly
summarized the qualified immunity framework, which is incorporated
by reference. When a plaintiff seeks money damages from government
officials for alleged violations of constitutional or statutory
rights, officials like Deputy Blange sued in their individual
capacities may invoke the defense of qualified immunity.
it is an immunity from suit and not a defense to liability, courts
are advised to resolve the issue “at the earliest possible stage
Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per
Once the defense of qualified immunity is “properly
See Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir.
2009)(citation omitted); Manis v. Lawson, 585 F.3d 839, 843 (5th
Cir. 2009)(“To negate a defense of qualified immunity and avoid
summary judgment, the plaintiff need not present ‘absolute proof,’
but must offer more than ‘mere allegations.’”); see also Pierce v.
Smith, 117 F.3d 866, 872 (5th Cir. 1997)(“We do not require that
an official demonstrate that he did not violate clearly established
“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
(2012)(citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011));
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.”
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.’”).
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.
omitted); see also
Brady v. Fort Bend County, 58 F.3d 173, 174
(5th Cir. 1995)(observing that “[q]ualified immunity represents
the norm” and “is designed to shield from civil liability all but
the plainly incompetent or those who violate the law.”).
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). 16
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
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).
“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).
immunity because he had reasonable suspicion to briefly detain Ms.
Babin and issue her a summons and that, even if his actions in
blocking Ms. Babin’s car in with his police cruiser constitute a
de facto arrest or seizure, he had probable cause to briefly detain
Ms. Babin does not allege that she was merely detained such
that Deputy Blange effectuated a Terry stop, and she does not seem
effectuate such a stop.
Instead, Ms. Babin argues that she was
Accordingly, the Court focuses on whether
Ms. Babin’s submission that Deputy Blange arrested her without
probable cause overcomes Deputy Blange’s assertion of qualified
immunity in light of the undisputed facts in the summary judgment
To withstand summary judgment in favor of Deputy Blange on
his qualified immunity defense, Ms. Babin must demonstrate that
her arrest (assuming that it was an arrest and not an investigative
stop) was unlawful (that is, not based on arguable 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 in the absence of acceptable
weather conditions or proper temperature control with regular
monitoring). “A good-faith assertion of qualified immunity alters
the usual summary judgment burden of proof, shifting it to the
plaintiff to show that the defense is not available.”
Phillips, 875 F.3d 256, (5th Cir. 2017)(quoting King v. Handorf,
821 F.3d 650, 653 (5th Cir. 2016)).
Ms. Babin fails to carry her
burden to show that the qualified immunity defense is not available
to Deputy Blange.
To prevail on a Section 1983 claim based on false arrest, the
arrestee must show that the arresting officer lacked probable cause
to arrest her.
Haggerty v. Texas Southern University, 391 F.3d
qualified immunity analysis turn on [the arresting officer’s]
reasonable beliefs and knowledge, including information received
from eye witnesses.”
See Bone v. Dunnaway, 657 Fed.Appx. 258, 261
(5th Cir. 2016)(citations omitted).
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)).
To be sure, Ms. Babin “must clear a
Haggerty, 391 F.3d at 656 (citation omitted).
“[T]here must not
even arguably be probable cause for the...arrest for immunity to
The arresting officer is entitled to qualified
immunity “if a reasonable officer in his position could have
circumstances of which [the arresting officer] was aware, there
was a fair probability that [the arrestee] had committed or was
committing an offense.”
Id. (noting that “’fair probability’
requires more than bare suspicion but less than a preponderance of
evidence”). The relevant offense here is a violation of the animal
cruelty ordinance, which prohibited animals from being left inside
acceptable or the animal was provided proper temperature control
with regular monitoring conditions.
If Deputy Blange had arguable
probable cause to issue her a summons for violating the animal
cruelty ordinance, then Deputy Blange is entitled to qualified
immunity as to Ms. Babin’s wrongful seizure claim.
Viewing the evidence and disputed facts in the light most
favorable to Ms. Babin, Ms. Babin left her dog unattended in her
car in the Big Lots parking lot on an afternoon where outside
temperatures were in the low 70s. 17
The parties dispute whether
the windows were up or down while the dog was left unattended.
least two witnesses saw Peyton Legion unattended in Ms. Babin’s
Mini Cooper and suggested that they were concerned for his well
being; one of them called 911.
Deputy Blange arrived at Big Lots
approximately 8 minutes after he was dispatched and approximately
13 minutes after a 911 caller reported that (a) a dog had been
left unattended in a car for more than 10 minutes and (b) the dog
was panting and looked uncomfortable. 18
Deputy Blange spoke to Ms.
McMurry and another concerned eyewitness for about five minutes
regarding the dog being left unattended in the car, in the witness’
estimation, for more than 15 minutes. 19
Accepting Ms. Babin’s
version of her encounter with Deputy Blange, Deputy Blange blocked
Ms. Babin submits that skies were overcast, while Deputy Blange
testified that the sun was beating down on the car in the parking
lot and that it felt hotter than 70 degrees. The Court considers
the disputed facts in the light most favorable to Ms. Babin. The
Court notes however that Ms. Babin submits only that outdoor
temperatures were in the low 70s. There is no information in the
record to indicate the humidity, heat index, or the temperature
inside the car.
18 Even if Deputy Blange arrived to find the dog outside the vehicle
at Ms. Babin’s side (as Ms. Babin contends, but Deputy Blange
disputes), Deputy Blange could have reasonably believed that the
dog had been left unattended in Ms. Babin’s car for around 20
if Ms. Babin disputes the eyewitness’ accounts of the
condition of her windows or convertible top or the perceived
discomfort level of her dog, she does not dispute that they gave
their accounts to the 911 dispatcher and to Deputy Blange at the
her Mini Cooper in with his police cruiser, told her to bring her
driver’s license to him, and asked her why she had not left her
dog at home.
When Deputy Blange told Ms. Babin he was issuing her
a summons, he told her it was “two against one.”
When Deputy Blange issued Ms. Babin the summons, two witnesses
had told him that Ms. Babin had left her dog unattended in her car
in the Big Lots parking lot in the middle of the day with outdoor
temperatures in the 70s while she went shopping inside the store.
Even Ms. Babin does not dispute that she left her dog in the car
while she shopped at Big Lots.
The Court underscores that it is
immaterial to the probable cause determination whether Ms. Babin
actually left her dog unattended in her car under conditions that
would endanger him.
See Cooper v. City of La Porte Police Dept.,
608 Fed.Appx. 195, 200 (5th Cir. 2015)(unpublished, per curiam).
Deputy Blange’s conduct is viewed objectively.
As long as Deputy
Blange reasonably concluded that probable cause existed to issue
the summons and briefly detain Ms. Babin, he is entitled to
qualified immunity for his reasonable (even if mistaken) decision.
Indeed, the qualified immunity standard “gives ample room for
(1991)(“This accommodation for reasonable error exists because
‘officials should not err always on the side of caution’ because
they fear being sued.”).
Deputy Blange was entitled to credit the
eye witness statements when he reported to the scene.
those eye witness statements, the summary judgment record supports
a finding that Deputy Blange had arguable probable cause (that is,
that he was reasonable in concluding that it was fairly probable
that Ms. Babin had violated the parish ordinance).
At a minimum, Deputy Blange was not objectively unreasonable
in concluding that that the information conveyed to him by the
witnesses, including the length of time the dog was left unattended
sufficient for a reasonable officer to believe that Ms. Babin had
left her dog unattended inside a car in the absence of acceptable
weather conditions or without proper temperature control.
decision to issue the summons, Deputy Blange testified:
[The 911 caller] said she arrived in the parking lot.
That she was going into the store. She observed the dog
in the vehicle.
She went into the store, did some
shopping, came back out.
The dog was still in the
At that time, she attempted to go into Big
Lots and see if she could find out who the owner was.
She was concerned for the dog.
They were unable to
locate the owner. At which time, she came outside and
She advised me approximately 15
minutes [had elapsed from the time she first saw the dog
until she called 9-1-1].
She expressed her concern for the dog inside the vehicle
because it was hot. She was concerned that the dog—she
felt that dog was in a little distress given the amount
of time the dog was in the car.
[The weather] was warmish outside.
[It felt like it
was] High 70s, low 80s. Somewhere right up in there.
[I]t wasn’t 120 degrees outside. But it also wasn’t 50
degrees where the temperature in the car, you know, with
the closed windows – even cracked windows – wouldn’t
reach a temperature where an animal or human being would
be in distress.
I know what it feels like to be in a hot car on a summer
day.... Temperatures in a vehicle can rise very quickly.
[I]t was my opinion that the dog was in enough distress
and that the period of time that I had understood from
the witnesses that the dog was in danger, at that point
I decided to issue her a misdemeanor summons in lieu of
making a physical arrest. You know, I don’t believe her
intention was to harm the dog. However, that doesn’t
negate...the situation she placed the dog in.
In light of the undisputed portions of the summary judgment record,
a reasonable officer could have believed that he was justified in
issuing Ms. Babin a summons for violating the parish ordinance.
Ms. Babin complains that Deputy Blange refused to hear her
It is her position, then, that Deputy Blange failed to
properly investigate the complaints regarding her unattended dog
before issuing her a misdemeanor summons on an animal cruelty
But she cites no case imposing such a duty on an officer
responding to the scene after a 911 call, after hearing from two
eyewitnesses, and when it is undisputed that she did indeed leave
her dog unattended in her car while she shopped in a store in the
middle of the day with outside temperatures in the low 70s. 20
Even if this Court assumes that Ms. Babin raised a fact issue
regarding whether Deputy Blange had “arguable probable cause” to
arrest her and issue her a summons, 21 she nevertheless fails to
neglecting her burden in the face of qualified immunity. Ms. Babin
does not suggest that Deputy Blange was incompetent or knowingly
investigate her side of the story, and that the vague text of the
animal cruelty ordinance allowed that she could possibly be in
violation when all she did was leave her dog unattended in her car
Deputy Blange was entitled to credit the eyewitness statements
and to disbelieve Ms. Babin’s denial of their statements.
Cooper v. City of La Porte Police Dept., 608 Fed.Appx. 195, 200
(5th Cir. 2015)(unpublished, per curiam).
21 The Court’s resolution of the arguable probable cause prong rests
in part on a determination that the parties’ dispute concerning
whether Ms. Babin’s car’s windows were up or down while Peyton
Legion was unattended is immaterial because the record evidence to
the exclusion of this fact issue is sufficient to establish
probable cause. Ms. Babin also took issue with the inadequacies of
the defendants’ papers on qualified immunity. The Court agrees
that the defendants initially characterized as undisputed certain
facts that were clearly disputed; however, the defendants
supplemented their submission to urge the Court to view all facts
in the light most favorable to Ms. Babin.
for 10 minutes in 70 degree mostly cloudy weather conditions with
the windows down and the convertible top partially retracted.
fails to overcome Deputy Blange’s assertion of qualified immunity
by failing to identify a prior case where an officer acting under
To be sure, “qualified immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”
categories, the Court asks “whether it would have been clear to a
reasonable officer that the alleged conduct ‘was unlawful in the
situation he confronted.’”
Id. (citation omitted).
If so, then
Deputy Blange was either incompetent or a knowing violator of the
law who is not entitled to immunity; if not, then Deputy Blange is
immune from liability.
Ms. Babin was aware of her burden and her task when the Court
wrote in its May 19, 2017 Order and Reasons:
To withstand Deputy Blange’s qualified immunity defense,
assuming the parties submit the requisite evidence, the
plaintiff must identify a case where an officer acting
under similar circumstances as Deputy Blange was held to
have violated the Fourth Amendment. In addressing the
clearly established prong, the parties should take care
not to define the qualified immunity inquiry too
abstractly and, in attempting to identify clearly
established law, the plaintiff should identify factually
similar cases that speak to the circumstances of this
See White v. Pauly, 137 S.Ct. 548, 552
(2017)(noting the frequency with which the Court has
reversed federal courts in qualified immunity cases and
finding that “[t]he panel majority misunderstood the
‘clearly established’ analysis” in that it “failed to
identify a case where an officer acting under similar
circumstances as Officer White was held to have violated
the Fourth Amendment.”); see also City and County of San
Francisco, Calif. V. Sheehan, 135 S.Ct. 1765, 1776
(2015)(“Qualified immunity is no immunity at all if
‘clearly established’ law can simply be defined as the
right to be free from unreasonable searches and
seizures.”); see also Tolan, 134 S.Ct. at 1866 (“courts
must take care not to define a case’s ‘context’ in a
propositions”); see also Reichle v. Howards, 566 U.S.
658, 132 S.Ct. 2088, 2094 (2012)(“the right allegedly
violated must be established, not as a broad general
proposition, but in a particularized sense so that the
contours of the right are clear to a reasonable
Yet, Ms. Babin fails to identify clearly established law that
prohibits an officer from briefly detaining and issuing a summons
to an individual who has left her animal unattended inside a car
while she shops in a store for more than 10 minutes when outside
temperatures are in the 70s.
“’[I]n the light of pre-existing law,’” the Supreme Court has
instructed, “the unlawfulness of the officer’s conduct ‘must be
Ziglar, 137 S.Ct. at 1867.
“A clearly established
right is one that is ‘sufficiently clear that every reasonable
official would have understood that what he is doing violates that
Lincoln v. Barnes, 855 F.3d 297, 301 (5th Cir. 2017).
persuasive authority’ must ‘define the contours of the right in
question with a high degree of particularity.’” Wilkerson v. Univ.
of North Texas By and Through Bd. of Regents, 878 F.3d 147, 155
(5th Cir. 2017)(citation omitted).
“The sine qua non of the
clearly-established inquiry is fair warning.
Thus we must ask not
only whether courts have recognized the existence of a particular
constitutional right, but also ... whether that right has been
defined with sufficient clarity to enable a reasonable official to
assess the lawfulness of his conduct.”
Morgan v. Swanson, 659
F.3d 359, 372 (5th Cir. 2011)(en banc).
Ms. Babin has not demonstrated that Deputy Blange’s conduct
“sufficiently clear such that every reasonable official would have
understood what he is doing violates that right.”
Howards, 566 U.S. 658 (2012).
See Reichle v.
In fact, Ms. Babin does not identify
any precedent that has placed her constitutional question (here,
whether Deputy Blange violated her right to be free from an
unreasonable seizure when he relied on complaining witnesses to
the exclusion of her explanation for leaving her dog unattended in
a car) beyond debate. 22
“This inquiry must be undertaken in light
Ms. Babin simply notes that “the instant matter concerns probable
cause under a specific ordinance,” without identifying any cases
that could even arguably guide an analysis on clearly established
law. In other words, Ms. Babin focuses on the deficiencies in the
defendants’ papers, admits that this case concerns probable cause
relative to a specific ordinance, but fails to identify any cases
of the specific context of the case, not as a broad general
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015).
conclusion that [the arresting officer] acted unreasonably in
The law enforcement defendants move for dismissal of the
plaintiff’s false arrest claim based on Louisiana law, but they
fail to brief the issue.
Although a finding of probable cause is
a defense to a false arrest claim, the law enforcement defendants
fail to present any argument whatsoever on this claim.
this Court has only determined that Deputy Blange had arguable
probable cause sufficient to warrant immunity from liability on
the Section 1983 claim (and alternatively that he did not violate
a clearly established right of plaintiff), the Court declines to
speculate that such a finding dooms the plaintiff’s state law
Ms. Babin’s Section 1983 claim against the Parish must be
analyzed in accordance with the Monell framework.
in support of her claim that could withstand Deputy Blange’s
assertion of qualified immunity.
summarized in its May 19, 2017 Order and Reasons.
Municipalities are “persons” within the meaning of Section
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
But, it has been cautioned, “[t]hey are liable only for their own
acts and not those attributed to them by principles of respondeat
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir.
2004)(citing Monell, 436 U.S. at 691-92).
Imposition of Section
1983 liability against a municipality under Monell is appropriate
in the limited circumstance of when a constitutional tort is caused
through the execution of a policy or custom of the municipality.
See Bowen v. Watkins, 669 F.2d 979, 989 (5th Cir. 1982)(citation
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
Slidell, 735 F.2d 861, 862 (5th Cir. 1984)(en banc)(defining
shall...be deprived of life, liberty, or property without due
process of law.” U.S. Const. amend. XIV. “Vagueness doctrine is an
outgrowth of the Due Process Clause.”
United States v. Williams,
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)
553 U.S. 285, 304 (2008).
Due process requires that statutes
providing for criminal prosecution be drafted “with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
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.
Ms. Babin’s only remaining claim against the Parish is that
applied to her. 23
The Parish submits that Ms. Babin would be
precluded from bringing an as-applied vagueness challenge because
the Court dismissed her facial challenge.
The Parish invokes In
re Cao, 619 F.3d 410 (5th Cir. 2010), which it says endorses the
proposition that a plaintiff cannot succeed on an as-applied
arguments a court considered in rejecting a facial challenge to
Ms. Babin counters that the Parish’s reliance on In
re Cao is misplaced.
The Court agrees.
The plaintiffs in In re
Cao attempted to characterize a facial challenge as an as-applied
attack, but the Fifth Circuit rejected the attempt because the
principles rejected by the Supreme Court and, if accepted, would
effectively overrule precedent.
Here, the plaintiff’s as-applied
considered on the merits and rejected in dismissing the facial
Rather, the Court simply determined that Babin could
not bring a facial challenge as a matter of law.
Reasons dtd. 5/19/17.
See Order and
The Court never held that the contested
The Parish contends that the plaintiff does not properly allege
an as-applied vagueness challenge.
Ms. Babin says that a fair
reading of the facts alleged in her complaint as well as the
paragraph in which she states that she seeks damages from the
Parish for its enactment of Code Section 7-126, which she alleges
violated her Fourteenth Amendment rights, suffices to state a
claim. Considering her complaint in full, the Court agrees.
language in the animal cruelty ordinance was not vague, or that
she was precluded from advancing an as-applied challenge.
the Court was unable to reach the merits of the plaintiff’s
vagueness challenge because it was inadequately briefed and no
evidence was submitted.
The Parish’s motion for summary judgment
should be denied to the extent that it seeks judgment as a matter
of law dismissing the plaintiff’s as-applied vagueness challenge.
The Court notes with curiosity that the Parish fails to
address the merits of the plaintiff’s as-applied challenge to the
misunderstood as-applied liability and that the Court could not
resolve the issue given the state of the record:
Although the plaintiff’s facial challenge to the
ordinance’s vagueness must be dismissed, the Court is
compelled to note Jefferson Parish did not move for
summary judgment as to any as-applied vagueness
challenge advanced by Ms. Babin. The Parish seems to
suggest that it is not the proper defendant to an 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 of
Jefferson.” It offers no argument or legal citation in
support of this assertion. If indeed it is suggesting
that it is not the proper defendant to answer to Ms.
Babin’s as-applied vagueness challenge, the Parish’s
municipal liability. 24 There can be no dispute that the
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.
Jefferson Parish animal cruelty ordinance reflects the
official policy of the municipality.
See Connick v.
Thompson, 563 U.S. 51, 61 (2011)(“[o]fficial municipal
policy” includes the “decisions of a government’s
lawmakers”); Bennett v. City of Slidell, 735 F.2d 861,
862 (5th Cir. 1984)(official policy for Section 1983
municipal liability purposes includes an ordinance
passed by the municipality’s law makers).
ordinance is unconstitutional as applied to Ms. Babin’s
conduct, there is unconstitutional conduct attributable
to the Parish, which may be subject to liability under
Section 1983. 25 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
Thus, insofar as the plaintiff alleges that the
ordinance is unconstitutionally vague as applied to her,
that claim remains viable. Even if the Court wanted to
take up the issue, Jefferson Parish failed to heed this
Court’s prior admonition regarding placing evidence in
the record that would facilitate a ruling on the asapplied challenge. See Order and Reasons dtd. 1/11/17.
Because the determination as to whether the Parish’s
animal cruelty ordinance is unconstitutionally vague as
applied to Ms. Babin is necessarily tethered to the
factual context in which the ordinance was applied, on
this record, summary judgment is patently inappropriate.
See Order and Reasons dtd. 5/19/17.
In spite of this guidance,
the Parish again fails to address the plaintiff’s as-applied
challenge on the merits. Even though Ms. Babin’s opposition papers
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)).
briefed the issue on the merits, the Parish neglected even to reply
to her arguments. Resolution of the as-applied vagueness challenge
must await trial.
Any attorney or other person admitted to conduct cases
in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such
28 U.S.C. § 1927.
The Court is concerned with the poor quality of
(and the necessity for) this third round of briefing on repeat
issues in this factually simple case. Counsel seem to have ignored
guiding or binding authority cited by this Court in its attempt to
resolve the pending motions.
Issues that were not briefed remain
outstanding for the upcoming trial:
the plaintiff’s state law
claims (defamation and false arrest) against the law enforcement
against the Parish.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
prospective injunctive relief), but DENIED in part (insofar as it
challenge); and the law enforcement defendants’ motion for summary
judgment is GRANTED in part (insofar as Deputy Blange is entitled
to qualified immunity from liability as to the plaintiff’s Section
1983 claim based on the Fourth Amendment), but the motion is DENIED
in part (insofar as the defendants offer no argument in support of
dismissing the plaintiff’s state law claims). 26
IT IS FURTHER
ORDERED: that counsel for each party shall certify in the record
that all clients have been given a copy of this Court’s Order and
New Orleans, Louisiana, February __, 2018
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
As the Court noted in its May 19, 2017 Order and Reasons, the
law enforcement defendants have never mentioned in motion practice
the plaintiff’s defamation claim, which remains pending.
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