Anderson, et al v. Larpenter

Filing 92

ORDER AND REASONS: ORDERED that Sheriff Larpenter's renewed 73 motion to dismiss is GRANTED with respect to the Andersons' federal and state malicious prosecution claims, and that those claims are DISMISSED WITH PREJUDICE. In all other respects, the motion is DENIED. Signed by Judge Lance M Africk on 7/18/2017. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WAYNE ANDERSON ET AL.

CIVIL ACTION

VERSUS

No. 16-13733

JERRY J. LARPENTER,
SHERIFF OF TERREBONNE PARISH

SECTION I

ORDER AND REASONS
Some qualified immunity cases are hard. This case is not one of them.
In the summer of 2016, the Terrebonne Parish sheriff’s office executed a
search warrant for Jennifer and Deputy Wayne Andersons’ home, seizing their
computers and other personal electronic devices in the process. The search warrant
was issued as part of a criminal defamation investigation into online statements
made by Jennifer Anderson. Those “criminally defamatory” statements concerned
the use of public funds and nepotism by government officials in Terrebonne Parish.
The Andersons argue that this speech was constitutionally protected and that
Jerry Larpenter—the Sheriff of Terrebonne Parish and one of the individuals
discussed in those statements—violated their constitutional rights when he told his
subordinate to obtain the search warrant for their home.

Sheriff Larpenter

disputes both points and has moved 1 to dismiss all claims against him.
For the foregoing reasons, the Court will deny Sheriff Larpenter’s motion
with respect to the Andersons’ First Amendment, Fourth Amendment, and Monell
1

R. Doc. No. 73.
1

claims.

The Court will grant the motion with respect to the federal and state

malicious prosecution claims.
I.
According to the second amended complaint and attached exhibits
(collectively, “complaint”), 2 Jennifer Anderson created a “website/blog” called
Exposedat “to highlight and question the closely intertwined business and personal
relationships between public officials in Terrebonne Parish[,] particularly as they
relate to the awarding of then recent public insurance contracts involving
Terrebonne Parish.” 3 One of the public officials that Jennifer Anderson discussed
on Exposedat was Sheriff Larpenter. Another was Anthony Alford, who serves as
President of the Terrebonne Parish Levee and Conservation District Board of
Commissioners. 4 (Commissioners are appointed by the Governor of Louisiana, with
members of the Louisiana legislature playing a significant role in the appointment
process. See La. R.S. § 38:304(A)-(B)(2).)
Using Exposedat and a Facebook profile under the pseudonym “John
Turner,” 5 Jennifer Anderson publicly questioned the Terrebonne Parish sheriff’s

See R. Doc. No. 71 (second amended complaint); R. Doc Nos. 71-1–71-12 (exhibits).
When considering a Rule 12(b)(6) motion to dismiss, a court limits its review “to the
complaint, any documents attached to the complaint, and any documents attached
to the motion to dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010).
3 R. Doc. No. 71, ¶ 4.
4 Id. ¶ 4. The complaint indicates that President Alford has been a member of the
Terrebonne Parish Levee and Conservation District Board of Commissioners since
at least May 18, 2016. R. Doc. No. 71-4 (copy of President Alford’s oath of office).
5 R. Doc. No. 71, ¶ 5.
2

2

office’s dealings with President Alford’s insurance company, where Sheriff
Larpenter’s wife worked. 6 Jennifer Anderson supported her claims with court and
other public documents that she made publicly available on Exposedat. 7
Within weeks of Jennifer Anderson’s first posts, President Alford found out
about the John Turner Facebook page—and the allegations about him posted on it. 8
In response, President Alford called Sheriff Larpenter to complain. 9 After receiving
the call, Sheriff Larpenter contacted one of his subordinates, Detective Lieutenant
Glynn Prestenbach, and “ordered” him to “investigate the incident.” 10 The resulting
criminal complaint filed by Detective Prestenbach listed the offense committed
against President Alford as criminal defamation in violation of La. R.S. § 14:47. 11
As the investigation unfolded, Detective Prestenbach was ultimately able to
trace the origins of Exposedat and the John Turner Facebook profile to the
Andersons’ home. 12

After learning about Detective Prestenbach’s findings and

discussing the matter with Terrebonne Parish District Attorney Joseph Waitz,
Sheriff Larpenter directed Detective Prestenbach to request a search warrant for
the home. 13 Detective Prestenbach did as Sheriff Larpenter directed. 14

See 71-2 (transcript of interview between President Alford and Detective
Prestenbach).
7 R. Doc. No. 71, ¶ 5; R. Doc. No. 71-3, at 1.
8 R. Doc. No. 71-1, at 4.
9 Id. at 4.
10 Id.
11 Id. at 1.
12 R. Doc. No. 71, ¶ 8.
13 Id. ¶ 9; R. Doc. No. 71-1, at 6.
14 R. Doc. No. 71-1, at 6.
6

3

In his affidavit in support of the search warrant application, Detective
Prestenbach swore that Exposedat and the John Turner Facebook profile “made the
same claims” and that Exposedat included “copies of court rulings and other
documents supporting the[] claims.” 15

Detective Prestenbach’s affidavit also

explained that those claims revolved around the relationship between President
Alford’s insurance company and the Terrebonne Parish sheriff’s office, and
President Alford and Sheriff Larpenter themselves—namely, that “Sheriff’s [sic]
Jerry Larpenter is continuing to give Anthony Alford the broker contract for the
Sheriff’s Office when his wife Priscilla gets paid over six figures to manage Mr.
Alford’s office.” 16 The affidavit made no mention of President’s Alford’s position on
the Terrebonne Parish Levee and Conservation District Board of Commissioners. 17
The judge who reviewed the application issued the search warrant. 18
Detective Prestenbach then executed it, 19 seizing “all laptops, computers and
That same day, Deputy Anderson was

cell phones” in the Andersons’ home. 20

placed on indefinite administrative leave by his employer, the Houma police
department. 21

R. Doc. No. 71-3, at 1.
Id.
17 See id.
18 R. Doc. No. 71, ¶ 9; R. Doc. No. 71-1, at 6; R. Doc. No. 71-3, at 4-5.
19 R. Doc. No. 71, ¶ 11; R. Doc. No. 71-1, at 7.
20 R. Doc. No. 71, ¶ 13.
21 Id. ¶ 14.
15
16

4

The Andersons challenged the constitutionality of the search warrant. While
the issuing judge upheld the warrant’s legality, 22 the Louisiana Court of Appeal
quashed the warrant. 23 The Court of Appeal observed that La. R.S. § 14:47—the
offense for criminal defamation that served as the basis to investigate Jennifer
Anderson’s online statements—“has been declared unconstitutional by both the
United States Supreme Court and the Louisiana Supreme Court as it applies to
public expression and publication concerning public officials, public figures and
private individuals engaged in public affairs.” 24 The Court of Appeal pointed out
that President Alford was a “public official” given his role on the Terrebonne Parish
Levee and Conservation District Board of Commissioners. 25 Therefore, “the search
warrant lack[ed] probable cause because the conduct complained of is not a
criminally actionable offense.” 26
Based on these events, the Andersons allege a variety of claims against
Sheriff Larpenter, both in his individual and official capacities. Jennifer Anderson
alleges that Sheriff Larpenter violated her First Amendment rights, and both
Jennifer Anderson and Deputy Anderson allege that Sheriff Larpenter violated
their Fourth Amendment rights. 27 Both also assert Monell claims against Sheriff

Id. ¶ 18; see also R. Doc. No. 71-1, at 7; R. Doc. No. 71-6, at pp. 14-15.
R. Doc. No. 71-7, at 2.
24 Id.
25 Id.
26 Id.
27 R. Doc. No. 71, ¶ 20. Both the First and Fourth Amendments are applicable to
the states via the Fourteenth Amendment. See Bigelow v. Virginia, 421 U.S. 809,
811 (1975) (First Amendment); Baker v. McCollan, 443 U.S. 137, 142 (1979) (Fourth
Amendment).
22
23

5

Larpenter in his capacity as Sheriff of Terrebonne Parish. 28 Finally, both assert
federal and state law claims for malicious prosecution against Sheriff Larpenter. 29
Sheriff Larpenter filed the instant renewed motion to dismiss all claims
against him, contending that the complaint fails under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. 30 With regards to the federal constitutional claims against
him in his individual capacity, Sheriff Larpenter asserts the defense of qualified
immunity. 31
II.
A.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court
may dismiss a complaint, or any part of it, where a plaintiff has not set forth wellpleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).

A plaintiff’s factual allegations must “raise a right to relief above the

R. Doc. No. 71, ¶ 32.
Id. ¶¶ 21, 35. The complaint also alleges that Sheriff Larpenter conspired with
others to violate the Andersons’ constitutional rights. Id. ¶ 24. The pleadings in
response to Sheriff Larpenter’s renewed motion to dismiss do not treat these
allegations of conspiracy as stating an independent cause of action, but rather as
part and parcel of the federal and state malicious prosecution claims. See R. Doc.
No. 73-1; R. Doc. No. 77; R. Doc. No. 83. The Court will do the same.
Likewise, although Sheriff Larpenter seems to understand the complaint as
alleging an invasion of privacy claim against him based on the alleged release of
Jennifer Anderson’s criminal history, see R. Doc. No. 73-1, at 16-18, the Andersons
treat the alleged release of Jennifer Anderson’s criminal history as a component of
Jennifer Anderson’s First Amendment retaliation claim and the malicious
prosecution claims, see R. Doc. No. 77, at 15, 21. In his reply, Sheriff Larpenter
does the same. See R. Doc. No. 83, at 5. The Court will follow suit.
30 R. Doc. No. 73.
31 Id.
28
29

6

speculative level.” Twombly, 550 U.S. at 555. In other words, a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570)).
A facially plausible claim is one where “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. If the well-pleaded factual
allegations “do not permit the court to infer more than the mere possibility of
misconduct,” then “the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2))
(alteration in original).
On a Rule 12(b)(6) motion to dismiss, a court limits its review “to the
complaint, any documents attached to the complaint, and any documents attached
to the motion to dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In
assessing the complaint, the Court must accept all well-pleaded factual allegations
as true and liberally construe all such allegations in the light most favorable to the
plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242,
247 (5th Cir. 1997).
Where “the complaint ‘on its face show[s] a bar to relief,’” then dismissal is
the appropriate course. Cutrer v. McMillan, 308 Fed. App’x. 819, 820 (5th Cir.

7

2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). Where
applicable, qualified immunity can operate as one such bar.
B.
The doctrine of 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). In
striking this balance, qualified immunity shields “government officials performing
discretionary functions” from civil liability “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified immunity gives
government officials breathing room to make reasonable but mistaken judgments
about open legal questions.”).
Where a public official invokes qualified immunity as a defense to a civil
action against him, the plaintiff then has the burden “to demonstrate the
inapplicability of the defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th
Cir. 2009) (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)
(en banc)). To meet this burden, a plaintiff must show “(1) that the official violated
a statutory or constitutional right, and (2) that the right was ‘clearly established’ at
the time of the challenged conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th
Cir. 2011) (en banc).

8

“For a right to be clearly established, ‘[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Turner v. Lieutenant Driver, 848 F.3d 678, 685 (5th Cir. 2017)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in original).
Once a plaintiff alleges that an official’s conduct violated a clearly established right,
the court must then determine “whether the official’s conduct was objectively
reasonable under the law at the time of the incident.” Michalik v. Hermann, 422
F.3d 252, 258 (5th Cir. 2005); see also Thompson v. Upshur Cnty., Tex., 245 F.3d
447, 457 (5th Cir. 2001).
An official’s conduct is not objectively unreasonable “unless all reasonable
officials in the [official’s] circumstances would have then known that the [official’s]
conduct violated the plaintiff’s rights.” Carroll v. Ellington, 800 F.3d 154, 169 (5th
Cir. 2015). When denying qualified immunity, a court must point to “controlling
authority—or a robust consensus of persuasive authority—that defines the contours
of the right in question with a high degree of particularity.” Wyatt v. Fletcher, 718
F.3d 496, 503 (5th Cir. 2013). Precedent existing at the time of the challenged
conduct “must have placed the statutory or constitutional question beyond debate.”
al-Kidd, 563 U.S. at 741.
When the defense of qualified immunity is raised in a motion filed pursuant
to Rule 12(b)(6), “it is the defendant’s conduct as alleged in the complaint that is
scrutinized for ‘objective legal reasonableness.’” McClendon, 305 F.3d at 323
(emphasis in original) (quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)). A

9

court must determine that a plaintiff’s pleadings “assert facts which, if true, would
overcome the defense of qualified immunity.” Zapata v. Melson, 750 F.3d 481, 485
(5th Cir. 2014). The allegations must be pleaded with “sufficient precision and
factual specificity to raise a genuine issue as to the illegality of defendant’s conduct
at the time of the alleged acts.” Clayton v. Columbia Cas. Co., No. 11-845, 2012 WL
2952531, at *2-*3 (M.D. La. July 19, 2012) (Africk, J.) (internal quotation marks
omitted).
III.
The Andersons assert Fourth Amendment claims against Sheriff Larpenter,
and Jennifer Anderson asserts a First Amendment claim against Sheriff Larpenter.
The Court will address the Andersons’ Fourth Amendment claims first.
Accepting the factual allegations in the well-pleaded complaint as true and
construing them in the light most favorable to the Andersons, the Court concludes
that the Andersons have stated Fourth Amendment claims against Sheriff
Larpenter and that Sheriff Larpenter is not entitled to qualified immunity at this
stage in the litigation.
A.
The Fourth Amendment provides that:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

10

The Fourth Amendment thus establishes that “a warrant may not be issued unless
probable cause is properly established and the scope of the authorized search is set
out with particularity.”

Kentucky v. King, 563 U.S. 452, 459 (2011).

Where a

warrant lacks the necessary probable cause to support it, the warrant does not meet
the requirements of the Fourth Amendment.
“Probable cause exists when there are reasonably trustworthy facts which,
given the totality of the circumstances, are sufficient to lead a prudent person to
believe

that

the

items

sought

[by

a

search

warrant]

constitute

fruits,

instrumentalities, or evidence of a crime.” Kohler v. Englade, 470 F.3d 1104, 1109
(5th Cir. 2006) (internal quotation marks omitted); see also United States v.
Melancon, 462 F.2d 82, 89 (5th Cir. 1972).

Where the facts and circumstances

would not lead a prudent person to believe that a search warrant will uncover
evidence of a crime, probable cause does not exist. Cf. Perry v. Sheahan, 222 F.3d
309, 317 (7th Cir. 2000) (“Because all of the weapons seized [by the officers] can be
lawfully possessed, the deputies could not reasonably presume that they were of an
incriminating character.”); United States v. Rojas, 671 F.2d 159, 165-66 (5th Cir.
Unit B 1982) (Because “neither possessing nor transporting over $5,000 in currency
is a crime,” law enforcement officials “had neither probable cause that a crime had
been or was being committed (probable cause for arrest) nor probable cause that a
search of appellant’s luggage would produce evidence of a crime.”).
The search warrant that Sheriff Larpenter directed Detective Prestenbach to
obtain was premised on the allegation that Jennifer Anderson’s online statements

11

about President Alford constituted a violation of Louisiana’s criminal defamation
statute. 32 (Sheriff Larpenter has not pointed to, or argued, any other basis for
suspecting criminal activity on the part of Jennifer Anderson.)
Louisiana’s criminal defamation statute defines the crime of “defamation” as
the malicious publication or expression in any manner, to anyone other
than the party defamed, of anything which tends: (1) To expose any
person to hatred, contempt, or ridicule, or to deprive him of the benefit
of public confidence or social intercourse; or (2) To expose the memory
of one deceased to hatred, contempt, or ridicule; or (3) To injure any
person, corporation, or association of persons in his or their business or
occupation.
La. R.S. § 14:47. The statute further provides that “[w]hoever commits the crime of
defamation shall be fined not more than five hundred dollars, or imprisoned for not
more than six months, or both.” Id.
The Andersons argue that the facts and circumstances known to Sheriff
Larpenter would not lead any prudent person to believe that the items sought by
the search warrant for the Andersons’ home “constitute[d] . . . evidence of a crime,”
because no prudent person would believe that La. R.S. § 14:47 could constitutionally
criminalize Jennifer Anderson’s speech about President Alford. Kohler, 470 F.3d at
1109 (emphasis added).
To address this argument, the Court must first answer an antecedent
question: was Jennifer Anderson’s speech entitled to constitutional protection?
i.

32

R. Doc. No. 71-3.
12

The First Amendment limits the government’s ability to impose liability on
speech critical of the conduct of public officials. See New York Times v. Sullivan,
376 U.S. 254 (1964) (civil liability); Garrison v. Louisiana, 379 U.S. 64 (1964)
(criminal liability). In the landmark case of New York Times v. Sullivan, the U.S.
Supreme Court applied the First Amendment to civil defamation statutes. The New
York Times rule “prohibits a public official from recovering [civil] damages for a
defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice’—that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80.
This rule was soon extended to criminal defamation statutes. In Garrison v.
Louisiana—a constitutional challenge to Louisiana’s criminal defamation statute
(La. R.S. §§ 14:47-49)—the U.S. Supreme Court held that the government is
constitutionally limited in its power “to impose criminal sanctions for criticism of
the official conduct of public officials.” 379 U.S. at 67. The scope of constitutionally
protected criticism of public officials encompasses “anything which might touch on
an official’s fitness for office,” including “personal attributes” such as “dishonesty,
malfeasance, or improper motivation.” Id. at 77. Discussing Garrison a decade
later, the U.S. Supreme Court reflected on the rationale for Garrison’s scope,
pointing out that:
An individual who decides to seek governmental office must accept
certain necessary consequences of that involvement in public affairs.
He runs the risk of closer public scrutiny than might otherwise be the
case. And society’s interest in the officers of government is not strictly
limited to the formal discharge of official duties.

13

Gertz v. Welch, 418 U.S. 323, 344 (1974).
In short, the First Amendment constitutionally bars the government from
criminally punishing 1) true speech about the conduct of public officials, regardless
of the intent motivating the speech, and 2) false statements about the conduct of
public officials unless knowingly false or made with reckless disregard of their
falsity (i.e., unless made with actual malice).

See Garrison, 379 U.S. at 77-78.

Where the government brings criminal defamation charges against a speaker based
on his speech about a public official, the government bears the burden of proving
that the speaker acted with actual malice. Cf. Zerangue v. TSP Newspapers, Inc.,
814 F.2d 1066, 1069 (5th Cir. 1987).
In the years immediately following Garrison, the Louisiana criminal
defamation statute remained unchanged in all respects material to Garrison’s
holding.

While the Louisiana legislature amended La. R.S. § 14:47’s penalty

provision, it did not amend the substantive offense of criminal defamation. 33 Nor
did the legislature amend § 14:48 (presumption of malice) 34 or § 14:49 (qualified
privilege). 35

See West’s Louisiana Statutes Annotated, Revised Statutes, Sections 14:41 to
14:63.12, at 308-10 (Thomson Reuters 2016).
34 “Where a non-privileged defamatory publication or expression is false it is
presumed to be malicious unless a justifiable motive for making it is shown. Where
such a publication or expression is true, actual malice must be proved in order to
convict the offender.” La. R.S. § 14:48.
35 “A qualified privilege exists and actual malice must be proved, regardless of
whether the publication is true or false, in the following situations: (1) Where the
publication or expression is a fair and true report of any judicial, legislative, or
other public or official proceeding, or of any statement, speech, argument, or debate
in the course of the same. (2) Where the publication or expression is a comment
33

14

Louisiana’s highest court then reconsidered §§ 14:47-49 in State v. Snyder,
277 So.2d 660 (La. 1973) (on rehearing). 36 Concluding that “[i]t is for the [state]
Legislature to correct [§§ 14:47-49’s] constitutional infirmity”—namely, “its
overbroad application” as identified in Garrison—the Louisiana Supreme Court
held §§ 14:47-49 “to be unconstitutional insofar as they attempt to punish public
expression and publication concerning public officials, public figures, and private
individuals engaged in public affairs.” Id. at 668; see also State v. Defley, 395 So.2d
759, 761 (La. 1981) (observing that § 14:47 “is unconstitutional insofar as it
punishes public expression about public officials”).
Since Snyder, the Louisiana legislature has not revisited §§ 14:47-49. The
Louisiana Supreme Court’s holding as to the reach of § 14:47 therefore remains the
law of the land.
ii.
As New York Times and Garrison make plain, speech about the conduct of
public officials enjoys wide and robust protection under the First Amendment.
Recognizing this unquestioned principle’s implications for this case, the parties spill

made in the reasonable belief of its truth, upon, (a) The conduct of a person in
respect to public affairs; or (b) A thing which the proprietor thereof offers or
explains to the public. (3) Where the publication or expression is made to a person
interested in the communication, by one who is also interested or who stands in
such a relation to the former as to afford a reasonable ground for supposing his
motive innocent. (4) Where the publication or expression is made by an attorney or
party in a judicial proceeding.” La. R.S. § 14:49.
36 The Court notes that Westlaw lists the Louisiana Supreme Court’s 1973 opinion
in State v. Snyder as being reversed by State v. Snyder, 304 So.2d 334 (La. 1974).
Having reviewed both opinions, the Court concludes that the 1974 opinion did not
reverse, and in no way calls into question the holding of, the 1973 opinion.
15

much ink disputing the First Amendment status of President Alford—whose
grievance with Jennifer Anderson’s online statements resulted in Sheriff
Larpenter’s criminal investigation and, eventually, the search warrant for the
Andersons’ home. The Andersons argue that President Alford is a public official
and Jennifer Anderson’s speech about him was therefore constitutionally
protected. 37
Sheriff Larpenter disagrees, insisting instead that President Alford is a
private figure. 38 In fact, Sheriff Larpenter scarcely mentions President Alford’s
position on the Terrebonne Levee and Conservation District.

Sheriff Larpenter

refers to President Alford’s public role only once in his brief in support of the
present motion, and then only when explaining the Louisiana Court of Appeal
decision quashing the search warrant for the Andersons’ home. 39 (The Court notes
that Sheriff Larpenter nowhere argues that he did not know about President
Alford’s

public

position;

rather,

Sheriff

Larpenter

simply

refrains

from

acknowledging it at all.)
Sheriff Larpenter seems to draw a sharp and impermeable line between
President Alford’s role on the Terrebonne Levee and Conservation District and his
role as a businessman. As the Court understands Sheriff Larpenter’s argument,
President Alford is a private figure with respect to his conduct as an insurer, and
because Jennifer Anderson’s statements addressed the relationship between the

R. Doc. No. 77, at 10-11.
R. Doc. No. 73-1, at 13.
39 Id. at 7.
37
38

16

Terrebonne Parish sheriff’s office and President Alford’s insurance company, those
statements concerned President Alford as a private figure—and Garrison is
therefore inapplicable to this case.
The Louisiana Court of Appeal concluded that President Alford—as his title
suggests—is a public official for First Amendment purposes. 40 The Court easily
concludes the same. “[T]he ‘public official’ designation applies at the very least to
those among the hierarchy of government employees who have, or appear to the
public to have, substantial responsibility for or control over the conduct of
governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). President Alford
is the President of the Terrebonne Levee and Conservation District Board of
Commissioners. 41 Under Louisiana law, the Terrebonne Levee and Conservation
District “constitute[s] a political subdivision of the state of Louisiana,” La. R.S. §
38:329(A)(1), 42 and it has the power to “levy taxes, incur debt, and otherwise raise
revenue as provided in” the Louisiana Constitution, id. § 38:329(A)(2). 43

The

“management and control of the district” is in the hands of a “board of
commissioners.” Id. § 38:329(C). The commissioners are appointed by the Governor
of Louisiana, with significant involvement by state legislators in the appointment
R. Doc. No. 71-7, at 2.
See R. Doc. No. 71, ¶ 17 n. 2; R. Doc. No. 71-4 (copy of Alford’s oath of office).
42 The Louisiana Constitution authorizes the creation of levee districts. See La.
Const. art. VI, § 38.
43 The “primary duty” of the board is “to establish, construct, operate, or maintain
flood control works as they relate to hurricane protection, tidewater flooding,
saltwater intrusion, and conservation.” Id. § 38:329(C); see also id. § 38:306
(delineating the general powers and duties of Louisiana levee district board of
commissioners); id. § 38:325 (outlining the scope of levee district board of
commissioner activities).
40
41

17

process. See id. § 38:304(A)-(B)(2). As a leader of a “political subdivision of the
state of Louisiana” with the power to “levy taxes, incur debt, and otherwise raise
revenue,”

id.

§

13:329(A)(1)-(2),

President

Alford

exercises

“substantial

responsibility” and “control over the conduct of governmental affairs,” Rosenblatt,
383 U.S. at 85. As far as the First Amendment is concerned, President Alford is a
public official.
Further, the Court rejects Sheriff Larpenter’s distinction between President
Alford’s public and private roles.

As interpreted in Garrison, the First

Amendment’s protective umbrella covers “anything which might touch on an
official’s fitness for office,” including “personal attributes” like “dishonesty,
malfeasance, or improper motivation.” 379 U.S. at 77 (emphasis added). Jennifer
Anderson’s speech concerned “the closely intertwined business and personal
relationships between public officials in Terrebonne Parish[,] particularly as they
relate to the awarding of then recent public insurance contracts involving
Terrebonne Parish.” 44 President Alford’s alleged business relationships with public
entities and other public officials certainly touch on his “personal attributes”—e.g.,
his honesty and motivation—and therefore his “fitness for office.” Id.; cf. Colson v.
Grohman, 174 F.3d 498, 507 (5th Cir. 1999) (“Even charges of criminal conduct
against an official or candidate are constitutionally protected . . . .”).

Jennifer

Anderson’s speech falls squarely within the four corners of the First Amendment.

44

R. Doc. No. 71, ¶ 4.
18

The Court also points out that Jennifer Anderson’s speech amounted to an
“expression on public issues”—namely, the expenditure of public funds on a public
entity’s insurance contracts. N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886,
913 (1982); see also Kincade v. City of Blue Springs, 64 F.3d 389, 396 (8th Cir. 1995)
(“[S]peech about the use of public funds touches upon a matter of public concern.”).
Such speech rests on the “highest rung of the hierarchy of First Amendment
values.” Claiborne Hardware Co., 458 U.S. at 913; see also Bausworth v. Hazelwood
School Dist., 986 F.2d 1197, 1199 (8th Cir. 1993) (Arnold, J., concurring) (“[S]peech
that either directly, or by reasonable inference, criticizes public officials’ use of the
public’s funds lies at the core of the speaker’s First Amendment rights.”). After all,
“speech concerning public affairs is more than self-expression; it is the essence of
self-government.” Garrison, 379 U.S. at 74-75.
In a final effort to distinguish Jennifer Anderson’s speech from the speech
protected by Garrison, Sheriff Larpenter contends that Jennifer Anderson’s
statements about President Alford are false. 45 Yet nowhere does Sheriff Larpenter
even argue, let alone attempt to show, that Jennifer Anderson made her statements
“with knowledge of their falsity or in reckless disregard of whether they are true or
false”—a requirement to overcome the protections afforded those statements by the
First Amendment. 46 See Garrison, 379 U.S. at 77-78.

45
46

R. Doc. No. 73-1, at 3.
See id.
19

“[C]riticism of public officials lies at the very core of speech protected by the
First Amendment.” Colson, 174 F.3d at 507. Jennifer Anderson’s speech fits within
that core, and it is entitled to First Amendment protection.
iii.
Having established that Jennifer Anderson’s speech was protected by the
First Amendment, the Court must now consider whether the facts and
circumstances known to Sheriff Larpenter would lead a prudent person to believe
that the items sought by the search warrant for the Andersons’ home “constitute[d]
. . . evidence of a crime.” Kohler, 470 F.3d at 1109.
The Court concludes that the facts and circumstances known to Sheriff
Larpenter at the time that he directed Detective Prestenbach to get the search
warrant for the Andersons’ home would not have led a prudent person to believe
that the items sought by the warrant constituted evidence of a crime, because no
prudent person would believe that Jennifer Anderson’s statements about President
Alford could constitutionally form the basis of a crime. President Alford is a public
official, and Jennifer Anderson’s statements on Exposedat and the John Turner
Facebook profile addressed core concerns about his fitness for public office. The
complaint shows that Sheriff Larpenter was aware of the specific content of
Jennifer Anderson’s statements about President Alford from the very beginnings of
the investigation. 47 (The complaint also shows that Sheriff Larpenter was aware

47

See R. Doc. No. 71-1, at 4.
20

that those statements included discussion of himself, as well as Terrebonne Parish
President Gordon Dove and Terrebonne Parish District Attorney Joseph Waitz. 48)
Moreover, the complaint shows that the criminal investigation into Jennifer
Anderson’s statements did not uncover a scintilla of evidence to suggest that
Jennifer Anderson’s speech—regardless of its veracity—was made with actual
malice.

As such, it is not surprising that Detective Prestenbach’s affidavit 49 in

support of the search warrant lacked any factual allegations to support an assertion
of actual malice. In fact, Detective Prestenbach’s acknowledgment in the affidavit
that Exposedat featured public documents to support the claims made on it
suggested just the opposite: even if false, the statements were not made with actual
malice. 50
Without any basis to believe that speech about a public official was made
with actual malice, the First Amendment bars a criminal defamation action under §
14:47 against the speaker of such speech. The facts and circumstances known to
Sheriff Larpenter would not have led a prudent person to believe that the items
sought by the search warrant—the Andersons’ computers and cell phones—
constituted the “fruits, instrumentalities, or evidence of a crime.” Id. (emphasis

See id.; R. Doc. No. 71-9, at 2. The Court notes that Sheriff Larpenter, like
President Alford, is a public official for First Amendment purposes. Cf. McKinley v.
Baden, 777 F.2d 1017, 1021 (5th Cir. 1986) (observing that “[f]ederal courts have
consistently held police officers to be public officials” for First Amendment
purposes).
49 The affidavit indicates that the transcript of Detective Prestenbach’s interview
with President Alford, R. Doc. No. 71-2, was attached to the affidavit. The Court
therefore treats the transcript as incorporated into the affidavit.
50 See R. Doc. No. 71-3, at 1-2.
48

21

added); cf. McLin v. Ard, No. 13-538, 2014 WL 545743, at *4 (M.D. La. Feb. 10,
2014) (Dick, J.)) (“As a matter of law, there could be no articulable reasonable
suspicion that evidence of a crime existed, when ‘criminal defamation’ is not a
crime. Without [ ] probable cause to believe that a crime had been committed, there
could be no objectively reasonable basis for a warrant to search for evidence of the
non-crime.”), rev’d on other grounds, 611 Fed. App’x 806 (5th Cir. 2015) (per
curiam).
Further, the Louisiana Supreme Court has held that § 14:47 in its current
form cannot apply to “expression and publication concerning public officials” in any
instance—i.e., even where actual malice is present.

Snyder, 277 So.2d at 668.

Sheriff Larpenter now acknowledges as much. 51 Therefore, § 14:47 simply cannot
apply to Jennifer Anderson’s statements about President Alford—whether true or
false, whether made with innocent intent or made with actual malice. So even if
Sheriff Larpenter’s investigation had uncovered evidence that Jennifer Anderson’s
statements were both false and made with actual malice, the facts and
circumstances known to Sheriff Larpenter would still not have led a prudent person
to conclude that the search warrant sought evidence of a crime.
Finally, the Louisiana Supreme Court has held that the current iteration of §
14:47 likewise cannot apply to “expression and publication concerning . . . private
individuals who are engaged in public affairs.” Id. Jennifer Anderson’s statements

R. Doc. No. 73-1, at 12 (“[I]t is conceded that La. R.S. 14:47 has been held to be
unconstitutional insofar as it criminalizes defamation of public officials.) (emphasis
in original).
51

22

criticized President Alford’s business relationship with the taxpayer-funded
Terrebonne Parish Sheriff’s Office—a paradigmatic example of speech about an
individual engaged in public affairs. Cf. Kincade, 64 F.3d at 396. Therefore, even
accepting Sheriff Larpenter’s (unpersuasive) argument that President Alford is a
private figure, the facts and circumstances known to Sheriff Larpenter—yet again—
would not have led a prudent person to conclude that the items sought by the
search warrant constituted evidence of any crime.
As the Louisiana Court of Appeal concluded, Jennifer Anderson’s speech “is
not a criminally actionable offense” 52—and any prudent person would have known
so. Accepting the factual allegations in the complaint as true and construing them
in the light most favorable to the Andersons, Sheriff Larpenter’s directive to
Detective Prestenbach to obtain a search warrant for the Andersons’ home resulted
in a violation of the Andersons’ Fourth Amendment rights, as the warrant lacked
the requisite probable cause.

The Andersons have stated Fourth Amendment

claims against Sheriff Larpenter.
iv.
It goes without saying that the Andersons’ right not to be subjected to a
search warrant for their home, where the warrant lacks probable cause, is a clearly
established constitutional right. See United States v. Richard, 994 F.2d 244, 247
(5th Cir. 1993) (“The Fourth Amendment requires probable cause to obtain a
warrant either to arrest a suspect in his home or to search the home.”), abrogated

52

R. Doc. No. 71-7, at 2.
23

on other grounds by Kentucky v. King, 563 U.S. 452 (2011); see also Walden v.
Carmack, 156 F.3d 861, 869 (8th Cir. 1998). Moreover, the inapplicability of § 14:47
to Jennifer Anderson’s speech—which concerned President Alford’s business
relationships with public entities and other public officials—is clearly established:
under longstanding U.S. Supreme Court and Louisiana Supreme Court case law, §
14:47 simply cannot criminalize such speech. See Garrison, 379 U.S. at 77-78, and
Snyder, 277 So.2d at 668. As such, the Andersons’ right not to be subject to a
search warrant premised on an alleged violation of § 14:47, where the alleged
violation involves speech about a public official, is a clearly established
constitutional right.
The Court must therefore consider whether Sheriff Larpenter’s actions were
“objectively reasonable in light of clearly established law.” Thompson, 245 F.3d at
457. If yes, then Sheriff Larpenter is entitled to qualified immunity; if no, then
Sheriff Larpenter is not.
In this instance, no law enforcement officer in Sheriff Larpenter’s position
would have an objectively reasonable belief, in light of clearly established law, that
probable cause existed to support a search warrant for the Andersons’ home. Over
fifty years ago, the U.S. Supreme Court held § 14:47 unconstitutional insofar as it
applies to true speech about the conduct of public officials, and false speech about
the conduct of public officials unless such speech was made with actual malice. See
Garrison, 379 U.S. at 77-78. The Louisiana Supreme Court then went one step
further, holding over four decades ago that § 14:47 in its current form cannot apply

24

to any “expression and publication concerning public officials, public figures, or
private individuals who are engaged in public affairs,” regardless of the speaker’s
veracity or mens rea. See Snyder, 277 So.2d at 668. The Louisiana legislature has
never fixed the constitutional infirmaries with § 14:47 identified by the U.S.
Supreme Court and Louisiana Supreme Court.
Against this clearly established legal backdrop, any reasonable law
enforcement official in Sheriff Larpenter’s position would have known—or should
have known—that Jennifer Anderson’s online statements about President Alford
could not constitute a crime—and therefore could not justify a search warrant.
Sheriff Larpenter was aware of the content of Jennifer Anderson’s statements—he
reported them to Detective Prestenbach at the time that he “ordered” Detective
Prestenbach to “investigate the incident.” 53 Those statements concerned President
Alford’s business relationship with the Terrebonne Parish sheriff’s office. Sheriff
Larpenter should have known that President Alford’s public role and the subject
matter of the Jennifer Anderson’s speech each independently precluded application
of § 14:47 under clearly established law. Yet Sheriff Larpenter directed Detective
Prestenbach to obtain a search warrant for the Andersons’ home. 54

“[A]ll

reasonable officials in [Sheriff Larpenter’s] circumstances would have then known
that [Sheriff Larpenter’s] conduct violated the [Andersons’] rights.” Carroll, 800
F.3d at 169.

53
54

R. Doc. No. 71-1, at 4.
Id. at 6.
25

Sheriff Larpenter contends that the Andersons “cannot seriously argue that
[he] was objectively unreasonable” in his actions, because a judge issued the search
warrant for the Andersons’ home in the first instance and then upheld it against the
Andersons’ motion to quash. However, “[t]he fact that a neutral magistrate issues a
warrant is not dispositive of whether [Sheriff Larpenter’s] underlying actions were
objectively reasonable.” Winfrey v. San Jacinto Cnty., 481 Fed. App’x 969, 978 (5th
Cir. 2012) (emphasis added); see also Messerschmidt v. Millender, 565 U.S. 535, 547
(2012) (“[T]he fact that a neutral magistrate has issued a warrant authorizing the
allegedly unconstitutional search or seizure does not end the inquiry into [an
officer’s] objective reasonableness.”).

“Qualified immunity will not attach if a

‘reasonably well-trained officer in [Sheriff Larpenter’s] position would have known
that [the] affidavit [in support of the search warrant] failed to establish probable
cause.’” Winfrey, 481 Fed. App’x at 978 (quoting Malley v. Briggs, 475 U.S. 335, 345
(1986)); see also Messerschmidt, 565 U.S. at 547 (quoting Malley, 475 U.S. at 341)
(observing that a warrant will not shield an officer from suit where “it is obvious
that no reasonably competent officer would have concluded that a warrant should
issue”).
The Court notes that Detective Prestenbach’s affidavit for the search warrant
for the Andersons’ home—a warrant he obtained at the direction of Sheriff
Larpenter—failed to mention the material fact that President Alford serves as the
head of the Terrebonne Parish Levee and Conservation District Board of

26

Commissioners 55—and hence is a public official. Notwithstanding, a reasonably
well-trained officer in Sheriff Larpenter’s position would have known that Detective
Prestenbach’s affidavit would inevitably fail to establish probable cause, because
longstanding U.S. Supreme Court and Louisiana Supreme Court case law precluded
the application of § 14:47 to Jennifer Anderson’s statements.

“[A]s an officer

charged with enforcing Louisiana law,” Sheriff Larpenter “can be presumed to know
the law” of Louisiana, including the law’s well-established constitutional reach.
Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987). More to the point, “[p]olice
officers can be expected to have a modicum of knowledge regarding the fundamental
rights of citizens.” See also Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir. 1982).
In this instance, a judge’s issuance and affirmance of the search warrant for the
Andersons’ home will not shield Sheriff Larpenter from potential civil liability for
his conduct.
Accepting the factual allegations in the complaint as true and construing
them in the light most favorable to the Andersons, the Court concludes that Sheriff
Larpenter is not entitled to qualified immunity with respect to the Andersons’
Fourth Amendment claims.
B.
Jennifer Anderson asserts a First Amendment claim against Sheriff
Larpenter. Accepting the factual allegations in the well-pleaded complaint as true
and construing them in the light most favorable to Jennifer Anderson, the Court

55

See R. Doc. No. 71-3.
27

concludes that Jennifer Anderson has stated a First Amendment retaliation claim
against Sheriff Larpenter and that Sheriff Larpenter is not entitled to qualified
immunity at this stage in the litigation.
i.
The First Amendment bars government officials from “abridging the freedom
of speech,” including taking “adverse governmental action against an individual in
retaliation for the exercise of protected speech activities.” Keenan v. Tejeda, 290
F.3d 252, 258 (5th Cir. 2002). For ordinary citizens such as Jennifer Anderson to
establish a First Amendment retaliation claim, citizens “must show that (1) they
were engaged in constitutionally protected activity, (2) the defendants’ actions
caused them to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity, and (3) the defendants’ adverse actions were
substantially motivated against the plaintiffs’ exercise of constitutionally protected
conduct.” Id.
The Court must first consider whether Jennifer Anderson was engaged in a
“constitutionally protected activity.” Id. Jennifer Anderson’s speech concerned “the
closely intertwined business and personal relationships between public officials in
Terrebonne

Parish”—including

President

Alford

and

Sheriff

Larpenter—

“particularly as they relate to the awarding of then recent public insurance
contracts involving Terrebonne Parish.” 56 As the Court explained supra, the factual
allegations in the complaint show that this speech about public officials and their

56

R. Doc. No. 71, ¶ 4.
28

use of public funds fell under the protective umbrella of the First Amendment.
Therefore, the Court concludes that Jennifer Anderson was engaged in an activity
protected by the First Amendment.
Next, the Court must consider whether the actions of Sheriff Larpenter—
who, as previously mentioned, does not argue that he did not know about President
Alford’s position on the Terrebonne Parish Levee and Conservation District—
“caused [Jennifer Anderson] to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity.” Id. Sheriff Larpenter ordered
Detective Prestenbach to obtain a search warrant for the Andersons’ home. Law
enforcement officials with the Terrebonne Parish sheriff’s office then wielded the
search warrant as the legal basis to enter the Andersons’ home and seize the
Andersons’ computers and cellphones—devices on which people maintain their most
intimate information. See Riley v. California, 134 S. Ct. 2417, 2489-91 (2014). In
the Court’s view, a “person of ordinary firmness” would face a considerable chill—
perhaps even to the point of a freeze—if the consequence of speaking up and
speaking out about public officials was the search of one’s home and seizure of one’s
personal property by law enforcement. 57

In the complaint and memorandum in opposition to Sheriff Larpenter’s motion to
dismiss, Jennifer Anderson argues that one of the injuries that she suffered as a
result of Sheriff Larpenter’s actions was the alleged release of her criminal history
by the Terrebonne Parish sheriff’s office, which allegedly caused her both financial
and reputational harm. See R. Doc. No. 71, at 14; R. Doc. No. 77, at 14-15. Because
the Court concludes that the execution of the warrant constitutes an injury
sufficient to state a First Amendment retaliation claim, the Court does not address
whether the alleged release of Jennifer Anderson’s criminal history can be

57

29

Sheriff Larpenter attempts to minimize Jennifer Anderson’s injury as a
result of his actions. 58 In his view, because the Andersons got their property back
and because the property was never searched by law enforcement—the Andersons’
computers and cellphones were impounded and sealed after their seizure while the
Andersons challenged the legality of the search warrant 59—Jennifer Anderson did
not suffer an injury sufficient to chill a person of ordinary firmness. 60 However,
Sheriff Larpenter is missing the bigger picture: the injury was inflicted at the time
of the execution of the search warrant. By searching the Andersons’ home and
seizing the Andersons’ property in the first place, Sheriff Larpenter sent a message
to Jennifer Anderson—a message that he also allegedly told a news outlet and
broadcast to his community: “If you’re gonna lie about me and make it under a
fictitious name, I’m gonna come after you.” 61

To the Court, that message—if you

speak ill of the sheriff of your parish, then the sheriff will direct his law
enforcement resources toward forcibly entering your home and taking your
belongings under the guise of a criminal investigation—is inseparable from the
injury and would certainly chill anyone of ordinary firmness from engaging in
similar constitutionally protected speech in the future.
Finally, the Court must consider whether Sheriff Larpenter’s actions against
Jennifer Anderson “were substantially motivated against the plaintiffs’ exercise of
considered a component of the injury—a point disputed by the parties. See R. Doc.
No. 73-1, at 16-18; R. Doc. No. 77, at 14-15; R. Doc. No. 83, at 5.
58 See R. Doc. No. 73-1, at 14-16.
59 See R. Doc. No. 71, ¶ 16.
60 R. Doc. No. 73-1, at 16.
61 R. Doc. No. 71-9, at 2.
30

constitutionally protected conduct.” Keenan, 290 F.3d at 258. Based on Sheriff
Larpenter’s statements and conduct, the Court answers that question in the
affirmative: Sheriff Larpenter’s decision to order Detective Prestenbach to obtain a
search warrant for the Andersons’ home was arguably aimed at curtailing Jennifer
Anderson’s constitutionally protected speech—speech which Sheriff Larpenter, as
well as President Alford, had an interest in suppressing.
Accepting the factual allegations in the complaint as true and construing
them in the light most favorable to Jennifer Anderson, the Court concludes that
Jennifer Anderson has stated a First Amendment retaliation claim against Sheriff
Larpenter.
ii.
As with the Andersons’ Fourth Amendment claims, Sheriff Larpenter asserts
qualified immunity as a defense to Jennifer Anderson’s First Amendment claim.
“[T]he law is settled that as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions, including
criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256
(2006).

“[G]overnment retaliation against a private citizen for exercise of First

Amendment rights cannot be objectively reasonable.”

Keenan, 290 F.3d at 261

(citing Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996)).
However, courts distinguish between retaliatory action that has an
independent lawful basis—e.g., an officer’s arrest of a speaker where the officer’s
motivation for the arrest is retaliation for the speaker’s defamatory statements

31

about the officer, but where probable cause exists justifying the arrest—and
retaliatory action that has no independent lawful basis. Where “law enforcement
officers might have a motive to retaliate but there was also a ground to charge
criminal conduct against the citizen they disliked,” then “the objectives of law
enforcement take primacy over the citizen’s right to avoid retaliation.” Id. at 26162; see also Mozzochi v. Borden, 959 F.2d 1174, 1179 (5th Cir. 1992). On the other
hand, “[i]f no reasonable police officer could have believed that probable cause
existed for the law enforcement actions of [an officer] against the plaintiff[ ], then
their retaliation violated clearly established law in this circuit.” Keenan, 290 F.3d
at 262. In other words, Jennifer Anderson has a clearly established right to be free
from retaliatory action by government officials where “nonretaliatory grounds” are
“insufficient” to justify the action. Hartman, 547 U.S. at 256.
The Court concludes that Sheriff Larpenter’s conduct violated this clearly
established right and was not “objectively reasonable in light of clearly established
law.” Thompson, 245 F.3d at 457. As the Court explained supra, a reasonable law
enforcement officer in Sheriff Larpenter’s position would have known that probable
cause supporting the search warrant did not exist because Jennifer Anderson’s
speech could not constitute a crime. Therefore, “no reasonable police officer could
have believed that probable cause existed” justifying Sheriff Larpenter’s order to
Detective Prestenbach to get a search warrant for the Andersons’ home. Keenan,
290 F.3d at 262. Sheriff Larpenter’s alleged retaliation against Jennifer Anderson’s
speech therefore “violated clearly established law in this circuit.” Id. “The fact that

32

a neutral magistrate issue[d] a warrant” does not save Sheriff Larpenter from his
objective unreasonableness in ordering Detective Prestenbach to obtain the search
warrant in the first place. Winfrey, 481 Fed. App’x at 978.
Accepting the factual allegations in the complaint as true and construing
them in the light most favorable to Jennifer Anderson, the Court concludes that
Sheriff Larpenter is not entitled to qualified immunity with respect to Jennifer
Anderson’s First Amendment claim.
IV.
The Andersons allege that Sheriff Larpenter, in his official capacity as Sheriff
of Terrebonne Parish, “promulgated a policy of abridging the First and Fourth
Amendment rights of residents of Terrebonne Parish,” namely themselves. 62
Under Monell v. Department of Social Services, municipalities and local
governing bodies 63 are subject to liability for constitutional violations involving
official policies or practices. 64 See 436 U.S. 658, 690 (1978). Monell liability consists
of three elements: “(1) a policymaker; (2) an official policy; and (3) a violation of
constitutional rights whose ‘moving force’ is the policy or custom.” Davis v. Tarrant
Cnty, Tex., 565 F.3d 214, 227 (5th Cir. 2009) (citing Rivera v. Houston Indep. Sch.
Dist., 349 F.3d 244, 247 (5th Cir. 2003)). The “violation of constitutional rights”
R. Doc. No. 71, ¶ 32.
Courts treat Louisiana sheriffs in their official capacities as “local government
bodies” for Monell purposes. See, e.g., Thomas v. Pohlmann, No. 16-30798, 2017 WL
1031282, at *5 (5th Cir. March 15, 2017); Becnel v. St. Charles Parish Sheriff’s
Office, No. 15-1011, 2015 WL 5665060, at *2-*4 (E.D. La. Sept. 24, 2015) (Vance, J.);
Victoria v. Larpenter, 205 F. Supp. 2d 580, 586 (E.D. La. 2002) (Zainey, J.).
64 Municipalities and local governing bodies cannot plead qualified immunity as a
defense. See Howell v. Town of Ball, 827 F.3d 515, 527 (5th Cir. 2016).
62
63

33

must be “directly attributable to the municipality [or local governing body] through
some sort of official action or imprimatur; isolated unconstitutional actions by
municipal employees will almost never trigger liability.”

Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001). 65 The municipality or local governing
body must be “actually responsible” for the constitutional violation at issue. Burge
v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999).
A.
With respect to Monell’s first element, Sheriff Larpenter is the relevant
policymaker under Louisiana law with respect to the Andersons’ First and Fourth
Amendment claims. For a public official to constitute a “policymaker” for Monell
purposes, he or she must possess “final policymaking authority for the local
government actor concerning the action alleged to have caused the particular
constitutional . . . violation at issue.” McMillian v. Monroe Cnty., Ala., 520 U.S.
781, 785 (1997) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
Specifically, courts must ask “whether governmental officials are policymakers for
the local government in a particular area, or on a particular issue,” a question that
turns on state law. Burge, 187 F.3d at 468.
Under the Louisiana Constitution, a sheriff is a “virtually . . . autonomous
local government official,” id. at 469, who serves as the “chief law enforcement
officer in the parish.” La. Const. art. V, § 27; see also id. art. VI, §§ 5(G), 7(B).

“A municipality cannot be held liable under section 1983 on a theory of
respondeat superior merely because it employs a tortfeasor.” Becnel, 2015 WL
5665060, at *2.
65

34

Louisiana law provides that a sheriff “shall preserve the peace and apprehend
public offenders,” among other duties. La. R.S. § 13:5539(C). In the area of law
enforcement, then, Sheriff Larpenter is a final policymaker under Louisiana law
within the confines of Terrebonne Parish. See Casto v. Plaisance, No. 15-817, 2016
WL 2855468, at *9 (E.D. La. May 16, 2016) (Vial Lemmon, J.); Blanchard v. Lonero,
No. 06-4023, 2009 WL 1507351, at *17 (E.D. La. May 28, 2009) (Duval, J.); cf. Burge
v. Parish of St. Tammany, 187 F.3d 452, 469 (5th Cir. 1999) (analogizing district
attorneys to sheriffs under Louisiana law, and concluding that a district attorney is
“the independent and final official policymaker for all of the administrative and
prosecutorial functions of his office”).
B.
With respect to Monell’s second element, the factual allegations in the
complaint satisfy the official policy requirement. The Fifth Circuit has outlined the
“three different ways” that this element of a Monell claim can be satisfied: (1) where
“the appropriate officer or entity promulgates a generally applicable statement of
policy and the subsequent act complained of is simply an implementation of that
policy[ ]”; (2) where “the action of the policymaker itself violated a constitutional
right[ ]”; and (3) where the policymaker does not affirmatively act, but “the need to
take some action to control the agents of the local governmental entity is so obvious,
and the inadequacy [of existing practice] so likely to result in the violation of
constitutional rights, that the policymake[r] . . . can reasonably be said to have been
deliberately indifferent to the need.” Burge, 187 F.3d at 471 (internal quotation

35

marks omitted) (alterations in original). In this case, it is the second way that is
implicated.
A “single decision by municipal policymakers” can constitute grounds to
impose Monell liability “under appropriate circumstances.”

Pembaur v. City of

Cincinnati, 475 U.S. 469, 480 (1986); see also Howell v. Town of Ball, 827 F.3d 515,
527 (5th Cir. 2016) (“A single unconstitutional action . . . may be sufficient in rare
circumstances to impose municipal liability under Monell . . . .”). However, “[t]he
official must . . . be responsible for establishing final government policy respecting
such [challenged] activity before the municipality can be held liable,” a
determination that ultimately turns on state law. Pembaur, 475 U.S. at 482-83.
Moreover, the official must make a “deliberate choice” to follow the course of action.
Id. at 483.
This case illustrates the appropriate circumstances where Monell liability
may be imposed in response to a single unilateral action taken by a single
policymaker. Sheriff Larpenter ordered Detective Prestenbach to obtain a search
warrant for the Andersons’ home in response to Jennifer Anderson’s speech. Cf.
Pembaur, 475 U.S. at 484 (“The Prosecutor made a considered decision based on his
understanding of the law and commanded the officers forcibly to enter petitioner’s
clinic. That decision directly caused the violation of petitioner’s Fourth Amendment
rights.”). As the chief law enforcement officer of Terrebonne Parish, it is Sheriff
Larpenter—and Sheriff Larpenter alone—who possesses the constitutionally
enshrined duty to “preserve the peace and apprehend public offenders” within

36

Terrebonne Parish’s territorial limits. La. R.S. § 13:5539(C). In the exercise of that
duty, Sheriff Larpenter possesses the final authority to direct Terrebonne Parish
policy as it concerns law enforcement.

Sheriff Larpenter’s decision to order

Detective Prestenbach to seek a search warrant for the Andersons’ home was
subject to no veto: in Terrebonne Parish, as far as law enforcement is concerned, the
buck stops with Sheriff Larpenter.
Sheriff Larpenter objects that the Andersons “have failed to cite to a policy,
pattern or practice promulgated by Sheriff Larpenter which was the ‘moving force’
behind the actions of Terrebonne Parish detectives and deputies.” 66

However,

Sheriff Larpenter overlooks his own position of authority and its implications under
Monell.

Acting as Terrebonne Parish’s chief law enforcement officer, Sheriff

Larpenter ordered what amounted to an unconstitutional search of the Andersons’
home and unconstitutional seizure of the Andersons’ property, all because of
Jennifer Anderson’s speech.

Pembaur, 475 U.S. at 483.

Accepting the factual

allegations in the complaint as true and construing them in the light most favorable
to the Andersons, this choice by Sheriff Larpenter may constitute an official policy
under Monell.
C.
Lastly, with respect to Monell’s third element, the factual allegations in the
complaint show that the challenged “policy or custom” was the “moving force”
behind the “violation of constitutional rights.” Davis, 565 F.3d at 227.

66

R. Doc. No. 73-1, at 19.
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To show “moving force” causation, a plaintiff must demonstrate that “the
municipal action was taken with the requisite degree of culpability”—with
“deliberate indifference to the risk that a violation of a particular constitutional . . .
right will follow the decision.” Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir.
2010) (internal quotation marks omitted).

A plaintiff must also show “a direct

causal link between the municipal action and the deprivation of federal rights.” Id.
(internal quotation marks omitted).
The factual allegations in the complaint demonstrate that Sheriff Larpenter’s
decision to order Detective Prestenbach to obtain the search warrant for the
Andersons’ home—the alleged official policy—was the moving force behind the
violation of the Andersons’ constitutional rights. The “causal link” between Sheriff
Larpenter’s decision and the Andersons’ First and Fourth Amendment claims is
“direct”: Sheriff Larpenter issued the order to Detective Prestenbach to obtain a
search warrant. But for Sheriff Larpenter’s decision, the events that ultimately led
to the alleged violation of the Andersons’ constitutional rights would not have
occurred.
Moreover, the factual allegations in the complaint show that Sheriff
Larpenter acted with the “requisite degree of culpability.” Given the longstanding
and robust constitutional protections afforded speech involving public officials (and
speech involving public funds), it can be argued based on these allegations that
Sheriff Larpenter acted with at least deliberate indifference to the risk that his
actions would violate the Andersons’ constitutional rights.

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Accepting the factual allegations in the complaint as true and construing
them in the light most favorable to the Andersons, the Court concludes that the
Andersons have stated Monell claims against Sheriff Larpenter.
V.
Finally, the Andersons assert federal and state law claims of malicious
prosecution against Sheriff Larpenter.
The Fifth Circuit has foreclosed the Andersons’ federal law claims of
malicious prosecution. 67 See Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir.
2003). The Andersons do not dispute otherwise. 68 As “[f]urther amendment would
be futile,” Smith v. Houston Indep. School Dist., No. 16-401, 2017 WL 175814, at *2
(S.D. Tex. Jan. 17, 2017) (Rosenthal, J.), the Andersons’ federal malicious
prosecution claims are to be dismissed with prejudice.
With regards to the Andersons’ state law claims, the Louisiana Supreme
Court has articulated a six-part test for stating a claim of malicious prosecution:
“(1) the commencement or continuance of an original criminal or civil
judicial proceeding; (2) its legal causation by the present defendant in
the original proceeding; (3) its bona fide termination in favor of the
present plaintiff; (4) the absence of probable cause for such proceeding;
(5) the presence of malice therein; and (6) damage conforming to legal
standards resulting to plaintiff.”
Lemoine v. Wolfe, 168 So.3d 362, 367 (La. 2015).

Importantly, where “no

prosecution” is “ever instituted”—i.e., no charges are formally filed—a malicious

The Fifth Circuit explained that “causing charges to be filed without probable
cause will not without more violate the Constitution.” Castellano v. Fragozo, 352
F.3d 939, 953 (5th Cir. 2003).
68 See R. Doc. No. 77.
67

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prosecution claim under Louisiana law necessarily fails. Dyas v. Shreveport Police
Dep’t, 136 So.3d 897, 902 (La. Ct. App. 2014); see also Systems Contractors Corp. v.
Orleans Parish School Board, Nos. 94-2276, 95-3310, 1996 WL 547414, at *2 (E.D.
La. Sept. 24, 1996) (Fallon, J.) (“There is no cause of action for malicious
prosecution [under Louisiana law] when no bill of information or indictment has
been filed; thus this court finds plaintiff’s claim for malicious prosecution fails.”)
The Andersons cannot satisfy the first element of a state malicious
prosecution claim, as no prosecution has been commenced against either of them.
Under Louisiana law, the execution of a search warrant does not constitute “the
commencement . . . of an original criminal . . . judicial proceeding” for purposes of a
malicious prosecution claim. Lemoine, 168 So.3d at 367.
The Andersons’ malicious prosecution claim under Louisiana law “is legally
insufficient on its face.”

Smith, 2017 WL 175814, at *2 (quoting 6 Charles A.

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487
(2d ed. 1990)). Because an amendment would—again—be futile, the Andersons’
state malicious prosecution claims are to be dismissed with prejudice.

CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Sheriff Larpenter’s renewed motion to dismiss is
GRANTED with respect to the Andersons’ federal and state malicious prosecution

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claims, and that those claims are DISMISSED WITH PREJUDICE. In all other
respects, the motion is DENIED.

New Orleans, Louisiana, July 18, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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