Seals et al v. McBee et al

Filing 39

ORDER AND REASONS granting 25 Motion for Partial Summary Judgment. Counsel for Plaintiffs shall submit a proposed injunction and judgment within five working days of this Order. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TRAVIS SEALS ET AL.

CIVIL ACTION

VERSUS

NO: 16-14837

BRANDON MCBEE ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment
(Doc. 25). For the foregoing reasons, the Motion is GRANTED.
BACKGROUND
After an altercation with his neighbor, Plaintiff Travis Seals alleges that
he was arrested at his home by deputies from the Tangipahoa Parish Sheriff’s
Office. During the arrest, Seals objected to the deputies’ conduct, including the
use of pepper spray, and threatened to make a lawful complaint regarding
their conduct.

Seals was charged with, among other things, public

intimidation and retaliation in violation of Louisiana Revised Statutes § 14:122
for that threat. Section 14:122 makes it a crime to threaten a public official
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“with the intent to influence his conduct in relation to his position,
employment, or duty.” The charge was ultimately dismissed or refused.
Plaintiffs 1 argue that, on its face, § 14:122 makes it criminal to
“threaten” to take lawful actions, such as oppose or challenge police action,
write a letter to the newspaper, or to file a lawsuit. They argue that such
statements are protected speech, and § 14:122 is therefore unconstitutionally
overbroad in violation of the First Amendment. The Attorney General has
intervened to defend this allegation of unconstitutionality. In the instant
motion, Plaintiffs move for partial summary judgment on their claim that §
14:122 is an unconstitutional restriction on the freedom of speech, and they
seek an injunction prohibiting further enforcement of the statute.

The

Attorney General has opposed this Motion and seeks summary judgment in its
favor pursuant to Fed. Rule Civ. Pro. 56(f).
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 2 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 3

Plaintiff Ali Bergeron was also arrested in the incident but was not charged under
§ 14:122.
2 Fed. R. Civ. P. 56(c) (2012).
3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 4 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 5 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 6 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 7 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 8 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 9

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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LAW AND ANALYSIS
In this Motion, Plaintiffs seek a ruling that Louisiana’s public
intimidation law, § 14:122, is unconstitutional and an injunction preventing
Defendants from further enforcement of the statute. The Attorney General
opposes this Motion and seeks summary judgment in its favor pursuant to Fed.
Rule Civ. Pro. 56(f).
In its totality, Louisiana Revised Statutes § 14:122 states that:
A. Public intimidation is the use of violence, force, or threats upon
any of the following persons, with the intent to influence his
conduct in relation to his position, employment, or duty:
(1) Public officer or public employee.
(2) Grand or petit juror.
(3) Witness, or person about to be called as a witness upon a
trial or other proceeding before any court, board or officer
authorized to hear evidence or to take testimony.
(4) Voter or election official at any general, primary, or
special election.
(5) School bus operator.
B. Retaliation against an elected official is the use of violence,
force, or threats upon a person who is elected to public office,
where:
(1) The violence, force, or threat is related to the duties of the
elected official.
(2) Is in retaliation or retribution for actions taken by the
elected official as part of his official duties.
C. Whoever commits the crime of public intimidation or retaliation
against an elected official shall be fined not more than one
thousand dollars or imprisoned, with or without hard labor, for not
more than five years, or both.
Plaintiffs’ arguments primarily center on the constitutionality of the statute’s
prohibition on threats made with the intent to influence a public official.
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A.

Standing
At the outset, the Attorney General argues that Plaintiffs lack standing

to raise a challenge to § 14:122. “To have standing, a plaintiff must
demonstrate that he has been injured, that the defendant caused the injury,
and that the requested relief will redress the injury.” 10 “The plaintiff must
show that he has sustained or is immediately in danger of sustaining some
direct injury as the result of the challenged official conduct and the injury or
threat of injury must be both real and immediate, not conjectural or
hypothetical.” 11 The Attorney General argues that Plaintiffs cannot show that
they have sustained or are in danger of sustaining injury. It argues that a
single past incident of unconstitutional conduct cannot create standing.
Claims regarding the First Amendment, however, have “unique standing
issues because of the chilling effect, self-censorship, and in fact the very special
nature of political speech itself.” 12 “To satisfy standing requirements . . . this
type of self-censorship must arise from a fear of prosecution that is not
imaginary or wholly speculative.” 13 In King v. Caldwell, a court in this District
found that the plaintiffs had standing to challenge the constitutionality of a
statute making it a crime to make public statements regarding investigations
of the Louisiana Board of Ethics. 14

The plaintiffs had been arrested for

speaking with the media regarding a claim that they had made to the
Louisiana State Board of Ethics in violation of Louisiana Revised Statutes §
Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006).
City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983).
12 Carmouche, 449 F.3d at 660.
13 Id.
14 King v. Caldwell ex rel. Louisiana, 21 F. Supp. 3d 651, 657 (E.D. La. 2014).
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10
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42:1141, “which makes it a crime to breach the confidentiality of ethics
complaints by making public statements concerning a private investigation or
hearing of the Louisiana Board of Ethics.” 15 The charges against the plaintiffs
were nolle prossed. The court found that there was a credible threat of future
prosecution in light of the history of enforcement in the case. It stated that the
“contention that plaintiffs suffered no actual injury simply because the charges
against them were dropped is specious at best.” 16 “It is well established that a
credible threat of future criminal prosecution will confer standing.” 17
The facts at issue here are similar to those presented in King, and
indeed, weigh even more toward a finding of standing. Here, there is a history
of enforcement of the public intimidation law to criminalize threats of lawful
action both in this matter and in others. 18 In addition, pursuant to Louisiana
Code of Criminal Procedure article 572(A)(2), Plaintiff Seals could be
prosecuted for the speech at issue in this suit for up to four years following the
incident.
The Attorney General argues that Plaintiffs’ fear of prosecution is too
speculative to confer standing. It argues that:
“The Plaintiffs have not proven that there is a reasonable
likelihood that one of them will be arrested, will then tell the
arresting officer something perceived by the officer to constitute a
threat, and then be charged with La. R.S. 14:122. Because this
Court must presume that the Plaintiffs will act as law abiding
citizens and ‘will conduct their activities within the law and so
Id.
Id. at 655.
17 Id.
18 See State v. Mouton, 129 So. 3d 49, 54 (La. App. 3 Cir. 2013) (affirming the
Defendant’s conviction for public intimidation when he told officers they “would be sorry for
arresting him. He’s was going to sue us and he was going to get our jobs.”).
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avoid prosecution and conviction as well as exposure to the
challenged course of conduct,’ the Plaintiffs have no standing to
establish entitlement to any injunctive relief.” 19
The Attorney General’s argument, however, highlights exactly why standing
in First Amendment challenges requires a unique analysis.

Indeed, as

Plaintiffs point out, “[a] free speech litigant who conducts his activities within
the challenged law is one who shuts his mouth, self-censors, and declines to
speak on matters of public concern for fear of prosecution.” 20 Here, Plaintiffs
would be forced to self-censor threats of lawful action in order to avoid future
prosecution under § 14:122.

“Controlling precedent of the Fifth Circuit

establishes that a chilling of speech because of the mere existence of an
allegedly vague or overbroad statute can be sufficient injury to support
standing.” 21 Accordingly, this Court finds that Plaintiffs have standing to
challenge the constitutionality of § 14:122.
B.

Constitutionality
Section 14:122 criminalizes certain speech based on its content, that is,

whether or not the speech is a threat through which the speaker intends to
influence a public officer. It is well settled that “[a] law that is content based
on its face is subject to strict scrutiny.” 22

Strict scrutiny “requires the

Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest.” 23 In addition, a content-based
Doc. 32 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103).
Doc. 35.
21 Carmouche, 449 F.3d at 660.
22 Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2228 (2015).
23 Id.
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restriction on speech is “presumptively invalid, and the Government bears the
burden to rebut that presumption.” 24

Plaintiffs argue that the statute is

overbroad and not narrowly tailored to accomplish its purpose.
“[A] law may be invalidated as overbroad if a substantial number of its
applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” 25 “[T]he first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a statute reaches too
far without first knowing what the statute covers.” 26
Section 14:122 states that, “Public intimidation is the use of violence,
force, or threats upon [a public official], with the intent to influence his conduct
in relation to his position, employment, or duty.” This Court reads § 14:122 to
prohibit all threats made with the intent to influence the behavior of a public
official. Indeed, the statute’s comments indicate that, “The words ‘violence,
force, or threats’ should include threats of harm or injury to the character of
the person threatened as well as actual or threatened physical violence.” 27
Accordingly, on its face, § 14:122 criminalizes the comments at issue here as
well as other threats to engage in lawful conduct such as, criticizing a police
officer, writing a letter to the newspaper, filing a lawsuit, voting for an official’s
opponent, or filing an ethics complaint.
The Attorney General argues, however, that the statute should be read
to include a requirement of corrupt intent. It contends that the public
intimidation statute should be interpreted identically to the public bribery
United States v. Stevens, 559 U.S. 460, 468 (2010).
Id. at 473.
26 Id.
27 La. Rev. Stat. §14:122 (cmt).
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statute because, as the comments suggest, “the public intimidation section
includes the same parties and requires the same purpose as [the public bribery]
section. The principal difference in the two sections is the method used to
accomplish the purpose.” 28

The Attorney General argues that cases

interpreting the public bribery statute have found that the statute requires a
“corrupt intent.” “Intent is corrupt when it is to influence ‘official action to
obtain a result which the party would not be entitled to as a matter of right.’” 29
Accordingly, the Attorney General argues that in order to violate Louisiana’s
public intimidation statute, “one must threaten a public employee in order to
obtain a result to which the offender would not be entitled to as a matter of
right.” 30
On its face, however, the statute says no such thing. “Courts in applying
criminal laws generally must follow the plain and unambiguous meaning of
the statutory language.” 31

There is nothing ambiguous about the plain

language of the statute before this Court. It unambiguously states that all
threats made with the intent to influence a public official are criminal. “If the
statute is clear and unambiguous, then it is to be applied as written.” 32 Indeed,
§ 14:122 has been applied by Louisiana courts consistent with such an
interpretation. In State v. Mouton, the Louisiana Third Circuit Court of Appeal
affirmed the defendant’s conviction under § 14:122 for threatening, during his
arrest, to sue a police officer or have him fired. The Mouton court did not
Id.
State v. Smith, 212 So. 2d 410, 415 (La. 1968).
30 Doc. 32, p. 11.
31 United States v. Rainey, 757 F.3d 234, 241 (5th Cir. 2014).
32 State v. Fussell, 974 So. 2d 1223, 1232 (La. 2008).
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discuss a corrupt intent requirement.

Accordingly, this Court interprets §

14:122 according to its plain meaning—to criminalize all threats made with
the intent to influence a public official.
This holding disposes of the Attorney General’s argument that § 14:122
prohibits only speech that is not protected by the First Amendment, such as
true threats, extortion, and speech integral to criminal conduct. Threats to
take lawful, non-violent action are not “true threats” or any other category of
speech that has not historically been protected by the First Amendment. 33
Accordingly, § 14:122 criminalizes both protected and unprotected speech.
Having found that the speech at issue is constitutionally protected, the
Court must now consider whether the statute is unconstitutional on its face.
The Attorney General does little in the way of arguing that § 14:122 is
constitutional

as

unconstitutionality.

written

or

in

overcoming

the

presumption

of

Instead, it campaigns for the reading rejected above.

Although the Attorney General does not define the compelling state interest
sought by § 14:122, this Court can assume that its purpose is to protect public
officials and the other specifically enumerated persons from undue influence,
intimidation, or violence preventing them from impartial performance of their
duties. This Court finds, however, that the statute is not sufficiently narrowly
tailored to achieve this purpose and is overbroad. A law is overbroad if it “‘does
not aim specifically at evils within the allowable area of control . . . but sweeps
within its ambit other activities that constitute an exercise’ of First

“‘True threats’ encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003).
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33

Amendment rights.” 34 Plaintiffs have shown that a substantial number of the
applications of the statute at issue are unconstitutional. The law encompasses
far more than true threats and sweeps within its ambit threats to engage in
lawful activities. In addition, it criminalizes threats to defame the character
of a public official—an act that has long been considered protected speech when
done without actual malice. 35 Indeed, an entire class of protected speech is
reached by the statute.

Accordingly, this Court holds that § 14:122 is

unconstitutionally overbroad insofar as the statute criminalizes speech
protected by the First Amendment.

Beckerman v. City of Tupelo, Miss., 664 F.2d 502, 507 (5th Cir. 1981).
Davis v. Borskey, 660 So. 2d 17, 23 (La. 1995), (“A public official plaintiff cannot
recover for a defamatory statement relating to his or her official conduct, even if false, unless
the public official proves actual malice by clear and convincing evidence.”); Garrison v. State
of La., 379 U.S. 64, 78 (1964); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).
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CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is
GRANTED. The Court hereby declares Louisiana Revised Statutes § 14:122
invalid insofar as it prohibits “the use of . . . threats upon any of the following
persons, with the intent to influence his conduct in relation to his position,
employment, or duty.”

Defendants, Intervenor, and their officers, agents,

servants, employees, and assigns are hereby enjoined from enforcing this
provision, until further order of this Court. Counsel for Plaintiffs shall submit
a proposed injunction and judgment within five working days of this Order.
New Orleans, Louisiana this 31st day of July, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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