Brown v. New Orleans City et al

Filing 11

ORDER & REASONS granting 9 Motion to Dismiss for Failure to State a Claim. Signed by Judge Mary Ann Vial Lemmon on 3/7/2017. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HOWARD ANTHONY BROWN

CIVIL ACTION

VERSUS

NO.16-17080

CITY OF NEW ORLEANS, ET AL.

SECTION "S"

ORDER AND REASONS
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. #9) is
GRANTED, and plaintiff’s claims are DISMISSED WITH PREJUDICE.
BACKGROUND
This matter is before the court on a motion to dismiss filed by defendants: the City of New
Orleans; Michael S. Harrison, Superintendent of the New Orleans Police Department; Lawrence
Dupree, Commander of the Seventh District of the New Orleans Police Department; Mitchell J.
Landrieu, Mayor of New Orleans; Rebecca H. Dietz, City Attorney of New Orleans; K. Balancier,
a New Orleans Police Officer; K. Williams, Lieutenant of the Seventh District of the New Orleans
Police Department; Eric Illarmo, a New Orleans Police Officer; Marcus McNeil, a New Orleans
Police Officer; D. Warter, a New Orleans Police Officer; M. Sartain, a New Orleans Police Officer;
A. Kelly, a New Orleans Police Officer; D. Millon, a New Orleans Police Officer; M. Thompson,
a New Orleans Police Officer; and, M. Hunter, a New Orleans Police Officer. Defendants argue
that plaintiff’s complaint fails to state any claims against them.
Plaintiff, Howard Anthony Brown, filed this action pro se alleging that the defendants
violated his civil rights in connection with a traffic stop.1 On November 29, 2016, New Orleans

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Because plaintiff is proceeding pro se, the court must construe his pleadings liberally. Grant v. Cuellar,
59 F.3d 523, 524 (5th Cir. 1995). However, “[t]he right of self-representation does not exempt a party from
compliance with relevant rules of procedural and substantive law. Birl v. Estelle, 660 F.2d 592, 593 (5th
Cir. 1981).

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Police Officer Kevin Balancier observed Brown run a red light. Brown parked his vehicle at his
place of business and was walking toward the entrance when Balancier approached Brown and
asked to see his driver’s license. Brown refused, stating that he was not a driver at the moment
Balancier asked to see his driver’s license. Brown’s vehicle did not have a license plate or brake
tag, but had a disclaimer on the front left side mirror and rear mirror stating:
TO ANY AND ALL AGENCY OF THE “STATE”,
INCORPORATED MUNICIPALITY, ENFORCERS OF ANY
HOME CHARTERS PLEASE BE SO ADVISE[D]. This is Private
Property, Not for Hire, Not operating in Commercial Capacity. Any
attempt to convert this Private Property into a commercial one for
the purpose of taxation you acknowledge doing so at your own peril.
Don’t wish to contract . . .
Brown alleges that Balancier placed a radio call for assistance, and six to eight police
vehicles arrived. Brown alleges that the “other units” repeatedly asked for his driver’s license and
“one of the other officers[,]” described as a black male in his mid to late twenties and about fivefeet-eight-inches tall, approached Brown’s vehicle and went inside it while Brown was telling him
to stop. Brown alleges that he was “physically assaulted by another officer that was on the
scene[,]” when that officer grabbed Brown by the arm and pushed him about two feet. Brown
further alleges that the officer who searched his vehicle approached him “aggressively” and
removed his wallet and firearm from his pockets. Brown asked the officers for a search warrant.
Thereafter, an officer handcuffed Brown and put him in the back of a police vehicle. Brown
claims that the officers told him that he was under arrest. Brown alleges that while he was in the
police vehicle, he “observed two other officer[s] going through [his] wallet, removing [his] money
and other personal items.” Brown told the officers that they were violating his rights, and the
officers replied that they had authority for their actions.

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Brown alleges that forty-five minutes later “another officer” asked him to turn over the
keys to his vehicle. Thereafter, a tow truck removed Brown’s vehicle. Brown claims that, while
he was still in the back of the police vehicle, two female New Orleans Police Officers approached
him stating that they were lieutenants. Brown describes them as both being five-feet-five-inches
tall and stoutly built, and one had black hair and glasses, whereas the other had short blonde hair.
Brown did not speak to these female officers. After Brown’s vehicle was towed, he was taken out
of the police vehicle and the handcuffs were removed. Brown was issued citations for disregarding
a red light, and for not having a license plate, break tag, motor vehicle registration or proof of
motor vehicle insurance.

The officers retained Brown’s driver’s license and firearm, with

instructions on how he could recover the firearm the next day during business hours.
Brown alleges that on December 1, 2017, he sent correspondence to Harrison and Dupree
informing them about the November 29, 2016, incident and requesting that his property be returned
with an apology. Brown also sent similar correspondence to Dietz and Landrieu explaining the
incident and seeking return of his property with an apology.
On December 12, 2016, Brown filed this suit in the United States District Court for the
Eastern District of Louisiana. He alleges that the defendant officers, Willams, Illarmo, McNeil,
Balancier, Warter, Sartain, Kelly, Millon, Thomas and Hunter, are liable in their individual and
official capacities under 42 U.S.C. § 1983 for conspiring to violate his rights guaranteed by the
Fourth Amendment to the Constitution of the United States by subjecting him to unlawful search
and seizure and the use of excessive force. Brown also alleges that the defendant officers are liable
under § 1983 for conspiring to deprive Brown of the “liberty to move” and “of his private property
without due process of law” in violation of the Fifth Amendment to the Constitution of the United
States, and for conspiring to violate his right to bear arms secured by the Second Amendment to

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the Constitution of the United States. Further, Brown alleges that the defendant officers are liable
under 18 U.S.C. § 245 for “acting jointly” to impound his vehicle which violated Brown’s federally
protected right “of traveling in or using by facilities of interstate commerce.” Finally, Brown
alleges that the city defendants, Landrieu, Dietz, Harrison and Dupree, are liable in their official
capacities under § 1983 for the defendant officers’ actions because the officers defendants’ actions
were done “pursuant to and made possible by the customs, policies, practices, and/or procedures
of the City of New Orleans and the New Orleans Police Department” including failing to
investigate and punish officers for instances of unreasonable seizure and use of excessive force or
other depravations of civil rights, and improperly hiring, training and supervising officers.
All defendants filed a motion to dismiss arguing that Brown failed to properly plead any
claims against them. The defendant officers claim that they are entitled to qualified immunity as
to Brown’s § 1983 claims. The city defendants argue that Brown did not adequately plead
municipal liability as to his § 1983 claims. Finally, all defendants argue that Brown does not have
a claim under 18 U.S.C. § 245 for the defendant officers’ impounding his vehicle.
ANALYSIS
I.

Motion to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a

complaint for failure to state a claim upon which relief can be granted. Under Rule 8(a)(2) of the
Federal Rules of Civil Procedure, pleadings must contain a short and plain statement of the claim
showing that the pleader is entitled to relief. To comply with Rule 8(a)(2), a plaintiff need not
plead specific facts, but only “‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. v. Twombly, 127 S.Ct. 1964 (2007) (quoting Conley v.
Gibson, 78 S.Ct. 99, 103 (1957)). Thus, to survive a Rule 12(b)(6) motion to dismiss, enough facts

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to state a claim for relief that is plausible on its face must be pleaded. In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1964-65 & 1973 n. 14).
A claim is plausible on its face when the plaintiff pleads facts from which the court can “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 127 S.Ct. at 1965. The court “must accept all well-pleaded facts as
true and view them in the light most favorable to the non-moving party.” In re S. Scrap Material
Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008). However, the court need not accept legal conclusions
couched as factual allegations as true. Iqbal, 129 S.Ct. at 1949-50. In considering a motion to
dismiss for failure to state a claim, a district court may consider only the contents of the pleading
and the attachments thereto. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.
2000) (citing Fed. R. Civ. P. 12(b)(6)).
II.

Brown’s Conspiracy Claims against the Defendant Officers
Brown alleges that the defendant officers are liable under § 1983 because they conspired

to violate his rights guaranteed by the Second, Fourth and Fifth Amendments to the Constitution
of the United States. Section 1983 provides a remedy against “every person,” who under color of
state law, deprives another of any rights secured by the Constitution and laws of the United States.
42 U.S.C. § 1983; Monell v. Dep’t of Soc. Servs., 98 S.Ct. 2018 (1978). Section 1983 is not itself
a source of substantive rights; it merely provides a method for vindicating federal rights conferred
elsewhere. Olabisiomotosho v. City of Hous., 185 F.3d 521, 525 n. 3 (5th Cir. 1999). To pursue
a claim under section 1983, a plaintiff must: (1) allege a violation of rights secured by the
Constitution or laws of the United States, and; (2) demonstrate that the alleged deprivation was

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committed by a person acting under color of state law. Sw. Bell Tel., LP v. City of Hous., 529 F.3d
257, 260 (5th Cir. 2008); see also West v. Atkins, 108 S.Ct. 2250, 2255-54 (1988).
A § 1983 conspiracy claim is a “legal mechanism through which to impose liability on all
of the defendants without regard to who committed the particular act, but a conspiracy claim is not
actionable without an actual violation of section 1983.” Hale v. Townley, 45 F.3d 914, 920 (5th
Cir. 1995). A conspiracy claim under § 1983 requires an agreement to commit an illegal act, and
an actual deprivation of constitutional rights in furtherance of that conspiracy. Priester v. Lowndes
Cty., 354 F.3d 414, 420 (5th Cir. 2004); Hernandez v. Houston, 564 Fed. Appx. 81, 82 (5th Cir.
2014). “Allegations that are merely conclusory, without reference to specific facts, will not
suffice.” Id. (quoting Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986)). A plaintiff must
“develop facts from which a trier of fact could reasonably conclude” that there was an agreement
“to commit an illegal act and that a deprivation of constitutional rights occurred.” Rodriguez v.
Neeley, 169 F.3d 220, 222 (5th Cir. 1999); see also Bohannan v. Doe, 527 Fed. Appx. 283, 300
(5th Cir. 2013) (“A plaintiff must allege specific facts to show an agreement.”).

Further,

“[d]efendants are entitled to qualified immunity from the § 1983 conspiracy claim if they are
entitled to qualified immunity from the underlying § 1983 claims.” Hill v. City of Seven Points,
31 Fed. Appx. 835, at *9 (5th Cir. 2002). The defendant officers contend that they are entitled to
qualified immunity on Brown’s underlying § 1983 claims brought against them in their individual
capacities.
A.

Qualified Immunity

Qualified immunity is an affirmative defense that protects public officials who are sued in
their individual capacities for violations of constitutional rights. Indeed, qualified immunity “is
an immunity from suit rather than a mere defense to liability.” Morgan v. Swanson, 659 F.3d 359,

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400 (5th Cir. 2011) (emphasis in original). When a defendant invokes qualified immunity, the
burden shifts to the plaintiff to demonstrate the inapplicability of the defense. Kitchen v. Dall.
Cty., Tex., 759 F.3d 468, 476 (5th Cir. 2014). The United States Court of Appeals for the Fifth
Circuit applies “a heightened pleading standard which must be satisfied whenever there is alleged
a defense of qualified immunity.” Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). The
“heightened pleading standard” requires that “the complaint . . . state with factual detail and
particularity the basis for the claim which necessarily includes why the defendant-official cannot
successfully maintain the defense of immunity.” Id.
“‘Qualified immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (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, 659
F.3d at 400 (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)). “Qualified immunity
protects government officials performing discretionary functions from individual liability for civil
damages, but only ‘insofar as their conduct does not violate clearly established . . . rights of which
a reasonable person would have known.’” Id. (quoting Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738
(1982)). The court has discretion to decide which of the two prongs of the qualified immunity test
to consider first. Id. (citing Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)).
B.

Brown’s Fourth Amendment Claims

Brown alleges that the defendant officers conspired to violate his Fourth Amendment rights
by subjecting him to unlawful search, unlawful seizure and the use of excessive force. The Fourth
Amendment, made applicable to the States via the Fourteenth Amendment, "ensures 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."

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Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 195 (5th Cir. 2009). Brown alleges that the defendant
officers seized him in violation of the Fourth Amendment when Balancier approached Brown in
the parking lot requesting to see his driver’s license, and then when an unidentified officer
handcuffed Brown and put him in the back of a police vehicle. Brown alleges that the defendant
officers violated his Fourth Amendment right to be free from unlawful search and seizure when an
unidentified officer, described as a black male in his mid to late twenties and about five-feet-fiveinches tall, searched Brown’s vehicle and person and removed Brown’s wallet and firearm from
his pockets. Brown alleges that the defendant officers also subjected him to unlawful seizure when
his vehicle was towed. Brown contends that an unnamed officer used excessive force on him by
grabbing his arm and pushing him about two feet. Brown alleges that the defendant officers were
acting under the color of law and pursuant to their authority as New Orleans Police Officers during
the events that give rise to this litigation. Brown has alleged the basic elements of a Fourth
Amendment claim under § 1983, although, except for Balancier, it is not specified which defendant
officers took the allegedly wrongful actions. Regardless of which defendant officers were the
actors, the defendant officers argue that the alleged conduct did not violate Brown’s Fourth
Amendment rights because they are entitled to qualified immunity.
1. Objective Reasonableness
a. The Terry-Stop - Balancier’s approach, the search of Brown’s person and
Brown’s dentition in handcuffs in the police vehicle
Brown’s Fourth Amendment claims arise out of Balancier’s approaching Brown after
observing him run a red light. Traffic stops are seizures for the purpose of the Fourth Amendment.
United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). An officer can stop a vehicle
when he has "'probable cause to believe that a driver is violating any one of the multitude of
applicable traffic and equipment regulations.'" Whren v. United States, 116 S.Ct. 1769, 1776
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(1996) (quoting Delaware v. Prouse, 99 S.Ct. 1391, 1400 (1979)). Prouse "noted approvingly that
the foremost method of enforcing traffic and vehicle safety regulations . . . is acting upon observed
violations, which afford the 'quantum of individualized suspicion' necessary to ensure that police
discretion is sufficiently constrained." Id. (internal quotations and citations omitted).
“The legality of a traffic stop is analyzed under the framework articulated in Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” Lopez–Moreno, 420 F.3d at 430. Under the
two-part Terry test, “[t]he court must evaluate (1) whether the officer's action was “justified at its
inception,” and (2) whether the officer's subsequent actions were “reasonably related in scope to
the circumstances which justified the interference in the first place.” United States v. Smith, 506
Fed. Appx. 319 (5th Cir. 2013) (citing Lopez-Moreno, 420 F.3d at 430). In this case, Balancier’s
action was justified at its inception because he observed Brown run a red light in a vehicle that
lacked a license plate. Balancier was acting within his authority to enforce traffic and vehicle
safety regulations.
As to the second prong, the “detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop, but if further reasonable suspicion emerges during
the stop and is supported by articulable facts, detention may continue until the new reasonable
suspicion has been dispelled or confirmed.” United States v. Swan, 259 Fed. Appx. 656, 659 (5th
Cir. 2007) (quotations and citations omitted). Certain police activities, including “requesting
documents such as driver’s licenses, registrations, or rental papers; running a computer check on
those documents; and asking questions about the purpose and itinerary of a driver’s trip,” are
appropriate within the scope of a Terry traffic stop. United States v. Thibodeaux, 276 Fed. Appx.
372, 375 (5th Cir. 2008). Further, because “traffic stops are especially fraught with danger to
police officers[,]” an officer may perform a brief frisk of a driver during a Terry-type traffic stop

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if the officer has a reasonable suspicion that the driver may be armed and dangerous. Arizona v.
Johnson, 129 S.Ct. 781, 786 (2009) (quotations and citations omitted). The United States Court
of Appeals for the Fifth Circuit “has eschewed any particularized limitations on the permissible
investigative tools that may be utilized in connection with a Terry stop, holding that the relevant
inquiry is whether the police diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly.” Swan, 259 Fed. Appx. at 659 (quotations and citations omitted).
Balancier requested to see Brown’s driver’s license. Brown admits that he refused.
Louisiana law requires a person operating a motor vehicle to have his driver’s license in his
immediate possession and display it when requested by a police officer to do so. La. Rev. Stat. §
411.1(A)(1). Also, Brown, by referencing the disclaimer he displayed on his vehicle, admits that
his vehicle did not have a license plate, break tag, registration or insurance. Failure to have such
items constitute violations of La. Rev. Stats. §§ 32:863.1 (insurance), 32:1301 (inspection a/k/a
break tag); 47:536 (license plate) and 47:501 and 47:506 (registration). The defendant officers
were reasonable in searching Brown for firearms because they knew that Brown had violated
several Louisiana traffic laws, Brown professed that he was not required to comply with Louisiana
law, and Brown was refusing to comply with Balancier’s reasonable directives. Although Brown
claims he had a concealed carry permit for the firearm, he did not inform the officers that he was
armed. La. Rev. Stat. § 40:1379.3(I)(2) requires a concealed carry permittee armed with a handgun
to “notify any police officer who approaches the permittee in an official manner or with an
identified official purpose that he has a weapon on his person, submit to a pat down, and allow the
officer to temporarily disarm him.” Brown’s failure to notify the defendant officers of the handgun
together with his refusal to comply with their directives and instance that Louisiana law did not
apply to him, led the defendant officers to the reasonable conclusion that Brown might pose a
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danger. Thus, the defendant officers were justified in detaining Brown handcuffed in the back of
the police vehicle to protect their safety while they sorted out the situation. See United States v.
Hensley, 105 S.Ct. 675, 683-84 (1985) (holding that officers were “authorized to take such steps
as were reasonably necessary to protect their personal safety and to maintain the status quo during
the course of the stop.”). Brown has not presented any evidence or arguments to carry his burden
of showing that the officers are not entitled to qualified immunity for these actions. Therefore, the
defendant officers’ actions were objectively reasonable and they are entitled to qualified immunity
with respect to Brown’s Fourth Amendment claims regarding the initial traffic stop, searching
Brown’s person and detaining him in the police vehicle, which are DISMISSED WITH
PREJUDICE.
b. The Search of Brown’s Automobile and Wallet
Brown alleges that an unidentified officer unlawfully searched his wallet and automobile
without a warrant when he was allegedly placed him under arrest. In United States v. Castro, 596
F.2d 674, 676 (5th Cir. 1979), the United States Court of Appeals for the Fifth Circuit held that a
search incident to arrest could properly include the inspection of the contents of the arrestee's
wallet.

Another well-established exception to the warrant requirement is the “automobile

exception” which permits officers to search a vehicle if they have probable cause that the vehicle
contains contraband or evidence of a crime. United States v. Ned, 637 F.3d 562, 567 (5th Cir.
2011) (citing United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993)). The “automobile
exception” applies to vehicles parked in places not used for residential purposes because “the
vehicle is obviously readily mobile by the turn of an ignition key” and “there is a reduced
expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of

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police regulation inapplicable to a fixed dwelling.” Id. (quoting California v. Carney, 471 U.S.
386, 105 S.Ct. 2066, 2070, 85 L.Ed.2d 406 (1985)).
In this case, the defendant officers knew that Brown had violated several Louisiana traffic
laws and he was refusing to produce his driver’s license to the officer that requested it. An officer
searched Brown’s person and found a firearm. Given the circumstances, it was objectively
reasonable for the officers to search Brown’s wallet and vehicle to determine his identity and
whether the vehicle held further evidence of a crime. Brown has not presented any evidence or
arguments to carry his burden of showing that the officers are not entitled to qualified immunity
for these actions. Therefore, the defendant officers are entitled to qualified immunity with respect
to Brown’s Fourth Amendment claims regarding the search of his vehicle and wallet, which are
DISMISSED WITH PREJUDICE.
c. Seizure of Brown’s Drivers’ License, Vehicle and Firearm
Brown alleges that the defendant officers unlawfully seized his driver’s license, vehicle
and firearm. Brown was issued a citation for not having proof of insurance in his vehicle. La.
Rev. Stat. § 32:863.1(C)(1)(a) provides that, if the operator of an automobile is not able to provide
proof of insurance when requested to do so, “the motor vehicle shall be impounded and the
operator shall be issued a notice of noncompliance.” Further, La. Rev. Stat. § 32:411(B)(1)(c)
states that an “officer may retain the driver’s license of an operator of a motor vehicle when that
operator has been issued a citation alleging that the operator was . . . [c]ited for failure to maintain
compulsory [insurance]”. Also, La. Rev. Stat. § 40:1379.3 states that an officer may temporarily
disarm a person with a concealed carry permit. Brown admits that the officers told him that he
could retrieve his vehicle by registering it and obtaining proper insurance. The officers also told
Brown that he could retrieve his firearm the next day during business hours. Thus, the defendant

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officers’ actions with respect to the alleged seizures were objectively reasonable and they are
entitled to qualified immunity as to these claims, which are DISMISSED WITH PREJUDICE.
d. Excessive Force
Brown alleges that an unidentified officer used excessive force on him by grabbing him by
the arm and pushing him about two feet. To state “‘a § 1983 claim under the Fourth Amendment,
a plaintiff must first show that [he] was seized.’” Hamilton v. Kindred, 845 F.3d 659, 662 (5th Cir.
2017) (quoting Flores v. Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). “The plaintiff must then
“‘show that [he] suffered (1) an injury that (2) resulted directly and only from the use of force that
was excessive to the need and that (3) the force used was objectively unreasonable.’” Id. (quoting
Flores, 381 F.3d at 396). Brown has not alleged that he suffered any injury in connection with the
alleged use of force. Therefore, the defendant officers are entitled to qualified immunity with
respect to Brown’s excessive force claim, and that claim is DISMISSED WITH PREJUDICE.
C.

Brown’s Fifth Amendment Claim

Brown alleges that the defendant officers conspired to deprive him of his rights guaranteed
by the Fifth Amendment to the Constitution of the United States by depriving him of his liberty to
move and of his private property without due process. The Fifth Amendment states:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
U.S. Const. amend. V. “The Fifth Amendment applies only to violations of constitution rights by
the United States or a federal actor.” Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000)
(citing Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996)). The defendant officers are state, not
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federal actors. Therefore, Brown does not have a due process claim against the defendant officers
under the Fifth Amendment, and such claims are DISMISSED WITH PREJUDICE.
D.

Brown’s Second Amendment Claim

Brown alleges that the defendant officers conspired to deprive him of his Second
Amendment right to bear arms by taking his firearm. In District of Columbia v. Heller, 128 S.Ct.
2783 (2008), the Supreme Court of the United States held that the Second Amendment protects an
individual’s right to possess and carry weapons for self-defense within the home. The Due Process
Clause of the Fourteenth Amendment makes the right to keep and bear arms fully applicable to the
States. McDonald v. City of Chicago, 130 S.Ct. 3020 (2010). However, the Supreme Court has
noted that the rights secured by the Second Amendment are not unlimited and citizens are not free
“to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Heller, 128 S.Ct. at 2816. Further, the Supreme Court has acknowledged that Heller was its “first
in-depth examination of the Second Amendment”, and there is uncertainty surrounding the full
contours of the right. Id. at 2821. Thus, “[w]hether and to what extent the Second Amendment
protects an individual’s right to possess a particular gun (and limits the power of the police to seize
it absent probable cause to believe it was involved in a crime) is an issue that is just beginning to
receive judicial attention.” Sutterfield v. City of Milwaukee, 751 F.3d 542, 571 (7th Cir. 2014).
In that vein, there are no clearly established rules regarding whether a police officer is liable under
the Second Amendment for confiscating a firearm to protect officer safety during a traffic stop.
See Schaefer v. Whitted, 121 F.Supp.3d 701, 711 (W.D. Tex. 2015). Thus, the defendant officers
are entitled to qualified immunity on Brown’s Second Amendment claim because Brown has not
shown that they violated a clearly established right, and Brown’s Second Amendment claim is
DISMISSED WITH PREJUDICE.
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III.

Brown’s Claim against the Defendant Officers Brought under 18 U.S.C. § 245
Brown alleges that the defendant officers violated 18 U.S.C. § 245 by impounding his

automobile which deprived him of “traveling in or using any facility of interstate commerce.”
Section 245 is a criminal statute providing for the prosecution of a person who interferes with the
exercise of certain civil rights. See 18 U.S.C. § 245. The statute does not provide for a private
civil cause of action. Kelley v. Rockefeller, 69 Fed. Appx. 414, 415-16 (10th Cir. 20013).
Therefore, Brown cannot state a cause of action under § 245, and that claim is DISMISSED WITH
PREJUDICE.
IV.

Brown’s Official Capacity Claims against the Defendant Officers and the City
Defendants
Brown alleges that the defendant officers and the city defendants are liable in their official

capacities. A claim against a police officer or city official in his official capacity is treated as a
claim against the municipality that person serves. Brooks v. George Cty., Miss., 84 F.3d 157, 165
(5th Cir. 1996). In Monell, 98 S.Ct. at 2037, the Supreme Court of the United States held that local
governments cannot be held liable under § 1983 for constitutional deprivations effected by their
individual employees in their official capacities absent a showing that the pattern of behavior
allegedly arose from “the execution of a government's policy or custom.” To succeed on a Monell
claim, the plaintiff must establish: (1) an official policy or custom, of which (2) a policymaker can
be charged with actual or constructive knowledge, and (3) a constitutional violation whose
“moving force” is that policy or custom. Valle v. City of Hous., 613 F.3d 536, 541-42 (5th Cir.
2010).
In this case, Brown’s official capacity claims must be dismissed because he cannot prevail
on any of the alleged constitutional violation claims. Therefore, defendants' motion to dismiss is

15

GRANTED as to Brown’s official capacity claims against them, and those claims are DISMISSED
WITH PREJUDICE.
CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. #9) is
GRANTED, and plaintiff’s claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this _____ day of March, 2017.
7th

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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