Frampton v. City of Baton Rouge et al

Filing 49

FINDINGS OF FACT AND CONCLUSIONS OF LAW: Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(1)and 12(b)(6) (Doc. 18) is DENIED. Plaintiff's Motion for Preliminary Injunction (Doc. 2) is GRANTED, and defendant City of Baton Rouge/Parish of East Baton Rouge is ordered to withdraw its rule to show cause why Thomas Frampton should be held in contempt of the Juvenile Court. Signed by Judge John W. deGravelles on 1/7/2022. (KDC)

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 1 of 92

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
THOMAS FRAMPTON

CIVIL ACTION

VERSUS
CITY OF BATON ROUGE/PARISH OF
EAST BATON ROUGE, ET AL.

NO. 21-CV-362-JWD-SDJ

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Table of Contents
I.

INTRODUCTION .................................................................................................................. 3

II.

PARTIES ................................................................................................................................ 4

III.

BACKGROUND FACTS AND PROCEDURAL HISTORY ............................................ 5
A.
B.

Federal Proceedings Against Clarence Green And The Release Of BRPD Video. 7

C.

Frampton Is Hired As Green Family Lawyer, Files Civil Suit And Settles Case
With City/Parish...................................................................................................... 9

D.

Frampton Releases Some BRPD Video................................................................ 12

E.

Paul Holds Press Conference And City/Parish, On Behalf Of BRPD, Files Petition
In Juvenile Court Seeking Release Of Video And Sanctions Against Frampton . 13

F.

The Previous Public Release Of BRPD Video And Defendants’ Awareness Of
Same...................................................................................................................... 14

G.

Despite Knowledge Of Previous Public Release Of BRPD Video, Defendants
Continue To Pursue The Contempt Motion Against Frampton And Do Not Pursue
Contempt Actions Against Others Who Previously Released Video ................... 16

H.

IV.

January 1, 2020 Stop Of Clarence Green Vehicle .................................................. 5

Frampton Files Petition For Injunctive Relief And Motion For Preliminary
Injunction; Defendants File Motion To Dismiss; Preliminary Injunction Hearing
Is Held ................................................................................................................... 17

STANDARDS TO BE APPLIED ...................................................................................... 18
A.

Motion To Dismiss ............................................................................................... 18

B.

Motion For Preliminary Injunction ....................................................................... 19

C.

Younger Abstention And Bad Faith Exception ..................................................... 20

D.

Retaliation Against The Exercise Of The Constitutional Right Of Free Speech .. 22

Case 3:21-cv-00362-JWD-SDJ

V.
VI.

Document 49

01/07/22 Page 2 of 92

ISSUES ................................................................................................................................. 24
ARGUMENTS OF THE PARTIES .................................................................................. 26
A.

Should The Court Abstain From Deciding This Case? ........................................ 26
1.
2.

B.

Plaintiff’s Position .................................................................................... 26
Defendants’ Position ................................................................................. 42

Has Plaintiff Satisfied His Burden For The Issuance Of A Preliminary Injunction?
............................................................................................................................... 55
1.
2.

Has Plaintiff Shown A Significant Threat Of Irreparable Injury? ............ 56

3.

Does The Threatened Injury Of The Injunction Outweigh The Harm That
Will Result If The Injunction Is Granted? ................................................ 58

4.
VII.

Has Plaintiff Shown A Probability Of Success On The Merits? .............. 55

Will The Grant Of The Injunction Disserve The Public Interest? ............ 60

DISCUSSION .................................................................................................................... 61
A.

Motion To Dismiss ............................................................................................... 61
1.
2.

Test For Application Of Bad Faith Exception To Younger ...................... 62

3.

Was Frampton Engaged In Exercising A Constitutionally Protected Right?
................................................................................................................... 63

4.

Has Plaintiff Proved That A Major Motivating Factor In Filing The
Contempt Motion Was To Retaliate? ....................................................... 63

5.

Is Art. 412 Applicable To The Facts Of This Case? ................................. 77

6.

Have Defendants Met Their Burden To Show The City/Parish Would
Have Brought The Contempt Motion In The Absence Of Frampton’s
Constitutionally Protected Right? ............................................................. 83

7.
B.

Does Younger Apply To A State Contempt Proceeding? ......................... 61

Conclusion ................................................................................................ 84

Has Plaintiff Satisfied His Burden For The Issuance Of The Preliminary
Injunction? ............................................................................................................ 84
1.
2.

Has Plaintiff Shown A Probability Of Success On The Merits? .............. 85

3.

Has Plaintiff Shown A Substantial Threat of Irreparable Harm? ............. 86

4.

Does The Threatened Injury To Plaintiff Outweigh The Threatened Injury
To Defendants? ......................................................................................... 88

5.
VIII.

Test ............................................................................................................ 84

Will The Granting Of The Preliminary Injunction Disserve The Public
Interest? ..................................................................................................... 88
CONCLUSION .............................................................................................. 90
2

Case 3:21-cv-00362-JWD-SDJ

I.

Document 49

01/07/22 Page 3 of 92

INTRODUCTION
Before the Court is a Motion for Preliminary Injunction brought by plaintiff Thomas

Frampton (“Plaintiff” or “Frampton”) seeking to have this Court order the defendants City of
Baton Rouge/Parish of East Baton Rouge (“City/Parish”), Sharon Weston Broome (“Broome”)
and Murphy J. Paul, Jr. (“Paul”) (collectively, “Defendants”) to withdraw a portion of a Juvenile
Court Petition which seeks to hold Frampton in contempt of court. 1

Defendants filed an

opposition to the Motion for Preliminary Injunction. 2 Plaintiff filed a reply memorandum in
support of his Motion for Preliminary Injunction. 3
Also before the Court is Defendants’ Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and
12(b)(6). 4 Plaintiff filed an opposition, 5 and Defendants filed a reply. 6
On August 6, 2021, an evidentiary hearing on Plaintiff’s Motion for Preliminary Injunction
was held by Zoom. 7 Following the filing of the trial transcript of the preliminary injunction
hearing into the record, 8 Proposed Findings of Fact and Conclusions of Law were filed by Plaintiff9
and Defendants. 10 Each filed a response to the other’s submission. 11
The Court has carefully considered the law, facts in the record and arguments and
submissions of counsel and is prepared to rule. For the following reasons, Plaintiff’s Motion for

Doc. 2.
Doc. 20.
3
Docs. 21, 24.
4
Doc. 18-1. Defendants’ supporting memorandum is Doc. 18-2, and their memorandum in opposition to the Motion
for Preliminary Injunction is Doc. 18-5, which is also the same as Doc. 20.
5
Docs. 21, 24. These pleadings also double as Plaintiff’s reply memorandum in support of his Motion for Preliminary
Injunction.
6
Doc. 25.
7
Doc. 32.
8
Doc. 38, Trial Transcript of Hearing on Motion for Preliminary Injunction, August 6, 2021 (“Transcript”).
9
Doc. 42.
10
Doc. 41.
11
Docs. 43 and 44, respectively.
1
2

3

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 4 of 92

Preliminary Injunction 12 is granted and Defendants’ Motion to Dismiss under Fed.R.Civ.P.
12(b)(1) and 12(b)(6) 13 is denied.
II.

PARTIES
Plaintiff Frampton is an Associate Professor of Law at the University of Virginia School

of Law. 14 Frampton teaches criminal procedure, criminal law, and civil rights litigation. 15 He is a
resident of Virginia. 16 This Frampton is also a lawyer licensed in Louisiana. 17
Plaintiff filed this action against Defendants City/Parish, Broome in her individual and
official capacities as Mayor 18 of the City/Parish, 19 and Paul in his official capacity as Chief of
the Baton Rouge Police Department (“BRPD”). 20 Defendant City/Parish is a political subdivision
of the State of Louisiana and is the party which filed the petition in Juvenile Court in Baton
Rouge, Louisiana, which is at the center of this controversy (“Juvenile Court Petition” or
“Petition”). The Petition includes a rule to show cause why Frampton should not be held in
contempt of the Juvenile Court (“Contempt Motion”) for releasing dash camera and body camera
video footage taken by BRPD officers which allegedly documents misconduct by BRPD and
captures the arrest and search of a juvenile (“BRPD Video” or “Video”). 21
Frampton alleges that Broome, as Mayor-President of the City/Parish, is the chief executive

Doc. 2.
Doc. 18-1.
14
Doc. 38, Transcript at 18.
15
Id. at 18.
16
Id. at 59.
17
Thomas Frampton, LSBA Membership Directory, https://www.lsba.org/public/MembershipDirectoryV3.aspx (last
visited Jan. 7, 2022).
18
The correct title for Broome’s position is “Mayor-President”. The Plan of Government of the Parish of East Baton
Rouge and the City of Baton Rouge, Section 4.01 (as amended Nov. 18, 1995).
19
Doc. 1 at 3, ¶ 15.
20
Doc. 1 at 3–4, ¶ 16. It is not clear from the Complaint whether Paul is also being sued in his individual capacity.
21
Plaintiff’s Exhibit 7, Rule to Show Cause at ¶ 8 (“the City/Parish seeks a Rule to Show Cause why attorney Thomas
Frampton . . . should not be held in contempt”).
12
13

4

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 5 of 92

and final policymaker for the City/Parish and the BRPD. 22 According to Plaintiff, Broome finalizes
policies and practices of the BRPD and is also the final policymaker regarding what legal actions
the City/Parish Attorney’s Office pursues on behalf of the City/Parish. 23 She also is alleged to be
the final policymaker and has decision-making authority as to what actions the City/Parish and its
subdivisions have taken against Frampton. Defendant Paul is Chief of the BRPD. He is alleged to
be the final policymaker for the BRPD and a final policymaker as to what actions are taken by
BRPD. 24

BRPD was established through the City-Parish Plan of Government and is a part of

the City/Parish. 25
III.

BACKGROUND FACTS AND PROCEDURAL HISTORY
A. January 1, 2020 Stop Of Clarence Green Vehicle
On January 1, 2020, Clarence Green (“Green”) and his younger brother F.B. (a juvenile)

were passengers in a car travelling in Baton Rouge, Louisiana. 26 The car was stopped by BRPD
officers. As described by United States District Judge Brian Jackson of the Middle District of
Louisiana, the officers “demonstrated a serious and wanton disregard for [Green’s] constitutional
rights, first by initiating a traffic stop on the thinnest of pretext, and then by haphazardly invading
[Green’s] home (weapons drawn) to conduct an unjustified, warrantless search.” 27 Both Green and

Doc. 1 at 3, ¶ 15; see also Plan of Government of the City of Baton Rouge and the Parish of East Baton Rouge,
§ 4.01.
23
Id.; see also Plan of Government of the City of Baton Rouge and the Parish of East Baton Rouge, § 4.03.
24
Code of Ordinances of the City of Baton Rouge and the Parish of East Baton Rouge 4:51.
25
Plan of Government of the Parish of East Baton Rouge and the City of Baton Rouge, § 6.02 (“The Metropolitan
Council shall have . . . all the powers and duties relating to the organization and activities of a Police Department . . .
.”); Huval v. La. State Univ. Police Dep’t, No. 16-553, 2018 WL 5879490 (M.D. La. July 20, 2018) (Jackson, J.);
Grimes v. City of Baton Rouge, No. 07-145, 2007 WL 9706750 (M.D. La. July 11, 2007) (Brady, J.).
26
Doc. 38, Transcript at 19.
27
Plaintiff’s Exhibit 3, Order from United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Dec. 29, 2020), Doc.
35 at 1.
22

5

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 6 of 92

F.B. were arrested 28 although the significance of the arrest as it relates to the juvenile F.B. is
disputed.
The vehicle stop and arrests as well as the home search were captured in the BRPD Video.29
Those portions of the Video that deal with the arrest and search of the minor F.B. are at the center
of this controversy. According to Plaintiff, after stopping the car, BRPD Officers Ken Camallo
and Troy Lawrence placed Green and F.B. on the concrete and then frisked and strip-searched
them. 30 Camallo and Lawrence then drove Green and his younger brother to their mother’s home.31
The officers then entered the home without a warrant, with guns drawn. 32
Plaintiff contends that, at the conclusion of the encounter, one of the officers returned to
the handcuffed Green and threatened to beat him while he sat in the back of a police car. 33 The
juvenile F.B. was released without being booked 34 pursuant to a custodial agreement (“Custodial
Agreement”),” 35 a BRPD document which allows a child to be released without booking if a parent
promises to bring the child to the Juvenile Court Center for “interviews and/or hearings” if
requested. 36 A Custodial Agreement is equivalent to an arrest. 37 The offense for which F.B. was
issued the Custodial Agreement was Possession of Marijuana, La. R.S. § 40:966E. 38 As of the
time of the hearing on the Motion for Preliminary Injunction on August 6, 2021, F.B. had not been
charged with any crime. 39

Doc. 38, Transcript at 18–19.
Id. at 28–29. According to Frampton, there was some 10 hours of video taken although only some 63 minutes of
the Video was introduced by the Government and Green at Green’s Motion to Suppress hearing. (Id.)
30
Id. at 19–20.
31
Id., ¶ 17, citing Doc. 38, Transcript at 20.
32
Doc. 42 at 6, ¶ 14, citing Doc. 38, Transcript at 20.
33
Id., ¶ 15, citing Doc. 38, Transcript at 20.
34
Id., citing Doc. 38, Transcript at 22–23.
35
Id., citing Doc. 38, Transcript at 23 and Plaintiff’s Exhibit 2, Custodial Agreement.
36
Id.
37
Doc. 38, Transcript at 123.
38
Plaintiff’s Exhibit 2, Custodial Agreement.
39
Doc. 38, Transcript at 26.
28
29

6

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 7 of 92

B. Federal Proceedings Against Clarence Green And The Release Of BRPD
Video
Following his arrest, Green was indicted by a federal grand jury for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 40 After the indictment, BRPD
released the BRPD Video of the stop, arrests and home search (including the footage of F.B.) to
the U.S. Attorney for the Middle District. 41 Even though the BRPD Video included the arrest and
search of the juvenile F.B., no effort was made by the BRPD or the City/Parish to request
permission from the Juvenile Court before releasing the Video 42 nor did BRPD mark the Video as
confidential or place any restrictions on the use or dissemination of the Video. 43
The U.S. Attorney, in turn, released the full ten hours of the BRPD Video to Green through
his attorney, Assistant Federal Public Defender Mark Upton. 44 When the Video was released to
Green’s attorney, again, no restrictions of any kind were placed on the use and dissemination of
the Video. Plaintiff maintains that when the BRPD Video was released to Green’s attorney, it
“thereby became Mr. Green’s — with no restrictions on his use of that material.” 45
In Green’s criminal case, his Federal Public Defender filed a Motion to Suppress evidence
and statements. 46 In connection with Green’s Motion to Suppress, both the Unites States 47 and

Id. at 20; United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. July 16, 2020), Indictment, Doc. 1.
Id. at 76, 100.
42
Id. at 100.
43
Id. at 28–29.
44
Id.
45
Doc. 42 at 7, ¶ 18, citing Doc. 38, Transcript at 29 (“The 63 minutes of footage were in the public record, and the
ten hours were the property of Clarence Green as they had been turned over to him.”); Plaintiff also cites Louisiana
Rules of Professional Conduct, Rule 1.16(d) (“Upon written request by the client, the lawyer shall promptly release
to the client or the client’s new lawyer the entire file relating to the matter.”).
46
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La.), Motion to Suppress, Docs. 12, and Exhibit Log for
Motion to Suppress Hearing, Doc. 26; Doc. 38, Transcript at 20.
47
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Nov. 20, 2020), Exhibit Log for Motion to Suppress
Hearing, Doc. 26 (Government Exhibits 1s through 1c and 2).
40
41

7

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 8 of 92

Green’s attorney filed portions of the BRPD Video into the public record 48 as well as incident
reports. 49 According to Frampton’s uncontradicted testimony, the Video showed, among other
things, an illegal search of F.B. and F.B.’s unblurred face. 50 It was not stamped “confidential” or
in any way designated “not to be shared.” 51 The Video was not admitted under seal or otherwise
protected nor was its use restricted and it therefore became a public record of this Court. 52
On November 20, 2020, an evidentiary hearing on Green’s Motion to Suppress was
conducted before Judge Jackson. 53 At the hearing, Officer Camallo testified and, according to
Judge Jackson, gave “multiple conflicting accounts when describing the circumstances leading up
to [Green’s] traffic stop and failed to offer a satisfactory explanation for why the police reports in
the investigation were revised nearly one dozen times in the months following the arrest.” 54
Following the hearing, on December 24, 2020, the United States “reevaluated” the
evidence against Green and based on that “reevaluation”, moved to dismiss the indictment against
Green. 55 On December 29, 2020, the Court granted the Government’s motion to dismiss and ordered
Green’s immediate release. Significantly, the Court wrote:
As reflected in the video evidence submitted in support of Defendant’s Motion to
Suppress (Doc. 12), the state agents in this case demonstrated a serious and wanton
disregard for Defendant’s constitutional rights, first by initiating a traffic stop on
the thinnest of pretext, and then by haphazardly invading Defendant’s home
(weapons drawn) to conduct an unjustified, warrantless search. Such an intrusion,
in abject violation of the protections afforded by the Fourth Amendment of the
48
Id. (Defense Exhibits 6–8). According to Frampton, of the ten hours of video making up the entirety of the video
taken by BRPD, only 63 minutes of it were introduced. (Doc. 38, Transcript at 29.) However, the entire ten hours of
video had previously been released to Green’s criminal defense lawyer. (Id.)
49
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Nov. 20, 2020), Exhibit Log from Motion to Suppress
Hearing, Doc. 26.
50
Doc, 42 at 7, ¶ 19, citing Doc. 38, Transcript at 29.
51
Doc. 38, Transcript at 36.
52
Doc. 42 at 7, ¶ 20, citing Doc. 38, Transcript at 28–29, 36.
53
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Nov. 20, 2020), Minute Entry from Motion to Suppress
Hearing, Doc. 25.
54
Plaintiff’s Exhibit 3, Order from United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Dec. 29, 2020), Doc.
35 at 1, n.1.
55
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Dec. 24, 2020), Motion to Dismiss Indictment, Doc. 34.

8

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 9 of 92

United States Constitution, which protects citizens against unwarranted
governmental intrusions in their homes, may justifiably be considered to be a
trespass subject to prosecution under La. R.S. 14:63. 56
C. Frampton Is Hired As Green Family Lawyer, Files Civil Suit And Settles
Case With City/Parish
Following the Court’s December 29, 2020 ruling, and because there were only a few days
left before the statute of limitations period expired, Frampton offered to represent the Green family
pro bono in a § 1983 civil rights suit against the City/Parish.57 He agreed that he was “not going
to make any money whatsoever by representing them and would not accept any attorney’s fees or
otherwise profit in any way from [his] representation.” 58
On January 1, 2021, Frampton filed a civil suit on behalf of Clarence Green and Tanya
Green, Green v. Camallo, 21-cv-00001-JWD-EWD (M.D. La.), alleging constitutional violations,
trespass, false imprisonment, and the manufacturing of false evidence. 59 Tanya Green is the mother
of the minor F.B. 60 Pursuant to his representation, Frampton requested and received Green’s copy
of the BRPD Video from the Federal Public Defender, who had received it from the U.S. Attorney’s
Office and who, in turn, had received it from BRPD. 61 The Federal Public Defender placed no
restrictions on Frampton’s use of the video.
Frampton also submitted a public records request to BRPD on January 21, 2021 seeking,
among other records, “all body-worn camera footage and dash-camera footage from officers
involved in the above incidents [BRPD file No. 2020-225].” 62 On or around February 4, 2021,

Plaintiff’s Exhibit 3, Order from United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Dec. 29, 2020), Doc.
35 at 1, n.1.
57
Doc. 38, Transcript at 26–27.
58
Id. at 27.
59
Id. at 27; Plaintiff’s Exhibit 4, Green v. Camallo Complaint; see also Green v. Camallo, 21-cv-00001-JWD-EWD
(M.D. La.), Complaint, Doc. 1.
60
Plaintiff’s Exhibit 2, Custodial Agreement; Green v. Camallo, No. 21-cv-00001-JWD-EWD (M.D. La.), Complaint,
Doc. 1 at 4, ¶ 14.
61
Doc. 38, Transcript, at 28, 41, 48.
62
Id. at 31–32; see also Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶ 9.
56

9

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 10 of 92

Deelee Morris, City/Parish BRPD counsel, 63 contacted Frampton in response to that request and
told him “there were problems under 412 with releasing that without a Juvenile Court Order…and
that we could provide those documents to him unredacted if he just got an order.” 64 However,
having received the BRPD Video from Green’s criminal defense lawyer, Frampton withdrew his
request for videos and reports from BRPD file # 20-225 on March 25, 2021. 65
On or before January 12, 2021, the Baton Rouge Advocate newspaper independently
obtained the BRPD Video and published a story describing it. 66 A search of this Court’s records
reveals that on January 4, 2021, Lea Skene, one of the authors of the story, ordered from the Clerk
of this Court a copy of the BRPD Video and paid $32.00 for it. 67 This is consistent with the
testimony of Frampton that someone on his behalf successfully ordered a copy of the BRPD Video
from the Clerk. 68 In addition, the court record in U.S. v. Green shows that on January 5, 2921, John
Simerman, the other author of the Advocate article, ordered a copy of the transcript of the Motion
to Suppress hearing. 69
Frampton testified that during a March 2021 settlement conference in Green’s civil suit,
he discussed his possession of the BRPD Video with the City/Parish attorneys, in the context of

Id. at 62 (Morris testified that she was “Special Assistant Parish Attorney…specifically assigned to the Baton Rouge
Police Department… work[ing] mainly out of the Police Department Headquarters.”).
64
Id. at 91–92; Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶ 9. Frampton recounts a similar version of this
conversation. Doc. 38, Transcript at 32–33.
65
Defendants’ Exhibit 3.
66
Plaintiff’s Exhibit 5 (John Simerman and Lea Skene, Federal judge voids gun charges, calls bad BRPD bust a ‘foul’
against justice system, BATON ROUGE ADVOCATE, Jan. 12, 2021 (the “Advocate article”); Doc. 38, Transcript at
30 (describing that Lea Skene confirmed in writing she had obtained the footage); Doc. 38, Transcript at 29–31
(describing details in article only available in footage and not Judge Jackson’s opinion).
67
The Court document showing Lea Skene ordered the recording is attached to this ruling as Appendix 1. The Court
may take judicial notice of this document. Fetty v. La. State Bd. of Priv. Sec. Exam’rs, No. CV 18-517-JWD-EWD,
2020 WL 448231, at *8 (M.D. La. Jan. 28, 2020) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial
notice of matters of public record.” (quoting Norris v. Hearts Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007)); Duncan v.
Heinrich, 591 B.R. 652, 655 (M.D. La. 2018) (“Documents in judicial actions and cases’ dockets are public records
of which any court can take judicial notice.” (internal citations omitted.)
68
Doc. 38, Transcript at 49–50; Plaintiff’s Exhibit 13, Receipt from Clerk of Court.
69
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Jan 5, 2021), Transcript Request by John Simerman of
the Advocate, Doc. 37.
63

10

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 11 of 92

identifying the officers who were visible in the footage. 70 This testimony is not disputed. Thus, by
March 2021, the City Parish Attorney’s Office knew that someone had shared the BRPD Video
with Frampton 71 and by March 25, 2021 knew that it had not come as a result of his formal request
(discussed with City/Parish Attorney Morris) since that request was withdrawn on that date. 72
Frampton testified that at the settlement conference, no one with the City/Parish Attorney’s
Office raised a concern about his possession of the Video or suggested that he or the individual who
provided it to him had violated the Children’s Code.73 City/Parish attorneys did not tell Frampton he
should not share it with anyone else. 74 They did not say or suggest it might be a violation of the
law to share it with anyone else. 75 No inquiry was made as to how Frampton came to possess the
Video. This testimony is undisputed.
Frampton also personally spoke with East Baton Rouge Parish District Attorney Hillar
Moore about his possession of the Video. 76 District Attorney Moore did not express surprise that
Frampton had the video, or tell him that he should not share it, or that it would be a crime to share
it. 77
By May 14, 2021, the Green family settled its claims with the City/Parish and moved to
dismiss the case. 78 The settlement agreement did not include any confidentiality or nondisparagement terms. 79 The civil claims were dismissed on May 17, 2021. 80

Doc. 38, Transcript at 34–35.
Id.
72
Defendants’ Exhibit 3.
73
Doc. 38, Transcript at 34–35.
74
Id. at 35–36.
75
Id. at 36.
76
Id. at 39.
77
Id. at 39–40.
78
Green v. Camallo, 21-cv-00001-JWD-EWD (M.D. La.), Joint Motion to Dismiss, Doc. 10; Doc. 38, Transcript at
36.
79
Doc. 38, Transcript at 36.
80
Green v. Camallo, 21-cv-00001-JWD-EWD (M.D. La.), Judgment of Dismissal, Doc. 11.
70
71

11

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 12 of 92

D. Frampton Releases Some BRPD Video
Despite the settlement, the Green family was unsettled by the fact no officers had been
disciplined despite the fact that a federal judge suggested potential criminal conduct on the part of
BRPD officers. 81 By March 2021, they were concerned that, despite the stern words from Judge
Jackson, BRPD had not even “opened the disciplinary investigation into Troy Lawrence, Jr.”,
who, according to Plaintiff, was the officer allegedly seen in the video repeatedly threatening to
beat Clarence while he was sitting in handcuffs, and who participated in the unwarranted home
search and who participated in the frisks.” 82
On or around May 27, 2021, at the Green family’s “request and with their express
blessing,” Frampton issued a “press release on their behalf as the best way to try to actually get
some accountability with respect to what had happened on January 1st.” 83 The press release
regarding the settlement contained a link to the public internet platform, YouTube, which hosted
an edited version of the BRPD Video depicting Clarence Green and F.B. being searched and
arrested. 84
On May 27, 2021, BRPD’s conduct in connection with stopping Green’s vehicle and the
events which followed became a national news story. The CBS Evening News ran a story entitled
“Baton Rouge reaches $35,000 settlement with family after police strip-searched teen and entered

Doc. 38, Transcript at 36–37; Plaintiff’s Exhibit 2, Custodial Agreement at 1, n.1. (“Such an intrusion, in abject
violation of the protections afforded by the Fourth Amendment of the United States Constitution…may justifiably be
considered to be a trespass subject to prosecution under La. R.S. 14:63.”).
82
Doc. 38, Transcript at 37.
83
Id. at 38; see also Doc. 38, Transcript at 40–41; Plaintiff’s Exhibit 9, ACLU Letter (explaining that the press and
Video release was done at the request and with the consent of the Green family).
84
Plaintiff’s Exhibit 8, CBS News Story, available online, https://www.cbsnews.com/news/baton-rouge-police-teenstrip-searched-settlement/; see also link referenced in Plaintiff’s Exhibit 7, Rule to Show Cause at ¶ 2; Thomas
Frampton, BRPD – Illegal Strip Searches; Entering Home (Guns Drawn) w/out Warrant; Physical Threats, YOUTUBE
(May 27, 2021), https://www.youtube.com/watch?v=nBtmXaAxs-8.
81

12

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 13 of 92

home without warrant.” 85 CBS broadcasted portions of the Video on the evening news and put it
on their website. 86 According to Frampton, “several national news outlets shared it or wrote about
it.” 87 According to Defendants, the Video on YouTube, was also reproduced through various
media and social platforms. 88
E. Paul Holds Press Conference And City/Parish, On Behalf Of BRPD, Files
Petition In Juvenile Court Seeking Release Of Video And Sanctions Against
Frampton
On May 28, 2021, the day after Frampton released the BRPD Video and the CBS news
story aired, Paul scheduled a press conference to be held that afternoon at 3:00 p.m. 89 That
morning, before Paul’s press conference, Defendant City/Parish, “on behalf of” BRPD, filed in
Juvenile Court a “Petition to Disclose Portion of Records Concerning [sic] a Matter Before Juvenile
Court Pursuant to La CH.C. [sic] Art [sic] 412 With Rule to Show Cause.” 90 No effort was made
to contact or give notice to F.B.’s mother or the Green family’s lawyer, Thomas Frampton, the
subject of the rule to show cause, before the Petition and order were presented by City/Parish
Attorney Deelee Morris ex parte to the Juvenile Court judge for signing. 91
The Juvenile Court Petition alleged that since the Video had been made public, “the City
of Baton Rouge has received a substantial amount of negative correspondence from the public.” 92
“In an effort to reduce the potential for civil unrest,” 93 it sought the Juvenile Court’s permission

Plaintiff’s Exhibit 8, CBS News Story, available online at https://www.cbsnews.com/news/baton-rouge-police-teenstrip-searched-settlement/.
86
Doc. 38, Transcript at 41–42.
87
Id. at 41.
88
Doc. 41 at 6, ¶ 26, citing Doc. 38, Transcript 48–49.
89
Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶ 2.
90
Plaintiff’s Exhibit 7, Rule to Show Cause.
91
Plaintiff’s Exhibit 1, Declaration of Deelee Morris; Doc. 38, Transcript at 43.
92
Plaintiff’s Exhibit 7, Rule to Show Cause at ¶ 4. The Court notes that the Petition contains two paragraphs labeled
as paragraph 4; this is the second one.
93
Id. at ¶ 5.
85

13

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 14 of 92

to disclose portions of the BRPD Video to the public 94 “because the release of these videos will
assist in accurately explaining the events that led up to and transpired during the arrest.” 95
The Juvenile Court Petition also included a “Rule to Show cause why attorney Thomas
Frampton (La. Bar Roll 35775) should not be held in contempt pursuant to Louisiana Children’s
Code art. 1509 for the public release of the videos prior to seeking authorization with this Court
under Louisiana Children’s Code art 412” 96 (“Contempt Motion”). The Petition attached a copy of
Frampton’s press release. 97
At about 12:00 p.m. that same day, the Juvenile Court Judge (1) granted the ex parte order
seeking release of the requested limited footage and (2) set the hearing on the Contempt Motion
for July 12, 2021. 98 After City/Parish lawyer Morris obtained the judge’s signature on the Petition
and show cause order, she served Frampton with the Contempt Motion. 99 Frampton was served as
BRPD’s Paul began the press conference. 100
F. The Previous Public Release Of BRPD Video And Defendants’ Awareness Of
Same
Prior to Frampton’s press release of May 27, 2021 and Defendants’ May 28, 2021
Contempt Motion, the BRPD Video was released to at least five persons without anyone having
sought or gained permission of the Juvenile Court: 1) BRPD released it to the U.S. Attorney; 2)
the U.S. Attorney released it to Green and his lawyer, the Federal Public Defender; 3) U.S.
Attorney and Federal Public Defender introduced portions of the Video into evidence in
connection Green’s Motion to Suppress and therefore it came into the possession of the Clerk of
Id. at ¶ 1.
Id. at ¶ 6.
96
Id. at ¶ 8.
97
Id. at pg. 5.
98
Plaintiff’s Exhibit 7, Rule to Show Cause; Defendants’ Exhibit 5, Rule to Show Cause; Plaintiff’s Exhibit 1,
Declaration of Deelee Morris at ¶ 4.
99
Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶¶ 4–6.
100
Doc. 38, Transcript at 43.
94
95

14

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 15 of 92

Court; 4) the Federal Public Defender released it to Green’s civil attorney Frampton; 5) the Middle
District Clerk of Court released it to Lea Skene of the Baton Rouge Advocate.
In each case, the Video was released without restriction of any kind having been placed
on the use of the Video. At the time the City/Parish filed the Juvenile Court Petition and Contempt
Motion against Frampton, the BRPD Video had been a public record of the Middle District for
nearly six months. 101
On June 2, 2021, shortly after the Contempt Motion was served on Frampton, Frampton’s
lawyers wrote City/Parish Attorney Anderson Dotson informing him that the BRPD Video:
was initially provided by the U.S. Attorney to Clarence Green as
discovery in his (adult) criminal prosecution. The United States
made the relevant footage public in November 2020 [referring by
footnote to the introduction of the video in connection with the
hearing on the Motion to Suppress, R. Doc. 26 United States v.
Green, Case No. 20-CR-00049 (M.D. La. Nov. 20, 2020)] and the
region’s largest newspaper independently obtained and described it
in January 2021. 102
The letter also states that Frampton released the BRPD video “at the behest of and with the consent
of all concerned members of the Green Family.” 103 It asked Dotson to “let us know by June 7,
2021…whether you will withdraw the request for contempt.” 104 Defendant Mayor-President
Sharon Weston Broome was sent a copy of the letter. 105
Despite Dotson’s receipt of the June 2, 2021 letter and despite City/Parish Attorney Deelee
Morris having requested a copy of the transcript of the hearing on January 6, 2020, 106 Morris claims

See United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Nov. 20, 2020), Exhibit Log from Motion to
Suppress Hearing, Doc. 26, Government Exhibits 1-a, 1-b, 1-c, and 2 and Defendant’s Exhibits 6 and 7.
102
Plaintiff’s Exhibit 9, ACLU Letter (referencing the January 12, 2020 Advocate article, introduced in this proceeding
as Plaintiff’s Exhibit 5).
103
Id. at 1.
104
Id. at 2.
105
Id.
106
Doc. 38, Transcript at 64 (Questioning of Deelee Morris). Morris’ testimony that she could “not really confirm”
that there had been a motion to suppress hearing in Green’s federal criminal case, that she had “not requested any
record” and she had “not seen any record” is directly contradicted by Doc. 38 of the record in United States v. Green,
101

15

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 16 of 92

she was unaware that the BRPD Video had been introduced into the public record at Green’s
November 20, 2020 motion to suppress hearing, some six months before the Contempt Motion.107
The transcript reveals that the Video was shown to the Court and witnesses at the suppression
hearing, 108 and the record shows the Video was introduced. 109
In any event, Morris testified at the hearing that she did not “have any reason at the time
of the receipt of this letter to doubt” that the Video was already a public record as of November,
2020. 110 Nor did she have any reason to doubt that it was “in the court record,” 111 nor did she have
any reason to doubt that part of the letter indicating the Baton Rouge Advocate had received the
BRPD Video in January of 2021 and published an article describing the video. 112
G. Despite Knowledge Of Previous Public Release Of BRPD Video, Defendants
Continue To Pursue The Contempt Motion Against Frampton And Do Not
Pursue Contempt Actions Against Others Who Previously Released Video
After the receipt of the June 2, 2021 letter, the City/Parish did not withdraw the Contempt
Motion against Frampton. 113 Furthermore, even though the City/Parish now takes the position that
the others who released the BRPD Video without requesting permission of the Juvenile Court
violated the same provision of the Children’s Code it alleges was violated by Frampton, including
1) the BRPD, 2) the U.S. Attorney, 3) the Federal Public Defender, 4) the Middle District Clerk

No. 20-CR-46-BAJ-SDJ (M.D. La.), which shows that on January 6, 2021, Dellee Morris ordered the transcript for
the Motion to Suppress hearing.
107
Doc. 38, Transcript at 64 (Questioning of Deelee Morris)
108
See United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Nov. 20, 2020), Exhibit Log from Motion to
Suppress Hearing, Doc. 26, and Transcript from Motion to Suppress Hearing, Doc. 31 at 23–42.
109
Id.; Doc. 26.
110
Doc. 38, Transcript at 73 (“Q. Any reason – did you have any reason at the time of the receipt of this letter to doubt
that that was true? A. No.”).
111
Id. at 73.
112
Id. at 74 (“Q. When you received this letter, did you have any reason to doubt that part of the letter was untrue? A.
No.”).
113
Id. at 74 (“Q. After the receipt of this letter, did the City Parish withdraw its contempt request against Professor
Frampton? A. No.”).

16

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 17 of 92

of Court, and 5) Clarence Green, 114 it has not pursued a contempt motion against anyone other
than Frampton. 115
H. Frampton Files Petition For Injunctive Relief And Motion For Preliminary
Injunction; Defendants File Motion To Dismiss; Preliminary Injunction
Hearing Is Held
On June 23, 2021, Frampton filed suit for injunctive relief in this Court. 116 His complaint
makes three claims: First Amendment Retaliation, Abuse of Process, and Violation of the Louisiana
Constitution. 117 His prayer for relief seeks a preliminary injunction directing Defendants to cease
their retaliation against him. 118 On the same day suit was filed, Frampton filed a Motion for
Preliminary Injunction, asking that “this Court issue a preliminary injunction against Defendants’
course of retaliatory conduct towards Mr. Frampton.” 119
On July 7, 2021, Defendants filed a consolidated Motion to Dismiss under Rules 12(b)(1)
and 12(b)(6) and an Opposition to the Motion for Preliminary Injunction. 120 Their motion raises
issues of abstention and failure to state a claim and argues that Frampton was not subject to any
threat of irreparable injury. 121 Frampton filed a reply memo, 122 as did Defendants. 123
On August 6, 2021, the Court held a hearing on the Motion for Preliminary Injunction.124
At the hearing, exhibits were introduced 125 and four witnesses were called: (1) Frampton, (2)
Special Assistant Parish Attorney Deelee Morris, (3) BRPD Administrative Specialist Valerie

Id. at 102–104; Doc. 41 at 10, ¶ 52.
Plaintiff’s Exhibit 12 at 5–6, Defendants’ Answers to Interrogatories Nos. 6 and 7. See also Doc. 38, Transcript, at
98–100; id. at 102–104; Doc. 41 at 10, ¶ 52.
116
Doc. 1.
117
Id. at ¶ 62 et seq.
118
Id. at ¶ 80.
119
Doc. 2 at 1; see also Doc. 2-1 at 1.
120
Docs.18-1 and 18-5 respectively.
121
Doc. 18-2.
122
Doc. 21.
123
Doc. 25.
124
Doc. 32; Doc. 38, Transcript at 1 et seq.
125
Doc. 38, Transcript at 8.
114
115

17

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 18 of 92

Singleton, and (4) Assistant East Baton Rouge Parish District Attorney Courtney Myers-Minor. 126
IV.

STANDARDS TO BE APPLIED
A. Motion To Dismiss
In Johnson v. City of Shelby, 127 the Supreme Court explained: “Federal pleading rules call

for a ‘short and plain statement of the claim showing that the pleader is entitled to relief,’ Fed. R.
Civ. P. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the
legal theory supporting the claim asserted.” 128
Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has
explained:
The complaint (1) on its face (2) must contain enough factual matter
(taken as true) (3) to raise a reasonable hope or expectation (4) that
discovery will reveal relevant evidence of each element of a claim.
“Asking for [such] plausible grounds to infer [the element of a
claim] does not impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable
expectation that discovery will reveal [that the elements of the claim
existed].” 129
Applying the above case law, the Western District of Louisiana has stated:
Therefore, while the court is not to give the “assumption of truth” to
conclusions, factual allegations remain so entitled. Once those
factual allegations are identified, drawing on the court's judicial
experience and common sense, the analysis is whether those facts,
which need not be detailed or specific, allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” [Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)]; Twombly,
55[0] U.S. at 556. This analysis is not substantively different from
that set forth in Lormand, supra, nor does this jurisprudence
foreclose the option that discovery must be undertaken in order to
raise relevant information to support an element of the claim. The
Doc. 38, Transcript.
574 U.S. 10 (2014).
128
Id. at 11.
129
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)).
126
127

18

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 19 of 92

standard, under the specific language of Fed. R. Civ. P. 8(a)(2),
remains that the defendant be given adequate notice of the claim and
the grounds upon which it is based. This standard is met by the
“reasonable inference” the court must make that, with or without
discovery, the facts set forth a plausible claim for relief under a
particular theory of law provided that there is a “reasonable
expectation” that “discovery will reveal relevant evidence of each
element of the claim.” Lormand, 565 F.3d at 257; Twombly, 55[0]
U.S. at 556. 130
The Fifth Circuit further explained that, in deciding a Rule 12(b)(6) motion, all wellpleaded facts are taken as true and viewed in the light most favorable to the plaintiff. 131 The task
of the Court is not to decide if the plaintiff will eventually be successful, but to determine if a
“legally cognizable claim” has been asserted. 132
B. Motion For Preliminary Injunction
Plaintiff has moved to preliminarily enjoin Defendants from proceeding with their
Contempt Motion.
To obtain a preliminary injunction, the plaintiff must show 1) that
there is a substantial likelihood that it will succeed on the merits, 2)
that there is a substantial threat that it will suffer irreparable injury
if the district court does not grant the injunction, 3) that the
threatened injury to the plaintiff outweighs the threatened injury to
the defendant, and 4) that granting the preliminary injunction will
not disserve the public interest. 133
“[A] preliminary injunction is an extraordinary remedy which should not be granted unless
the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements.”134

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-177, 2011 WL 938785, at *3 (W.D. La. Feb. 9, 2011)
(citation omitted).
131
Thompson v. City of Waco, 764 F.3d at 500, 502–03 (5th Cir. 2014).
132
Id. at 503.
133
W. Sur. Co. v. PASI of La, Inc., 334 F. Supp. 3d 764, 789 (M.D. La. 2018) (deGravelles, J.) (quoting Sierra Club,
Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993) (citing Canal Auth. of Fla. v. Callaway, 489 F.2d 567,
572 (5th Cir. 1974))). See also June Med. Servs. LLC v. Kliebert, 158 F. Supp. 3d 473, 534–35 (M.D. La. 2016)
(deGravelles, J.); Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 635 (M.D. La. 2015)
(deGravelles, J.), (citing Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009).
134
PASI of La, Inc., 334 F. Supp. 3d at 789–90 (citing Bluefield Water Ass'n, Inc. v. City of Starkville, 577 F.3d 250,
253 (5th Cir. 2009) (stating that it has “cautioned” this point “repeatedly”) (quoting Lake Charles Diesel, Inc. v. Gen.
130

19

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 20 of 92

“Otherwise stated, if a party fails to meet any of the four requirements, the court cannot grant the
... preliminary injunction.” 135
C. Younger Abstention And Bad Faith Exception
Plaintiff sues under 42 U.S.C. § 1983 for the violation of his rights under the First and
Fourteenth Amendments to the United States Constitution136 and therefore jurisdiction is based on
28 U.S.C. § 1331. Defendants do not question this Court’s jurisdiction but urge the Court to abstain
based on Younger v. Harris. 137 As the Fifth Circuit has explained,
Under the broad proscriptions of Younger v. Harris and its
companion cases, a federal district court presumptively must abstain
from granting either injunctive or declaratory relief when state
criminal actions or certain categories of state civil proceedings are
pending against the federal plaintiff at the time that federal action is
commenced. This doctrine, alternately called abstention or
nonintervention, is based on considerations of equity, comity, and
federalism. 138
“Under the Younger abstention doctrine, federal courts should generally decline to
exercise jurisdiction when: ‘(1) the federal proceeding would interfere with an “ongoing state
judicial proceeding”; (2) the state has an important interest in regulating the subject matter of the
claim; and (3) the plaintiff has “an adequate opportunity in the state proceedings to raise
constitutional challenges.” ’ ” 139
Plaintiff argues that the Juvenile Court Petition and the embedded Contempt Motion are

Motors Corp., 328 F.3d 192, 195–96 (5th Cir. 2003)); see also Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d
992, 997 (5th Cir. 1985) (“Injunctive relief is an extraordinary and drastic remedy, not to be granted routinely, but
only when the movant, by a clear showing, carries the burden of persuasion.” (citing 7 Moore's Federal Practice
¶ 65.04(s) (1982); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2942 at 368 (1973)).
135
PASI of La, Inc., 334 F. Supp. 3d at 790 (citing Gonannies v. Goupair.com, Inc., 464 F. Supp. 2d 603, 607 (N.D.
Tex. 2015).
136
Doc. 1; Doc. 42 at 18, ¶ 76.
137
401 U.S. 37, 91 (1971).
138
DeSpain v. Johnston, 731 F.2d 1171, 1175–76 (5th Cir. 1984) (citing Younger, 401 U.S. at 43–45).
139
Gates v. Strain, 885 F.3d 874, 880 (5th Cir. 2018) (citing Bice v. La. Pub. Def. Bd., 677 F.3d 712, 716 (5th Cir.
2012) (in turn quoting Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).

20

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 21 of 92

not the kind of state court proceedings to which Younger applies. 140 However, as is discussed in
more detail later, both the Supreme Court and the Fifth Circuit have held that state contempt
proceedings are subject to Younger abstention. 141
Plaintiff argues in the alternative that, even if Younger otherwise applies to the Contempt
Motion, the bad faith/harassment exception to Younger applies and therefore the Court should deny
Defendants’ motion. The Fifth Circuit makes clear that the presumption in favor of Younger
abstention is not absolute and may be overcome
[b]y a showing of bad faith or intent to harass. When the state in a
criminal proceeding acts in bad faith or with the purpose of
harassing the federal plaintiff, its actions are not ‘legitimate
activities’. In those extraordinary cases, the balance tips in favor of
the national government, and federal courts should act to protect
federal interests. [Younger] at 47, 91 S. Ct. at 752. Equitable relief
by the federal court is warranted, because the federal plaintiff faces
a risk of irreparable injury that is both ‘great and immediate’. Id. 142
“[T]he ‘bad faith’ exception is narrow and should be granted parsimoniously”, and
Plaintiff bears the burden to establish actual proof of bad faith. 143
In Wilson v. Thompson, the Court declared that
the proper test to be applied in the context of a suit to enjoin a
criminal prosecution allegedly brought in retaliation for or to deter
the exercise of constitutionally protected rights is as follows: The
Court should consider whether the plaintiffs have shown, first, that
the conduct allegedly retaliated against or sought to be deterred was
constitutionally protected, and, second, that the State's bringing of
the criminal prosecution was motivated at least in part by a purpose
to retaliate for or to deter that conduct. If the Court concludes that
the plaintiffs have successfully discharged their burden of proof on
both of these issues, it should then consider a third: whether the State
has shown by a preponderance of the evidence that it would have

Doc. 42 at 38–39, ¶¶ 165–168.
Juidice v. Vail, 430 U.S. 327, 335 (1977) (“[Abstention] principles apply to a case in which the State's contempt
process is involved.”); Kolwe v. Civ. & Structural Eng’rs, Inc., 858 F. App'x 129, 132 (5th Cir. 2021).
142
DeSpain, 731 F.2d at 1176–77.
143
Gates, 885 F.3d at 881 (quoting Hefner v. Alexander, 779 F.2d 277, 280 (5th Cir. 1985).
140
141

21

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 22 of 92

reached the same decision as to whether to prosecute even had the
impermissible purpose not been considered. 144
The Court later clarified the “at least in part” language of the Wilson test by holding that
the plaintiff must show that the defendant’s purpose was not merely “in part” to retaliate, but that
retaliation was a “major motivating factor and played a prominent role in the decision to
prosecute.” 145
When considering the third prong of the Wilson test, i.e., whether the State has met its
burden to prove that it would have chosen to prosecute even in the absence of the impermissible
purpose, the Court should consider:
whether the State prosecution was undertaken with no hope of a
valid conviction, see Perez v. Ledesma, 1971, 401 U.S. 82, 85, 91
S.Ct. 674, 27 L.Ed.2d 701, and the significance of the alleged
criminal activity. See Duncan v. Perez, 5 Cir., 1971, 445 F.2d 557,
560, cert. denied, 404 U.S. 940, 92 S.Ct. 282, 30 L.Ed.2d 254. 146
D. Retaliation Against The Exercise Of The Constitutional Right Of Free
Speech
The Supreme Court in Hartman v. Moore stated the rule prohibiting retaliation against a
person’s exercise of the right of free speech and its rationale:
Official reprisal for protected speech ‘offends the Constitution [because] it
threatens to inhibit exercise of the protected right,’ Crawford–El v.
Britton, 523 U.S. 574, 588, n. 10, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998),
and the 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, id., at 592, 118 S. Ct.
1584; see also Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33
L. Ed. 2d 570 (1972) (noting that the government may not punish a person
or deprive him of a benefit on the basis of his ‘constitutionally protected
Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979) (emphasis added).
Smith v. Hightower, 693 F.2d 359, 367 (5th Cir. 1982) (emphasis added) (“In stating that the plaintiff must prove
retaliation exists before a preliminary injunction will be granted, the Wilson Court contemplated that the plaintiff must
prove retaliation was a major motivating factor and played a prominent role in the decision to prosecute.”). See also
Ramelli v. Zahn, No. 20-1482, 2020 WL 3971279, at *7 (E.D. La. July 14, 2020).
146
Wilson, 593 F.2d at 1387, n.22. See also Gates v. Strain, 885 F.3d 874, 881 (5th Cir. 2018) (“A prosecution is taken
in bad faith if state officials proceed ‘without hope of obtaining a valid conviction.’ ” (quoting Perez v. Ledesma, 401
U.S. 82, 85 (1971))); Ramelli, 2020 WL 3971279, at *9.
144
145

22

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 23 of 92

speech’). 147
The Fifth Circuit expressed similar reasoning in Keenan v. Tejada.
The First Amendment prohibits not only direct limits on individual speech
but also adverse governmental action against an individual in retaliation for
the exercise of protected speech activities. Colson [v. Grohman], 174 F.3d
498, 508 [5th Cir. 1999]. As this court explained in Colson, if government
officials were permitted to impose serious penalties in retaliation for an
individual's speech, then the government would be able to stymie or inhibit
his exercise of rights in the future and thus obtain indirectly a result that it
could not command directly. Id. at 509–10; Perry v. Sindermann, 408 U.S.
593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972). 148
As a result, even some government actions that would otherwise be lawful become
prohibited if in response to protected speech. The First Amendment bars officials’ actions
where they “caused [the speaker] to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity” and were “substantially motivated
against the plaintiffs’ exercise of constitutionally protected conduct.” 149
The Court in Keenan set out the plaintiff’s burden of proof in a First Amendment
retaliation case.
The settled law of other circuits, which we endorse, holds that to establish
a First Amendment retaliation claim against an ordinary citizen, [plaintiffs]
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. Carroll v.
Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001); Smith v. Plati, 258 F.3d 1167,
1176 (10th Cir. 2001); Lucas v. Monroe County, 203 F.3d 964, 973 (6th Cir.
2000). 150

Hartman v. Moore, 547 U.S. 250, 256 (2006).
Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). See also McLin v. Ard, 866 F.3d 682, 696 (5th Cir. 2017).
149
See Keenan, 290 F.3d at 258.
150
Id. See also McLin, 866 F.3d at 696.
147
148

23

Case 3:21-cv-00362-JWD-SDJ

V.

Document 49

01/07/22 Page 24 of 92

ISSUES
The main issue in the Motion to Dismiss is whether the Court should abstain from

exercising its jurisdiction based on the abstention doctrine announced in Younger v. Harris. This
depends on the answer to two questions, one legal and the other factual. First, is this the kind of
case to which Younger applies? If so, the question becomes whether the conduct of the City/Parish
warrants the application of the bad faith/harassment exception to Younger.
On the bad faith/harassment exception, the parties do not disagree on the legal standard
to be applied, 151 but they do disagree as to where the application of that standard should lead the
Court. Similarly, the parties agree as to the standard for granting a motion for preliminary
injunction 152 but disagree as to how that standard should be applied to the facts and law of this
case.
Plaintiff posits three claims on the merits: “First Amendment Retaliation, Abuse of
Process, and Violation of the Louisiana Constitution.” 153 However, both the Motion for
Preliminary Injunction and the Motion to Dismiss focus on the First Amendment retaliation
claim.
An issue common to both Plaintiff’s retaliation claim and the bad faith exception to
Younger is whether Frampton’s conduct, allegedly retaliated against, is constitutionally protected.
Frampton claims that his sharing of the BRPD Video with members of the press was an exercise
of free speech. 154 While Defendants do not disagree that Frampton’s actions were an expression
of free speech, they argue that sharing the Video without first getting permission to do so from
the Juvenile Court violated Art. 412 of the Children’s Code and therefore their Contempt Motion

Doc. 42 at 40, ¶ 170; Doc. 41 at 8, ¶ 45.
Doc. 42 at 18, ¶ 77; Doc. 41 at 10, ¶ 56.
153
Doc. 1.
154
Doc. 42 at 40, ¶ 171.
151
152

24

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 25 of 92

was justified and not in retaliation. 155
Another central question which is common to both motions is, what motivated the
City/Parish to bring the Contempt Motion? Was the Defendants’ motivation, as Frampton urges,
to retaliate against him for exercising his right of free speech and, by so doing, embarrassing the
BRPD after its conduct had already been harshly criticized by a federal judge? Or was it, as
Defendants maintain, an innocent effort to enforce the law in order to protect the privacy of a
minor and punish Frampton for his failure to gain the needed permission of the Juvenile Court?
The Younger and First Amendment retaliation analyses are essentially the same.
Where the allegation is that the state proceedings, though brought
under a valid statute, were instituted in retaliation for or to deter the
exercise of constitutionally protected rights, the question of the
applicability of the Younger exception and that of the existence of a
constitutional violation merge: to prove one is to prove the other.156
If Defendants acted with bad faith and retaliatory motive, the Plaintiff wins on the
Younger abstention and First Amendment retaliation; if Defendants didn’t do so, then the Court
must abstain under Younger and never gets to Plaintiff’s substantive claim.
A third issue common (but not critical) 157 to both motions is, given that no charges had
been brought against F.B. at the time the Contempt Motion was filed, was there a “proceeding”
or “matter” before the Juvenile Court such that Art. 412 required the Juvenile Court’s permission
to release the BRPD Video? Next, even if there was a “proceeding” or “matter” before the
Juvenile Court, given the fact that that Frampton had legally received the BRPD Video and it was
already in the public domain at the time he released it to the press, was it necessary for him to get
Doc. 41 at 16, ¶ 86.
Wilson, 593 F.2d at 1385, n.17 (emphasis added). See also Torries v. Hebert, 111 F. Supp. 2d 806, 822 (W.D. La.
2000).
157
Defendants argue that “[t]he only issue before this Court is whether Article 412 applies in this case, where a
delinquency petition has not been filed.” (Doc. 44 at 6, ¶ 32). As is developed more fully in this ruling, the Court
disagrees since, even if the City/Parish’s interpretation of Art. 412 is correct, the Court concludes that the City/Parish
filed the Contempt Motion in bad faith and to harass and retaliate against Frampton.
155
156

25

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 26 of 92

the Juvenile Court’s permission before sharing it with other members of the public and press?
Finally, if Younger does not apply, has Plaintiff met his four-part burden allowing the
Court to grant the preliminary injunction?
Because most of the issues and arguments are relevant to both motions, the common
issues will be addressed only once.
VI.

ARGUMENTS OF THE PARTIES
A. Should The Court Abstain From Deciding This Case?
1. Plaintiff’s Position
Plaintiff’s arguments can be summarized as follows:
a. The Juvenile Court Petition and Contempt Motion are not the kinds of state
court proceedings subject to Younger abstention. 158
b. Alternatively, even if they are, the bad faith exception to Younger applies
because a retaliatory and vindictive motive fueled Defendants’ Contempt
Motion. 159 A finding of Defendants’ bad faith and retaliatory motive is
supported by the following arguments:
i. Defendants brought the Contempt Motion by way of a Juvenile Court
proceeding “they knew did not exist.” 160 Because no charges, petition
or other Juvenile Court proceeding had been initiated against the
minor, there was no “proceeding” or “matter” before the Juvenile
Court and hence no need to gain its permission to release the BRPD
Video. Therefore, there is no possible sanctionable conduct

Doc. 42 at 38–39, ¶¶ 165–169.
Id. at 39–41, ¶¶ 169–174.
160
Id. at 41, ¶ 174. See also id. at 4, ¶ 4; 20–25, ¶¶ 84–100.
158
159

26

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 27 of 92

committed by Frampton in releasing the Video; 161
ii. Even if Defendants’ interpretation of Art. 412 of the Children’s Code
is generally correct, Art. 412 did not apply to the BRPD Video
because it was already in the public domain at the time Frampton
released it; 162
iii. Defendants’ position regarding Art. 412’s application is belied by
their “repeatedly and flagrantly violat[ing] the privacy protections of
Art. 412 in an effort to make it to the press conference on time”; 163
iv. Defendants’ retaliatory motive is demonstrated by their pursuit of
Frampton with a Contempt Motion when “they have never done this
before to anyone else”; 164
v. Defendants’ retaliatory motive is demonstrated by the “timing and
nature” of their Juvenile Court Petition and Contempt Motion; 165
vi. Defendants’ retaliatory motive is demonstrated by Defendants’
pursuing only Frampton for contempt when they allege others
violated the same provision of the Children’s Code; 166
vii. Defendants’ retaliatory motive is demonstrated by Defendants’
refusing to withdraw the Contempt Motion after they learned that
Frampton had obtained the BRPD Video from his client’s criminal
defense counsel and the Video was already public at the time

161

Id.
Id. at 32, ¶¶ 127–129.
163
Id. at 25, subheading. See also id. at 24–27, ¶¶ 101–110.
164
Doc. 42 at 28, ¶¶ 111–116.
165
Id. at 29–30, ¶¶ 117–121.
166
Id. at 30–32, ¶¶ 122–126.
162

27

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 28 of 92

Frampton released it to the press; 167
viii. Defendants’ retaliatory motive is demonstrated by Defendants’
“fail[ure] to follow their own interpretation of the [Art. 412] – even in
this case.” 168
a. Younger Does Not Apply
Plaintiff argues that Younger does not apply here because the proceeding against
Frampton is not yet a criminal proceeding. 169 Under Louisiana law, a “contempt proceeding
assumes the quality of a criminal or quasi-criminal proceeding only after a criminal sentence is
imposed.” 170 Plaintiff points the Court to Defendants’ earlier briefing where Defendants concede
that “the City/Parish is never a party to juvenile prosecutions, and is unable to file a pleading in
a prosecutorial case.” 171 Thus, because the Contempt Motion is not yet a criminal action, Younger
abstention is not triggered. 172
Second, Plaintiff points to Defendants’ briefing in the Juvenile Court where Defendants
are currently arguing that that their rule to show cause is “nothing like” a criminal prosecution. 173
In a memo filed July 9, 2021, Defendants argue that “nowhere in the Rule to Show Cause does
the City/Parish seek a specific penalty against Mr. Frampton.…” 174 Plaintiff therefore maintains
that the City/Parish is taking inconsistent positions. On the one hand, the City/Parish is arguing
to this Court that “the contempt request is so ‘akin to a criminal prosecution’ as to trigger Younger,

Id. at 32, ¶¶ 127–131.
Id. at 32, heading; see also id. at 32–33, ¶¶ 132–140.
169
Id. at 38–39, ¶¶ 165–168.
170
Doc. 42 at 38–39, ¶ 166, citing State v. Voorhies, 45,864 (La. App. 2d Cir. 12/15/10), 56 So. 3d 1028, citing Swan
v. Swan, 35,393 (La. App. 2 Cir. 12/7/01), 803 So. 2d 372; Fontana v. Fontana, 15122 (La. App. 2 Cir. 01/17/83),
426 So. 2d 351.
171
Id. at 39, ¶ 167, citing Doc. 14-1 at 12.
172
Id. at 38–40, ¶ 166.
173
Id. at 39, ¶ 167 (emphasis added).
174
Id., citing Doc. 24-3 at 8.
167
168

28

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 29 of 92

but at the same time is arguing to the Juvenile Court that their actions are so mild as to not
constitute an ‘adverse action’ against Frampton.” 175
b. Alternatively, Bad Faith Exception To Younger Applies
Plaintiff argues in the alternative that, even if the Juvenile Court Petition and Contempt
Motion is such that Younger would otherwise apply, Younger abstention
is overcome by a showing of bad faith or intent to harass. When the state in a
criminal proceeding acts in bad faith or with the purpose of harassing the federal
plaintiff, its actions are not ‘legitimate activities’. . . . Equitable relief by the federal
court is warranted, because the federal plaintiff faces a risk of irreparable injury
that is both ‘great and immediate’.” 176
In other words, there is an “exception to Younger abstention [where] a state court action
is brought in bad faith or for a retaliatory motive.” 177 Plaintiff points the Court to the test set out
in Wilson v. Thompson 178 and argues the first Wilson element is met here inasmuch as Frampton’s
issuance of a press release regarding police misconduct is protected First Amendment speech. 179
As to the second prong, Plaintiff contends that all he need show at this stage is that the prosecution
was motivated at least in part by a purpose to retaliate or to deter that conduct. 180 In this
connection, Plaintiff argues that the retaliatory motive is shown in at least seven different ways,
summarized above and detailed below.
c. Bad Faith – Defendants’ Interpretation Of The Children’s Code Is
“Wrong On Its Face, Absurd In Its Results, And Contradicted By
Their Own Witness” 181

Doc. 42 at 39, ¶ 168.
Id., ¶ 169, citing DeSpain, 731 F.2d at 1176–1177; see also Younger, 401 U.S. at 54 (noting that holding limited
to absence of “bad faith, harassment, or any other unusual circumstance”).
177
Doc. 42 at 40, ¶ 170, citing Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 986 F.2d 962, 966 (5th
Cir. 1993) (bad faith exception to Younger applied in a First Amendment context).
178
Id. at 40, ¶ 170, quoting Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979) (emphasis added).
179
Id., ¶ 171.
180
Id., ¶ 172.
181
Id., Subheading i.
175
176

29

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 30 of 92

Plaintiff argues that Defendants’ retaliatory motive is shown by the fact that they moved
for contempt of a proceeding “that they knew did not exist.” 182 In other words, the mere issuance
of a custodial agreement to F.B. did not initiate a “proceeding” in the Juvenile Court against F.B.
and hence, there was no need for the City/Parish, Paul, Frampton or anyone else to gain the
permission of the Juvenile Court in order to release the Video. 183 “Defendants’ retaliatory motive
is shown because their justification relies on a theory that is wrong on its face, absurd in its results,
and contradicted by their own witness.” 184
The Children’s Code is explicit, argues Plaintiff, about when a juvenile delinquency
proceeding begins. Children’s Code Article 842 states that:
A delinquency proceeding shall be commenced by a petition. The
district attorney may file a petition without leave of court. Any
person authorized by the court may file a petition if there are
reasonable grounds to believe that the child is a delinquent child. 185
Thus, according to Plaintiff, there is no juvenile court proceeding without an initiating
document of some kind being filed with the juvenile court. Plaintiff points the Court to Louisiana
Supreme Court jurisprudence which discusses an earlier version of the Children’s Code. There,
the Court explained that a delinquency
petition setting forth the ages of the child or children, the facts which
bring it or them within the purview of [the Children’s Code] and so
on, is the foundation of the proceeding to determine the issue of
neglect or delinquency. And any proceeding conducted in its
absence, as was the instant one, is null and can have no legal
effect. 186
The position of the City/Parish that an “arrest charge against a juvenile is the institution

Id., ¶ 174.
Doc. 42 at 20–25, ¶¶ 84–100.
184
Id. at 20.
185
Id. at 21, ¶ 87.
186
Id., ¶ 88, citing In re State in Int. of Toler, 263 So. 2d 888, 891–92 (La. 1972) (emphasis added).
182
183

30

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 31 of 92

of a ‘proceeding’” is “wrong and nonsensical.” 187 It is wrong, maintains Plaintiff, because it is
“directly contrary to Article 842 (which says a ‘delinquency proceeding’ is commenced by a
petition, not arrest) and because that thinking has been squarely rejected by the Louisiana
Supreme Court.” 188
Defendants’ argument is also nonsensical, insists Plaintiff, because
“arrest charges” do not exist in Louisiana law. There are arrests,
which are the taking of one person into custody by another. And
there are the charges which reflect the commencement of
prosecution brought by the filing in court of an affidavit,
information, or indictment. But there are no such things as arrest
charges. 189
Plaintiff maintains his position was confirmed by Defendants’ own witness, the Juvenile
Section Chief of the East Baton Rouge Parish Attorney’s Office when she testified that “the only
way that anything would get filed with the juvenile court is if the DA’s office filed a petition.”190
Myers-Minor confirmed that this is true even when a minor is released pursuant to a custodial
agreement. As she testified, “the custodial agreement would not be filed. The petition would be
filed.” 191 Thus, concludes Plaintiff, “there simply is no matter in juvenile court until a petition is
filed.” 192
Myers-Minor also testified that “arrest charges” are not a concept in juvenile court. She
was asked by Defendants’ counsel: “So on the basis of that custodial agreement and that report,
does that child have a pending charge?” She answered: “No. The charge does not – I mean, the
formal charge does not come until the DA’s office files the petition.” 193
Doc. 42 at 22, ¶ 89.
Id., ¶ 90, citing State v. Kimble, 411 So. 2d 430, 433 (La. 1982) (holding that the “fact that defendant was arrested
and ticketed is of no moment” in determining when a prosecution began).
189
Doc. 42 at 22, ¶ 91 (internal citations omitted).
190
Doc. 42 at 22–23, ¶ 92, citing Doc. 38, Transcript at 123.
191
Id., citing Doc. 38, Transcript at 125.
192
Id.
193
Id., ¶ 93, citing Doc. 38, Transcript at 125–126.
187
188

31

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 32 of 92

Nor is Defendants’ interpretation reflected anywhere in Louisiana law. The one case cited
by Defendants for the proposition that Louisiana’s Article 412 confidentiality might apply before a
prosecution is initiated is a Nevada public records act case and, according to Plaintiff, is not on
point; Plaintiff contends the Nevada statute being interpreted broadly protects all “juvenile justice
information,” 194 whereas Article 412 is specifically limited to documents concerning “matters or
proceedings before the juvenile court.” 195
Plaintiff argues that Defendants’ interpretation “has been squarely rejected by Louisiana
courts.” 196 In support, Plaintiff cites State v. Mart, involving a video of a fight on a school bus.197
Although the video was turned over by the school board to law enforcement agencies partially in
connection with proceedings against one of the juvenile offenders depicted on the tape, the
Court of Appeal held that the tape was not protected by Art. 412. 198 Because the video was
generated outside of the juvenile court proceeding as a public record, “the Public Records Law
mandates that the public be given access to the evidence tape.” 199 Frampton argues, “[i]f sharing
a video that actually was used in a juvenile court proceeding does not violate Article 412, then
a fortiori Prof. Frampton’s sharing of a video that was never used in juvenile court does not
violate Article 412.” 200
Plaintiff argues that Defendants’ interpretation would lead to absurd results such as
subjecting a U.S. Attorney to sanctions and potential jail time for complying with his Brady
obligations. 201 Similarly, Defendants’ interpretation would subject a lawyer to sanctions and
Republican Att’ys Gen. Ass’n v. Las Vegas Metro. Dep’t, 458 P.3d 328, 334–35 (Nev. 2020).
Doc. 42 at 23, ¶ 94.
196
Id., ¶ 95.
197
697 So. 2d 1055 (La. App. 1997).
198
Id. at 1058, 1060.
199
Id. at 1060.
200
Doc. 42 at 23–24, ¶ 95.
201
Id. at 24, ¶ 96, citing Doc. 38, Transcript at 102–103 (“The Court: . . . When the U.S. Attorney released this to the
Federal Public Defender, he violated the Children’s Code. Correct? Ms. Morris: I believe so.”).
194
195

32

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 33 of 92

potential jail time for sharing documents with her clients, 202 even though she has an ethical duty
to do so. 203 Defendants’ interpretation would subject clients to sanctions and potential jail time
for sharing documents with their own lawyer. 204 Plaintiff stresses,
[t]his is not a hypothetical parade of horribles; Defendants and their
counsel affirmed each of these outcomes in briefing or at the
hearing. But at no point in briefing or during the hearing did
Defendants attempt to harmonize their unusual interpretation of the
law with the long-standing constitutional and ethical duties it would
impinge upon. 205
According to Plaintiff, the alternative argument made by the City/Parish that there is a
“dearth of case law” about when a “case or proceeding” begins in Louisiana juvenile court, such
that “there is no Louisiana case law available directly addressing this matter,” and that these are
therefore “uncharted waters of state law,” actually favors Plaintiff. 206 “If the law were as
uncharted as the City/Parish argues, the City/Parish could not reasonably seek to hold Prof.
Frampton in contempt for not hewing to their unusual reading of it.” 207
d. Bad Faith - Even If Defendants’ Interpretation Of Art. 412 Of The
Children’s Code Is Correct, Art. 412 Did Not Apply To The BRPD
Video Because It Was Already In The Public Domain
Plaintiff contends in the alternative that, whether the Juvenile Court Petition was a valid
and necessary procedure to gain the release of the BRPD Video or a cynical pretextual vehicle to
punish Frampton for making the video public is a red herring because the video Frampton released

Id., citing Doc. 38, Transcript at 103 (“The Court: And when the Federal Public Defender released it to his client,
Clarence Green, the Federal Public Defender violated the Children’s Code, correct? Ms. Morris: That’s my
understanding, yes.”).
203
Id., citing La. Rules of Pro. Conduct r. 1.16(d) (“Upon written request by the client, the lawyer shall promptly
release to the client or the client’s new lawyer the entire file relating to the matter.”).
204
Id. (emphasis added), citing Doc. 14-1 at 13 (“As Mr. Frampton was not the attorney for Mr. Green in his criminal
prosecution, the release of the videos containing the juvenile arrest to Mr. Frampton was improper without a Court
order from Juvenile Court.”).
205
Id.
206
Doc. 42 at 25, ¶ 99.
207
Id.
202

33

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 34 of 92

was already in the public domain. “If Louisiana law purported to allow such a thing – if Louisiana
law truly defined as a ‘juvenile court record’ a video broadcast of CBS Evening News of video
obtained from public records – it would gravely infringe on the First Amendment.” 208
Alternatively, Frampton stresses that this case is not about whether the City/Parish is
correctly interpreting the Children’s Code. It is about whether the City/Parish is engaging in First
Amendment retaliation against Frampton by continuing to try to hold him in contempt of court for
releasing the video. 209 “The existence (or, more accurately, non-existence) of a ‘juvenile
proceeding’ under La. Ch. C. art. 412 [sic] thus has no bearing on the federal constitutional claims
being litigated here.” 210
e. Bad Faith – Defendants’ Flagrant Violation Of The Privacy
Protections Of Article 412 In An Effort To Make It To A Press
Conference On Time
According to Plaintiff, although Defendants claim that the “City/Parish only seeks to
protect the confidentiality provisions established by law to protect a child’s best interest,” their
actual conduct shows the opposite. 211 The evidence shows that in a rush to obtain videos in time
for a 3:00 p.m. police press conference, the City/Parish entirely skipped the required procedures
of the Children’s Code that protect a child’s confidentiality interests including (but not limited
to) the requirement that service be made “on the minor and his attorney” 212 so as to “ensure the
juvenile is afforded notice of the hearing and an opportunity to be heard at a contradictory hearing
on the petition.” 213 In this case, service was not made on Frampton until after the Juvenile Court
judge had already signed the Order setting the Contempt Motion for hearing thus depriving him

Id. at 20, ¶ 85.
Id. at 24, ¶ 97.
210
Id. at 20, ¶ 85.
211
Id. at 25, ¶¶ 101–102.
212
Doc. 42 at 26, ¶¶ 102–103, quoting Art. 412(E)(2)(a).
213
Id., ¶ 103, quoting Art. 412(L).
208
209

34

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 35 of 92

and the minor of the opportunity to be heard and object. 214
Furthermore, the petition must “[s]tate the names of all persons that will have access to
the information.” 215 And finally, any records so released shall be marked "UNLAWFUL
DISSEMINATION OF THIS INFORMATION IS PUNISHABLE AS A CONSTRUCTIVE
CONTEMPT OF COURT PURSUANT TO LOUISIANA CHILDREN'S CODE ARTICLE
1509(E).” 216
But in dealing with F.B. and the BRPD Video, argues Plaintiff, Defendants followed
none of those steps. They sought to release the Video for a BRPD press conference rather than a
“specific investigation or proceeding” and failed to list the names of all persons who would have
access to the information. 217 Plaintiff again complains that Defendants did not give the juvenile
or his attorney an opportunity to object. 218 Rather, the City/Parish filed the petition on the morning
of May 28, 2021, obtained the judge’s signature at approximately noon the same day, 219 but did
not serve it upon Frampton until that afternoon. 220
Plaintiff maintains that, by waiting until hours after the judge signed the order before
serving the petition on Frampton, the City/Parish guaranteed that the juvenile would not have the
required “opportunity to be heard at a contradictory hearing.” 221 The City/Parish did not even
request a contradictory hearing before asking the judge to sign the order ex parte, nor did the
City/Parish ever serve the juvenile himself. 222

Doc. 42 at 26–27, ¶ 105.
Id. at 26, ¶ 103, citing Art. 412(E)(2)(c).
216
Id., quoting Art. 412(L).
217
Id. at 26, ¶ 104, citing Plaintiff’s Exhibit 7, Rule to Show Cause.
218
Id. at 26, ¶ 105, citing Doc. 38, Transcript at 52 (“They did not provide the juvenile any opportunity to object or
be heard.”).
219
Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶ 4.
220
Doc. 42 at 26, ¶ 105.
221
Id. at 26–27, ¶ 106.
222
Id., citing Plaintiff’s Exhibit 7, Rule to Show Cause at 3 (only listing Professor Frampton on service list); Cf. Art.
412(E)(2)(a) (requiring service on juvenile and attorney).
214
215

35

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 36 of 92

Plaintiff points the Court to the testimony of City/Parish Attorney Deelee Morris where
she admitted under cross-examination why she skipped the required steps: “I believe there are
certain circumstances that require an urgency. And in this case, no, I did not – I did not have the
time, honestly, to notify any juvenile.” 223 This position was confirmed in City/Parish’s briefing
where it admits that it filed the petition “in Juvenile Court in urgency to try obtain the records in
time for a press conference.” 224
Plaintiff strenuously argues that “Defendants’ ‘for thee but not for me’ approach to the
mandatory confidentiality requirements of the Children’s’ Code makes it likely that their
motivation was retaliation for Plaintiff’s speech, rather than to ‘protect the confidentiality
provisions established by law to protect a child’s best interest.’” 225
f. Bad Faith - Timing, Contents, And Nature Of The Juvenile Court
Petition And Contempt Motion
Citing Second and Fifth Circuit jurisprudence, Plaintiff argues that the timing and
contents of government action support a finding of retaliatory motive. Specifically, a “plaintiff
can establish a causal connection that suggests retaliation by showing that protected activity was
close in time to the adverse action.” 226 Here, contends Plaintiff, the timeline of events shows
retaliatory motive. “Although the videos had been in the public record for nearly six months, and

Id. at 27, ¶ 107, quoting Doc. 38, Transcript at 97.
Id., ¶ 108, citing Doc. 14-1 at 7; Doc. 38, Transcript at 86 (“We needed to have the documents properly released
for the press conference so that we could use them for public release.”); Plaintiff’s Exhibit 1, Declaration of Deelee
Morris at ¶ 2 (“On May 28, 2021, I filed a Petition to Seek the Disclosure of Juvenile Records in the East Baton Rouge
Juvenile Court, in an effort to obtain juvenile arrest videos for a BRPD press conference scheduled for 3 p.m. that
same day.”).
225
Id., ¶ 110.
226
Doc. 42 at 29, ¶ 117, citing Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (“A plaintiff can establish a causal
connection that suggests retaliation by showing that protected activity was close in time to the adverse action . . . Here,
we find that the passage of only six months between the dismissal of Espinal's lawsuit and an allegedly retaliatory
beating by officers, one of whom . . . was a defendant in [a] prior lawsuit, is sufficient to support an inference of a
causal connection.”); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (“chronology of events” can provide
inference of First Amendment retaliation).
223
224

36

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 37 of 92

the City/Parish was aware Frampton had the Video since March of 2021, Defendants moved for
contempt the day after the videos became a national news story.” 227
That retaliation is the true motive of Defendants is reinforced, argues Plaintiff, by the
text of the petition which complains that “the City of Baton Rouge has received an [sic] substantial
amount of negative correspondence from the public.” 228
g. Bad Faith - Retaliatory Motive Is Shown By The Fact That
Defendants Have Never Done This Before To Anyone Else And
Frampton Is Only Person Against Whom Sanctions Have Been
Sought
According to Plaintiff, retaliatory motive is also demonstrated by the undisputed fact
that, despite public releases of the BRPD Video by others (which Defendants now claim violate
the Children’s Code), Frampton is the only individual who the City/Parish has ever attempted to
find in contempt for the release of this Video or for the release of any other allegedly protected
confidential juvenile information. 229 In discovery, Defendants admitted that they have never
sought sanctions against any person the way they have against Frampton. 230
Indeed, in answers to discovery, Defendants admit that they chose Frampton on whom
to “test” their theory that this video release was sanctionable conduct. 231 When asked to identify
“each instance, from 2010 to the present, that the Baton Rouge Parish Attorney’s Office has
moved for contempt of juvenile court for the unauthorized release of records,” 232 Defendants
responded:

Id. at 40, ¶ 173, comparing Espinal, 558 F.3d at 129 (“six months” between events “sufficient to support an
inference of casual connection”). See also Doc. 38, Transcript at 42–43; Id. at 35:11–14 (“Q. So by March 2021, the
City Parish Attorney’s Office knew that someone had shared the video because it had been shared with you. Correct?
A. Yes.”).
228
Id. at 29, ¶ 119, citing Plaintiff’s Exhibit 7, Rule to Show Cause at ¶ 4.
229
Id. at 28–29, ¶¶ 111–116.
230
Id. at 28, ¶ 111, citing Plaintiff’s Exhibit 12 at 5, Defendants’ Answer to Interrogatory No. 6.
231
Doc. 42 at 28–29, ¶ 116, citing Plaintiff’s Exhibit 12 at 5, Defendants’ Answer to Interrogatory No. 6.
232
Id., 28, ¶ 112.
227

37

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 38 of 92

this is the first time that the Baton Rouge Parish Attorney’s Office
has encountered what appears to be an unauthorized release of
juvenile investigation materials, accordingly, this is the first time
that the Parish Attorney’s Office has filed a rule for contempt in
Juvenile Court to put the question to the test. 233
Plaintiff insists this answer is false since, according to Frampton’s uncontradicted trial
testimony, “the Parish Attorney’s office had been informed as early as March 2021 that someone
had shared the video with Frampton.” 234 Thus, to the extent the Video was a confidential record,
Defendants were aware that it had been shared by someone without Juvenile Court blessing
months before they sought sanctions against Frampton. 235
Thus, according to Plaintiff, it is not a coincidence that Defendants chose to “test” 236 a
new theory of sanctions on the person who caused BRPD misconduct to be the subject of a
national news story. Plaintiff maintains that this reinforces the conclusion that retaliation was
Defendants’ true motivation. 237
Plaintiff maintains that retaliatory intent is further shown by counsel for Defendants’
testimony at trial that previous releases of the BRPD Video by others violated the same law
Frampton is accused of having violated, but only Frampton was selected for a Contempt
Motion. 238 He argues that if Defendants’ interpretation of the Louisiana Children’s Code were
accepted, “literally hundreds of Americans engaging in protected First Amendment activity could
be hauled into Louisiana court to face sanction.” 239

233

Id., ¶ 113.
Id. at 28, ¶ 114, citing Doc. 38, Transcript at 35 (“Q. So by March 2021, the City Parish Attorney’s Office knew
that someone had shared the video because it had been shared with you. Correct? A. Yes.”).
235
Id. at ¶ 115.
236
Doc. 42 at 28–29, ¶ 116, citing Plaintiff’s Exhibit 12 at 5, Defendants’ Answer to Interrogatory No. 6 (“this is the
first time that the Parish Attorney’s Office has filed a rule for contempt in Juvenile Court to put the question to the
test”).
237
Id. at 28–29, ¶ 116.
238
Id. at 28–32, ¶¶ 111–126.
239
Id. at 30, ¶ 122. Plaintiff gives as an example, a single Twitter thread containing the Video was shared by 468
individual users: https://twitter.com/billybinion/status/1408152766351089671.
234

38

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 39 of 92

Furthermore, in the context of this case, “[i]f the ‘sharing’ of a video that was not
obtained from a juvenile court proceeding—and, indeed, was already public—could constitute
‘contempt of court,’ then the following individuals also face jail time for contempt:
•

the Clerk of this Court (who provided a copy of the video to Plaintiff’s counsel);

•

unknown BRPD officials (who shared the video with the US Attorney);

•

Assistant United States Attorneys Kashan Khan Pathan and Jeremy
Johnson (who shared the video with the Federal Public Defender);

•

The Federal Public Defender Mark Upton (who shared the video with Professor
Frampton);

•

Norah O’Donnell (CBS Evening News host);

•

Other national news outlets; and

•

Any other concerned citizens who ‘shared’ the video on Twitter,
Facebook, Instagram, and other social media platforms.” 240

Plaintiff further highlights this point with the testimony of City/Parish Attorney Morris
who stated that in her view, the U.S. Attorney, Baton Rouge Police Department, Federal Public
Defender, Clarence Green, and whoever released the video to the Advocate all “violated the
Children’s Code,” but nonetheless, she “didn’t know” why the City/Parish had not pursued any
of those persons for contempt. 241 This is further evidence, argues Plaintiff, of the retaliatory
motive behind Defendants’ Contempt Motion.

Another was shared by 65 users: https://twitter.com/nbcnews/status/1398392409265000454.
Another was shared by 40 users: https://twitter.com/cbsnews/status/1398977442346323970.
240
Doc. 42 at 30–31, ¶ 123.
241
Id. at 31, ¶¶ 124–125, citing Doc. 38, Transcript at 102–104.

39

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 40 of 92

h. Bad Faith – Failure To Withdraw Contempt Motion Once Public
Source Was Made Known
Plaintiff argues that, contrary to Defendants’ contention that they could not have been
retaliating against Frampton because they had only been “recently notified” that the “body camera
footage at issue was filed in the public record of this Court,” 242 they were in fact “notified” of
that fact on June 2, 2021, more than a month before the hearing. 243 Nonetheless, despite being
informed that Frampton got the Video on behalf of his clients from his client’s criminal defense
lawyer, Defendants did not withdraw the Contempt Motion and still seek contempt sanctions.244
Thus, regardless of what Defendants’ state of mind may have been before June 2, 2021, the fact
that they continue to seek contempt sanctions shows Defendants’ true retaliatory motive. 245
i. Bad Faith – Failure Of Defendants To Follow Their Own
Interpretation Of The Law – Even In This Case
Despite Defendants’ argument that the “City/Parish firmly believes that all records of
arrests under the jurisdiction of Juvenile Court are protected under Art. 412 and the public release
of any such records require a Juvenile Court order unless an exception under Art. 412 applies,” 246
their actual conduct in this case contradicts that assertion. As described above, Defendants shared
the video at issue here to the U.S. Attorney’s Office without seeking a court order, which under
their own theory would be contemptuous conduct. 247 In addition, Ms. Morris testified that her
office regularly provides video to various entities, but without “any mechanism in place at the

Id. at 32, ¶ 127, citing Doc. 14-2 at ¶ 8.
Id., ¶ 128, citing Doc. 2-4.
244
Id., ¶ 129, citing Doc. 38, Transcript at 128–129 (Defendants agreed to postpone, but not withdraw, Rule to Show
Cause on Sanctions); Doc. 42 at 32, ¶¶ 127–131.
245
Id., ¶ 130.
246
Id. at 32, ¶ 132, citing Doc. 14-1 at 8.
247
Id. at 33, ¶ 133, citing Doc. 38, Transcript at 103 (“The Court: All right. And when – the fact of the matter is when
the Baton Rouge Police Department released the video to the U.S. Attorney’s Office without getting Juvenile Court
consent, the Baton Rouge Police Department violated the Juvenile Children’s Code, Correct? Ms. Morris: I believe
so.”).
242
243

40

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 41 of 92

Baton Rouge City Police Department or with the City Parish” that would prevent them from
sharing video of juvenile arrests. 248
But, according to Plaintiff, “the most astonishing example comes from this case itself,
specifically, on July 20, 2021, in discovery in this case, Defendants’ counsel Joe Scott’s sharing
a page PDF called ‘Redacted Initial Report.’” 249 “The PDF included seventy-two pages of police
reports, including the police reports identified Item No. 20-225 related to F.B.’s arrest.” 250 He did
so without requesting permission of the Juvenile Court. It was only the following day, July 21,
2021, that Defendants’ counsel Deelee Morris filed a motion with the Juvenile Court to release
documents including “BRPD reports in file #20-225.” 251 In that petition, Ms. Morris was seeking
“permission from the Juvenile Court to release those very same police reports that Mr. Scott had
already shared.” 252 Thus, Defendants “produced a juvenile report and then asked for permission
to produce it after they already produced it.” 253
Plaintiff insists that the theory of law that Defendants are asking this Court to accept is
so divorced from the actual law that their own attorneys could not stick to it during the pendency
of this proceeding; Defendants’ theory is so impracticable that Ms. Morris admitted that she was
not “quite sure how you proceed under that [understanding of the law], you know, to be in
compliance with the law, without doing a lot of legwork.” 254
Plaintiff concludes that “by seeking to sanction Prof. Frampton for what they do
themselves, and do not even try not to do, Defendants again reinforce the inference of retaliation

Id. at ¶ 134, citing Doc. 38, Transcript at 98–99.
Id. at 33, ¶ 135, citing Plaintiff’s Exhibit 15.
250
Id., citing Doc. 38, Transcript at 53; Excerpt at Plaintiff’s Exhibit 16.
251
Doc. 42 at 33, ¶ 136, citing Plaintiff’s Exhibit 17 at ¶ 11.
252
Id., citing Doc. 38, Transcript at 54.
253
Id., ¶ 137, citing Doc. 38, Transcript at 55–56 (emphasis added).
254
Id. at 33–34, ¶ 138, citing Doc. 38, Transcript at 102.
248
249

41

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 42 of 92

. . . .” 255
2. Defendants’ Position
Defendants’ arguments can be summarized as follows:
a. Younger applies to the Contempt Motion at issue. 256
b. Plaintiff has not established that the Juvenile Court Petition or
Contempt Motion contained any false or disputed factual information,
and thus, “the only issue that is present is an interpretation of Art. 412
and its applicability under the facts presented.” 257
c. Defendants’ interpretation of Art. 412 of the Children’s Code is
correct. The filing of the Juvenile Court Petition was procedurally
proper since “a juvenile arrest on criminal charges constitutes a
‘matter’ and/or ‘proceeding’ before the Juvenile Court…[and
therefore] all records related to the arrest are protected under Art. 412
[of the Children’s Code].” 258
d. The fact that the BRPD Video was in the public record at the time
Frampton released it to the press does not gainsay the applicability of
Art. 412 and the necessity of following its requirements. 259
e. In the alternative, even if the Juvenile Court Petition was not the proper
procedural vehicle, because there is a “dearth of case law” on the issue
of when a “case or proceeding” begins, this is an additional reason why

Id. at 34, ¶ 140.
Doc. 41 at 8, ¶ 43, citing Kolwe, 858 F. App'x at 132–33.
257
Id. at 9, ¶ 46; see also Doc. 44 at 6, ¶ 32 (“The only issue before the Court is whether Art. 412 applies in this case,
where a delinquency petition has not been filed.”).
258
Id. at 11, ¶ 59 (emphasis added).
259
Id. at 15, ¶¶ 80–84.
255
256

42

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 43 of 92

the Court should abstain from deciding the case. 260
f. The bad faith exception to Younger does not apply because Defendants
had no motive to retaliate against Frampton; rather, the “only reason
the City/Parish moved for a [Contempt Motion] was because,” as
alleged in the Juvenile Court Petition, “ ‘[e]dited BRPD body camera
footage of the juvenile’s arrest . . . [had] been publicly released
allegedly by Thomas Frampton and disseminated on media platforms
without a court order in violation of Louisiana Children’s Code Article
412(A).’” 261
g. The evidence Plaintiff uses to suggest Defendants’ retaliatory motive
is merely circumstantial; in fact, for each of these grounds, the
evidence shows that Defendants acted reasonably, in good faith and
within the bounds of law.
i. Defendants had legitimate, non-retaliatory reasons for filing
the Petition the day after the CBS news story (and forgoing
service and notice to the minor and Frampton): namely the
urgent need to defuse potential political unrest. 262
ii. Defendants’ use of a procedure like the Juvenile Court Petition
was not unprecedented, having utilized it at least once before
under similar circumstances in July of 2020; 263 indeed,
City/Parish Attorney Morris warned Frampton in February of

Doc. 14-1 at 16.
Doc. 44 at 2–3, ¶ 10.
262
Doc. 41 at 2, ¶¶ 2–3.
263
Id. at 6, ¶¶ 29–31.
260
261

43

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 44 of 92

2004 about “the requirements of getting a court order from
[the] Juvenile Court as it pertained to the juvenile’s arrest
including specifically the body camera footage.” 264
iii. While the City/Parish never attempted to sanction anyone for
violating Art. 412 before Frampton, this is because Frampton
was the first individual it was aware of who violated Art.
412. 265
iv. While others besides Frampton may have also violated Art.
412, “[t]he City/Parish is not required by law to file for
contempt on any and all parties that it subsequently learned
exchanged or released the video in violation of Art. 412 to
establish its good faith in proceeding in this matter.” 266
v. The fact that one acquires video of a minor from a public source
(as Frampton and others did) does not absolve those persons
from following the dictates of Art. 412. Therefore, there was
no reason for the City/Parish to withdraw its Contempt Motion
once it learned that Frampton had acquired the BRPD Video
from a public source.
vi. Defendants’ own failure to follow the requirement of Art. 412
in this case was inadvertent and quickly remedied by filing a
petition for its release a day later.
a. Younger Applies, Requiring Court To Abstain
Id. at 5, ¶ 20, citing Doc. 38, Transcript at 91–92; Defendants’ Exhibit 3.
Id. at 7, ¶ 39; Plaintiff’s Exhibit 12 at 5, Defendants’ Answer to Interrogatory No. 6.
266
Doc. 41 at 10, ¶ 52.
264
265

44

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 45 of 92

Defendants first argue first that Younger applies to the Juvenile Court Contempt
Motion. 267 The Fifth Circuit has recently reiterated the well-established principle that Younger
applies to state contempt proceedings. 268
b. Younger’s Bad Faith Exception Does Not Apply
Defendants concede that an exception to Younger applies if the state court proceeding was
brought in bad faith or with the purpose of harassing the federal plaintiff but argues it should
apply only where the state official proceeds “without hope of obtaining a valid conviction.” 269
Thus, Defendants maintain that, under the Fifth Circuit test, the bad faith exception to Younger
does not apply to the facts of this case. Furthermore, the “bad faith” exception is narrow and
should be granted parsimoniously, and Plaintiff bears the burden to establish actual proof of bad
faith. 270 He hasn’t met the burden under the Fifth Circuit test.
c. No Bad Faith – Correct, Or At Least Reasonable, Interpretation Of
Children’s Code
Defendants argue strenuously that their interpretation of the Louisiana Children’s Code
requiring Frampton to have sought and obtained consent of the Juvenile Court before releasing
the Video is the correct one. 271 Defendants insist that Plaintiff cannot establish a bad faith motive
because the City/Parish has demonstrated through a reasonable legal basis that the BRPD Video
was confidential under Louisiana Children’s Code art. 412 and that Frampton’s public release of
the Video required an order from the Juvenile Court. 272 Therefore, their use of this procedure

Doc. 41 at 8, ¶ 43, citing Kolwe v. Civ. & Structural Eng’rs, Inc., 858 F. App'x 129, 132–33 (5th Cir. 2021).
Kolwe, 858 F. App'x at 132.
269
Doc. 41 at 8–9, ¶ 45, quoting Okorie v. Miss. Bd. of Med. Licensure, 739 F. App’x. 301, 302 (5th Cir. 2018); Gates
v. Strain, 885 F.3d 874, 881 (5th Cir. 2018).
270
Id., citing Gates, 885 F.3d at 881.
271
Id. at 11–16, ¶¶ 57–86; Doc. 44 at 4–5, ¶¶ 16–25.
272
Doc. 41 at 9, ¶ 47.
267
268

45

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 46 of 92

does not suggest retaliatory motive.
Defendants argue that, at the time it filed its Contempt Motion, it had “substantive
evidence concerning Frampton, [who was] the one individual who originally placed the body
camera footage on a social media platform, which allowed the video to be reproduced and
publicized by others.” 273 Because Plaintiff has not established that the Juvenile Court Petition or
Contempt Motion contained any false or disputed factual information, Defendants maintain that
“the only issue that is present is an interpretation of Art. 412 and its applicability under the facts
presented.” 274
Defendants concede that a petition to initiate formal charges under Art. 842 of the
Children’s Code was never filed against F.B. 275 But unlike Plaintiff, who argues that the
confidentiality provision of Art. 412 is not applicable because there was no underlying juvenile
proceeding before the Juvenile Court and that such proceeding does not begin until an Art. 842
petition has been filed with the Juvenile Court, Defendants assert that a juvenile’s arrest on
criminal charges alone constitutes a “matter” and/or “proceeding” before the Juvenile Court.276
Thus, according to Defendants, all records related to F.B’s arrest were protected under Art.
412. 277
Louisiana Children’s Code art. 412 provides in relevant part:
A. Records and reports concerning all matters or proceedings before
the juvenile court, except traffic violations, are confidential and
shall not be disclosed except as expressly authorized by this Code.
Any person authorized to review or receive confidential information
shall preserve its confidentiality unless a court order authorizes them
to share with others.

Id., ¶ 50.
Doc. 41 at 9, ¶ 46.
275
Doc. 41 at 11, ¶ 60.
276
Doc. 41 at 11, ¶¶ 57–59.
277
Id., ¶ 59.
273
274

46

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 47 of 92

According to Defendants, “[t]he term ‘proceeding’ is distinguished from a ‘case’ in the
Children’s Code under article 116(11), which provides: ‘[a] “juvenile proceeding” or “juvenile
case” is defined in the Children’s Code as a “proceeding or case in which the court is exercising
juvenile jurisdiction.” ’ ” 278
The Children’s Code does not define the general term “matters” as referenced in Art.
412. 279 Defendants contend their position is supported by La. Child. Code Art. 102 which
provides guidance on the interpretation of the terms and provisions of the Code. It states they
“shall be liberally construed to the end that each child and parent coming within the jurisdiction
of the court shall be accorded due process and that each child shall receive, preferably in his own
home, the care, guidance, and control that will be conducive to his welfare.” 280
Defendants argue that La. Child. Code art. 103 supports a “universal” interpretation of
the term “proceeding” when it states: “[e]xcept as otherwise specified in any Title of this Code,
the provisions of the Children's Code shall be applicable in all juvenile court proceedings, and
only to such proceedings.” 281
According to Defendants, a reading of La. Child. Code art. 303 in conjunction with Art
804 demonstrates that “a ‘proceeding’ is a term that is broader than a juvenile ‘case’ instituted by
the filing of a petition.” 282 La. Child. Code art. 303 provides that “A court exercising juvenile
jurisdiction shall have exclusive original jurisdiction over: (1) Delinquency proceedings pursuant
to Title VIII.” 283
La. Child. Code art. 804 provides:

Id. at 12, ¶ 62.
Id., ¶ 63.
280
Id., ¶ 64.
281
Id., ¶ 65.
282
Doc. 41 at 11, ¶ 68.
283
Id., ¶ 66.
278
279

47

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 48 of 92

(1) “Delinquent act” means an act committed by a child of ten years
of age or older which if committed by an adult is designated an
offense under the statutes or ordinances of this state, or of another
state if the offense occurred there, or under federal law, except
traffic violations. 284
Defendants also point the Court to La. Child. Code art. 814 which provides the procedure
for taking a child into custody without a court order and states:
(A) A child may be taken into custody without a court order or
warrant by a peace officer or probation officer if the officer has
probable cause to believe that the child has committed a delinquent
act. When the officer has probable cause to believe that the child has
committed a delinquent act, the officer, in lieu of taking the child
into custody, may issue a verbal warning to the child.
(B) If a child is taken into custody without a court order or warrant,
the officer shall have the responsibility to either:
(1) Counsel and release the child to the care of his parents
upon their written promise to bring the child to court at such
time as may be fixed by the court.
(2) Follow the appropriate procedures set forth in Article
815. 285
Defendants point out that, pursuant to the BRPD custodial agreements, a juvenile
arrestee is released to the custody of his parent or guardian based “upon their written promise to
bring the child to court at such time as may be fixed by the court.” 286
Section (D) of Art. 814 further provides the procedure for taking a child into custody
without a court order for detention and states:
The officer shall immediately execute a written statement of facts,
sworn to before an officer authorized by law to administer oaths,
supporting the existence of probable cause to believe either that the
child committed a delinquent act or that the child has violated the
terms of his probation or otherwise has violated the terms of his
release. This affidavit shall be submitted to the juvenile court.
Id., ¶ 67, quoting La. Child. Code art. 804.
Id., at 13, ¶ 69, quoting La. Child. Code art. 814 (B) and (C).
286
Id, ¶ 70, citing Plaintiff’s Exhibit 2, Custodial Agreement.
284
285

48

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 49 of 92

Within forty-eight hours after the child has been taken into custody,
including legal holidays within the time computation, the court shall
review the affidavit, and if it determines that probable cause exists,
the child shall be held for a continued custody hearing pursuant to
Article 819. If the court determines that probable cause does not
exist, the child shall be released from custody[.] 287
According to Defendants, the language of Art. 814 “demonstrates that when a juvenile
is arrested and taken into custody under Art. 814 without a court order, whether through a
custodial agreement or request for detention, there is a matter or proceeding before the Juvenile
Court, prior to the filing of a Petition by the Juvenile Court Division of the District Attorney’s
Office.” 288
Defendant maintains that the procedure for a juvenile’s booking supports its position.
When a juvenile is booked into the detention center, the arrestee is added to the Juvenile Court
docket for a detention hearing. However, no records are filed at that time in the Juvenile Court.289
Nonetheless, all juvenile arrests, whether processed through a custodial agreement, verified
complaint, or processed for detention under Art. 815, are reviewed and processed in the same
way by the BRPD and the Juvenile Court Division of the District Attorney’s Office. 290 Although
“[n]othing is filed into the record of the Juvenile Court until a Petition is filed by the Juvenile Court
Division of the District Attorney’s Office, regardless of whether the charge results from a
custodial agreement or a custodial arrest,” 291 nonetheless, “all preliminary matters related to an
arrest such as a custodial agreement, a verified complaint (i.e. juvenile warrant), or a detention
hearing, all constitute parts of a proceeding before the Juvenile Court, and are handled prior to the

Id., ¶ 71, quoting La. Child. Code art. 814(D).
Doc. 41 at 14, ¶ 72.
289
Id., ¶ 73, citing Doc. 38, Transcript at 123–124.
290
Id., ¶ 74, citing Doc. 38, Transcript at 119, 123, 124.
291
Id., ¶ 75.
287
288

49

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 50 of 92

filing of a Petition of Delinquency by the District Attorney’s Office.” 292
Defendants maintain that this interpretation is supported by the Louisiana Supreme
Court’s Rules for District Courts and Juvenile Courts and Louisiana Family Law and Proceeding,
Rule 42.3 Records and Information Sharing, which states:
(b) Except as otherwise provided by La. Child. Code art. 412, all
juvenile records are to remain confidential. Access to records not
otherwise prohibited by law may be permitted for good cause shown
pursuant to a motion for disclosure addressed to the judge. 293
Defendants insist that, “[t]his Rule clearly states that all juvenile records are to remain
confidential and does distinguish records related to formal juvenile court cases.” 294
Defendants argue that arrest and booking records are sent to “the Juvenile Court system
via the District Attorney’s office” 295 and attempt to analogize F.B.’s arrest to a detention hearing
which is “a proceeding before the Juvenile Court despite the fact that no records are filed” with
the Juvenile Court. 296
Defendants distinguish the State v. Mart 297 case relied on by Plaintiff because it did not
address the key provision here, Art. 412. 298 Finally, in the alternative, Defendants maintain that,
even if the Juvenile Court Petition was not the proper procedural vehicle, because there is a
“dearth of case law” on the issue of when a “case or proceeding” begins, this is an additional
reason why the Court should abstain from deciding the case. 299

Id., ¶ 76.
Id. at 15, ¶ 78, quoting the Louisiana Supreme Court’s Rules for District Courts and Juvenile Courts and Louisiana
Family Law and Proceeding, Rule 42.3 Records and Information Sharing.
294
Doc. 41 at 15, ¶ 79. The Court assumes Defendants intended to write Rule 43.2 “does not” distinguish records in
formal juvenile court cases.
295
Doc. 44 at 4, ¶ 17.
296
Id. at 4, ¶ 20; see also id, ¶¶ 18–21.
297
697 So. 2d 1055 (La. App. 1997).
298
Doc. 44 at 5 ¶ 25.
299
Doc. 14-1 at 16.
292
293

50

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 51 of 92

d. No Bad Faith - There Was No Waiver Of Art. 412’s Requirements
By Minor’s Consent Or Entering The BRPD Video Into The Public
Record
Defendants dispute Plaintiff’s argument that even if the confidentiality provision of Art.
412 is applicable in this case, it was waived when it was entered into the Federal Court record in
U.S. v. Green, 20-46-BAJ-SDJ and/or through consent of the parents and juvenile. 300 Art. 412(A)
provides specifically: “[a]ny person authorized to review or receive confidential information shall
preserve its confidentiality unless a court order authorizes them to share with others.” 301 Thus,
argue Defendants, the mandatory confidentiality and enforcement provisions of Art. 412 cannot
be waived through prior record production unless ordered by the Court. 302
Relying on an Attorney General’s opinion, Defendants contend that Art 412 contains no
exception which would allow the juvenile or his/her parents or guardians to waive the
confidentiality provisions of the statute. 303 “Exceptions are listed in Art. 412. Absent a listed
exception in Art. 412, acknowledgement of a record is prohibited.” La. Atty. Gen. Op. No. 030026 (Jan. 30, 2003). 304 Accordingly, argue Defendants, waiver is not a valid exception to the
confidentiality requirement of Art. 412. 305
e. No Bad Faith - Timing Of Juvenile Court Petition
According to Defendants, “the timing of the service of the Petition was based on
circumstances unrelated to the CBS News story or the beginning of the BRPD press

Doc. 41 at 15, ¶ 80.
Id., ¶ 81, quoting La. Child. Code art. 412(A).
302
Id.
303
Id. at 15, ¶ 82.
304
Id., ¶ 83.
305
Id., ¶ 84.
300
301

51

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 52 of 92

conference.” 306 Defendants insist that the timing was driven by “the urgent need to address the
public’s concern of the situation” 307 and Plaintiff’s evidence to the contrary is “merely
circumstantial.” 308
The orders releasing the limited video clips and setting the Contempt Motion for hearing
were signed around 12:00 p.m. on May 28, 2021. 309 While Plaintiff suggests that Defendants’
failure to serve him until the 3:00 p.m. press conference was deliberate and suggests retaliatory
motive, Defendants argue that their delay was innocent. When counsel for the City/Parish
returned to the office, the City/Parish’s server and internet were down. Counsel emailed the
pleading to Frampton once the City/Parish server came back later that afternoon. 310
f. No Bad Faith – City/Parish’s Prior Use Of Juvenile Court
Procedure
As additional proof of their good faith, Defendants maintain that the use of a Juvenile
Court Petition to obtain an arrest video was not unprecedented and so their use of it in this case
did not single out Frampton. 311 According to Defendants, a similar situation occurred in July of
2020 where BRPD wanted to publicly release video footage of a juvenile’s arrest to address public
outcry resulting from the release of cell phone video which depicted police restraint used during
a juvenile’s arrest. 312 At that time, the City/Parish filed a petition similar to the Juvenile Court
Petition at issue in this case in order to comply with La. Child. Code art. 412 and legally release
portions of body camera footage to the public depicting an arrest of a juvenile. 313
That petition contained the same “In re:” caption as Juvenile Court Petition at issue here
Doc. 44 at 3, ¶ 14; id at 7, ¶ 34.
Doc. 41 at 9, ¶ 49; see also Doc. 44 at 2, ¶¶ 5, 6 and 9.
308
Doc. 41 at 9, ¶ 49; Doc. 44 at 6–7, ¶ 34.
309
Doc. 41 at 7, ¶ 37; see also Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶ 4.
310
Doc. 41 at 7, ¶ 39, citing Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶¶ 5–7.
311
Id. at 6, ¶¶ 29–30, citing Doc. 38, Transcript at 80–81.
312
Id.
313
Id.
306
307

52

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 53 of 92

and was not filed in a specific juvenile case. 314 The order contained in the July 2020 petition was
granted by the Juvenile Court on July 13, 2020.315 Defendants maintain that, based on this prior
experience, the City/Parish filed the Juvenile Court Petition in this case before the May 28, 2021
press conference, seeking an order to publicly release specified redacted clips from the body
camera footage. 316 Furthermore, Defendants claim that, in the past, the City/Parish has
“regularly” resisted requests for juvenile body camera footage on the basis of Children’s Code
Article 412. 317 Defendants also direct the Court to emails and testimony of City/Parish lawyer
Deelee Morris wherein she advised Frampton of his need to comply with Article 412 in order to
gain the release of the juvenile records. 318
g. No Bad Faith - Prior Knowledge Of City/Parish Of Frampton’s
Possession Of BRPD Video
Defendants do not dispute Frampton’s allegation that he made City/Parish lawyers aware
during the March 2021 settlement negotiations of Green’s civil suit that he had possession of the
BRPD Video footage. Defendants argue, however, that “there is no evidence that shows that the
Litigation Division of the Parish Attorney’s Office was informed (1) that Mr. Frampton was
improperly in possession of a video of a juvenile arrest or (2) of his intent to publicly disclose
portions of juvenile arrest.” 319 They maintain that “[a]t the time the Juvenile Petition was filed, the
City/Parish did not know how Mr. Frampton obtained the body camera footage.” 320
Drawing further distinction between groups of lawyers in the City/Parish attorney’s
office, Defendants argue “[t]here is no evidence to show that the Legal Division of the Baton

Id., ¶ 31, citing Doc. 38, Transcript at 81–82.
Doc. 41 at 7, ¶ 32, citing Doc. 38, Transcript at 81.
316
Id., ¶ 33.
317
Id. at 8, ¶ 41, citing Defendants’ Exhibits 3 and 4.
318
Id. at 5, ¶ 20, citing Doc. 38, Transcript at 91–92 and Defendants’ Exhibit 3.
319
Doc. 44 at 1, ¶ 2. See also Doc 41 at 3, ¶ 11.
320
Doc. 44 at 3, ¶ 11; Doc. 41 at 10, ¶ 51.
314
315

53

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 54 of 92

Rouge Police Department had knowledge of his possession of the videos prior to May 27,
2021.” 321
h. No Bad Faith – Why Frampton Is The Only One Against Whom
Sanctions Sought
Defendants argue that Frampton is the first party against whom sanctions for violating
Art. 412 have been sought because he is the first person they became aware of who committed
this violation. 322 According to Defendants, no negative inference should be drawn from the
City/Parish’s failure to seek contempt sanctions from others who, like Frampton, acquired the
Video without a Juvenile Court order because “it is not required by law to file for contempt on
any and all parties that it subsequently learned exchanged or released the video in violation of Art.
412 in order to establish its good faith.” 323
In addition, the City/Parish’s failure to file a Contempt Motion against others for
violations of Art. 412 does not establish bad faith because
[the City/Parish] can reasonably rely on the Juvenile Court’s
capability to address these circumstances, provide judicial guidance
on prior and post reproduction of confidential records stemming
from Mr. Frampton’s public release, and sua sponte set a Rule to
Show Cause on other parties if deemed necessary, based on the facts
presented during the Rule to Show Cause hearing against Mr.
Frampton. 324
i. No Bad Faith – Why Defendants Fail To Withdraw Contempt
Motion
Defendants justify their refusal to withdraw the Contempt Motion once they learned on
or about June 2, 2021 that Frampton had released the BRPD Video “with the consent of and the

Doc. 44 at 2, ¶ 3.
Plaintiff’s Exhibit 12 at 5, Defendants’ Answer to Interrogatory No. 6.
323
Doc. 41 at 10, ¶ 52.
324
Id., ¶ 53.
321
322

54

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 55 of 92

behest of all the concerned members of the Green Family” 325 as follows: “the letter [from
Frampton’s counsel] did not contain any information that disputed Mr. Frampton’s public release
of the video in violation of Art. 412. Nor did the correspondence change the City/Parish’s
interpretation of Art. 412. Thus, the City/Parish had no basis to withdraw its petition.” 326
j. No Bad Faith - Defendants’ Failure To Follow Requirements Of
Art 412 In This Case
Defendants explain that because the Juvenile Court Petition was “filed under the general
provision of Art. 412(A), relying on the general authority of the Court, not Art. 412(E)…there
were no form, service, or hearing requirements for the portion of the petition seeking release of
the videos.” 327 Thus, no bad faith or retaliatory motive can be inferred and abstention under
Younger is proper and required. 328
B. Has Plaintiff Satisfied His Burden For The Issuance Of A Preliminary
Injunction?
1. Has Plaintiff Shown A Probability Of Success On The Merits?
a. Plaintiff’s Position
For reasons which mirror Plaintiff’s arguments on the applicability vel non of the bad
faith exception to Younger, Plaintiff argues he has a high probability of success on the merits. 329
b. Defendants’ Position
Defendants’ position regarding likelihood of success on the merits depends largely on
their arguments regarding the applicability of Art. 412 to the facts of this case. 330 These have

Plaintiff’s Exhibit 9, ACLU Letter.
Doc. 44 at 3, ¶ 15.
327
Id. at 2, ¶ 8.
328
Doc. 41 at 10, ¶ 54.
329
Doc. 42 at 20–34, ¶¶ 84–140.
330
Doc. 41 at 11–16, ¶¶ 57–86.
325
326

55

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 56 of 92

already been summarized in connection with the issue of the bad faith exception to Younger and
will not be repeated here.
2. Has Plaintiff Shown A Significant Threat Of Irreparable Injury?
a. Plaintiff’s Position
Regarding the threat of irreparable injury, Plaintiff argues that when an “alleged
deprivation of a constitutional right is involved, . . . most courts hold that no further showing of
irreparable injury is necessary.” 331 Because the Contempt Motion carries a potential threat of
imprisonment under Children’s Code art. 1509, Frampton argues that “freedom from
imprisonment—from government custody, detention, and other forms of physical restraint—'lies
at the heart of the liberty that [the Due Process] Clause protects.’” 332 Plaintiff argues that this
potential for imprisonment represents a substantial threat of irreparable injury.
In addition, a finding of contempt could have negative implications for Frampton’s
employment at the University of Virginia Law School and his license to practice law.
Furthermore, because Frampton is not a resident of Louisiana, he would have to purchase a ticket
and fly back to Louisiana for the Juvenile Court hearing – “an additional cost and an additional
risk during a pandemic.” 333
Plaintiff argues that the threat of jail time, a fine, and the potential exposure to disease
“chills Prof. Frampton’s and his clients’ speech pointing the Court to the Supreme Court’s
language that ‘[t]he threat of sanctions may deter . . . almost as potently as the actual application
of sanctions. . . .’ ” 334

Doc. 42 at 34, ¶ 142, quoting 11A Wright & Miller, Federal Practice & Procedure, § 2948.1.
Id., quoting Zadvydas v. Davis, 533 U.S. 678 (2001); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from
bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary
governmental action.”).
333
Id. at 35, ¶ 144.
334
Id., ¶ 145, quoting NAACP v. Button, 371 U.S. 415, 433 (1963).
331
332

56

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 57 of 92

b. Defendants’ Position
While Plaintiff argues he will suffer irreparable injury as result of the hearing on the
Rule to Show Cause because a finding of contempt may result in sanctions including possible
imprisonment, Defendants assert there is no evidence that proceeding with the hearing itself on
the Rule to Show Cause will cause a substantial threat of irreparable injury. 335 As to the cost and
inconvenience of traveling to Louisiana, the hearing can be conducted by Zoom to afford all nonlocal parties an opportunity to attend without travel. 336
Defendants insist that Plaintiff has offered no evidence to show that the Juvenile Court
judge cannot make a fair and impartial a ruling in this matter. 337 Furthermore, the hearing will not
result in any penalties or punishment if the allegations in the Contempt Motion are without
merit. 338 Because the hearing is closed and confidential, no publicity will result from proceeding
with the hearing. 339
According to Defendants, Plaintiff’s claim that he will suffer a substantial likelihood of
harm through penalties under Art. 1509 contradicts his argument that Defendants have brought
the Contempt Motion in bad faith because Art. 412 does not apply. 340 “[I]f the plaintiff’s
interpretation of Art. 412 is correct, the penalties of Art. 1509 are substantially not likely to
happen.” 341 Furthermore, if found in contempt “he has the right to file a writ or suspensive appeal
to the appropriate jurisdiction(s) to have a higher court review the Juvenile Court findings.” 342
Accordingly, Plaintiff has failed to establish he will suffer a substantial threat of irreparable harm

Doc. 41 at 16, ¶¶ 87–88.
Id., ¶ 89.
337
Id., ¶ 91.
338
Id., ¶ 92.
339
Id., ¶ 90.
340
Id., ¶ 93.
341
Doc. 41 at 16, ¶ 94.
342
Id., ¶ 95.
335
336

57

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 58 of 92

if the hearing on the Rule to Show Cause is held.

3. Does The Threatened Injury Of The Injunction Outweigh The Harm
That Will Result If The Injunction Is Granted?
a. Plaintiff’s Position
Plaintiff contends that, under this prong, courts “must balance the competing claims of
injury and must consider the effect on each party of the granting or withholding of the requested
relief.” 343 Here, Frampton argues that he faces potential jail time, and certain financial cost if
Defendants’ counsel moves forward with their course of action. On the other hand, the practical
burden on Defendants would be extremely slight: Ms. Morris testified that it “would be a simple
task without great expense for the City Parish, if it were ordered to do so, to withdraw its petition
for contempt against Professor Frampton” and “could likely be done in a one-page filing.” 344
At the August 6, 2021, hearing, Defendants offered no evidence to show they would
suffer an injury were the preliminary injunction to be granted. However, in briefing, they argue
that granting the preliminary injunction might set “a precedent that certain juvenile arrest records
are not confidential, [and then] volumes of law enforcement and prosecutorial files will be subject
to public records requests and those previously protected under Art. 412 will potentially be
subject to unwanted publicity that could greatly impact their future welfare.” 345
Plaintiff contends this not a real problem, for three reasons. First, Article 412 concerns
records related to juvenile court proceedings and because there have been no juvenile court
proceedings in this matter, “the statute plainly does not apply.” 346 Second, Plaintiff maintains he

Doc. 42 at 35, ¶ 150, quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987).
Id. at 36, ¶¶ 151–152, citing Doc. 38, Transcript at 80, 79.
345
Id., ¶ 153, citing Doc. 14-1 at 18.
346
Id., citing Art. 412(A) (“Records and reports concerning all matters or proceedings before the juvenile court.”)
(emphasis added).
343
344

58

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 59 of 92

is not asking this Court to rule that all youth arrests or “custodial agreements” are subject to La.
Child. Code art. 412; rather, this case is about whether Defendants are properly pursuing a
contempt action against Frampton on the facts of this case. 347
Finally, Plaintiff insists that nothing in this Court’s opinion would affect whether
custodial agreements become subject to Louisiana Public Records Law. Indeed, Defendants note
that the “mandatory confidentiality and enforcement provisions of Art. 412 are separate and
distinct from the law concerning public records.” 348 Because the Louisiana Public Records Law
does not rely primarily on Art. 412 to avoid inappropriate disclosure (it incorporates by reference
to thirty-seven separate code articles of the Children’s Code as exceptions to the Public Records
Law), “Defendants’ floodgates arguments are unavailing” and the balance of competing claims
of injury weighs in Frampton’s favor. 349
b. Defendants’ Position
Defendant counters that “[i]mpeding the Juvenile Court from addressing potential
violations of the provisions of Art. 412 will impact the procedural posture of this civil action.”350
Furthermore, “[b]oth parties are best served by having the Juvenile Court interpret the
applicability of the Louisiana Children’s Code based on its knowledge and experience in this
specialized practice of State law.” 351
Defendants next argue that, in the absence of a decision in the Juvenile Court, it will be
“difficult to determine the relevant issues and law to necessary to support or defend the plaintiff’s
First Amendment retaliation claim against the City/Parish defendants.” 352 By failing to abstain,

Id., ¶ 155.
Doc. 42 at 37, ¶ 156, citing Doc. 14-1 at 13.
349
Id., ¶¶ 156–157.
350
Doc. 41 at 17, ¶ 98.
351
Id., ¶ 99.
352
Id., ¶ 100.
347
348

59

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 60 of 92

this Court would “usurp[ ] the Juvenile Court’s jurisdiction” and allow and encourage forum
shopping. 353
For these reasons, Defendants argue that the potential harm of enjoining the Contempt
Motion outweighs the potential harm of allowing the Juvenile Court to rule.
4. Will The Grant Of The Injunction Disserve The Public Interest?
a. Plaintiff’s Position
As to the final prong of preliminary injunction analysis, whether the public interest
supports the issuance of an injunction, Plaintiff argues it does because, “[i]t is always in the public
interest to prevent the violation of a party's constitutional rights.” 354 In this case specifically there
is a strong public interest in preventing Defendants from a retaliatory course of action that would
serve to chill the speech of any who seek to speak out against BRPD. 355
Plaintiff maintains that, given Defendants’ stated position that a wide range of public
and private actors have committed the same violation as Frampton, permitting Defendants to
proceed with the Contempt Motion would place a wide range of persons engaged in completely
proper behavior at risk for arrest and imprisonment. 356 Plaintiff uses, as an example, evidence of
the Clerk of this Court, simply doing his job of sharing a public, non-sealed document, shared a
copy of the Video. 357 City/Parish counsel suggested at the hearing that, depending on how the
Frampton matter went, Defendants might seek sanctions against a range of actors including this
Court’s Clerk. 358 Plaintiff urges that preventing such a scenario supports Plaintiff’s position that

Id., ¶ 101.
Doc. 42 at 37, ¶ 159, quoting Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.C. Cir. 2012) (collecting
cases).
355
Id., ¶ 160.
356
Id. at 37–38, ¶ 161.
357
Id. at 38, ¶ 162, citing Doc. 38, Transcript at 49; Plaintiff’s Exhibit 13, Receipt from Clerk of Court.
358
Id., ¶ 163, quoting Doc. 38, Transcript at 104.
353

354

60

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 61 of 92

the public interest weighs in favor of an injunction.
b. Defendants’ Position
Not surprisingly, Defendants disagree. They argue that “[b]y setting a precedent that
certain juvenile arrest records are not confidential, volumes of previously deemed confidential
law enforcement and prosecutorial files will be subject to public records requests and will
potentially be subject to unwanted publicity that could greatly impact a juvenile’s future
welfare.” 359 This would allow “persons who do not have juveniles’ best interests in mind to obtain
arrest records” and avoid Art. 412’s protection. 360
Defendants give, by way of example, a juvenile who is “(1) legally arrested on charges,
such LSA-R.S. 14:98 (operating a vehicle while intoxicated), (2) issued a custodial agreement
and (3) submitted to pre-trial diversion in exchange for dismissal of charges prior to filing a
Petition . . . would have no recourse to protect potentially embarrassing body camera footage
from being publicized on social media platforms by classmates, bullies, etc.” 361
Defendants conclude that, “[b]ecause the confidentiality provisions of Art. 412 must be
liberally construed in favor of a child’s welfare, the public is best served by having the Juvenile
Court interpret and uphold the applicability of the Louisiana Children’s Code.” 362
VII.

DISCUSSION
A. Motion To Dismiss
1. Does Younger Apply To A State Contempt Proceeding?
Plaintiff argues that “Younger is no bar here…” because “the proceeding against Prof.

Doc. 41 at 17–18, ¶ 103.
Id. at 18, ¶ 104.
361
Id., ¶ 105.
362
Id., ¶ 108.
359
360

61

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 62 of 92

Frampton is not yet a criminal proceeding.” 363 The Court disagrees. First, the Contempt Motion
meets the three basic requirements for Younger abstention: “(1) the exercise of federal jurisdiction
would interfere with an ongoing state judicial proceeding; (2) the state proceeding implicates
important state interests; and (3) the state proceeding affords an adequate opportunity to raise
constitutional challenges.” 364
Furthermore, the Supreme Court has specifically held that state contempt proceedings
are subject to the Younger abstention doctrine 365 and the Fifth Circuit has recently reiterated this
principle. 366 The Court therefore rejects Plaintiff’s argument and finds that Younger applies to
this kind of case.
2. Test For Application Of Bad Faith Exception To Younger
The serious question here is not whether Younger abstention applies to state contempt
proceedings but whether Younger should apply to this contempt proceeding? Or stated another
way, does the bad faith exception to Younger abstention apply in this case?
As stated earlier, to establish a bad faith or retaliatory motive, Plaintiff must prove:
first, that the conduct allegedly retaliated against or sought to be
deterred was constitutionally protected, and, second, that the State's
bringing of the criminal prosecution was motivated at least in part
by a purpose to retaliate for or to deter that conduct. If the Court
concludes that the plaintiffs have successfully discharged their
burden of proof on both of these issues, it should then consider a
third: whether the State has shown by a preponderance of the
evidence that it would have reached the same decision as to whether
to prosecute even had the impermissible purpose not been
considered. 367
Doc. 42 at 38–39, ¶ 166.
Ramelli v. Zahn, No. 20-1482, 2020 WL 3971279, at *6 (E.D. La. July 14, 2020) (citing Bice v. La. Pub. Def. Bd.,
677 F.3d 712, 716 (5th Cir. 2012).
365
Juidice v. Vail, 430 U.S. 327, 335 (1977) (“[Abstention] principles apply to a case in which the State's contempt
process is involved.”); see also Asher v. A.G. Edwards & Sons, Inc., 272 F. A’pp'x 357, 358 (5th Cir. 2008) (“In
Juidice v. Vail, the Supreme Court extended the Younger abstention doctrine to state court contempt proceedings. 430
U.S. [at 338.]”).
366
Kolwe, 858 F. App'x at 132.
367
Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979).
363
364

62

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 63 of 92

The Fifth Circuit has clarified the phrase “in part” to mean that a defendant’s desire to
retaliate against or deter constitutionally protected conduct must have been a major motivating
factor in bringing the action. 368
Relevant to the third prong of the Wilson test, the State’s burden to show it would have
reached the decision to prosecute in the absence of the desire to retaliate, is “whether the State
prosecution was undertaken with no hope of a valid conviction and the significance of the alleged
criminal activity.” 369
3. Was Frampton Engaged In Exercising A Constitutionally Protected
Right?
The first prong of the bad faith exception test is whether Frampton was engaged in a
constitutionally protected right when he issued the press release critical of BRPD and shared the
BRPD Video on a media platform which allegedly supported that criticism. This prong is easily
met as this represents a classic example of exercising the right of free speech. 370 Defendants do
not seriously argue otherwise.
4. Has Plaintiff Proved That A Major Motivating Factor In Filing The
Contempt Motion Was To Retaliate?
The second prong of the test requires Plaintiff to establish that a “major factor”
motivating the City/Parish’s Contempt Motion was its desire to retaliate against Frampton for his

Smith v. Hightower, 693 F.2d 359, 367 (5th Cir. 1982). (“In stating that the plaintiff must prove retaliation exists
before a preliminary injunction will be granted, the Wilson Court contemplated that the plaintiff must prove retaliation
was a major motivating factor and played a prominent role in the decision to prosecute.”). See also
Ramelli, 2020 WL 3971279, at *7.
369
Wilson, 593 F.2d at 1387, n.22 (internal citations omitted). See also Gates v. Strain, 885 F.3d 874, 881 (5th Cir.
2018) (“A prosecution is taken in bad faith if state officials proceed ‘without hope of obtaining a valid conviction.’ ”),
quoting Perez, 401 U.S. at 85; see also Ramelli, 2020 WL 3971279, at *9.
370
Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981) (upholding district court’s injunction under bad faith exception to
Younger which “enjoin[ed] state court prosecution allegedly brought in bad faith for purposes of harassing and
punishing plaintiffs for having exercised their first amendment rights in criticizing certain public officials in DeKalb
County.”).
368

63

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 64 of 92

posting the press release and Video on the media platform. This, indeed, is the primary factual
issue in this case and is critical to the Motion to Dismiss since it governs the applicability of the
bad faith exception to Younger. In addition, it informs to one degree or another each of the four
prongs the Court must consider in deciding the Motion for Preliminary Injunction.
Was the motivation and intent, as the City/Parish urges, merely an innocent effort to
punish Frampton for failing to gain permission of the Juvenile Court before releasing BRPD onto
his social media platform? Or was it, as Plaintiff contends, a bad faith retaliation against him for
issuing a press release and Video critical of BRPD after the conduct of BRPD officers in the
matter had already been harshly criticized by a federal judge? The Court finds the overwhelming
evidence in this case shows that the City/Parish acted in bad faith and in retaliation against
Frampton for Frampton’s issuance of a press release and Video which cast BRPD in a bad light.
Many, if not most, of the facts in this case are not contested and are set out in the section
entitled Background Facts and Procedural History. The Court adopts and incorporates those facts
here although some of these facts will be repeated for context. First, it is undisputed that months
before the City/Parish filed the Juvenile Court Petition and Contempt Motion, BRPD itself
released the Video (which included the search and arrest of F.B.) to the United States Attorney
without requesting or obtaining the permission of the Juvenile Court and without placing any
warnings on the Video or placing any restriction on its use or dissemination. 371 It is undisputed
that there was no City/Parish or BRPD policy or procedure which required it to do either. 372
It is undisputed that at some time before the November 20, 2020 Motion to Suppress
hearing (some six months before the City/Parish filed the Juvenile Court Petition and Contempt
Motion) the United States provided the BRPD Video to Green’s attorney Mark Upton, the Federal
371
372

Doc. 38, Transcript at 98–100.
Id. at 99–100.

64

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 65 of 92

Public Defender, and did so without warnings or restrictions of any kind. 373 It is undisputed that
at least by November 20, 2020, the BRPD Video in question was entered into evidence and the
public record of Green’s criminal proceeding and that it was so entered without anyone asking
for permission of the Juvenile Court, without being filed under seal or being marked confidential,
and without restrictions of any kind being placed on its use or further dissemination. 374
It is undisputed that Green’s criminal defense lawyer, the Federal Public Defender, with
his client’s permission, provided a copy of the BRPD Video to the Green family’s civil attorney
Frampton, without requesting permission and without restriction. 375 It is undisputed that by
January 21, 2021 (some four months before the City/Parish filed the Contempt Motion), the Baton
Rouge Advocate acquired a copy of the Video, probably from the Clerk of this Court again,
without requesting permission of the Juvenile Court or placing restrictions. 376 An article in the
Advocate which described parts of the Video was published on January 12, 2021. 377
It is undisputed that in March of 2021, during settlement negotiations of Green’s civil
case, Frampton made the City/Parish attorneys aware of the fact that he possessed a copy of the
Video. 378 By March 25, 2021, the City/Parish knew that Frampton did not get the Video by way
of his subpoena request to the City/Parish since that request was withdrawn on that date. 379
City/Parish lawyers voiced no question or concern regarding Frampton’s possession of the Video
nor were they concerned enough to inquire or investigate how he obtained it. 380
City/Parish attorney Deelee Morris claimed in her testimony before this Court that she
Id. at 100.
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La.), Motion to Suppress, Docs. 12, and Exhibit Log for
Motion to Suppress Hearing, Doc. 26; Doc. 38, Transcript at 20.
375
Doc. 38, Transcript at 41.
376
Appendix 1 to this ruling.
377
Plaintiff’s Exhibit 5, Advocate article.
378
Doc. 38, Transcript at 34–35.
379
Defendants’ Exhibit 3.
380
Doc. 38, Transcript at 35–36.
373

374

65

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 66 of 92

was unaware of the November 20, 2020, Green Motion to Suppress hearing at which the Video
was made a part of the public record in that case.
Q.

And in Clarence Green’s federal criminal case, there was a
motion to suppress hearing, correct?

A.

I can’t really confirm that. I believe that is the case. But I
didn’t have any participation in that matter, so I really don’t
want to comment on anything that I’m fully aware of (sic).

Q.

Are you aware that video footage of Clarence Green and the
juvenile FB was entered into the record of this court at that
hearing?

A.

I have been told that, but I have not requested any record
and I’ve not seen any record, so I can’t say for certain that
it’s in the record or have - -

Q.

So your - - I’m sorry.

A.

Or have the record.

Q.

So your office hasn’t gone to check?

A.

No. 381

Ms. Morris’ sworn testimony is directly contradicted by the record in U.S. v. Green
which shows that, on January 6, 2021, over four months before the Contempt Motion, Deelee
Morris herself requested the transcript of the Motion to Suppress hearing. 382 In those intervening
months, the City/Parish took no action against the BRPD, the Assistant U.S. Attorney or the
Assistant Federal Public Defender for making the Video public without getting Juvenile Court
permission. It was only on the morning after Frampton issued a press release critical of BRPD’s
handling of the minor’s arrest, supported by the BRPD Video, that the City/Parish filed its

381
Doc. 38, Transcript at 64 (emphasis added). See also Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶ 8 (“I
had no knowledge, until recently . . ., that the body camera footage at issue was filed in the public record of this
Court.”).
382
United States v. Green, No. 20-CR-46-BAJ-SDJ (M.D. La. Jan. 6, 2021), Transcript Request by Deelee Morris,
Doc. 38.

66

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 67 of 92

Contempt Motion and then, only against Frampton.
In attempting to explain why it didn’t move earlier to sanction Frampton, the City/Parish
argues that it “didn’t know how Mr. Frampton obtained the body camera footage.” 383 But this
explanation also rings hollow because, once the Video and story critical of BRPD aired, City
Parish lawyers didn’t bother to contact Frampton to find how he had obtained the Video before
immediately (the morning after the press release) filing its motion to hold him in contempt. To
accuse a lawyer of wrongful conduct sufficient to subject him to a finding of contempt of court
and sanctions as serious as jail time requires the filing lawyer to have a belief “formed after
reasonable inquiry” that “the pleading is not being presented for any improper purpose” and “has
evidentiary support.” 384 Indeed, this is a lawyer’s obligation before signing and filing any
pleading. 385 No such reasonable inquiry was made.
Had the City/Parish lawyers made reasonable inquiry before filing the Contempt Motion,
they would have found that Frampton got the Video from his client via his client’s criminal
defense lawyer, who got it from the U.S. Attorney, who got it from BRPD. They would also have
discovered that the Video had been in the hands of the Baton Rouge Advocate newspaper for
months. If Morris read the transcript of the Motion to Suppress hearing that she ordered, she
already knew that the Video was a public record in this Court, having been introduced and played
at the hearing, and that the Video was available to anyone who requested it.
Not only was reasonable inquiry not made before filing the Contempt Motion, but, in
addition, the City/Parish failed to give the minor (whose interests it claims to be protecting) or
the minor’s lawyer (Frampton), notice and an opportunity to be heard before asking the Juvenile

Doc. 41 at 10, ¶ 51.
La. Code Civ. Proc. art. 863 (B)(1) and (3).
385
Id.
383
384

67

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 68 of 92

Court Judge to sign the show cause order ex parte. This failure occurred despite the fact that Art.
412(E)(3) of the Children’s Code requires both. 386
Defendants attempt to justify their failure to abide by the requirements of Art. 412(E) by
contending the Petition was “filed under the general provision of Art. 412(A), relying on the
general authority of the Court, not Art. 412(E).” 387 Thus, argue Defendants, “there were no form,
service, or hearing requirements for the portion of the petition seeking release of the videos.”388
Defendants cite no authority for this proposition which flies in the face of La. Child. Code art.
102 upon which they rely. 389 Art. 102 states in pertinent part that the terms and provisions of the
Code “shall be liberally construed to the end that each child and each parent coming within the
jurisdiction of the court shall be accorded due process…” Assuming that the Children’s Code
required at this point the Juvenile Court’s permission to show the Video (which the Court
addresses later in this ruling), circumventing the requirement of Art. 412(E) that the parent, child
(and their attorney) be given notice and an opportunity to be heard, hardly comports with due
process.
Defendants attempt to justify their failure to give notice by arguing that this failure was
driven “by the urgent need to address the public’s concern of the situation.” 390 Defendants offered
no evidence to support its conclusory allegation made in the Juvenile Court Petition and in
briefing that the “substantial amount of negative correspondence from the public” as a result of
the broadcast led to a “potential for civil unrest.” 391
But assuming arguendo there was such an urgent need, and assuming further that the
“In ruling on the petition [for the release of records]…[t]he court shall ensure the juvenile is afforded notice of the
hearing and an opportunity to be heard at a contradictory hearing on the petition.” La. Child. Code art. 412 (E)(3).
387
Doc. 44 at 2, ¶ 8.
388
Id.
389
Doc. 41 at 12, ¶ 64.
390
Doc. 41 at 9, ¶ 49,
391
Plaintiff’s Exhibit 7, Rule to Show Cause at ¶¶ 4–5.
386

68

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 69 of 92

Children’s Code required at this point the Juvenile Court’s permission to show the Video (which
the Court addresses later in this ruling), there was certainly no urgency connected to the Contempt
Motion. Indeed, City/Parish attorney Morris admitted that the so-called “urgent need” to address
the “negative correspondence” being received by the City/Parish had nothing to do with
Frampton. 392 Yet, the City/Parish does not attempt to explain why its lawyers made no effort to
find out the circumstances of Frampton’s acquisition and dissemination of the Video before filing
the Contempt Motion. Remarkably and tellingly, City/Parish Attorney Morris states in her
affidavit that she included the Contempt Motion in the Petition, “for sake of efficiency.” 393
Defendants argue that, even had they known where and how Frampton got the Video,
they would have pursued sanctions anyway. Indeed, they have continued to pursue the Contempt
Motion after being advised that Frampton’s acquired of the Video from the Assistant Federal
Public Defender when it was already a public record and after being advised of the circumstances
of its release by Frampton to the media (i.e., at the Green’s family’s “request and with their
express blessing . . . as the best way to actually get some accountability with respect to what
happened on January 1st.” 394). 395
Defendants claim this pursuit of sanctions is motivated not by retaliation but is based on
its interpretation of the Children’s Code. The Defendants’ position is belied, however, not only
by the circumstances and timing of its filing of the Contempt Motion but by its conduct both
before and after the Contempt Motion was filed. First, Defendants admit that Frampton is the
only person the City/Parish has ever attempted to sanction under this provision of the Children’s

Doc. 38, Transcript at 86–88; Doc. 41 at 9, ¶ 49.
Plaintiff’s Exhibit 1, Declaration of Deelee Morris at ¶ 3.
394
Doc. 38, Transcript at 38; see also Plaintiff’s Exhibit 9, ACLU Letter (stating Frampton released video “at the
behest of and with the consent of all concerned members of the Green Family.”).
395
Doc. 44 at 3, ¶ 15.
392
393

69

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 70 of 92

Code. They claim this is because “this is the first time the Parish Attorney’s Office encountered
what appears to be an unauthorized release of juvenile investigation materials [and] accordingly,
this is the first time that the Parish Attorney’s Office has filed a rule for contempt in Juvenile
Court to put the question to the test.” 396 But this explanation is flatly contradicted by the fact that
it was the City/Parish itself, through BRPD, that released the Video in the first place and did so
without seeking an order from the Juvenile Court and did not follow the requirements for marking
the Video with warnings regarding dissemination. 397
If the position the City/Parish now takes regarding Art. 412 was genuine and not an ex
post facto attempt to justify its Contempt Motion, the Court would have expected there to be a
mechanism or procedure in place at BRPD to ensure that permission from the Juvenile Court
would be sought and received before releasing materials like the Video. In addition, the Court
would have expected a procedure or mechanism in place to ensure that juvenile materials would
be properly marked 398 before releasing the Video. There were no such mechanisms or procedures
in place, although City/Parish lawyer Morris now takes the position that there should have
been. 399
If the position the City/Parish now takes regarding Art. 412 and its Contempt Motion
was genuine and not merely a convenient vehicle by which to punish Frampton for releasing the
negative press release and Video, the Court would have expected the City/Parish to express some
concern or at least make inquiry when it learned in March of 2020 that Frampton had the Video

Plaintiff’s Exhibit 12 at 5, Defendants’ Answer to Interrogatory No. 6.
La. Child. Code art. 412(E)(2)(a) requires service on the juvenile and his attorney and 412(E)(3) requires that “[t]he
court shall ensure the juvenile is afforded notice of the hearing and an opportunity to be heard at a contradictory
hearing. . . .”
398
La. Child. Code art. 412(L) requires that the records be marked “UNLAWFUL DISSEMINATION OF THIS
INFORMATION IS PUNISHABLE AS A CONSTRUCTIVE CONTEMP OF COURT PURSUANT TO
LOUISIANA CHILDREN’S CODE ARTICLE 1509(E).”
399
Doc. 38 Trial, Transcript at 99, 101–102.
396
397

70

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 71 of 92

and had not obtained it through his request to the City/Parish. It did neither.
In addition, if the real motivation of the City/Parish was to protect the juvenile’s privacy
and enforce the Children’s Code, as it alleges, the Court would have expected the City/Parish to
take action against whoever at BRPD first released the Video. Yet, no action of any kind (let
alone a contempt motion) has ever been taken against BRPD or its personnel for releasing the
Video in a manner which the City/Parish now argues violated the Children’s Code and for which
they seek sanctions against Frampton. The hypocrisy of the City/Parish’s position is astounding.
If the position the City/Parish now takes regarding Art. 412 was genuine and not merely
a convenient way to punish Frampton for releasing the negative press release and Video, the
Court would have expected the City/Parish itself to strictly apply the rules for which they are now
attempting to sanction Frampton for not following. Yet, not only has Plaintiff demonstrated at
least one occasion in the past where the City/Parish released a juvenile’s records without marking
it with the required warnings against dissemination, 400 Plaintiff also proved that, in this case, the
City/Parish twice released F.B.’s records or Video without first getting permission of the Juvenile
Court: first, when BRPD released the Video to the U.S. Attorney without markings or
restrictions 401 and second, when City/Parish attorney Joseph Scott released F.B.’s records in
discovery without first requesting permission of the Juvenile Court. 402 No sanctions were sought
against BRPD 403 or Scott. 404
Defendants’ position at the hearing and in briefing is that not only did BRPD officials

Plaintiff’s Exhibit 18, Declaration of James W. Craig.
Doc. 38, Transcript at 103.
402
See Plaintiff’s Exhibits 15 and 17; Doc. 38, Transcript at 108–109. Permission was retroactively sought the
following day. Id.
403
Doc. 38, Transcript at 102–104.
404
Doc. 38, Transcript at 52–55. It is also noteworthy that F.B.’s records supplied in discovery without Juvenile Court
permission, “were not redacted very well. You could see FB’s full name in those documents. There was other
identifying information.” Id. at 53.
400
401

71

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 72 of 92

violate Art. 412 but so did the Clerk of the United States District Court for the Middle District of
Louisiana, an Assistant United States Attorney from the Middle District, an Assistant Federal
Public Defender of this District, Clarence Green and whoever gave the Video to reporters for the
Baton Rouge Advocate. 405 Yet, it is only Frampton who has been accused of contempt.
When asked by the Court to explain why only Frampton and not the others were the
subject of a contempt motion, City/Parish Attorney Morris responded as follows:
Q.

Now, Ms. Morris, why hasn’t the City Parish pursued
sanctions against any of those people? You just said they
violated it just like Mr. Frampton did. Why didn’t they
pursue the sanctions – the same sanctions they are pursuing
against Mr. Frampton?

A.

Well, I did reach out to the U.S. Attorney’s Office to start
mitigating the issue and getting it filed under seal –

Q.

That’s not the question I’m asking. I’m not asking about
mitigation. I’m asking why you didn’t pursue sanctions, like
you did with Mr. Frampton, against all of those people you
just told me, in your view, violated the Children’s Code.

A.

Well, at the time that I filed the rule to show cause, I didn’t
know –

Q.

Ma’am, that’s not the question. You know now, though, do
you not?

A.

Yes.

Q.

So my question stands. Why haven’t you pursued sanctions
against the U.S. Attorney, the Federal Public Defender, the
Clerk of Court, and Mr. Green?

A.

I don’t know. Honestly, I mean, I think that we’re trying to
resolve this matter, and then after that I will resolve all of
that. 406

At the time of the hearing, it was not clear how the reporters from the Advocate obtained a copy of the Video.
Since then, the Court has determined that the reporters requested, paid for and were sent a copy of the Video by this
Court’s Clerk. See Appendix 1 to this ruling.
406
Doc. 38, Transcript at 103–104.
405

72

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 73 of 92

Morris’ testimony that, even as of the time of the hearing, she “didn’t know” why only
Frampton was pursued for contempt although others allegedly committed identical violations of
Art. 412, is further proof that the purpose of the Contempt Motion was harassment and retaliation
against Frampton. Even if you credit what appears to be the witness’s afterthought that the
City/Parish is waiting to see what happens in this case before “resolv[ing] all of that”407
(suggesting it may pursue the Middle District Clerk, Assistant U.S. Attorney, Assistant Federal
Public Defender and others), this merely highlights the absurdity of Defendants’ position and
strengthens this Court’s conclusion that retaliation was the true motivation and driving force of
the City/Parish’s Contempt Motion. 408
In their briefing, Defendants add this additional explanation for not pursuing these other
alleged wrongdoers: “The City/Parish is not required to file for contempt on any and all parties
that it subsequently learned exchanged or released the video in violation of Art. 412 to establish
its good faith in proceeding in this matter.” 409 It is certainly true that a prosecutor generally has
broad discretion regarding who to charge and for what crime. 410 But this discretion does not allow
a prosecutor to bring an action against an individual as retaliation for exercising a constitutional
right. 411 And in this case, of all those who the City/Parish claims violated Art 412, the Court finds
it strong evidence of bad faith, harassment and retaliatory motive, that the only one the City/Parish
sought to sanction was the one who issued a press release critical of BRPD and sought that
sanction on the day following the negative release.

Id. The Court does not credit this testimony.
Although “the threat of multiple or repeated prosecutions is not necessary to establish bad faith prosecution,”
Fitzgerald, 636 F.2d at 944, it is relevant.
409
Doc. 41 at 10, ¶ 52.
410
United States v. Young, 231 F. Supp. 3d 33, 39 (M.D. La. 2017) (deGravelles, J.) (“Whether to charge one with a
crime and choosing the specific crime with which to charge a given defendant are decisions belonging to the
prosecutor. It is an awesome power and grave responsibility, but it is one in which the Government is given very broad
discretion.”).
411
Fitzgerald, 636 F.2d at 945; Ramelli, 2020 WL 3971279, at *10.
407
408

73

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 74 of 92

Defendants argue that, on at least one prior occasion in July of 2020, the City/Parish
sought permission of the Juvenile Court to release juvenile documents under circumstances
similar to those here. 412 Plaintiffs countered with evidence of one prior instance in which the
City/Parish released juvenile documents without complying with the warnings requirement of
Art. 412(E)(3). 413 This evidence, in isolation, is inconclusive on the issue of the City/Parish’s
motivation in filing a Contempt Motion against Frampton. However, when all the circumstances
are considered, the Court concludes that the City/Parish brought its Contempt Motion in bad faith.
The Court’s conclusion of bad faith is also supported by Defendants’ continued pursuit
of sanctions after being advised that a) the Video was already in the public domain at the time
Frampton released it, b) it was in the public domain because BRPD put it there, and c) Frampton
released it at the direction and with permission of his clients, the Green family, two of whom
(including the minor) were the subjects of the Video. Defendants argue that the fact that it was
already public is of no moment and support this argument by noting that this is not one of the
listed exceptions to Art. 412’s mandate. 414 No authority is given for this argument other than an
Attorney General’s opinion. 415
The Court is not persuaded. First, the Court is not bound by an Attorney General opinion.
Second, the Attorney General Opinion is readily distinguishable. The issue there was whether
under the exceptions listed in Art. 412, a district attorney, sheriff or public school system may
acknowledge possession of a juvenile’s records. Here, the question is whether F.B.’s arrest
records lost the protection of Art 412 (if they ever had that protection) when, through a series of
releases beginning with BRPD, the records were placed in the public domain. Third, the opinion

Doc. 44 at 6, ¶¶ 29–30, citing Doc. 38, Transcript at 80–81.
Plaintiff’s Exhibit 18, Declaration of James. W. Craig.
414
Doc. 41 at 15, ¶¶ 80–84.
415
Id., ¶ 83, citing La. Atty. Gen. Op. No. 03-0026 (Jan. 30, 2003).
412
413

74

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 75 of 92

suggests that a parent has the independent authority to release confidential records of the minor.
Referring to 20 U.S.C. § 1232g which prohibits a school’s release of a minor’s records, the
opinion states:
Student records that are personally identifiable with a student are
confidential to a student and his parents and are therefore excluded
from the Public Records Act and are not subject to public inspection
or release without the consent and authorization of the affected
parties… [A] school may not acknowledge a juvenile discipline
record without prior consent and authorization from the affected
parties. 416
Here, of course, Frampton released the Video with both the consent of F.B.’s mother and
the entire Green family and at their direction. 417
The City/Parish argues that Plaintiff’s proof of bad faith relies only on “circumstantial
evidence and conclusory allegations.” 418 It is true that no eyewitness testified they overheard the
City/Parish lawyers declare their intention to retaliate against Frampton or that these intentions
were directly expressed in a document introduced into evidence. However, two points regarding
circumstantial evidence are well known. First, circumstantial evidence is to be considered by the
fact finder the same as direct evidence. Indeed, this Court routinely instructs juries that “[t]he law
makes no distinction between the weights to be given either direct or circumstantial evidence.”419
Second, circumstantial evidence may be sufficient specifically to prove the intent of a party when
that is an issue. 420 In many cases where a person’s intent or motivation is at issue, circumstantial
evidence may be the only available evidence. 421 Here, Plaintiff’s allegations are not merely

La. Atty. Gen. Op. No. 03-0026 (Jan. 30, 2003) at 1–2, 2003 WL 295600 (emphasis added). See also 20 U.S.C.
§ 1232g.
417
Doc. 38, Transcript at 38; Plaintiff’s Exhibit 9, ACLU Letter.
418
Doc. 44 at 5, ¶ 27.
419
Fifth Circuit Pattern Jury Charges, Criminal, (1.08) (Alternate B) (2019).
420
See, e.g., United States v. Ismolia, 100 F.3d 380, 387 (5th Cir. 1996) (in proving fraud, it suffices to show facts and
circumstances from which jury could reasonably infer that a defendant knew his conduct was unauthorized and illegal).
421
See, e.g., United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014) (“Direct evidence of a conspiracy is
unnecessary; each element [(including knowledge and intent)] may be inferred from circumstantial evidence. The
416

75

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 76 of 92

conclusory as charged by Defendants but are specific and supported by a wealth of evidence.
In conclusion, this evidence strongly supports Plaintiff’s position that the City/Parish
brought its Contempt Motion against Frampton as retaliation for issuing the press release and
Video to the media.
In defending its conduct, Defendants attempt to narrow the question of its bad faith to a
single legal question, arguing “[t]he only issue before the Court is whether Art 412 applies in this
case, where a delinquency petition has not been filed.” 422 This is hardly the only issue since,
even if Defendants interpretation or Art. 412 is correct and the City/Parish pursued its Contempt
Motion through a valid statute, the bad faith exception to Younger still applies as long as a “major
motivating factor” in Defendants’ filing the Contempt Motion was to retaliate against Frampton
for exercising his right of free speech.
Where the allegation is that the state proceedings, though brought
under a valid statute, were instituted in retaliation for or to deter the
exercise of constitutionally protected rights, the question of the
applicability of the Younger exception and that of the existence of a
constitutional violation merge: to prove one is to prove the other. 423
It is true that Plaintiff alleges the City/Parish moved for contempt of a proceeding “they
knew did not exist”. But this allegation is only one of a number of acts and omissions of
Defendants which Frampton argues support his claim of retaliation, some of which have been
previously discussed. Therefore, whether Art. 412 applies to the facts of this case is relevant but
by no means dispositive of the bad faith issue.

conspirators may have a silent and informal agreement. Indeed, the voluntary participation may be inferred from a
collection of circumstances, and knowledge may be inferred from surrounding circumstances.” (cleaned up)).
422
Doc. 44 at 6, ¶ 32. See also Doc. 41 at 9, ¶ 46 where Defendants argue that the Contempt Motion “did not contain
any false or disputed factual information, thus the only issue that is present is an interpretation of Art. 412 and its
applicability under the facts presented.”
423
Wilson, 593 F.2d at 1385, n.17 (emphasis added); see also Perez v. Ledesma, 401 U.S. 82, 118 n.11 (1971)
(Brennan, J., concurring) (“Bad-faith harassment can, of course, take many forms, including arrests and prosecutions
under valid statutes where there is no reasonable hope of a valid conviction”); Torries, 111 F. Supp. 2d at 822.

76

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 77 of 92

5. Is Art. 412 Applicable To The Facts Of This Case?
There are two separate but related issues here. First, does Art. 412(A) apply at all when
the juvenile has been given a custodial agreement (i.e., has been arrested) but no petition for
delinquency has been filed, i.e., no formal charges have been brought against the minor? Second,
even if the answer to the first question is yes, does Art. 412 apply to the specific facts in this case,
i.e., where BRPD released the Video to the U.S. Attorney without any restriction, where
Frampton acquired the Video from his client’s criminal defense lawyer legally and properly, and
where Frampton posted the video after it had already become public and with the permission and
at the behest his clients, including the minor’s mother and guardian, and all of this occurred when
no petition or charges had been filed against the minor?
The Court is doubtful that Art. 412(A) applies, as Defendants suggest, in all cases
following a minor’s arrest, even when no petition has been filed against the minor. But the Court
need not resolve this issue since Art. 412 clearly does not apply to the specific facts of this case.
Neither side has directed the Court to controlling Louisiana Supreme Court or even
appellate court precedent answering the precise question before the Court.
When the absence of a controlling high court decision requires us to
make an “Erie guess” about Louisiana law, we consider many of the
same sources we use when guessing the law of other jurisdictions:
decisions and reasoning of the state's courts; general rules of the
jurisdiction, such as those governing statutory interpretation; and
secondary sources like treatises. Id. at 488–89. But Louisiana's
“civilian methodology” means the pecking order of those sources is
different than it is for a common law state. Boyett v. Redland Ins.
Co., 741 F.3d 604, 607 (5th Cir. 2014). Louisiana's “Constitution,
codes, and statutes” are of paramount importance to its judges. Am.
Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260
(5th Cir. 2003). The doctrine of stare decisis, a creature of common
law, is alien to the civilian system. Boyett, 741 F.3d at 607. Unlike
stare decisis, which can flow from one decision, in the civil system
77

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 78 of 92

numerous court decisions must agree on a legal issue to establish
jurisprudence constante (French for constant jurisprudence). And
even when that consensus exists in the caselaw, it remains only
persuasive authority for the Erie guess; “we are not strictly bound”
by the decisions of Louisiana's intermediate courts. Am. Int'l
Specialty Lines, 352 F.3d at 261 (quoting Transcon. Gas Pipe Line
Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992)); see
generally Alvin B. Rubin, Hazards of a Civilian Venturer in Federal
Court: Travel and Travail on the Erie Railroad, 48 LA. L. REV.
1369 (1988). 424
Art. 412(A) states:
A. Records and reports concerning all matters or proceedings before
the juvenile court, except traffic violations, are confidential and
shall not be disclosed except as expressly authorized by this Code.
Any person authorized to review or receive confidential information
shall preserve its confidentiality unless a court order authorizes them
to share with others. 425
The quoted language was added in a 2003 amendment to Art. 412. Comments to the
added language states “Paragraph A establishes the general principle that records and other case
specific information in juvenile court proceedings are confidential and are not to be disclosed to
any individual, agency or to the public unless expressly authorized by this Code.” 426 While the
term “proceedings” is used, the word “matters” is not.
Although the word “proceeding” is not defined, its meaning is made explicit in Art. 842,
which states, “A delinquency proceeding shall be commenced by a petition. The district attorney
may file a petition without leave of court. Any person authorized by the court may file a petition
if there are reasonable grounds to believe that the child is a delinquent child.” 427 Thus, until a
petition has been filed, there is no proceeding before the Juvenile Court. The language of Art.
842 is clear and unambiguous. “When a law is clear and unambiguous, it shall be applied as

Jorge-Chavelas v. La. Farm Bureau Cas. Ins. Co., 917 F.3d 847, 850–51 (5th Cir. 2019).
La. Child. Code art. 412(A) (emphasis added).
426
La. Child. Code art. 412, cmt. a (2003).
427
La. Child. Code art. 842.
424
425

78

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 79 of 92

written.” 428
Like the term “proceeding”, the term “matter” is not defined. However, the 2003
Comments quoted above draw no distinction between proceedings and matters, referring only to
“proceedings”. In addition, in order for Article 412(A) to apply, the “matter” or “proceeding”
must be “before the juvenile court” 429 and there is nothing “before” the Court until a petition is
filed. According to Defendants’ own witness, Courtney Myers-Minor, Chief of the Juvenile
Section of the East Baton Rouge District Attorney’s Office, the custodial agreement is merely an
arrest 430 and does not constitute a charge.
Q.

[by Mr. Scott]: “So on the basis of that custodial agreement
and the report, does the child have a pending charge?

A.

No. The charge does not – I mean, the formal charge does
not come until the DA’s office files the petition. It’s
considered an arrest. It’s essentially an arrest.” 431 ***

Q.

And the petition you’re talking about there, that’s your
charging instrument in Juvenile Court?

A.

Yes. It’s the same as a bill of information. We just call it a
petition.” 432

Myers-Minor testified that, while the custodial agreement and arrest report are sent to
the DA for review, “…the only way that anything would get filed with the Juvenile Court is if
the DA’s office filed a petition.” 433 She agreed that “[n]othing is filed with the Juvenile Court
until the DA’s office decides to file a petition initiating criminal charges against the minor.”
At the time Frampton received and shared the BRPD Video, no petition had been filed

Jorge-Chavelas v. Louisiana Farm Bureau Cas. Ins. Co., 917 F.3d at 852 (cleaned up).
La. Child. Code art. 412(A) (emphasis added)
430
Doc. 38, Transcript at 123.
431
Id. at 125–26.
432
Id. at 124.
433
Id. at 123.
428
429

79

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 80 of 92

by the DA against F.B., there were no pending charges against him, and nothing had been filed
with the Juvenile Court, including the Custodial Agreement, arrest report or BRPD Video. F.B.
had not had a detention hearing and was not in detention.
Defendants maintain, however, that an arrest, not a petition, “constitutes a ‘matter’
and/or ‘proceeding’ before the Juvenile Court [and] thus all records related to the arrest are
protected under Art. 412.” 434 The Court disagrees. Clearly an arrest is not a “proceeding” nor
does it initiate a proceeding since Art. 842 is explicit that “[a] delinquency proceeding shall be
commenced by a petition.” Neither Plaintiff nor Defendants offered any Louisiana Supreme
Court or Court of Appeal decisions directly on point but, under the clear language of the
Children’s Code and under Louisiana’s adult criminal procedure, an arrest does not initiate a
criminal prosecution. Thus, as supported by the testimony of the Juvenile Section Chief of the
East Baton Rouge District Attorney’s office, at the time Frampton received and distributed the
BRPD Video, there was neither a proceeding nor a matter before the Juvenile Court.
Defendants argue that their position is bolstered by La. Child. Code Art. 102 which
requires the Code to be “liberally construed to the end that each child and parent coming within
the jurisdiction of the court shall be accorded due process and that each child shall receive,
preferably in his own home, the care, guidance and control that will be conducive to his
welfare.” 435
The Court fails to see how Art. 102 supports Defendants’ position. First, it assumes that
the Juvenile Court had jurisdiction at the operative time, which is a question here. But more
importantly, the article endorses a policy of ensuring due process for the child and parent. Here,
Frampton had acquired the Video legally and ethically and then released the Video with the
434
435

Doc. 41 at 11, ¶ 59.
Id. at 12, ¶ 64, quoting La. Child. Code Art. 102.

80

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 81 of 92

permission and “at [the] request” of the mother and guardian of F.B., the minor who was the
subject of the Video. 436 Attempting to hold the attorney in contempt under these circumstances
(including setting the show cause hearing without prior notice to the child, parent, or lawyer and
doing so ex parte) hardly seems consistent with due process for the parent, child, or lawyer.
Defendants attempt to liken the situation here to a juvenile who has been presented for
a detention hearing and yet, that juvenile’s records are not sent to the Juvenile Court. 437 But these
two situations are hardly comparable since in the latter, unlike the former, the juvenile is
physically before the Juvenile Court.
While Defendants point the Court to Art. 814(D), this article does not support
Defendants’ position since it seems to envision a child in the physical custody of the Juvenile
Court. 438 Such was not the case here. In any event, there is no indication that Art. 814(D) was
implicated in this case since there is no evidence in this case that the arresting officers executed
and filed an affidavit of probable cause with the Juvenile Court justifying maintaining custody,
which is required by this article.
The Court agrees with Plaintiffs that endorsing the Defendants’ interpretation of Art.
412(A) could lead to absurd consequences: namely, the kind of situation the Court now has before
it. On the other hand, the dire consequences predicted by Defendants should the Court agree with
Plaintiff (i.e. that the juvenile’s arrest records would be stripped of all privacy protections) is
based on a false premise, namely that Art. 412(A) is the only basis for the protection of a
juvenile’s arrest and related records. As is discussed in more detail elsewhere in this ruling, this

Doc. 38, Transcript at 38. See also Plaintiff’s Exhibit 9, ACLU Letter.
Doc. 44 at 4, ¶¶ 18–21.
438
La. Child. Code art. 814(D) (“if [the juvenile court] determines that probable cause exists, the child will be held
for a continued custody hearing pursuant to Article 819. If the court determines that that probable cause does not exist,
the child will be released from custody.”).
436
437

81

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 82 of 92

is not the case.
If, as Defendants maintain, the Video was subject to Art. 412 protection immediately
following F.B’s arrest, it is no small matter (and no small irony) that BRPD, the part of the
City/Parish which now complains so loudly about the Video’s public release, was the entity that
released the Video in the first place and did so (if its interpretation is correct) while violating Art.
412(A) and, in addition, violating Art. 412(L) which states: “Juvenile records or information from
juvenile records disclosed pursuant to this Article shall be marked “UNLAWFUL
DISSEMINATION OF THIS INFORMATION IS PUNISHABLE AS A CONSTRUCTIVE
CONTEMPT OF COURT PURSUANT TO LOUISIANA CHILDREN'S CODE ARTICLE
1509(E)”.
At the time BRPD released the Video and F.B.’s arrest records to the U.S. Attorney, no
one, including the City/Parish or BRPD, requested permission of the Juvenile Court before doing
so. The released records were not marked as required by Art. 412(L). Indeed, according to
City/Parish, BRPD attorney Deelee Morris, there was no mechanism, procedure or policy that
required BRPD to get Juvenile Court permission before releasing, without restrictions of any
kind, F.B.’s Video (although Morris claims now there should have been such a procedure). Nor,
apparently, was there any procedure to ensure that the minor’s records were marked in
compliance with Art. 412(L). There is no evidence in the record to suggest that action was taken
against those within the BRPD who released the Video or that efforts have been made to prevent
it from happening again.
Certainly, one reasonable inference to draw from this evidence (and one which this Court
draws) is that the City/Parish’s present position that Art. 412(A) is triggered by arrest rather than
the filing of a petition is one which was taken after the fact in an effort to justify and defend its

82

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 83 of 92

actions in retaliating against Frampton for his release of the Video. This inference is supported
by other evidence in the record which the Court has previously addressed.
But, regardless of which interpretation of Art. 412 is correct, it is clear that whatever
protection Art 412(A) may have given these records initially, that protection was gone by the
time Frampton released the Video on the media platform and at the time Defendants filed their
Contempt Motion. At these times, the Video had been made public. Frampton acquired the Video
legally and ethically and released the Video with the permission and “at [the] request” of the
mother and guardian of F.B., the minor who was the subject of the Video. 439
In sum, it is clear that, regardless of whether Art. 412(A) applied to the BRPD Video
immediately after the arrest, it did not apply at the time Frampton released the Video and the
City/Parish filed the Contempt Motion. Furthermore, even if it did apply at the time Frampton
released the Video, this does not change this Court’s conclusion that a major motivating factor of
the City/Parish in filing its Contempt Motion was to retaliate against Frampton’s exercise of free
speech.
6. Have Defendants Met Their Burden To Show The City/Parish Would
Have Brought The Contempt Motion In The Absence Of Frampton’s
Constitutionally Protected Right?
Because Plaintiff has met his burden regarding the first two prongs of the test for bad
faith, the burden shifts to Defendants to prove they “would have reached the same decision as to
whether to prosecute even had the impermissible purpose not been considered.” 440 Relevant
factors for the Court to consider include “whether the State prosecution was undertaken with no
hope of a valid conviction . . . and the significance of the alleged criminal activity.” 441

Doc. 38, Transcript at 38. See also Plaintiff’s Exhibit 9, ACLU Letter.
Wilson, 593 F.2d at 1387.
441
Id. at 1387, n.22 (internal citations omitted).
439
440

83

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 84 of 92

The record is replete with evidence supporting the Court’s conclusion that the
City/Parish would not have pursued this matter in the absence of its bad faith motive to retaliate.
Although, according to Defendants’ current position, others violated Art. 412 both before and
after Frampton supposedly did, only Frampton has been pursued with the Contempt Motion.
Indeed, he is the only person ever pursued for such a violation. Although the City/Parish was
aware of Frampton’s possession of the Video in March of 2020, it failed to pursue a Contempt
Motion at that time or even investigate how he came to be in possession of the Video. It was only
immediately after Frampton issued the unfavorable press release and Video that the City/Parish
filed its Contempt Motion.
In addition, for the reasons the Court has expressed in detail earlier in this ruling, the
Court finds that the City/Parish pursued the Contempt Motion with no hope or reasonable
expectation of obtaining a valid conviction. Finally, in measuring “the significance of
[Frampton’s] alleged criminal activity”, the Court finds under the circumstances of this case,
there was no criminal activity. Frampton released a Video that was in the public domain, belonged
to his clients, and he released it on the instructions and with the knowledge of his clients.
7. Conclusion
In considering all the evidence and the totality of the circumstances, Plaintiff has clearly
met his burden to show Defendants’ bad faith in bringing the Contempt Motion against him.
Defendants have failed to show it would have pursued this Motion in the absence of its
impermissible purpose.
B. Has Plaintiff Satisfied His Burden For The Issuance Of The Preliminary
Injunction?
1. Test
As stated earlier in this ruling, the requirements for the issuance of a preliminary
84

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 85 of 92

injunction are well known.
To obtain a preliminary injunction, the plaintiff must show 1) that
there is a substantial likelihood that it will succeed on the merits, 2)
that there is a substantial threat that it will suffer irreparable injury
if the district court does not grant the injunction, 3) that the
threatened injury to the plaintiff outweighs the threatened injury to
the defendant, and 4) that granting the preliminary injunction will
not disserve the public interest. 442
The Court is mindful that the Fifth Circuit has “cautioned repeatedly that a preliminary
injunction is an extraordinary remedy which should not be granted unless the party seeking it has
‘clearly carried the burden of persuasion’ on all four requirements.” 443
2. Has Plaintiff Shown A Probability Of Success On The Merits?
Plaintiff’s burden to establish his retaliation claim is the essentially same as that for
demonstrating the applicability of the bad faith exception to Younger, i.e. he must prove that the
Contempt Motion was filed against him in bad faith, for the purpose of harassment or to retaliate
against him for exercising his constitutional right of free speech. 444 For the reasons set out in
detail above, the Court finds that Plaintiff has met his burden.
There is an element of Plaintiff’s burden in his retaliation claim which is not present in
his burden for proving the applicability of the bad faith exception to Younger. Plaintiff must
show that “the defendants' actions caused [plaintiff] to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity.” 445 This element “requires some

PASI of La, Inc., 334 F. Supp. 3d at 789, quoting Sierra Club, Lone Star Chapter, 992 F.2d at 551, citing Canal
Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974))). See also June Med. Servs. LLC v. Kliebert, 158 F.
Supp. 3d at 534–35; Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d at 635 (citing Byrum, 566 F.3d
at 445).
443
Lake Charles Diesel, Inc., 328 F.3d at 196, quoting Miss. Power & Light Co. v. United Gas Pipe Line Co., 760
F.2d 618, 621 (5th Cir.1985). See also Bluefield Water Ass'n, Inc., 577 F.3d at 253.
444
Wilson, 593 F.2d at 1385, n.17; see also Torries, 111 F. Supp. 2d at 822.
445
Keenan, 290 F.3d at 258; see also McLin, 866 F.3d 696.
442

85

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 86 of 92

showing that the plaintiff’s exercise of free speech has been curtailed.” 446
“A required showing of actual injury does not necessarily mean that
plaintiffs must cease criticizing the government officials altogether
in order to have a claim for retaliation.” [Keenan] at 260. “The effect
on freedom of speech may be small, but since there is no justification
for harassing people for exercising their constitutional rights it need
not be great in order to be actionable.” [Keenan] at 259 (quoting
Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). In Keenan, the
court found that the plaintiffs demonstrated curtailment when they
asserted that they “backed off from direct involvement in helping
expose unlawful practices in the constable’s office,” even though at
least one plaintiff continued to investigate and file complaints about
such practices. [Keenan] at 260 (internal quotations omitted). 447
As is discussed in more detail in the next section, the Court finds that Plaintiff has met
his burden to show that the Contempt Motion filed by the City/Parish caused Frampton to suffer
an injury that would chill a person of ordinary firmness from continuing to engage in the activity
which gave rise to the motion.
3. Has Plaintiff Shown A Substantial Threat of Irreparable Harm?
The Fifth Circuit has made clear that, “when a significant chilling effect on free speech
is created by a bad faith prosecution, the prosecution will thus as a matter of law cause irreparable
injury regardless of its outcome, and the federal courts cannot abstain from issuing an
injunction.” 448

Id. at 259, citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000); Spear v. Town of W. Hartford,
954 F.2d 63, 67 (2d Cir. 1992); Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989)). See also McLin, 866 F.3d at 696–
97.
447
McLin, 866 F.3d at 697. See also Giese v. Jackson, No. 19-81, 2020 WL 3493078, at *6 (S.D. Tex. May 27, 2020),
report and recommendation adopted, No. 3:19-81, 2020 WL 3490219 (S.D. Tex. June 26, 2020).
448
Wilson v. Thompson, 593 F.2d 1375, 1383 (5th Cir. 1979). See also Henry v. Lake Charles Am. Press, L.L.C., 566
F.3d 164, 180 (5th Cir. 2009) (“[T]he loss of First Amendment freedoms, for even minimal periods time,
unquestionably constitutes irreparable injury.”) (quoting Elrod v. Burns, 427 U.S. 347, 373, (1976)); Fitzgerald, 636
F.2d at 944 (“A showing of bad faith or harassment is equivalent to a showing of irreparable injury under Younger,
and irreparable injury independent of the bad faith prosecution need not be established.”) (citation omitted); Nat'l
Fed'n of Indep. Bus. v. Perez, No. 16-66, 2016 WL 3766121, at *44 (N.D. Tex. June 27, 2016) (“The chilling of speech
protected by the First Amendment is in and of itself an irreparable injury.”) (citations omitted); Torries, 111 F. Supp.
2d at 822–23; 11A Wright and Miller, Federal Practice and Procedure, § 2948.1 (3d ed.) (“When an alleged deprivation
of a constitutional right is involved, such as the right to free speech…most courts hold that no further showing of
irreparable injury is necessary.”).
446

86

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 87 of 92

The Court in Wilson explained the rationale for this rule.
With respect to the interest of the State, it by definition does not
have any legitimate interest in pursuing a bad faith prosecution
brought to retaliate for or to deter the exercise of constitutionally
protected rights. Perhaps the most important comity rationale of
Younger deference – that of respect for the State’s legitimate pursuit
of its substantive interests, is therefore inapplicable. 449
Here, the Court finds credible Frampton’s testimony that his free speech was in fact
chilled by Defendants’ actions.
Q.

So, Professor Frampton, . . . has this threat of contempt
altered your behavior, your speech, anything else in any
way?

A.

Absolutely. In at least three ways. First, and most
immediately, I had several media interviews lined up
immediately after the May 28 press conference to respond to
Chief Paul’s remarks. . . . I immediately cancelled all of them
as soon as I got the notice I was facing contempt, because I
was frantically trying to get criminal defense lawyers to
represent me. So I didn’t speak to the press when I would
have liked to and when it was in the news.
Second, . . . I would very much have liked to share more of
the video that was still in my possession, the Clarence
Green’s copy of the video. But obviously, under threat of a
contempt sanction, we have not shared any more of the video
that would rebut the public remarks of Chief Paul. So, I
haven’t talked to - - cancelled the press interviews. I haven’t
shared additional interviews.
And then finally, it’s just been like a huge personal stress.
I’m relatively new on the faculty at UVA Law School. I had
to explain to my Dean what was going on and that I hoped it
wouldn’t affect my teaching in the fall. . . . 450

In conclusion, the Court finds that Frampton has shown a substantial threat of irreparable
harm.

449
450

Wilson, 593 F.2d at 1383 (citations omitted).
Doc. 38, Transcript, at 56–58.

87

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 88 of 92

4. Does The Threatened Injury To Plaintiff Outweigh The Threatened
Injury To Defendants?
The threatened harm to Frampton is substantial since, if found in contempt (rightly or
wrongly), he would face significant sanctions including possible time in jail. While Defendants
make vague and unsubstantiated arguments about the parties being “best served” by allowing the
Juvenile Court to decide the contempt motion,451 Defendants point to no harm that they would
suffer by being required to dismiss the Contempt Motion.452 Indeed, as Plaintiff points out,453
City/Parish Attorney Morris admitted it “would be a simple task without great expense for the
City Parish, if it were ordered to do so, to withdraw its petition for contempt against Professor
Frampton” and could likely be done in a one-page filing. 454 Plaintiff has satisfied this element.
5. Will The Granting Of The Preliminary Injunction Disserve The Public
Interest?
Granting the preliminary injunction will not disserve the public interest since
“[i]njunctions protecting First Amendment freedoms are always in the public interest.” 455 In
addition, if Defendants are to be believed and they are seriously considering filing similar
Contempt Motions against an Assistant U.S. Attorney, an Assistant Federal Public Defender, this
Court’s Clerk, and others, the public interest will clearly be served by preventing such unfounded
litigation.
While Defendants argue that granting this preliminary injunction would allow “persons
who do not have juveniles’ best interests in mind to obtain arrest records” by avoiding Art. 412’s
protection, the Court disagrees. First, this Court has found it unnecessary to decide in this ruling

Doc. 41 at 17, ¶ 99.
Id., ¶¶ 98–102.
453
Doc. 42 at 36, ¶¶ 151–152.
454
Doc. 38, Transcript at 79–80.
455
Ramelli, 2020 WL 3971279, at *10, quoting Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 298 (5th
Cir 212), quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).
451
452

88

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 89 of 92

whether Art. 412(A) is inapplicable in all cases where a petition has not yet been filed against a
juvenile. As explained elsewhere in this ruling, the Court’s preliminary injunction applies to the
specific (and unusual) facts of this case.
But even if the Children’s Code, properly interpreted, limits Article 412(A)’s reach to
cases where the petition initiating formal charges against a juvenile has been filed (and the Court
believes this is the proper interpretation), the Court finds Defendants’ predictions regarding the
ramifications of such an interpretation are inaccurate and overblown. In this regard, the Court
agrees with Plaintiff when he argues “[b]ecause the Louisiana Public Records Law does not rely
primarily on Art. 412 to avoid inappropriate disclosure - it incorporates by reference thirty-seven
separate code articles of the Children’s Code as exceptions to the Public Records Law . . .
Defendants’ floodgates arguments are unavailing.” 456
In addition, as pointed out by Ms. Morris in response to Frampton’s public records
request, records subject to La. R.S. § 44:3 (protecting “[r]ecords pertaining to pending criminal
litigation or any criminal litigation which can be reasonably anticipated, until such litigation has
been finally adjudicated or otherwise settled”) are “not…subject to disclosure through a public
records request.” 457
Finally, even if Defendants’ dire predictions regarding the effect of this Court’s ruling
were correct, changing the law to conform to Defendants’ interpretation in order to correct what
Defendants see as a danger to juveniles’ records is a matter for the Louisiana Legislature and not
this court.
Plaintiff has satisfied this final element of the test for granting a preliminary injunction.

456
457

Doc. 42 at 37, ¶ 156, citing La. R.S. § 44:4.1(39).
Defendants’ Exhibit 3.

89

Case 3:21-cv-00362-JWD-SDJ

Document 49

01/07/22 Page 90 of 92

VIII. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss under Fed.R.Civ.P. 12(b)(1)
and 12(b)(6) (Doc. 18) is DENIED. Plaintiff’s Motion for Preliminary Injunction (Doc. 2) is
GRANTED, and defendant City of Baton Rouge/Parish of East Baton Rouge is ordered to
withdraw its rule to show cause why Thomas Frampton should be held in contempt of the Juvenile
Court.
Signed in Baton Rouge, Louisiana, on January 7, 2022.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

90

Case 3:21-cv-00362-JWD-SDJ

Document 49

APPENDIX 1

91

01/07/22 Page 91 of 92

Case 3:21-cv-00362-JWD-SDJ

Document 49

92

01/07/22 Page 92 of 92