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Anderson v. Larpenter

United States District Court, E.D. Louisiana

July 19, 2017

WAYNE ANDERSON
v.
JERRY J. LARPENTER, SHERIFF OF TERREBONNE PARISH

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Some qualified immunity cases are hard. This case is not one of them.

         In the summer of 2016, the Terrebonne Parish sheriff's office executed a search warrant for Jennifer and Deputy Wayne Andersons' home, seizing their computers and other personal electronic devices in the process. The search warrant was issued as part of a criminal defamation investigation into online statements made by Jennifer Anderson. Those “criminally defamatory” statements concerned the use of public funds and nepotism by government officials in Terrebonne Parish.

         The Andersons argue that this speech was constitutionally protected and that Jerry Larpenter-the Sheriff of Terrebonne Parish and one of the individuals discussed in those statements-violated their constitutional rights when he told his subordinate to obtain the search warrant for their home. Sheriff Larpenter disputes both points and has moved[1] to dismiss all claims against him.

         For the foregoing reasons, the Court will deny Sheriff Larpenter's motion with respect to the Andersons' First Amendment, Fourth Amendment, and Monell claims. The Court will grant the motion with respect to the federal and state malicious prosecution claims.

         I.

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

         Using Exposedat and a Facebook profile under the pseudonym “John Turner, ”[5] Jennifer Anderson publicly questioned the Terrebonne Parish sheriff's office's dealings with President Alford's insurance company, where Sheriff Larpenter's wife worked.[6] Jennifer Anderson supported her claims with court and other public documents that she made publicly available on Exposedat.[7]

         Within weeks of Jennifer Anderson's first posts, President Alford found out about the John Turner Facebook page-and the allegations about him posted on it.[8]In response, President Alford called Sheriff Larpenter to complain.[9] After receiving the call, Sheriff Larpenter contacted one of his subordinates, Detective Lieutenant Glynn Prestenbach, and “ordered” him to “investigate the incident.”[10] The resulting criminal complaint filed by Detective Prestenbach listed the offense committed against President Alford as criminal defamation in violation of La. R.S. § 14:47.[11]

         As the investigation unfolded, Detective Prestenbach was ultimately able to trace the origins of Exposedat and the John Turner Facebook profile to the Andersons' home.[12] After learning about Detective Prestenbach's findings and discussing the matter with Terrebonne Parish District Attorney Joseph Waitz, Sheriff Larpenter directed Detective Prestenbach to request a search warrant for the home.[13] Detective Prestenbach did as Sheriff Larpenter directed.[14]

         In his affidavit in support of the search warrant application, Detective Prestenbach swore that Exposedat and the John Turner Facebook profile “made the same claims” and that Exposedat included “copies of court rulings and other documents supporting the[] claims.”[15] Detective Prestenbach's affidavit also explained that those claims revolved around the relationship between President Alford's insurance company and the Terrebonne Parish sheriff's office, and President Alford and Sheriff Larpenter themselves-namely, that “Sheriff's [sic] Jerry Larpenter is continuing to give Anthony Alford the broker contract for the Sheriff's Office when his wife Priscilla gets paid over six figures to manage Mr. Alford's office.”[16] The affidavit made no mention of President's Alford's position on the Terrebonne Parish Levee and Conservation District Board of Commissioners.[17]The judge who reviewed the application issued the search warrant.[18]

         Detective Prestenbach then executed it, [19] seizing “all laptops, computers and cell phones” in the Andersons' home.[20] That same day, Deputy Anderson was placed on indefinite administrative leave by his employer, the Houma police department.[21]

         The Andersons challenged the constitutionality of the search warrant. While the issuing judge upheld the warrant's legality, [22] the Louisiana Court of Appeal quashed the warrant.[23] The Court of Appeal observed that La. R.S. § 14:47-the offense for criminal defamation that served as the basis to investigate Jennifer Anderson's online statements-“has been declared unconstitutional by both the United States Supreme Court and the Louisiana Supreme Court as it applies to public expression and publication concerning public officials, public figures and private individuals engaged in public affairs.”[24] The Court of Appeal pointed out that President Alford was a “public official” given his role on the Terrebonne Parish Levee and Conservation District Board of Commissioners.[25] Therefore, “the search warrant lack[ed] probable cause because the conduct complained of is not a criminally actionable offense.”[26]

         Based on these events, the Andersons allege a variety of claims against Sheriff Larpenter, both in his individual and official capacities. Jennifer Anderson alleges that Sheriff Larpenter violated her First Amendment rights, and both Jennifer Anderson and Deputy Anderson allege that Sheriff Larpenter violated their Fourth Amendment rights.[27] Both also assert Monell claims against Sheriff Larpenter in his capacity as Sheriff of Terrebonne Parish.[28] Finally, both assert federal and state law claims for malicious prosecution against Sheriff Larpenter.[29]

         Sheriff Larpenter filed the instant renewed motion to dismiss all claims against him, contending that the complaint fails under Rule 12(b)(6) of the Federal Rules of Civil Procedure.[30] With regards to the federal constitutional claims against him in his individual capacity, Sheriff Larpenter asserts the defense of qualified immunity.[31]

         II.

         A.

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court may dismiss a complaint, or any part of it, where a plaintiff has not set forth well-pleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's factual allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)).

         A facially plausible claim is one where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. If the well-pleaded factual allegations “do not permit the court to infer more than the mere possibility of misconduct, ” then “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original).

         On a Rule 12(b)(6) motion to dismiss, a court limits its review “to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In assessing the complaint, the Court must accept all well-pleaded factual allegations as true and liberally construe all such allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).

         Where “the complaint ‘on its face show[s] a bar to relief, '” then dismissal is the appropriate course. Cutrer v. McMillan, 308 Fed. App'x. 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). Where applicable, qualified immunity can operate as one such bar.

         B.

         The doctrine of qualified immunity “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). In striking this balance, qualified immunity shields “government officials performing discretionary functions” from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”).

         Where a public official invokes qualified immunity as a defense to a civil action against him, the plaintiff then has the burden “to demonstrate the inapplicability of the defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)). To meet this burden, a plaintiff must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc).

         “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'” Turner v. Lieutenant Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in original). Once a plaintiff alleges that an official's conduct violated a clearly established right, the court must then determine “whether the official's conduct was objectively reasonable under the law at the time of the incident.” Michalik v. Hermann, 422 F.3d 252, 258 (5th Cir. 2005); see also Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 2001).

         An official's conduct is not objectively unreasonable “unless all reasonable officials in the [official's] circumstances would have then known that the [official's] conduct violated the plaintiff's rights.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015). When denying qualified immunity, a court must point to “controlling authority-or a robust consensus of persuasive authority-that defines the contours of the right in question with a high degree of particularity.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013). Precedent existing at the time of the challenged conduct “must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

         When the defense of qualified immunity is raised in a motion filed pursuant to Rule 12(b)(6), “it is the defendant's conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.'” McClendon, 305 F.3d at 323 (emphasis in original) (quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)). A court must determine that a plaintiff's pleadings “assert facts which, if true, would overcome the defense of qualified immunity.” Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014). The allegations must be pleaded with “sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts.” Clayton v. Columbia Cas. Co., No. 11-845, 2012 WL 2952531, at *2-*3 (M.D. La. July 19, 2012) (Africk, J.) (internal quotation marks omitted).

         III.

         The Andersons assert Fourth Amendment claims against Sheriff Larpenter, and Jennifer Anderson asserts a First Amendment claim against Sheriff Larpenter. The Court will address the Andersons' Fourth Amendment claims first.

         Accepting the factual allegations in the well-pleaded complaint as true and construing them in the light most favorable to the Andersons, the Court concludes that the Andersons have stated Fourth Amendment claims against Sheriff Larpenter and that Sheriff Larpenter is not entitled to qualified immunity at this stage in the litigation.

         A.

         The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         The Fourth Amendment thus establishes that “a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King, 563 U.S. 452, 459 (2011). Where a warrant lacks the necessary probable cause to support it, the warrant does not meet the requirements of the Fourth Amendment.

         “Probable cause exists when there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought [by a search warrant] constitute fruits, instrumentalities, or evidence of a crime.” Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir. 2006) (internal quotation marks omitted); see also United States v. Melancon, 462 F.2d 82, 89 (5th Cir. 1972). Where the facts and circumstances would not lead a prudent person to believe that a search warrant will uncover evidence of a crime, probable cause does not exist. Cf. Perry v. Sheahan, 222 F.3d 309, 317 (7th Cir. 2000) (“Because all of the weapons seized [by the officers] can be lawfully possessed, the deputies could not reasonably presume that they were of an incriminating character.”); United States v. Rojas, 671 F.2d 159, 165-66 (5th Cir. Unit B 1982) (Because “neither possessing nor transporting over $5, 000 in currency is a crime, ” law enforcement officials “had neither probable cause that a crime had been or was being committed (probable cause for arrest) nor probable cause that a search of appellant's luggage would produce evidence of a crime.”).

         The search warrant that Sheriff Larpenter directed Detective Prestenbach to obtain was premised on the allegation that Jennifer Anderson's online statements about President Alford constituted a violation of Louisiana's criminal defamation statute.[32] (Sheriff Larpenter has not pointed to, or argued, any other basis for suspecting criminal activity on the part of Jennifer Anderson.)

         Louisiana's criminal defamation statute defines the crime of “defamation” as

the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends: (1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or (2) To expose the memory of one deceased to hatred, contempt, or ridicule; or (3) To injure any person, corporation, or association of persons in his or their business or occupation.

La. R.S. § 14:47. The statute further provides that “[w]hoever commits the crime of defamation shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.” Id.

         The Andersons argue that the facts and circumstances known to Sheriff Larpenter would not lead any prudent person to believe that the items sought by the search warrant for the Andersons' home “constitute[d] . . . evidence of a crime, ” because no prudent person would believe that La. R.S. § 14:47 could constitutionally criminalize Jennifer Anderson's speech about President Alford. Kohler, 470 F.3d at 1109 (emphasis added).

         To address this argument, the Court must first answer an antecedent question: was Jennifer Anderson's speech entitled to constitutional protection?

         i.

         The First Amendment limits the government's ability to impose liability on speech critical of the conduct of public officials. See New York Times v. Sullivan, 376 U.S. 254 (1964) (civil liability); Garrison v. Louisiana, 379 U.S. 64 (1964) (criminal liability). In the landmark case of New York Times v. Sullivan, the U.S. Supreme Court applied the First Amendment to civil defamation statutes. The New York Times rule “prohibits a public official from recovering [civil] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80.

         This rule was soon extended to criminal defamation statutes. In Garrison v. Louisiana-a constitutional challenge to Louisiana's criminal defamation statute (La. R.S. §§ 14:47-49)-the U.S. Supreme Court held that the government is constitutionally limited in its power “to impose criminal sanctions for criticism of the official conduct of public officials.” 379 U.S. at 67. The scope of constitutionally protected criticism of public officials encompasses “anything which might touch on an official's fitness for office, ” including “personal attributes” such as “dishonesty, malfeasance, or improper motivation.” Id. at 77. Discussing Garrison a decade later, the U.S. Supreme Court reflected on the rationale for Garrison's scope, pointing out that:

An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties.

Gertz v. Welch, 418 U.S. 323, 344 (1974).

         In short, the First Amendment constitutionally bars the government from criminally punishing 1) true speech about the conduct of public officials, regardless of the intent motivating the speech, and 2) false statements about the conduct of public officials unless knowingly false or made with reckless disregard of their falsity (i.e., unless made with actual malice). See Garrison, 379 U.S. at 77-78. Where the government brings criminal defamation charges against a speaker based on his speech about a public official, the government bears the burden of proving that the speaker acted with actual malice. Cf. Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1069 (5th Cir. 1987).

         In the years immediately following Garrison, the Louisiana criminal defamation statute remained unchanged in all respects material to Garrison's holding. While the Louisiana legislature amended La. R.S. § 14:47's penalty provision, it did not amend the substantive offense of criminal defamation.[33] Nor did the legislature amend § 14:48 (presumption of malice)[34] or § 14:49 (qualified privilege).[35]

         Louisiana's highest court then reconsidered §§ 14:47-49 in State v. Snyder, 277 So.2d 660 (La. 1973) (on rehearing).[36] Concluding that “[i]t is for the [state] Legislature to correct [§§ 14:47-49's] constitutional infirmity”-namely, “its overbroad application” as identified in Garrison-the Louisiana Supreme Court held §§ 14:47-49 “to be unconstitutional insofar as they attempt to punish public expression and publication concerning public officials, public figures, and private individuals engaged in public affairs.” Id. at 668; see also State v. Defley, 395 So.2d 759, 761 (La. 1981) (observing that § 14:47 “is unconstitutional insofar as it punishes public expression about public officials”).

         Since Snyder, the Louisiana legislature has not revisited §§ 14:47-49. The Louisiana Supreme Court's holding as to the reach of § 14:47 therefore remains the law of the land.

         ii.

         As New York Times and Garrison make plain, speech about the conduct of public officials enjoys wide and robust protection under the First Amendment. Recognizing this unquestioned principle's implications for this case, the parties spill much ink disputing the First Amendment status of President Alford-whose grievance with Jennifer Anderson's online statements resulted in Sheriff Larpenter's criminal investigation and, eventually, the search warrant for the Andersons' home. The Andersons argue that President Alford is a public official and Jennifer Anderson's speech about him was therefore constitutionally protected.[37]

         Sheriff Larpenter disagrees, insisting instead that President Alford is a private figure.[38] In fact, Sheriff Larpenter scarcely mentions President Alford's position on the Terrebonne Levee and Conservation District. Sheriff Larpenter refers to President Alford's public role only once in his brief in support of the present motion, and then only when explaining the Louisiana Court of Appeal decision quashing the search warrant for the Andersons' home.[39] (The Court notes that Sheriff Larpenter nowhere argues that he did not know about President Alford's public position; rather, Sheriff Larpenter simply refrains from acknowledging it at all.)

         Sheriff Larpenter seems to draw a sharp and impermeable line between President Alford's role on the Terrebonne Levee and Conservation District and his role as a businessman. As the Court understands Sheriff Larpenter's argument, President Alford is a private figure with respect to his conduct as an insurer, and because Jennifer Anderson's statements addressed the relationship between the Terrebonne Parish sheriff's office and President Alford's insurance company, those statements concerned President Alford as a private figure-and Garrison is therefore inapplicable to this case.

         The Louisiana Court of Appeal concluded that President Alford-as his title suggests-is a public official for First Amendment purposes.[40] The Court easily concludes the same. “[T]he ‘public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). President Alford is the President of the Terrebonne Levee and Conservation District Board of Commissioners.[41] Under Louisiana law, the Terrebonne Levee and Conservation District “constitute[s] a political subdivision of the state of Louisiana, ” La. R.S. § 38:329(A)(1), [42] and it has the power to “levy taxes, incur debt, and otherwise raise revenue as provided in” the Louisiana Constitution, id. § 38:329(A)(2).[43] The “management and control of the district” is in the hands of a “board of commissioners.” Id. § 38:329(C). The commissioners are appointed by the Governor of Louisiana, with significant involvement by state legislators in the appointment process. See id. § 38:304(A)-(B)(2). As a leader of a “political subdivision of the state of Louisiana” with the power ...


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