United States District Court, E.D. Louisiana
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
qualified immunity cases are hard. This case is not one of
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.
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 to dismiss all claims against him.
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.
to the second amended complaint and attached exhibits
(collectively, “complaint”),  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.” 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. (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).)
Exposedat and a Facebook profile under the pseudonym
“John Turner, ” Jennifer Anderson publicly
questioned the Terrebonne Parish sheriff's office's
dealings with President Alford's insurance company, where
Sheriff Larpenter's wife worked. Jennifer Anderson supported
her claims with court and other public documents that she
made publicly available on Exposedat.
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.In response, President Alford
called Sheriff Larpenter to complain. After receiving the call,
Sheriff Larpenter contacted one of his subordinates,
Detective Lieutenant Glynn Prestenbach, and
“ordered” him to “investigate the
incident.” 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.
investigation unfolded, Detective Prestenbach was ultimately
able to trace the origins of Exposedat and the John Turner
Facebook profile to the Andersons' home. 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. Detective Prestenbach did as Sheriff
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.” 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.” The affidavit
made no mention of President's Alford's position on
the Terrebonne Parish Levee and Conservation District Board
of Commissioners.The judge who reviewed the application
issued the search warrant.
Prestenbach then executed it,  seizing “all laptops,
computers and cell phones” in the Andersons'
home. That same day, Deputy Anderson was
placed on indefinite administrative leave by his employer,
the Houma police department.
Andersons challenged the constitutionality of the search
warrant. While the issuing judge upheld the warrant's
legality,  the Louisiana Court of Appeal quashed
the warrant. 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.” 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. Therefore, “the
search warrant lack[ed] probable cause because the conduct
complained of is not a criminally actionable
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. Both also assert Monell claims
against Sheriff Larpenter in his capacity as Sheriff of
Terrebonne Parish. Finally, both assert federal and state
law claims for malicious prosecution against 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. With regards to the federal
constitutional claims against him in his individual capacity,
Sheriff Larpenter asserts the defense of qualified
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)).
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).
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.
“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.
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.”).
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).
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).
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.
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).
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.
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.
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.
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.
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
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. (Sheriff Larpenter has not pointed to,
or argued, any other basis for suspecting criminal activity
on the part of Jennifer Anderson.)
criminal defamation statute defines the crime of
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.
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).
address this argument, the Court must first answer an
antecedent question: was Jennifer Anderson's speech
entitled to constitutional protection?
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.
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).
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).
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. Nor did the legislature amend §
14:48 (presumption of malice) or § 14:49 (qualified
highest court then reconsidered §§ 14:47-49 in
State v. Snyder, 277 So.2d 660 (La. 1973) (on
rehearing). 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”).
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.
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
Larpenter disagrees, insisting instead that President Alford
is a private figure. 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. (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.)
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.
Louisiana Court of Appeal concluded that President Alford-as
his title suggests-is a public official for First Amendment
purposes. 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. 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),  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). 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