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Phillips v. Whittington

United States District Court, W.D. Louisiana, Shreveport Division

May 16, 2018

TODD PHILLIPS, ET AL
v.
JULIAN C. WHITTINGTON, ET AL

          DOUGHTY JUDGE.

          REPORT AND RECOMMENDATION

          Mark L. Hornsby U.S. Magistrate Judge.

         Introduction

         Residents of north Bossier Parish experienced a rash of vandalism and property crimes that began in 2010 and continued for several years. Local law enforcement authorities were under pressure to arrest someone for the crimes that affected dozens of victims. The sheriff eventually charged local resident Todd Phillips with criminal property damage, a misdemeanor. Two years later, the Bossier Parish District Attorney amended the charge to a felony offense of simple arson.

         With the trial date on the felony charge approaching, Mr. Phillips filed this federal action and asked for (1) an injunction to halt the state court trial and (2) an award of damages. A few weeks later, sheriff's deputies executed a search warrant at the home of Gary Wilson, a man who had claimed to be among the victims, fed information to investigators, publicly accused Phillips of the crimes, and testified as a state witness at a pretrial hearing. The search of Wilson's home revealed evidence that connected Wilson to arson and other crimes, and Wilson was arrested. The DA later dismissed all charges against Mr. Phillips.

         Mr. Phillips, his wife, and two daughters present their claims in a third amended complaint. Doc. 35. Phillips dropped his claim for injunctive relief after the DA dismissed the criminal charge, but the family still seeks damages from Sheriff Julian Whittington, two deputies, DA Schuyler Marvin, ADA Hugo Holland, Gary Wilson, and Coty Wilson (Gary's son). Before the court is a Motion to Dismiss (Doc. 39) filed by DA Marvin and ADA Holland. For the reasons that follow, it is recommended that the Motion to Dismiss (Doc. 39) be granted in part and denied in part.

         Relevant Allegations

         The DA and ADA defendants have challenged the third amended complaint by filing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). Accordingly, the facts set forth below are taken from the Phillips family's third amended complaint and accepted as true for purposes of this motion. Of course, this is only the Phillips' side of the story, and evidence could later demonstrate a different set of facts.

         Beginning in 2010, residents began to report property crimes near the Old Plain Dealing Road area in north Bossier Parish. The third amended complaint describes more than 40 incidents between 2010 and 2015 where residents reported flat tires on a truck or ATV, or even personal injury, caused by homemade spikes that had been placed in roads or trails near hunting areas. There were also reports of theft of a hunting camera, vandalism of deer stands and hunting camps, and arson that destroyed multiple hunting camps.

         Anonymous letters, phone calls, and other clues appeared to cast suspicion on certain persons. One resident who found two spikes on an access road also found a plaid men's shirt on the ground nearby. Inside the shirt was a small walkie talkie with “L. Burns” written on it in black marker. The name was thought to identify Landon Burns, but the shirt was too small to fit him. Detectives concluded that the real perpetrator(s) intentionally placed the shirt and walkie talkie to mislead investigators. Third Amended Complaint, ¶¶ 11-12.

         Tammy Brunson received an anonymous phone call from a female caller in 2011. The caller said she needed to “clear her conscience” and was looking for a man to tell him that his green camp house on Highway 160 had been destroyed. Mrs. Brunson advised that the only green camp house in that area belonged to her and her husband. The caller said that she was with Gregory Bickham when he vandalized the camp, and Bickham hid stolen items under his trailer. Deputies accompanied the Brunsons to their camp, where they found it in disarray and vandalized with threatening messages carved into the front door. Deputies learned that the anonymous call came from a pay phone in the area. A search of Mr. Bickham's residence did not find any evidence of his involvement, and his cell phone records confirmed that he was in Texas at the time of the burglaries. Detectives concluded that the real perpetrator(s) named Bickham in an effort to mislead them. ¶¶ 17-20.

         Stephen Adams reported to deputies that he found a cellphone box suspended 10-12 feet in the air on his hunting lease. Inside the box was a plastic baby doll with, “cry baby, ” “kiss my ass, ” and “Mark 13:35” written on it. ¶ 22. Another resident received a threatening letter that read: “Keep that bitch off my lease I can get to your cows just as easy. Keep the bitch off my lease.” ¶ 23.

         Sheriff Whittington took office in July 2012, after the property crimes had been occurring for over a year. He received multiple complaints from residents and was under pressure to make an arrest. ¶ 84. He appointed Lt. Bruce Bletz as the lead investigator and instructed him to identify and arrest a suspect. ¶ 85. Todd Phillips, in August 2012, was promoted to Vice President/General Manager of Frymaster Corporation. The company services food-chains across the world and requires that Phillips travel across the United States and to foreign countries on a regular basis. ¶¶ 97-98.

         Mr. Phillips' name became associated with the events after his name was found written on an item near a crime scene. A resident reported that his deer stand had been burned down, and a game camera and metal box were missing. Deputies located the camera and box on the property, and they also located a small green Coleman fuel bottle with the name “Todd Phillips” written on it in black marker. ¶ 26.

         In November 2012, deputies were investigating another complaint of a deer stand and game camera being burned when they found a GPS device. The GPS had been taken from a deer stand and placed in the bed of another man's truck. Detectives also found a rigged incendiary device in a deer stand that was made from items including a Powerade bottle, diesel fuel, and a Bute syringe that had been prescribed for a horse that belonged to the Phillips family. Next to the device was a trash bag that contained a Styrofoam cup with the name “Karen” written on it with a pen. ¶ 27.

         Detectives obtained a search warrant to search the Phillips' property and outside buildings. They searched the residence and two barns on the property, but they found nothing to connect any members of the Phillips family to the crimes. Daughter Abby Phillips told the deputies that the syringe was used for her horse and had been discarded after use. Mr. and Mrs. Phillips told deputies that they recognized the “Karen” cup as one used by their friend, Karen Sherratt, who had visited the week before. The cup and syringe had been placed in the trash at the end of their driveway, which is about .3 miles from the home and cannot be seen from the home in the heavily wooded area. The Phillips family voluntarily submitted fingerprints, and Todd Phillips gave a DNA sample and a handwriting exemplar. None of that information linked the Phillips family to any of the crimes. ¶¶ 28-31.

         About a month after the search of the Phillips property, Crime Stoppers received an anonymous call that identified Blake Barton as the person responsible for the crimes. The caller told investigators to look for a hole near a pine tree behind Barton's residence. Detectives found the hole, inside of which was a camouflage fanny pack with tire spikes, a torch, part of a blue flashlight, and a black trash bag with household trash that included a magazine with a subscription label for Mrs. Phillips. ¶¶ 32-33. Barton denied any knowledge about the items found on his property, and detectives concluded that the items were intentionally placed there in an effort to mislead them. ¶ 35.

         Blake Barton's father received a call from an unknown man who warned that Blake better sell his trailer or it would be burned down. The caller said that Blake was trying to set up Todd Phillips. The call was traced to a pay phone in the area. ¶ 37.

         Some of the crime scene messages made reference to Lt. Bletz, the lead investigator for the sheriff. One man found a toilet bowl in his driveway with writing on it: “2 John 1:12” and “Bletz career.” ¶ 39.[1] Deputies found graffiti that was red paint in the shape of a body with “Bletz Gossip” written at the feet. ¶ 40. A resident received a letter that identified a location. When detectives arrived, they found a toilet tank top at the edge of a dirt grave with “Bletz a/k/a Inspector Clouseau Wearried Himself to Death” and a black dancing monkey drawn on the toilet. ¶ 48. Another resident found a plastic bottle near one of the metal spikes. Inside the bottle was a message: “Call Detective Clouseau ***-****.” ¶ 54.

         An area resident received a letter that stated: “We know your son is helping Phillips and you know it two chief no hair will not get off his ass to do anything so I will I have always hated you anyway you and your son are going to hell and I'm going to send y'all there.” ¶ 56. A Shreveport policeman who lived in the area reported finding spikes in his driveway. The spikes were made from crushed beer cans with nails and tacks driven through them, and the cans had “talk talk talk” written on them in black marker. ¶ 65.

         Doctor and Mrs. Bobby Hewlett lived on Old Plain Dealing Road. They were awakened in December 2015 when an explosive device went off beneath the main bedroom of their pier-and-beam home. Douglas Holley, who lived on their horse farm in a separate residence, was arrested several days later and charged with the bombing. Despite the proximity of the Hewlett farm to the other property crimes and the use of an explosive device, Bossier detectives, after consultation with ADA Holland, refused to investigate whether Douglas Holley was responsible for or connected to the other property crimes. ¶ 77-78.

         Gary Wilson, who was ultimately charged with the crimes, made victim reports or provided information to law enforcement on several occasions. He reported that he suffered flat tires on an ATV or his truck on at least three occasions. ¶¶ 36, 41, and 66. He reported that his deer camp had been burned down, and he reported a few weeks later that a deer stand and game camera had been burned. ¶¶ 25, 27. Wilson gave deputies a Propel Zero drink bottle and part of a blue flashlight that he reported finding in a tree next to his deer lease. ¶ 34. Those items were similar to items found at crime scenes. Gary Wilson contacted Lt. Bletz and reported finding (1) metal spikes and (2) a clear plastic bottle hanging from a nearby tree with a paper inside with writing: “Never Say I Can't Go On Any Longer!” ¶ 44.

         Gary Wilson later reported that his home had been vandalized while he was out of town. Detectives saw that his walls had been broken through with an axe, and his furniture and other personal belongings destroyed. ¶ 76. About a year later, Wilson reported that his secondary residence had been burned down. ¶ 79.

         Lt. Bletz was aware that the perpetrator had made multiple attempts to mislead and taunt detectives by attempting to direct them toward certain persons. ¶ 86. The search of the Phillips home did not reveal any incriminating information, and no witness ever identified any member of the Phillips family at the scene of any of the crimes. The only items that connected the Phillips family were the syringe, magazine, and cup that had been placed in the trash, and the small propane bottle with “Todd Phillips” written on it. Such bottles can be purchased at any hardware or sporting goods store and are commonly used by hunters and outdoorsmen. ¶¶ 87-96.[2]

         Despite the lack of evidence against the Phillips family, Lt. Bletz and other investigators began reporting to members of the community that Todd Phillips was a suspect. Gary Wilson developed a close relationship with Lt. Bletz and repeated to members of the community that Bletz said that Phillips was guilty, which encouraged public outrage. ¶ 99.

         ADA Holland, Lt. Bletz, and others disregarded the evidence placed at various scenes that identified suspects other than Mr. Phillips. ADA Holland advised Bletz and other detectives that any exculpatory evidence in Mr. Phillips' favor should be disregarded or considered planted by Mr. Phillips. The investigators intentionally misrepresented facts and evidence in their offense reports in an effort to bolster their case against Phillips. ¶¶ 101-03.

         Three signs appeared near the Phillips home in March 2013. The signs featured the same type of writing used on the messages sent to members of the community, and each referenced a different Bible verse. One sign was placed directly across the highway from the Phillips' driveway, and the other two were placed along Old Plain Dealing Highway so that the family would see the signs on their way home.

         Todd Phillips was in China on behalf of Frymaster when the signs went up. Mrs. Phillips and one of her daughters saw the signs while coming home from a rodeo on a Friday evening. They were afraid because the signs appeared to be connected to the several crimes in the area. They called a friend who came to their home and called the sheriff's office. Deputies arrived, but they did not tell Mrs. Phillips that Lt. Bletz and other deputies, after consultation with and pursuant to the advice of ADA Holland and Sheriff Whittington, were the ones who placed the signs. Mrs. ...


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