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Singleton v. Cannizzaro

United States District Court, E.D. Louisiana

February 28, 2019

RENATA SINGLETON ET AL.
v.
LEON CANNIZZARO ET AL.

         SECTION: “H”

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Joint Motion to Dismiss (Doc. 63). For the following reasons, the Motion is GRANTED IN PART.

         BACKGROUND

         At its core, this lawsuit alleges that the Orleans Parish District Attorney's Office unlawfully compelled victims and witnesses of crimes to cooperate with prosecutors. Those who failed to comply with prosecutors' requests were allegedly threatened, harassed, and, in some cases, jailed. Plaintiffs in this case include eight people-victims of and witnesses to crimes-and an organization that advocates on behalf of crime victims.

         The primary tool that prosecutors allegedly used to compel cooperation was a document manufactured by the District Attorney's Office (“DA's Office”) to look like a court-ordered subpoena that was, in fact, nothing more than an invitation by prosecutors to meet with them outside of court. Prosecutors often threatened witnesses with jail time for failure to comply with these “subpoenas.”[1] Because the “subpoenas” were not actually approved by a judge, but instead were engineered by prosecutors, the documents did not give anyone the authority to fine or jail witnesses who failed to appear. Nevertheless, prosecutors often followed up on their threats by asking judges to jail witnesses on material witness warrants.[2]

         The Plaintiffs allege that the DA's Office operated this system for years, and it was not until The Lens published an exposé about the issue in the spring of 2017 that the practice became widely known.[3] Orleans Parish District Attorney Leon Cannizzaro and his office faced intense public criticism after the practice was publicly exposed.[4] Armed with knowledge of the alleged scheme, Plaintiffs filed their initial Complaint in this Court on October 17, 2017.[5] A few months later, on January 25, 2018, Plaintiffs filed an Amended Complaint.[6]Plaintiffs seek monetary and injunctive relief for alleged violations of federal and state law by the Defendants. The federal claims include violations of the First, Fourth, and Fourteenth Amendments under 42 U.S.C. § 1983. The Louisiana state law claims include allegations of abuse of process and fraud.

         The Plaintiffs in this suit include Renata Singleton, Marc Mitchell, Lazonia Baham, Jane Doe, Tiffany LaCroix, Fayona Bailey, John Roe, and Silence is Violence (“SIV”), a non-profit victim advocacy group based in Orleans Parish. The Defendants, all prosecutors at the Orleans Parish District Attorney's Office, include Cannizzaro, First Assistant District Attorney Graymond Martin, Assistant District Attorney and Chief of Trials David Pipes, and Assistant District Attorneys Iain Dover, Jason Napoli, Arthur Mitchell, Tiffany Tucker, Michael Trummel, Matthew Hamilton, Inga Petrovich, Laura Rodrigue, Sarah Dawkins, and John Doe.[7] For context, the allegations underlying the claims of each of the Plaintiffs are described below.

         Plaintiff Renata Singleton was the victim in a domestic violence incident in 2014 involving her ex-boyfriend, Vernon Crossley. Singleton alleges that the DA's Office sent her two “subpoenas” after she told a victim-witness advocate that she did not want to pursue charges against Crossley or participate in any prosecution of him. Acting on the advice of a friend in law enforcement who told Singleton she had not been properly served because the “subpoenas” were left at her door, Singleton did not comply with the requests in the “subpoenas.” In response, Defendant ADA Mitchell sought a material witness warrant for Singleton. A judge granted Mitchell's request, and Singleton spent five days in jail on a $100, 000 bond before ultimately being released.

         Plaintiff Marc Mitchell was shot in 2014 while playing basketball with his nephews. He testified against Jonterry Bernard, the shooter. Bernard was convicted on a charge of attempted murder and sentenced to prison. The DA's Office also charged another man, Gerard Gray, with attempted murder in the shooting on the theory that Gray ordered Bernard to shoot Mitchell. In multiple meetings with prosecutors, Mitchell told the prosecutors that he did not know whether Gray ordered Bernard to shoot him. According to Mitchell, prosecutors continued to question him about his recollection of the events leading up to the shooting. Mitchell ultimately quit cooperating with the prosecutors, and ADA Trummel and ADA Hamilton worked together to have a material witness warrant issued for Mitchell's arrest. Police arrested Mitchell in the lobby of the hotel where he worked, and he spent a day in jail on a $50, 000 bond before being released.

         Plaintiff Lazonia Baham was wanted for questioning by the DA's office in the 2013 killing of her daughter's boyfriend. Baham alleges that prosecutors wanted her to testify that she saw Isaac Jones, the defendant in the murder case, near the scene of the murder. She repeatedly told prosecutors that she only saw Jones near her house, not near the murder scene. Baham ultimately stopped taking calls from the DA's office, and ADA Napoli sought a material witness warrant for her arrest. Police arrested Baham a few days after Christmas Day in 2015 while she was sick. She spent a total of eight days jailed on the warrant before being released.

         Plaintiff Jane Doe was the victim of molestation of a juvenile and child pornography. Doe alleges that the DA's Office in 2016 delivered a “subpoena” to her home demanding that she appear at their office to meet with prosecutors. Doe ultimately complied with their request after ADA Dover allegedly threatened Doe at her high school and later arrived in court with a material witness warrant application threatening to jail Doe.

         Plaintiffs Fayona Bailey and Tiffany LaCroix were potential witnesses in different murder cases who allegedly received “subpoenas” from the DA's Office. Both ultimately hired a lawyer to challenge the “subpoenas, ” and their challenges were successful. Plaintiffs allege that ADA Petrovich sent the “subpoena” to Bailey around March 2017, and that ADA Rodrigue sent the “subpoena” to LaCroix in November 2016.

         Plaintiff John Roe was attacked with a rifle in January 2016, and Roe's friend was murdered the next day. Police identified Michael Young as the suspect in both the attack on Roe and the murder of Roe's friend. Investigators questioned Roe about the incidents, and he cooperated with them. Although Roe provided police with his contact information at the time, he later moved and changed his phone number. Numerous subpoenas were sent to Roe's former address, but he alleges that he did not receive them. Nevertheless, Roe alleges that he was “not difficult to find” at the time because he maintains a Facebook account under his name.[8] Having failed to reach Roe, ADA Dawkins in August 2017 applied for a material witness warrant seeking Roe's arrest. A judge granted the request, and Roe spent three days in jail before being released.

         Plaintiff SIV alleges that it has been threatened by Cannizzaro on multiple occasions and that it has been forced to alter the focus of its organizational mission-from generally advocating for victims of violent crime to protecting those same victims from zealous prosecutors-because of the DA's Office's use of “subpoenas” and other intimidating tactics.

         On March 1, 2018, the Defendants filed a Joint Motion to Dismiss the claims of all Plaintiffs under Rule 12(b)(6).[9] The Defendants argue first that many of the Individual Defendants enjoy absolute immunity for the claims asserted against them. To the extent that any of the Individual Defendants' conduct is not absolutely immune from civil suit, Defendants argue that they enjoy qualified immunity. Defendants further argue that many claims are prescribed, and finally, for any remaining claims, that Plaintiffs fail to state a claim on which relief may be granted. Plaintiffs oppose. Oral argument was held before this Court on May 9, 2018.

         LEGAL STANDARD

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts to “state a claim for relief that is plausible on its face.”[10] A claim is “plausible on its face” when the pleaded facts allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”[11]A court must accept the complaint's factual allegations as true and must “draw all reasonable inferences in the plaintiff's favor.”[12] A court need not, however, accept as true legal conclusions couched as factual allegations.[13] To be legally sufficient, a complaint must establish more than a “sheer possibility” that the plaintiff's claims are true.[14] If it is apparent from the face of the complaint that an insurmountable bar to relief exists and the plaintiff is not entitled to relief, the court must dismiss the claim.[15]

         LAW AND ANALYSIS

         This Court will first address the extent to which the Individual Defendants enjoy absolute immunity from federal law claims by Plaintiffs other than SIV before turning to whether any of the remaining federal claims by those same Plaintiffs are barred by qualified immunity.[16] The Court will then analyze Defendants' 12(b)(6) challenges to those remaining federal claims by all Plaintiffs except SIV. Next, the Court will turn to Defendants' motion to dismiss the individual Plaintiffs' state law claims and SIV's federal and state claims. Finally, the Court will consider Defendants' argument that many of Plaintiffs' claims are time-barred.

         I. Absolute Immunity

         Defendants argue that virtually all of Plaintiffs' claims for monetary damages are barred by absolute immunity.[17] Because determining whether a prosecutor enjoys absolute immunity turns on “the nature of the function performed” by the prosecutor, [18] this Court must analyze the “specific activities that give rise to the cause of action.”[19] In other words, absolute immunity attaches to specific conduct, not specific claims.[20] If specific conduct is protected by absolute immunity, and that same conduct forms either a crucial foundation for or the entire basis of certain claims, a finding of absolute immunity may well defeat certain claims on a 12(b)(6) motion.

         Plaintiffs identify five categories of conduct performed by the Individual Defendants that form the basis of their claims.[21] The categories include: (1) the creation and use of “subpoenas” to induce witnesses to meet with prosecutors outside of court; (2) verbal and written threats made to witnesses; (3) the misuse of material witness arrest warrants for investigative ends; and (4) the failure to supervise.[22] This Court will analyze whether each type of conduct is covered by absolute immunity.

         a. An Overview of Absolute Immunity

         In 1976, the U.S. Supreme Court in Imbler v. Pachtman extended the common law doctrine of absolute immunity to prosecutors.[23] Under Imbler, prosecutors enjoy absolute immunity from § 1983 claims seeking damages from individuals that arise from prosecutorial conduct “intimately associated with the judicial phase of the criminal process.”[24] “Thus, ‘the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.'”[25] On the one hand, “[a] prosecutor is absolutely immune for initiating and pursuing a criminal prosecution, for actions taken in her role as ‘advocate for the state' in the courts, or when her conduct is ‘intimately associated with the judicial phase of the criminal process.'”[26] “On the other hand, a prosecutor is afforded only qualified immunity for acts performed in the course of ‘administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings.'”[27] The Individual Defendants bear the burden of proving that the “the conduct at issue served a prosecutorial function” such that it is covered by absolute immunity.[28]

         Two points bear mentioning here. First, absolute immunity only protects individuals from claims for damages.[29] Thus, it does not bar Plaintiffs' claims for damages and injunctive relief against Cannizzaro in his official capacity, nor does it bar claims against the Individual Defendants for injunctive relief. Second, the Louisiana Supreme Court in Knapper v. Connick held that prosecutors enjoy absolute immunity against state law claims in addition to the immunity they enjoy from § 1983 claims.[30] The full scope of absolute prosecutorial immunity under Louisiana law is not clear, [31] but the Louisiana Supreme Court in Knapper cited heavily to federal law in its decision and adopted the functional approach that federal courts employ when analyzing prosecutorial absolute immunity issues.[32] For this reason, any conduct for which prosecutors enjoy absolute immunity in this case will apply equally to Plaintiffs' federal and state law claims.

         b. Functional Absolute Immunity Analysis for Each Category of Alleged Prosecutorial Misconduct

          i. Creation and Use of “Subpoenas”

         Plaintiffs Singleton, Doe, LaCroix, and Bailey allege that some of the Individual Defendants created and delivered to them documents manufactured to look like subpoenas that had not been approved by a judge.[33] Defendants argue that absolute immunity shields prosecutors from liability for such conduct because the prosecutors performed it as part of trial preparations in active cases against criminal defendants-a quintessential prosecutorial function entitled to absolute immunity.[34] Plaintiffs respond that the Individual Defendants should not enjoy absolute immunity for such conduct because it is actually “investigative, ” not prosecutorial, and regardless the conduct occurred while the Defendants “were acting outside of their authority as prosecutors.”[35]

         In Loupe v. O'Bannon, the Fifth Circuit held that a prosecutor did not enjoy absolute immunity for ordering the warrantless arrest of a witness just moments after a judge had refused to jail the same witness.[36] The court reasoned that such conduct was not protected by absolute immunity because it was “not intimately associated with the judicial phase of the criminal process.”[37] To support its reasoning in Loupe, the Fifth Circuit cited approvingly to the Ninth Circuit's decision in Lacey v. Maricopa County.[38] In Lacey, the Ninth Circuit held that a prosecutor who issued subpoenas to grand jury witnesses without receiving proper authorization from a court or grand jury for the subpoenas was not entitled to absolute immunity for liability stemming from such conduct.[39] The court in Lacey reasoned that a prosecutor should not enjoy immunity when he “avoided taking the steps that would have protected him from suit, perhaps precisely to avoid the scrutiny of the grand jury or the court.”[40] The court explained further, “[w]here the prosecutor has side-stepped the judicial process, he has forfeited the protections the law offers to those who work within the process.”[41]

         Like the prosecutors in Loupe and Lacey, Individual Defendants Cannizzaro, Martin, Pipes, Mitchell, Napoli, Petrovich, Rodrigue, and Dover side-stepped the judicial process to the extent that they created and disseminated “subpoenas” to compel witnesses to meet with them outside of court. Article 66 of the Louisiana Code of Criminal Procedure allows prosecutors to seek a subpoena from a court ordering a witness to meet with the prosecutor for questioning.[42] A prosecutor need only show “reasonable grounds” to justify the subpoena's issuance.[43] The power to issue the subpoena, however, rests entirely with the court.[44] The statute preserves the court's discretion over the issuance of a subpoena by stating that the court “may order” that the subpoena be issued.[45] If a subpoena is issued, it is the clerk of court, not the prosecutor, who issues it.[46] The comments to the article note that the common practice before the adoption of the article was for district attorneys to issue notices for questioning that could only be enforced through the threat of further action, such as a grand jury subpoena.[47] There is no suggestion in the statute that prosecutors now have, or have ever had, the power to issue subpoenas themselves.[48]

         Allegations that the Individual Defendants purported to subpoena witnesses without court approval, therefore, describe more than a mere procedural error or expansion of authority. Rather, they describe the usurpation of the power of another branch of government. The “subpoena template” allegedly disseminated by First ADA Martin includes language that the recipient is “Hereby Notified pursuant to LSA-CCRP art. 66 to appear before the District Attorney for the Parish of Orleans.”[49] Plaintiffs allege that Defendants' entire scheme operated outside of the process legally required by the Louisiana Code of Criminal Procedure.[50] To find that such ultra vires conduct is “intimately associated with the judicial phase of the criminal process” would give no meaning to the “judicial phase” element of the standard.[51]

         Furthermore, that the alleged activity by the Individual Defendants took place as a means to a prosecutorial end is not dispositive of the issue. Under that logic, virtually all activity engaged in by a prosecutor would be absolutely immune from civil liability. The U.S. Supreme Court has rejected expanding prosecutorial absolute immunity so broadly, noting in Burns v. Reed that “[a]lmost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive.”[52] When it comes to absolute immunity for prosecutors, “it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.”[53] This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney's office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.

         In Imbler, the Supreme Court justified expanding the common law doctrine of absolute immunity to prosecutors by stating,

It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation.[54]

         The allegation that Defendant Martin disseminated a template of a “subpoena” throughout the Orleans Parish District Attorney's Office undermines any suggestion that Plaintiffs' allegations were the result of “serious constraints of time.”[55] This is not the type of conduct absolute immunity is meant to protect. The Supreme Court in Imbler further reasoned that “[t]he affording of only a qualified immunity to the prosecutor also could have an adverse effect upon the functioning of the criminal justice system.”[56] Here, however, it was prosecutors alleged misconduct that Plaintiffs say affected the proper functioning of the criminal justice system.[57] As Justice White noted in his concurrence in Imbler, “[w]here the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be ‘monstrous to deny recovery.'”[58] This is just such a scenario. As such, the Individual Defendants are not entitled to absolute immunity for their alleged role in creating or delivering “subpoenas” to victims and witnesses of crimes.

         ii. Threatening Witnesses

          The second type of conduct underlying Plaintiffs' claims involves “the use of verbal and written threats to gain access to witnesses outside of court and to influence witnesses' testimony.”[59]

         1. Verbal Threats of Imprisonment by ADAs to Plaintiffs

         Plaintiffs argue that threats of imprisonment allegedly made by several of the Individual Defendants to several of the Plaintiffs should not be protected by absolute immunity.[60] Defendants respond that absolute immunity extends to the preparation of witnesses for criminal prosecutions, which includes ensuring those such witnesses show up to testify at trial.[61]

         Unlike the ultra vires creation and issuance of “subpoenas, ” generalized threats of imprisonment made by prosecutors do not necessarily fall so far outside the criminal phase of the judicial process to warrant denial of absolute immunity for such threats. Although the distinction is an admittedly fine one, threatening to imprison a witness to compel cooperation in a criminal prosecution while possessing the lawful means to follow through on that threat is not the same as manufacturing documents in violation of the lawful process for obtaining court-approved subpoenas for witnesses. Threatening witnesses-particularly verbally-with imprisonment to further witness cooperation in an active criminal prosecution seems to this Court to fall into the category of “pursuing a criminal prosecution” as an “advocate for the state.”[62] Holding that such conduct fell outside the protections of absolute immunity would, in fact, potentially subject prosecutors to civil liability for exercising authority they lawfully possess under the law of Louisiana and many other states. The resulting restriction of prosecutorial discretion is exactly the type of concern the Supreme Court expressed when it first addressed the issue of absolute immunity for prosecutors under § 1983 in Imbler.[63]

         This is the result of applying a doctrine that at times “leave[es] unaddressed the wrongs done by dishonest officers” as an alternative to “subject[ing] those who try to do their duty to the constant dread of retaliation.”[64] For these reasons, the Individual Defendants are absolutely immune for threats of imprisonment made to Plaintiffs in active criminal prosecutions.

         2. Verbal Threats by Cannizzaro to SIV

         Separately, Plaintiff SIV asserts claims for damages against Defendant Cannizzaro in his individual capacity based on allegations that he threatened to prosecute SIV's executive director for obstruction of justice or witness coercion if she continued to encourage witnesses and victims to not cooperate with prosecutors. “The decision to initiate . . . criminal charges is at the core of the prosecutorial function.”[65] Because the Second Amended Complaint alleges that Defendant Cannizzaro “sought to ‘persuade' with [his] prosecutorial power, ” absolute prosecutorial immunity applies to that alleged conduct.[66]

         iii. Use of Material Witness Warrants

          The third type of alleged prosecutorial misconduct involves allegations that prosecutors lied in material witness warrant applications.[67] In a case decided months after the parties' briefed this Motion to Dismiss, the Fifth Circuit in Doe v. Harris County considered whether prosecutors enjoy absolute immunity when applying for material witness warrants.[68] The court held that “the appearance of witnesses for trial is intimately associated with a prosecutor's advocacy, ” and thus prosecutors are entitled to absolute immunity from claims related to such conduct.[69] Because that is the exact type of conduct from which Plaintiffs' claims arise here, the Individual Defendants enjoy absolute immunity for this alleged conduct.

         iv. Failure to Supervise

          Plaintiffs seek to hold Defendants Cannizzaro, Martin, and Pipes individually liable for supervising assistant district attorneys in a way that allowed constitutional violations to flourish, and Plaintiffs seek to hold all Individual Defendants liable for their failure to intervene in the matter. Supervising prosecutors enjoy absolute immunity for claims arising from allegations that they failed to properly train or prevent unlawful conduct when the underlying conduct would be protected by absolute immunity.[70] This Court believes that the same rule should extend to claims of failure to intervene. Therefore, Defendants Cannizzaro, Martin, and Pipes are absolutely immune from damages for their failure to supervise all conduct underlying Plaintiffs' claims except the creation and issuance of “subpoenas.”

         For the reasons explained above, the Individual Defendants enjoy absolute immunity for claims seeking damages based on alleged: (1) verbal threats of imprisonment made to Plaintiffs and verbal threats of criminal prosecution made to SIV's director; (2) misstatements or omissions in applications for material witness warrants and general abuses of the material witness warrant process; and (3) failures to supervise or intervene in the aforementioned conduct. The Individual Defendants are not absolutely immune for claims seeking damages based on allegations of: (1) creating or issuing “subpoenas” to Plaintiffs and (2) failures to supervise or intervene in the aforementioned conduct.

         II. Qualified Immunity

         Defendants argue that to the extent their conduct is not covered by absolute immunity, it is covered by qualified immunity. Therefore, the Court will now analyze whether the Individual Defendants enjoy qualified immunity from claims for which they do not enjoy absolute immunity.

         “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”[71] “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear' that every ‘reasonable official would have understood that what he is doing violates that right.'”[72] The Supreme Court does “not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”[73] The Court has instructed lower courts “not to define clearly established law at a high level of generality.”[74]

         a. Fourth Amendment Unlawful Subpoena Claims

          Plaintiffs LaCroix, Bailey, and Doe allege that Defendants Dover, Petrovich, Rodrigue, and Martin violated the Fourth Amendment by compelling the Plaintiffs to meet with them outside of court through the use of “subpoenas.”[75] Defendants argue that they enjoy qualified immunity for the conduct alleged in these claims because Plaintiffs were not “seized” for Fourth Amendment purposes.[76] Even if seizures occurred, Defendants argue, because the law was not clear at the time of the alleged conduct regarding whether a potential witness in a criminal case has a right to refuse to meet with prosecutors, qualified immunity should still apply.

         “There is a clearly established right to be free from unreasonable seizures under the Fourth Amendment.”[77] Nevertheless, a “seizure” must in fact occur for a violation to exist.[78] “A person is ‘seized' for Fourth Amendment purposes ‘when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen.'”[79] “A seizure occurs ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that they were not free to leave.'”[80] Even voluntary submissions to a show of state authority can constitute seizures for Fourth Amendment purposes.[81]

         i. Plaintiffs Bailey and LaCroix

          Bailey alleges that ADA Petrovich seized her in violation of the Fourth Amendment by issuing a “subpoena” that demanded she meet with prosecutors, which forced Bailey to hire a private attorney to challenge the “subpoena.”[82] Bailey alleges that she did not feel at liberty to travel until the “subpoena” was dealt with.[83] LaCroix makes similar claims against ADA Rodrigue.[84] The Defendants respond that neither Bailey nor LaCroix was ever seized for Fourth Amendment purposes because neither Plaintiff ever complied with the “subpoena.” That is, neither Plaintiff ever met with prosecutors after receiving a “subpoena.”

         Plaintiffs cite to no authority suggesting that the mere delivery of a document purporting to require a meeting with prosecutors constitutes a Fourth Amendment seizure.[85] Substantial case law indicates that such conduct likely does not rise to the level of a seizure for Fourth Amendment purposes.[86]As such, Plaintiffs have failed to show that a constitutional violation occurred. Even if Plaintiffs' apprehension of travel caused by the issuance of the “subpoena” constituted a seizure, the Individual Defendants still would enjoy qualified immunity on these claims because Plaintiffs fail to show that witnesses to crimes possess a clearly established constitutional right to refuse to speak with prosecutors.

         Further, refusing to appear does not qualify as a seizure. Although a seizure may occur absent physical force, no matter the circumstances, “submission to [an] assertion of authority is necessary.”[87] Here, Plaintiffs argue they “submitted” to the prosecutors' show of authority-the “subpoenas”-by hiring an attorney to challenge the documents.[88] But disputing a show of authority does not involve submission. Plaintiffs' challenge to the “subpoena” represented a show of defiance, the antithesis of submission. Accordingly, because neither Baham nor LaCroix was ever physically confined, nor did they ever submit to prosecutors' show of authority, their Fourth Amendment rights were not violated. Thus, the Individual Defendants enjoy qualified immunity from claims for monetary damages by Plaintiffs Bailey and LaCroix alleging that their receipt of “subpoenas” violated their Fourth Amendment rights.[89]

         ii. Plaintiff Doe

          Unlike Bailey and LaCroix, Plaintiff Doe eventually met with prosecutors after allegedly receiving two “subpoenas.” The meeting, however, occurred pursuant to a court order, not in response to the receipt of a “subpoena.”[90] The question, then, is whether Doe's submission to the court's show of authority was unlawful. The allegations made by Doe, however, focus on the show of authority by prosecutors, not the court. Doe has thus failed to allege a Fourth Amendment violation by prosecutors in this regard, and the Individual Defendants enjoy qualified immunity from this claim.[91]

         b. First Amendment Claims

         i. Compelled Speech Claims

         Plaintiffs Baham, Mitchell, Singleton, Doe, and Roe allege that they were compelled to speak with prosecutors against their will by the Defendants in violation of the First Amendment.[92] Additionally, Plaintiffs Bailey and LaCroix claim that Cannizzaro's allegedly unlawful policy of compelling witnesses to speak with prosecutors violated their First Amendment rights even though they did not actually speak with prosecutors in response to “subpoenas.”[93] Defendants argue that they enjoy qualified immunity from such claims because no constitutional violation occurred and, even if it did, the Defendants did not violate a “clearly established” right.

         “[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”[94] But “the First Amendment's guarantee of freedom from ‘compelled speech' is not absolute.”[95] Indeed, if the First Amendment prohibited courts from compelling material witnesses to testify, then all material witness warrant statutes would violate the Constitution.[96]

         At issue here is whether prosecutors' use of “subpoenas” to compel witnesses into meeting privately with prosecutors outside of court violates the First Amendment's compelled speech doctrine. Neither the Supreme Court nor the Fifth Circuit has provided a clear standard for analyzing compelled speech claims in this context. The Fifth Circuit has suggested that the government can defeat a compelled speech claim by showing that “essential operations of government require [the speech] for the preservation of an orderly society-as in the case of compulsion to give evidence in court.”[97] The Second Circuit, however, has held that “the First Amendment right not to speak protects the right to refuse to make false statements to the government, ”[98] and that “the right not to speak may be abrogated only under carefully policed circumstances.”[99]

         This Court need not decide today whether any of the Defendants violated any of the Plaintiffs' First Amendment rights by compelling witnesses into meeting privately outside of court to discuss active criminal cases through the use of “subpoenas.” Plaintiffs fail to show that witnesses possess a clearly established right under the First Amendment to refuse to speak to prosecutors about active criminal cases. For that reason, the Individual Defendants enjoy qualified immunity from Plaintiffs' First Amendment compelled speech claims for damages.

         ii. Retaliation Claims

          Plaintiffs allege that Defendants retaliated against them for exercising their First Amendment right to refuse to speak.[100] Defendants argue that the Individual Defendants enjoy qualified immunity from these claims to the extent they seek monetary damages from the Individual Defendants.[101]

         “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.”[102] To establish a First Amendment retaliation claim, a plaintiff in the Fifth Circuit must show: (1) that she engaged in constitutionally protected activity; (2) that the defendant's actions caused her “to suffer an injury that would chill a person of ordinary firmness from continuing the engage in that activity;” and (3) that the defendant's “adverse actions were substantially motivated against” her exercise of constitutionally protected speech.[103]

         Plaintiffs engaged in constitutionally protected activity when they refused to speak to prosecutors absent a valid court order to do otherwise.[104]Plaintiffs allege injuries in the form of threats of imprisonment that prevented them from continuing to refuse to speak.[105] It appears, based on the timing of Plaintiffs' refusals to speak and the follow-up responses by prosecutors, that the adverse actions suffered by Plaintiffs were likely motivated by their refusal to speak.[106] Therefore, Plaintiffs have alleged a constitutional violation.[107]Nevertheless, because Plaintiffs' right to refuse to speak with prosecutors absent a court order was not clearly established when the violations occurred, the Individual Defendants enjoy qualified immunity from the civil damages sought in these claims.

         c. Fourteenth Amendment Substantive Due Process Claim

          In Count Five of the Amended Complaint, Plaintiffs allege:

Each of Defendant Cannizzaro's official policies, practices and customs described above, separately and in combination, shocks the conscience and violated the Fourteenth Amendment rights of all Plaintiffs and poses an ongoing risk of violating the Fourteenth Amendment rights of Plaintiff Baham, Plaintiff Doe, Plaintiff Roe, and the rights of Plaintiff Silence Is Violence and its clients.[108]

         An executive official violates a person's substantive due process rights when the official's conduct is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”[109] The burden “to show state conduct that shocks the conscience is extremely high, requiring stunning evidence of arbitrariness and caprice that extends beyond mere violations of state law, even violations resulting from bad faith to something more egregious and more extreme.”[110] The Supreme Court's “test for the substantive component of the due process clause prohibits ‘only the most egregious official conduct,' and will rarely come into play.”[111]

         Plaintiffs' allegations that prosecutors manufactured “subpoenas, ” deliberately side-stepping judicial oversight of the subpoena process, appears to this Court to represent a breed of official misconduct. Claims that the practice was not only condoned but directed by top prosecutors and the DA himself only make the allegations more disturbing. This Court believes that Plaintiffs' claims sufficiently shock the conscience such that they allege a constitutional violation.[112]

         Nevertheless, the Individual Defendants are entitled to qualified immunity on these claims. Plaintiffs fail to cite to any case law suggesting that the Defendants' violated a clearly established right of Plaintiffs. In their opposition to Defendants' Motion for Summary Judgment, Plaintiffs cite only to Rochin v. California, in which the Supreme Court held that illegally breaking into a person's apartment, attempting to pry open his mouth, and forcibly extracting the contents of his stomach amounted to conduct that “shocks the conscience.”[113] This case is distinguishable from Rochin, and it does not support a finding that the prosecutors in this case violated clearly established law. Accordingly, the Individual Defendants enjoy qualified immunity for claims seeking damages based on allegations of substantive due process violations.

         III. Failure to State a Claim

          The Defendants additionally argue that Plaintiffs' remaining claims should be dismissed for failure to state a claim on which relief could be granted.

         a. Fourth Amendment Material Witness Warrant Claims

          Although the Individual Defendants enjoy absolute immunity from civil damages for Plaintiffs' claims that the Defendants violated the Fourth Amendment by abusing the material witness warrant process, claims for injunctive relief against the Individual Defendants and claims for injunctive relief and damages against Cannizzaro in his official capacity remain.

         Plaintiffs Singleton, Baham, Mitchell, Roe, and SIV allege that Defendants Cannizzaro, Mitchell, Pipes, Napoli, Trummel, Hamilton, and Dawkins violated the Fourth Amendment by “relying on false allegations, material omissions, and plainly insufficient factual allegations in applications for material witness warrants.”[114] Defendants argue that Plaintiffs' allegations fail to state a claim on which relief may be granted.[115]

         In Franks v. Delaware, the U.S. Supreme Court held that an official violates the Fourth Amendment when the official makes materially false statements-either deliberately or with reckless disregard for the truth-in support of a warrant that are necessary to a court's finding of probable cause.[116] The Fifth Circuit has extended the applicability of Franks beyond affirmatively false statements to material omissions.[117] The Fifth Circuit has not, however, decided whether Franks extends to material witness warrants. But other federal courts have held that it does.[118] Because innocent material witnesses deserve at least as much constitutional protection as criminal defendants, this Court believes that it is appropriate to extend Franks to material witness warrants.

         Under Franks, a court must consider whether an official's statements or omissions were “necessary to [a] finding of probable cause.”[119] “The test for probable cause is not reducible to ‘precise definition or quantification.'”[120] This is especially true in the context of material witness warrants. The Sixth and Ninth Circuits have held that probable cause exists when the statutory prerequisites for arresting a material witness have been met.[121] The parties seem to agree that such a standard is the appropriate one here.[122]

         Louisiana's Material Witness Statute requires prosecutors to show that a witness's testimony “is essential to the prosecution” and that “it may become impracticable to secure the presence of the person by subpoena.”[123] Thus, this Court believes probable cause exists to detain a material witness in Louisiana if the facts and circumstances within the knowledge of the prosecutor show that the witness's testimony is essential to the state's case and that it may become impracticable to secure the witness's presence at trial by subpoena.

         Under Franks, to assess whether allegedly false statements and omissions were necessary to a finding of probable cause, a court must “consider the faulty affidavit as if those errors and omissions were removed.”[124] A court must then “examine the ‘corrected affidavit' and determine whether probable cause for the issuance of the warrant survives the deleted false statements and material omissions.”[125] Accordingly, this Court must consider whether probable cause existed to detain Plaintiffs Singleton, Baham, Mitchell, and Roe if the allegedly false statements were deleted from, and the allegedly material omissions were added to, their respective warrant applications.

         i. Singleton's Franks claims

          The statement supporting probable cause in the application for Singleton's material witness warrant read as follows:

The testimony of Singleton is essential to the prosecution of the above entitled case. She is the victim of the simple battery and criminal damage to the property amounting less than $500.
The State has reason to fear Singleton will not appear in Court pursuant to a subpoena as she has failed to appear pursuant to an appointment with the undersigned, and she has failed to appear in court at every other trial setting that she was issued a subpoena for.
Singleton received improper domiciliary service, as a subpoena was left in the door of the residence of Singleton on March 6, 2015. Singleton did not appear for trial when it was set on March 20, 2015.
The undersigned has made attempts to contact Singleton since March 2015. The undersigned attempted to contact Singleton numerous times at the phone number provided by Singleton, to no avail.
The Sheriff's Office has made numerous attempts to serve Singleton at her primary address with no success. They have been to her residence three times and have left subpoenas in her door due to no one accepting service at the residence on her behalf.
On April 20, 2015, the undersigned contacted Orleans Parish District Attorney's Office Victim-Witness Advocate Amy Jackson, to determine if Jackson possessed alternative phone numbers for Singleton. The undersigned was informed that Singleton had never been cooperative with Victim-Witness Advocate Jackson, but did provide the undersigned with an alternative phone number for Singleton. The undersigned attempted to contact Singleton at the alternative phone number, to no avail.
Orleans Parish District Attorney Investigator Corey Porter has made numerous attempts to locate Singleton since April 20, 2015. On that day, the undersigned, accompanied by Investigator Porter, traveled to the last known address for Singleton in an attempt to serve Singleton with a subpoena and conduct an interview, to no avail.
On April 21, 2015, Investigator Porter traveled to the Astor Crowne Plaza, the last known employer of Singleton. Investigator Porter learned that Singleton had ceased her employment with the Astor Crowne Plaza approximately one month prior.
On April 21, 2015 Investigator Porter traveled to the last known residence of Singleton with a subpoena and conduct an interview. Investigator Porter observed a Toyota Camry, associated with Singleton, parked in the driveway of the residence. Investigator Porter knocked on the front door of the residence and waited for a response from someone present inside of the residence, to no avail. Investigator Porter left two subpoenas at the residence for Singleton to appear at the District Attorney's Office on April 24, 2015.
On April 23, 2015, the undersigned attempted to contact Singleton at the last known phone numbers of Singleton, to no avail.[126]

         Singleton objects to the truthfulness of the application on the following grounds: (1) that it created a misleading impression that Singleton was validly served with subpoenas for the April 24th trial date; (2) that the “subpoenas” left by Porter at Singleton's home were not validly created subpoenas; (3) that Singleton was not home when sheriff's deputies attempted to serve her with subpoenas at her home; and (4) that saying Singleton had “never been cooperative” with a victim-witness advocate misleadingly suggests Singleton would not respond to a validly issued subpoena.[127]

         The problem with Singleton's objections is that for the most part they challenge truthful statements as misleading. The application does not state that Singleton was ever validly served with a subpoena; it states that she “received improper domiciliary service” and that subpoenas were left at her door, which does not imply that proper service occurred.[128] Instead, the application truthfully conveys that deputies unsuccessfully attempted to serve Singleton with a subpoena. Similarly, Singleton does not challenge the fact that she refused to cooperate with the DA's Office.

         Excluding the allegedly false statements in the warrant that some of the “subpoenas” left at Singleton's home were not actually subpoenas, and adding the omitted allegation that Singleton was not home when service was attempted on her, does not change the fact that the application as amended would contain probable cause to arrest Singleton on a material witness warrant. Such an application would still show that Singleton was a key witness to the prosecution's case, that service was attempted on her numerous times but never accomplished, and that Singleton had not been cooperative with the investigation by the DA's Office in the underlying criminal offense against her. Such statements are sufficient to show that her testimony was essential to the prosecution's case and that it may have been impracticable to secure her testimony by subpoena. As such, Singleton's Franks claim must fail.

         ii. Mitchell's Franks claims

          The statement supporting probable cause in the application for Mitchell's material witness warrant read as follows:

The testimony of Mark Mitchell is essential to the prosecution of the above entitled case.
On 4/4/16 Assistant District Attorney's Mike Trummel, Matthew Hamilton, as well as District Attorney's Office investigator Pamela Butler, and victim witness counselor Julie Ferguson met with Mark Mitchell outside his place of work. This meeting took place after numerous text messages and phone calls in which Mark Mitchell indicated this would be the last meeting he would have with the District Attorney's Office and did not want to move forward with the case. At the meeting Mark Mitchell stated the only way in which he would testify was if he was arrested.
Mark Mitchell has given statements to the New Orleans Police Department implicating the defendant, Gerard Gray, in the above numbered case. Mark Mitchell has also testified at a trial against Gerard Gray's codefendant, Jonterry Bernard.[129]

         Mitchell objects to the truthfulness of the application on the following grounds: (1) it falsely says Mitchell stated “the only way in which he would testify was if he was arrested;” (2) it omits that he signed a subpoena during the April 4th meeting with prosecutors agreeing to testify in court on April 11, 2016; (3) it omits that Mitchell had cooperated with prosecutors in the past and had met with them several times to prepare the case for trial; (3) it omits that Mitchell had previously testified against the co-defendant in the case; and (4) it omits that prosecutors had pressured Mitchell to “alter his account of events” to support the state's case.[130]

         Deleting the allegedly false statements-that Mitchell would only testify if arrested-and adding the material omissions-that Mitchell had cooperated with prosecutors in the past and had signed a subpoena in the presence of prosecutors agreeing to appear in court just two days before the material witness warrant was issued-to Mitchell's application, this Court finds that Mitchell has stated a viable Franks claim. At least one federal district court has held that omitting the fact that a material witness had previously cooperated with investigators constitutes a particularly concerning material omission for Franks purposes.[131] This Court agrees and finds it even more troubling to omit that the material witness signed a subpoena agreeing to appear in court just days before prosecutors then sought to jail the witness on the grounds that securing his testimony by subpoena may be impracticable. If the allegedly false statement that Mitchell would only testify if arrested is deleted from the warrant, the only statement left supporting the application would be the fact that he “did not want to move forward with the case.”[132] That statement alone-particularly in light of the material omissions-is not enough to show probable cause to arrest Mitchell on a material witness warrant. As such, his Franks claim survives.

         iii. Baham's Franks claims

          The statement supporting probable cause in the application for Baham's material witness warrant read as follows:

The testimony of Lazonia Baham is essential to the prosecution of the above entitled case.
Lazonia Baham was notified by Orleans Parish District Attorney's Office Investigator Mike Kitchens that she was an essential witness in the above stated case and would be needed to testify. Ms. Baham refused to meet with ADA Jason Napoli and cut off all communication with the District Attorney's Office. Despite multiple visits to her home, Ms. Baham refuses to speak with Investigator Kitchens and has refused to return multiple phone calls. The actions of Ms. Baham indicate that she is intentionally avoiding service and will not come to court on her own accord.
Lazonia Baham has given statements to the New Orleans Police Department implicating the defendant, Issac Jones, in the above numbered case.[133]

         Baham objects to the truthfulness of the application based on the following allegedly intentional and material omissions: (1) that Baham had previously spoken several times with investigators from the DA's Office; (2) that the DA's Office had pressured her to change her recollection of events to support the state's case; (3) that Defendant Napoli had sent ...


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