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Pipkins v. Stewart

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

April 1, 2019




          DEE D. DRELL JUDGE.

         Before the Court is a Motion to Dismiss (Doc. 20) filed by defendant James E. Stewart, Sr., in his official capacity as District Attorney of Caddo Parish, First Judicial District of Louisiana ("District Attorney"), an Opposition (Doc. 37) filed by Plaintiffs, [1] a Reply (Doc. 46) filed by the District Attorney, a Supplemental Memorandum in Support of the Motion to Dismiss (Doc. 49) filed by Jeff Landry, Attorney General for the State of Louisiana ("Attorney General"), [2] and an Opposition to the Attorney General's Supplemental Memorandum (Doc. 56) filed by Plaintiffs. For the following reasons, the Motion to Dismiss will be GRANTED IN PART and DENIED IN PART.


         This suit alleges that the District Attorney systematically exercises (and therefore still exercises) peremptory strikes against African-American prospective jurors on the basis of their race for the purpose of empaneling criminal trial juries that are predominately white.

         Each Plaintiff is an adult resident citizen of Caddo Parish, Louisiana, and each is qualified to serve a juror in criminal cases under Article 401 of the Louisiana Code of Criminal Procedure.[3]Each is a registered voter and is (or has been) on the list of eligible jurors maintained by the Caddo Parish Jury Commission.[4] Plaintiffs Carter, Johnson, Horton, and Hawthorne were all excluded from jury service by the District Attorney's use of peremptory strikes within twelve months prior to the commencement of this suit.[5]

         The centerpiece of this case is a statistical analysis conducted by Reprieve Australia ("Reprieve"), a non-profit organization not affiliated with Plaintiffs or their counsel. Reprieve acquired the records of 332 non-sealed criminal trials[6] from January 28, 2003, through December 5, 2012, [7] pursuant to the Louisiana Public Records Act.[8] According to Reprieve's data, forty-five different Assistant District Attorneys were involved as counsel for the prosecution of these 332 cases.[9] Thirty of those Assistant District Attorneys were white and fifteen were African-American.[10]

         In these 332 trials, 8, 318 potential jurors were tendered to the District Attorney for peremptory challenge or acceptance as trial jurors.[11] These potential jurors survived the initial process of eliminating non-qualified jurors through the Parish Jury Coordinator's review of jury questionnaires and any challenges for cause.[12] Of the 8, 318 qualified jurors, 2, 908 were identified as African-Americans.[13] The District Attorney exercised peremptory challenges against 1, 338, or approximately 46%, of the qualified African-American jurors.[14] By contrast, the District Attorney only used peremptory challenges against 830, or approximately 15%, of the 5, 410 qualified jurors who were identified as non-African-Americans.[15] The table below illustrates Reprieve's findings:[16]









Not Black








         Reprieve's statistical analysis of this ten-year history of peremptory strikes argues that, mainly through the various trial assistants, [17] the District Attorney struck African-American potential jurors at three (3) times the rate he struck non-African-American prospective jurors.[18]The statistics further show that, after controlling for various factors, the District Attorney struck African-American venirepersons from jury service at five (5) times the rate he struck potential jurors who were not African-American.[19] According to Reprieve's analysis, when a defendant was white the District Attorney was 2.6 times more likely to strike an African-American juror than a non-African-American juror.[20] When a defendant was African-American, however, Reprieve's calculations indicate that the District Attorney was 5.7 times more likely to strike an African-American juror than a non-African-American juror.[21] Interpreting these statistics, Plaintiffs conclude that the only plausible explanation for this disparity between the District Attorney's peremptory challenges against African-American jurors and those against non-African-American jurors is the race of the juror.[22] They further allege that this systemic use of peremptory strikes by the District Attorney has been "admitted by former members of the District Attorney's office," though they do not specifically identify any such former members.[23]

         Plaintiffs filed their initial complaint on November 19, 2015.[24] The case was originally assigned to Judge Elizabeth Foote but she recused herself on December 4, 2015.[25] An reassigning the case to the Court was filed on December 9, 2015.[26] Plaintiffs filed an amended complaint on December 30, 2015, [27] and a second amended complaint on April 14, 2016.[28] A third and final amended complaint was filed with the consent of the District Attorney on April 21, 2016.[29]

         A motion to certify class[30] was filed on January 8, 2016, and dismissed as premature on June 2, 2016.[31] The District Attorney filed the instant motion to dismiss on May 5, 2016.[32] On October 10, 2016, the Attorney General filed a motion to intervene[33] and a motion to adopt the District Attorney's motion to dismiss and to file a supplemental memorandum, [34] both of which were granted.[35] Oral argument was held on February 16, 2017.[36]

         In their third amended complaint, Plaintiffs seek the certification of a class of all African-American citizens of Caddo Parish who are eligible to serve as jurors in criminal trials.[37] They also plead for the entry of declaratory judgments stating that: (1) the District Attorney has, and continues to, systematically exercise peremptory strikes in a discriminatory fashion; and (2) several provisions of the Louisiana law providing for the use of peremptory strikes are unconstitutional.[38] Plaintiffs further request a variety of kinds of injunctive relief aimed at enjoining any discriminatory use, and likely eliminating any use, of peremptory strikes by the District Attorney.[39] Finally, Plaintiffs Carter, Johnson, Horton, and Hawthorne seek an award of nominal and compensatory damages for violations of their constitutional rights.[40]

         II. LAW & ANALYSIS

         The District Attorney counters that: (1) Plaintiffs lack standing; (2) Plaintiffs' claims are moot; (3) the Court should abstain from exercising jurisdiction; (4) Plaintiffs' claims are barred by res judicata and collateral estoppel; (5) Plaintiffs have failed to state a claim under 18 U.S.C. § 243; (6) Plaintiffs' claims are barred by prosecutorial immunity; (7) Plaintiffs' claims are barred by qualified immunity; and (8) Plaintiffs' claims are barred by the Eleventh Amendment.[41]Additionally, the Attorney General argues that Plaintiffs have failed to state a claim under Fed.R.Civ.P. 8(a)(2). The Court will address each of these arguments in turn. However, a brief overview of the case law regarding the rights of prospective jurors will provide much needed context. A. Prospective Juror Rights

         1. Introduction

         The Fourteenth Amendment provides that "[n]o State shall. . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV. "[W]ith the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process." Powers v. Ohio, 499 U.S. 400, 407 (1991). The Supreme Court has found that "the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased person from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life." Id. at 409.

         "An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race." Id. However, as the Supreme Court explained in a previous case, "[d]efendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection." Carter v. Jury Comm'n of Greene Cnty., 396 U.S. 320, 329 (1970). "People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion." Id. Accordingly, the Powers Court found that "individual jurors subjected to racial exclusion have the legal right to bring suit on their own behalf." Powers, 499 U.S. 400 at 414 (citing Carter, 396 U.S. at 329-30).

         To begin, we refer to an observation by Justice Scalia, who stated that "the existence of such a right [by a challenged juror] would call into question the continuing existence of [peremptory strikes, ] a centuries-old system that has important beneficial effects." Powers, 499 U.S. at 426 (Scalia, J., dissenting). Truthfully, we have only begun to consider the possible, likely or probable consequences of a right which allows a challenged juror to claim damages. A few we can see clearly, however. Exactly how is such a claim or suit to be managed? Here, Plaintiffs want a class action in favor of all similarly situated persons. If a class were to be certified, how in the world would one determine the real reason why a particular juror was challenged on a particular day in a trial that is past? The question is especially poignant where the trial record does not reflect even a discussion of Batson v. Kentucky, 476 U.S. 79 (1986), or Powers as to a particular juror. Does it mean that the prosecutor, defense counsel or judge could be deposed in such a suit? Could they be required to disclose internal memos, trial notes or the like to determine (maybe) if there is some extra notation about a particular juror?

         Even if a system could be devised to allow for discovery and litigation of the claim, what is next? If, in the odd case, a plaintiff is able to make out such a claim, would it mean that a whole new method for collateral attack on a final conviction would be created thereby? At stake is the principle, at least given credence sometimes, that the public has a right to see that, at some point, a defendant in a criminal trial is fully and fairly convicted. See United States v. Frady, 456 U.S. 152, 175 (1982). And, what would be the remedy? A 28 U.S.C. § 2254 petition for inadequacy of counsel, or some other habeas corpus relief yet undeveloped or unheard of? In our view this is the most serious potential consequence, as it can mean that years later an otherwise sustainable prosecution may have to be completely redone because one juror convinced one jury, or judge in the event of a bench trial, that he/she was discriminated against.

         Moreover, we suggest that the simple answer to the concerns expressed has already been determined by the existence of the Batson remedy itself. While we certainly cannot be said to have the collective wisdom of the Supreme Court, we certainly could have read Powers as providing a mere extension to Batson without creating the legal fiction of third-party representation and without the language suggesting that the challenged venireperson has a separate right for damages.

         As we will discuss below, however, because of the Supreme Court's created rights language we believe we are bound by precedent to adjudicate part of the claims made in this suit, at least for the four Plaintiffs who claim to have been racially discriminated against.

         2. Batson, Powers, and the Equal Protection Clause

         In Batson v. Kentucky, the Supreme Court held that a State's privilege to strike individual jurors through peremptory challenges is subject to the Equal Protection Clause. 476 U.S. at 89. Thus, the Supreme Court explained, in a trial with a black criminal defendant the Equal Protection Clause forbids prosecutors from challenging "potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id. Batson left unresolved, however, whether a defendant could challenge the use of peremptory strikes exercised against venirepersons of another race.

         In Holland v. Illinois, a white defendant argued that the prosecutor's exercise of peremptory challenges to exclude black venirepersons from his petit jury violated his Sixth Amendment right to trial by an impartial jury. 493 U.S. 474, 475-76 (1990). The Supreme Court found that "[a] prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury." Id. at 478. Nonetheless, several Justices made clear that such a claim may have merit under the Equal Protection Clause. Id. at 488.

         The Supreme Court took up that very issue the next term in Powers. In that case, a defendant on trial for serious offenses in a state court raised an equal protection challenge to the State's use of peremptory strikes to remove a number of black jurors. Id. at 402-03. The majority was obviously troubled by the proposition that otherwise qualified venirepersons could be struck on the basis of race as long as they were a different race than the criminal defendant. Nonetheless, they had just foreclosed the Sixth Amendment as a bar to such conduct in Holland, and there was a manifest difficulty in allowing a white defendant to directly assert an equal protection claim challenging peremptory strikes against black venirepersons.

         Writing for the majority, Justice Kennedy articulated a legal framework through which it could prohibit the discriminatory use of peremptory strikes regardless of the race of the criminal defendant: allow the criminal defendant himself to raise the equal protection rights of a juror excluded from service in violation of these principles. Id. at 410. The Powers Court determined that it was appropriate to allow the criminal defendant to raise the prospective juror's legal rights because "[b]oth the excluded juror and the criminal defendant have a common interest in eliminating racial discrimination from the courtroom." Id. at 413. Thus, the Supreme Court held that "the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life." Id. at 409.

         A fundamental component of this analysis, of course, was the premise that "individual jurors subjected to racial exclusion have the legal right to bring suit on their own behalf." Id. at 414 (citation omitted). Again though, as Justice Scalia pointedly noted in his dissent, "we have never held, or even said, that a juror has an equal protection right not to be excluded from a particular case through peremptory challenge; and the existence of such a right would call into question the continuing existence of a centuries-old system that has important beneficial effects." Id. at 426 (Scalia, J., dissenting). Indeed, even the majority was quick to emphasize that "[a]s a practical matter, however, these challenges are rare." Id. at 414. Justice Kennedy cautioned that:

The barriers to a suit by an excluded juror are daunting. Potential jurors are not parties to the jury selection process and have no opportunity to be heard at the time of their exclusion. Nor can excluded jurors easily obtain declaratory or injunctive relief when discrimination occurs through an individual prosecutor's exercise of peremptory challenges. Unlike a challenge to systematic practices of the jury clerk and commissioners such as we considered in Carter, it would be difficult for an individual juror to show a likelihood that discrimination against him at the voir dire stage will recur. See Los Angeles v. Lyons, 461 U.S. 95, 105-110, 103 S.Ct. 1660, 1666-1670, 75 L.Ed.2d 675 (1983). And, there exist considerable practical barriers to suit by the excluded juror because of the small financial stake involved and the economic burdens of litigation. See Vasquez, supra, 474 U.S., at 262, n. 5, 106 S.Ct, at 623, n. 5; Rose v. Mitchell, supra, 443 U.S., at 558, 99 S.Ct, at 3001. The reality is that a juror dismissed because of race probably will leave the courtroom possessing little incentive to set in motion the arduous process needed to vindicate his own rights. See Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586(1953).

Id., at 414-15.

         We question whether the Powers Court seriously intended to allow suits such as this one to proceed. Nonetheless, because we are bound by precedent, we must now adjudicate some of these "rare" and "daunting" claims. We remain wary, however, of exactly what consequences, intended or otherwise, will flow from the adjudication of these novel claims.

         B. 12(b)(1) Motion to Dismiss

         The District Attorney argues that the Court lacks jurisdiction for the following reasons: (1) Plaintiffs lack standing; (2) their claims are moot; and (3) the Younger doctrine mandates that the Court abstain from adjudication of these claims. We begin with an analysis of whether the Court should abstain from exercising jurisdiction in this case. See O'Hair v. White, 675 F.2d 680, 684 n.5 (5th Cir. 1982) ("Although as a general matter courts should decide standing issues first, ... if an issue is clearly nonjusticiable for reasons other than lack of standing a court may make its decision without reaching the standing question.").

         Pursuant to Fed.R.Civ.P. 12(b)(1), a party may obtain dismissal of a claim for lack of subject-matter jurisdiction. In deciding a 12(b)(1) motion, the court may consider evidence outside of the pleadings and the attachments thereto. Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009). More specifically, "under Rule 12(b)(1), the court may find a plausible set of facts by considering any of the following: (1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (internal quotations marks omitted) (citation omitted). However, "no presumptive truthfulness attaches to the plaintiffs allegations, and the court can decide disputed issues of material fact in order to determine whether or not it has jurisdiction to hear the case." Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004).

         1. Abstention

         The District Attorney argues that the Court should abstain from exercising jurisdiction over this action pursuant to Younger v. Harris, 401 U.S. 37 (1971). Plaintiffs dispute that the Younger doctrine applies to this case and assert that the Court is required to exercise jurisdiction. At this juncture, it is necessary to expressly delineate what injunctive and declaratory relief Plaintiffs seek as it will affect the analysis of whether, and to what degree, abstention is appropriate in this case.

         a. Requested Injunctive and Declaratory Relief

         In addition to any damages claims, Plaintiffs seek the following declaratory relief: (1) a declaratory judgment that the District Attorney has employed, and continues to employ, a custom, usage, and/or policy to exercise peremptory challenges against African-American citizens because of their race, in order to empanel criminal trial juries that are predominantly white; and (2) a declaratory judgment that Article 795 (C), (D), and (E) of the Louisiana Code of Criminal Procedure violate the rights of qualified African-Americans to be free from discrimination on the basis of race in jury selection in criminal trials, to the extent that those sections: (i) allow a peremptory challenge to be exercised against a qualified African-American juror, even if race is part of the motivation for the jury strike, so long as some "race-neutral" reason is given for the challenge; and (ii) allow a peremptory challenge to be exercised against a qualified African-American juror on account of race, if both the District Attorney and the defendant's attorney strike the same juror.

         Plaintiffs seek the following injunctive relief as well: (1) a permanent injunction forbidding the District Attorney from exercising any peremptory challenges in criminal jury trials; (2) in the alternative, a preliminary injunction forbidding the District Attorney from exercising any peremptory challenges to strike otherwise qualified African-American jurors from jury service in criminal jury trials; (3) in the alternative, a permanent injunction forbidding the District Attorney to employ a custom, usage, and/or policy to exercise peremptory challenges against African-American citizens because of their race, in order to empanel criminal trial juries that are predominantly white; and finally, (4) a permanent injunction requiring the District Attorney to provide training to all attorneys and investigators of the office to prevent the use of peremptory challenges to discriminate against qualified African-American jurors in future criminal jury trials.

         b. Younger Abstention

         "In the main, federal courts are obliged to decide cases within the scope of federal jurisdiction." Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). An exception to this general principle was articulated in Younger, in which Supreme Court enshrined a longstanding federal policy against a federal court enjoining pending state criminal proceedings absent extraordinary circumstances. 401 U.S. 37. The Supreme Court "has extended Younger abstention to particular state civil proceedings that are akin to criminal prosecutions, see Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), or that implicate a State's interest in enforcing the orders and judgments of its courts, see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987)." Id. at 72-73. "Circumstances fitting within the Younger doctrine, we have stressed, are 'exceptional'; they include, as catalogued in [New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989)], 'state criminal prosecutions,' 'civil enforcement proceedings,' and 'civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions.'" Id. at 73.

         Both parties agree that abstention pursuant to Younger is only appropriate if three conditions are met: "(1) the federal proceeding would interfere with an 'ongoing state judicial proceeding'; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has 'an adequate opportunity in the state proceedings to raise constitutional challenges.'" Bice v. Louisiana Pub. Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Plaintiffs argue that neither the first element nor the third element has been satisfied in this case.

         The Court is aware of no ongoing state judicial proceedings in which any Plaintiff is a party. The District Attorney notes that the case in which Plaintiffs Carter and Johnson were discharged by his use of peremptory strikes was on appeal sometime during the pendency of this suit.[42] Even if that case remains on appeal, no Plaintiff is a party to that case.

         The District Attorney argues that the first element requiring a pending state judicial proceeding is nevertheless satisfied because the injunctive relief "would affect Defendant Stewart's ability to prosecute criminal cases."[43] In support of this position he cites Bice v. Louisiana Public Defender Board, 677 F.3d 712 (5th Cir. 2012), a case in which the Fifth Circuit affirmed the district court's decision to abstain under the Younger doctrine from a suit filed by a plaintiff challenging fees assessed to fund the Louisiana Public Defenders while he was being defended by a public defender in a municipal court proceeding. 677 F.3d at 715-16. The panel in Bice stated that:

The interference with ongoing state proceedings need not be direct to invoke Younger abstention. The Younger doctrine prevents federal courts from exercising jurisdiction when the relief requested "would indirectly accomplish the kind of interference that Younger v. Harris and related cases sought to prevent." O'Shea v. Littleton, 414 U.S. 488, 500, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (internal citation omitted). Interference is established "whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly." Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir.2002).

Id. at 717. The District Attorney further asserts that any such prospective relief "would constitute a major continuing intrusion of the equitable power of the federal courts into state criminal proceedings and would sharply conflict with the recognized principles of equitable restraint"[44]articulated by the Supreme Court in O'Shea v. Littleton, 414 U.S. 488 (1974).

         Arguments as to indirect interference do not change the simple fact that there is no evidence before the Court that any Plaintiff is a party to an ongoing state judicial proceeding, or that any Plaintiff anticipates being a party in a future state judicial proceeding for that matter. By way of contrast, the respondent in Younger was facing state criminal charges. In Middlesex County, the case that formulated the three-part Younger abstention test cited by both parties, the respondent was the subject of pending state disciplinary proceedings. In Bice, notwithstanding any discussion of indirect interference, there was no dispute that the petitioner was a party to an ongoing municipal court proceeding. These cases do not envision a federal court declining to exercise its jurisdiction on the basis of an ongoing state judicial proceeding to which the plaintiff seeking relief in federal court is not even a party. Finally, no Batson challenges were ever raised in regard to the dismissal of Plaintiffs Carter, Johnson, Horton, and Hawthorne, and because they were never parties in the state criminal proceedings from which they were struck as jurors they never had an opportunity to challenge the District Attorney's peremptory strikes. Accordingly, Plaintiffs are correct that neither the first nor third elements are met.

         Even though Younger is inapplicable to these facts, the District Attorney raises valid concerns regarding the principles articulated in O'Shea which demand further analysis.

         c. O 'Shea Abstention

         Younger and O'Shea are often conflated, for very understandable reasons. O'Shea extensively cites Younger, and both decisions are deeply concerned with issues such as federalism, comity, and equitable restraint. Not surprisingly, there is often significant overlap in the relevance of these landmark cases. In some circumstances, however, it may be necessary to treat them as closely related but distinct sources for abstention.

         In O'Shea, the respondents sought to enjoin prospective criminal prosecutions brought under seemingly valid state laws on the basis of allegedly discriminatory enforcement. 414 U.S. at 500. The Supreme Court framed the requested injunctive relief as "nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger v. Harris, supra, and related cases sought to prevent." Id. "A federal court should not intervene to establish the basis for future intervention that would be so intrusive and unworkable." Id. The O'Shea Court explained that even a "periodic reporting" system would "constitute a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity." Id. at 501. It further opined that such a scheme would offend principles of federalism and equitable restraint. Id. at 500-01. The availability of non-injunctive relief to respondents also weighed in favor of denying equitable relief. Id. at 504.

         Other courts have distinguished abstention under Younger and O'Shea. "[A]lthough Younger does not apply in the absence of pending proceedings, . .. the considerations underlying Younger [may still be] very much at play." Disability Rights New York v. New York, No. 17-2812-CV, 2019 WL 637972, at *3 (2d Cir. Feb. 15, 2019) (citations omitted). "O'Shea is an extension of the principles set forth in Younger." Id. Accordingly, several circuit courts have abstained ...

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