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United States Court of Appeals Fifth Circuit F I L E D In the July 9, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 06-31044 Summary Calendar _______________ KENNETH GAINES, Plaintiff-Appellant, VERSUS ARMANDO ASARO AND THE CITY OF NEW ORLEANS, Defendants-Appellees. _________________________ Appeal from the United States District Court for the Eastern District of Louisiana m 2:05-CV-707 ______________________________ Before SMITH, WIENER, and OWEN, the City of New Orleans under 42 U.S.C. Circuit Judges. § 1983 and Louisiana Civil Code article 2315. The district court granted summary judgment JERRY E. SMITH, Circuit Judge:* for the defendants, and we affirm. Kenneth Gaines sued Armando Asaro and I. In March 2004, Gaines entered a grocery store to purchase cigarettes. He was followed * Pursuant to 5TH CIR. R. 47.5, the court has by two masked men who ordered the employ- determined that this opinion should not be pub- ee behind the counter to “get down.” Upon lished and is not precedent except under the limited noticing the men, Gaines began moving slowly circumstances set forth in 5TH CIR. R. 47.5.4. toward the exit. One of the men then shot and killed the employee, and Gaines and both liable under article 2315 because the actions of assailants quickly left the store. The incident the officers constituted false arrest and battery. was captured by a surveillance camera. The district court granted summary judg- An enhanced version of the surveillance ment, finding that the evidence available to tape was played on the local news, and Gaines Asaro “most definitely” supported the decision was recognized by a New Orleans Police to arrest Gaines. That conclusion was based Department (“NOPD”) officer who also primarily on the surveillance tape and the fact worked as a security officer at Gaines’s place that Gaines did not immediately report the of employment. Homicide investigators shooting to police. showed the tape to Gaines’s supervisor, who confirmed his identity. When Gaines arrived at The court noted that the tape established work that evening, he agreed to go to the that Gaines entered and exited the store nearly police station for questioning and was trans- simultaneously with the assailants, who ap- ported there by three officers. peared to ignore him, did not give him any in- structions, and walked right past him on their Asaro, a NOPD officer, was designated the way to the counter. Gaines slowly backed up lead detective for the investigation of the mur- after the assailants reached the counter, and der. He took a statement from Gaines, who after the employee was shot, Gaines and both admitted that he was present at the shooting assailants quickly left the store. The court also but denied involvement in the crime. When found that, in light of the short time between asked why he did not call police after witness- the entry of Gaines and that of the assailants, ing the shooting, Gaines said that he had no it was highly likely that he had encountered telephone but had planned to contact police them outside the store, and thus his decision to after he arrived at work that evening. Asaro enter shortly before two masked men indicates also took statements from two witnesses who his involvement in the crime. had been outside the store at the time of the crime. Gaines was arrested on suspicion of II. having participated in the murder and was in- “This Court reviews grants of summary carcerated for two weeks, at which time a judgment de novo, applying the same standard judge found no probable cause for his arrest as the district court, viewing the evidence in a and ordered him released. light most favorable to the non-movant.” Fruge ex rel. Fruge v. Parker Drilling Co., This suit followed, with Gaines asserting
337 F.3d 558, 560 (5th Cir. 2003). Gaines that his arrest was made without probable claims that the court’s characterization of the cause in violation of the Fourth and Fourteenth surveillance tape was incorrect, that it improp- Amendments of the U.S. Constitution, and erly considered, in its analysis of probable thus that Asaro and the city are liable under cause, Gaines’s failure to report the crime § 1983.1 Gaines also claims defendants are immediately, and that it erred in finding that probable cause was not negated by Asaro’s 1 Before summary judgment was granted, 1 Gaines dismissed his claims against Walls, (...continued) (continued...) McCleary, Ward, and Chiasson. 2 failure to ask certain questions during his inter- gated because Asaro did not adequately ques- view of the witnesses. tion the two witnesses about Gaines’s involve- ment in the crime. Gaines cites cases from our After reviewing the tape, we agree with the sister circuits describing the general duty of district court’s characterization of it. Gaines law enforcement officers to conduct a rea- enters the store, and the masked men follow a sonable investigation of the available evidence few seconds later, before the door has swung before making an arrest. We are not bound by completely shut. The assailants ignored the decisions of other circuits and, in any Gaines, a potential witness to their crime; one event, Asaro did not run afoul of them. of them even bumped into him while ap- proaching the counter and did not react at all Gaines cites Moore v. Marketplace Rest., to the physical contact. Gaines slowly moved Inc.,
754 F.2d 1336(7th Cir. 1985), in which out of the way of the assailants and did not the court reversed a grant of summary judg- move quickly to leave the store until after the ment because it found insufficient evidence of shot had been fired, at which time all three probable cause for an arrest. The plaintiffs men exited simultaneously. As the district were arrested and jailed overnight for failing to court found, “[t]o say the least, Gaines’ ac- pay a restaurant bill that they claimed they had tions, when viewed in connection with the ac- offered to pay. The only evidence was the tions of the other two men, are suspicious.” accusation of the restaurant’s owner, and other than collecting this self-serving accusation, the Gaines contends that it was improper for police conducted no investigation. Gaines also the district court to give weight, in the proba- refers to Kuehl v. Burtis,
173 F.3d 646(8th ble cause analysis, to the fact that he did not Cir. 1999), in which an officer arrested the contact authorities. He bases this argument on plaintiff for assault after she pushed her way his claim that individuals in high crime areas around a man who had been threatening her to generally do not report crimes, and he sup- reach a phone and call for help. After she ports the claim by noting that the other wit- touched the man, he had hit her in the head, nesses did not come forward voluntarily. knocking her eight feet through the air and causing marked bruising. The officer ignored This does not, however, respond to the the plaintiff’s statements, her bruises, and court’s conclusion that Gaines was situated several witness accounts before arresting her differently from the other witnesses because for assault. they were outside the store at the time of the murder, but Gaines was only a few feet from By way of contrast, Asaro’s investigation the assailants. It was not error for the court to went beyond the interview of the two witness- consider, in the probable cause analysis, es. He had a videotape of the crime showing Gaines’s refusal to contact police after he had Gaines acting suspiciously in close proximity been in such close proximity to the gunman at to the murder and an admission from Gaines the time of the murder. that he did not immediately report the crime. Asaro also questioned the two witnesses, one Gaines claims that even if the tape, and his of whom described seeing Gaines. Though failure to report the crime immediately, estab- neither witness saw any communication be- lish probable cause, that cause should be ne- tween Gaines and the two assailants before or 3 after the incident, this does not negate the incriminating evidence that Asaro already pos- sessed. The fact that Asaro did not ask further questions about Gaines’s involvement does not negate the probable cause based on the evi- dence he had already obtained through his investigation. In sum, the district court’s characterization of the surveillance tape and of Gaines’s failure to contact police was not error, and Asaro’s failure to ask specific questions of the witness- es did not negate probable cause. Accord- ingly, we AFFIRM the summary judgment for essentially the reasons stated in the court’s order dated September 1, 2006.2 2 Gaines also claims that the court erred in find- ing that, even if probable cause was lacking, Asaro is entitled to qualified immunity. Because we decide Gaines’s first two claims against him and affirm the court’s finding that probable cause existed to arrest Gaines, we do not reach this issue. 4
Document Info
Docket Number: 06-31044
Citation Numbers: 246 F. App'x 244
Judges: Owen, Smith, Wiener
Filed Date: 7/9/2007
Precedential Status: Non-Precedential
Modified Date: 8/2/2023