Royce McLin v. Jason Ard

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30201 FILED
August 8, 2017
ROYCE DENTON MCLIN, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
JASON GERALD ARD, In his Individual and Official Capacity as Sheriff of
Livingston Parish; BENJAMIN THOMAS BALLARD, In his Individual and
Official Capacity as a Livingston Parish Sheriff's Office Detective; JACK R.
ALFORD, JR., In his Individual and Official Capacity as a Livingston Parish
Sheriff's Office Detective; STAN CARPENTER, In his Individual and Official
Capacity as a Livingston Parish Sheriff's Office Major; BRIAN P. SMITH, In
his Individual and Official Capacity as a Livingston Parish Sheriff's Office
Lieutenant Colonel; BONITA G. SAGER, In his/her Individual and Official
Capacity as a Livingston Parish Sheriff's Office Detective; WILLIAM
DORSEY, In his Individual and Official Capacity as a Livingston Parish
Sheriff's Office Deputy, also known as Willie; JAMES R. NORRED, JR., In
his Individual and Official Capacity as a Councilman, also known as Jim;
CYNTHIA G. WALE, In her Individual and Official Capacity as a
Councilwoman, also known as Cindy; CHANCE MCGREW PARENT, In his
Individual and Official Capacity as a Councilman,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.
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STEPHEN A. HIGGINSON, Circuit Judge:
Royce Denton McLin alleges that members of the Livingston Parish
Council and Livingston Parish Sheriff’s Office maliciously conspired to
prosecute him in retaliation for McLin’s online comments about certain Council
members. He contends that the Defendants obtained invalid arrest warrants,
to which McLin surrendered, and that, as a result, he was issued a
misdemeanor summons charging him with criminal defamation. After the
charges were dismissed, McLin sued the Defendants under 42 U.S.C. § 1983,
alleging violations of his First, Fourth, Fifth, and Fourteenth Amendment
rights. The district court dismissed all claims. McLin appeals the dismissal of
his First and Fourth Amendment claims. We AFFIRM.
I.
We recount the facts as alleged in McLin’s complaint. Sometime before
April 16, 2012, the Livingston Daily Times published an opinion piece titled
“Sue Happy Seven Councilmen,” which discussed complaints about the
Livingston Parish Council’s misuse of public funds. A URL link to the piece
was posted on a separate Facebook page maintained by the Livingston Daily
Times. The Facebook post was open to public comment. Using a pseudonym,
someone posted “critical comments” about three Council members—James R.
Norred, Jr., Cynthia G. Wale, and Chance McGrew Parent (the “Council
Defendants”). McLin alleges that the statements “merely constituted criticism
of official conduct of public officials.”
On April 20, 2012, Parent filed a report with the Livingston Parish
Sheriff’s Office (“LPSO”) alleging that the anonymous Facebook user had
“posted a comment in regards to numerous elected counsel [sic] members.” In
response, LPSO Detective Benjamin Thomas Ballard obtained subpoenas to
Facebook and Charter Communications. The subpoena responses linked
McLin’s home address to the Facebook account that posted the critical
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comments.
Ballard obtained a search warrant for McLin’s home, and he and LPSO
Detective Jack R. Alford, Jr. executed the search warrant on June 11, 2012.
Ballard and Alford confiscated electronic devices and equipment, and a forensic
analysis purportedly linked one of the confiscated computers to the anonymous
Facebook user.
Upon receiving this information, Ballard, Alford, and other officers
(together with Sheriff Jason Gerald Ard, the “Officer Defendants”), and the
Council Defendants (together with the Officer Defendants, the “Defendants”)
met on August 16, 2012, to discuss pursuing criminal charges against McLin.
Some of the officers urged that criminal defamation charges under Louisiana’s
criminal defamation statute—Louisiana Revised Statute § 14:47—were
warranted. The Council Defendants asked to pursue the charges against
McLin and “swore out criminal complaints” contending that they were each
subjected to criminal defamation as a result of comments McLin allegedly
posted to Facebook.
McLin alleges that these “arrest warrant affidavits” 1 were “materially
false.” According to McLin, the “false and misleading statements” contained in
the affidavits “originated, at least in part, from a self-serving and unreliable
‘review’ of illegally[ ]obtained evidence” by certain officers.” McLin alleges that
these “materially false statements were thereafter sponsored, ratified,
affirmed, supported, and relied upon” the officers. McLin further alleges that
the “facially[ ]invalid arrest warrants arose from the false statements made by
[the Defendants],” and that “the [Officer Defendants] conspired with the
1 The complaint refers to both sworn “criminal complaints” and “arrest warrant
affidavits.” Reading the complaint in a light most favorable to McLin, it appears that these
names refer to the same three documents that allegedly supported issuing the arrest
warrants.
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[Council Defendants] to create false and materially misleading arrest warrant
affidavits as the necessary predicate to securing a formal warrant for Mr.
McLin’s arrest.”
Based on the sworn criminal complaints, three warrants for McLin’s
arrest were issued on August 16, 2012. McLin learned of the charges, and later
that day, voluntarily surrendered at the sheriff’s office and signed a
misdemeanor summons pertaining to the three purported criminal defamation
violations. Four months later, an assistant district attorney dismissed the
charges.
II.
On August 16, 2013, McLin sued the Defendants for money damages
under 42 U.S.C. § 1983, 2 alleging First, Fourth, Fifth, and Fourteenth
Amendment violations, and several Louisiana state law claims. Specifically,
the complaint alleges that the Defendants maliciously investigated and
conspired to prosecute McLin in retaliation for McLin’s critical Facebook
comments.
The Council Defendants moved to dismiss the complaint pursuant to
Rule 12(b)(6), arguing that they were entitled to qualified immunity. The
district court granted the motion and dismissed McLin’s § 1983 First and
Fourth Amendment claims against the Council Defendants. The Officer
Defendants also moved to dismiss the complaint on the grounds of qualified
immunity. The district court granted the Officer Defendants’ motion as to
McLin’s First and Fourteenth Amendment claims and McLin’s Fourth
Amendment claim asserting an unconstitutional seizure. However, the district
court denied the motion as to McLin’s Fourth Amendment claim asserting an
2 McLin sued all parties in both their individual and official capacities. He also
brought § 1983 claims against the Livingston Parish Sheriff’s Office.
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unconstitutional search. The Officer Defendants appealed the district court’s
partial denial of their motion to dismiss. We found that the complaint failed to
allege the issuance of a search warrant and remanded for further proceedings,
including an opportunity for McLin to amend his complaint. McLin v. Ard, 611
F. App’x 806, 808–10 (5th Cir. 2015) (unpublished).
After remand, McLin filed an amended complaint. The Officer
Defendants again moved to dismiss. On February 5, 2016, the district court
granted the Officer Defendants’ motion to dismiss, and entered final judgment
for all the Defendants on all claims.
McLin appealed. He argues that that district court erred in dismissing
his First and Fourth Amendment § 1983 claims against the Defendants.
III.
We review de novo the district court’s grant of a motion to dismiss. Loupe
v. O’Bannon, 824 F.3d 534, 536 (5th Cir. 2016) (citing Martin K. Eby Constr.
Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive
a motion to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Phillips
v. City of Dallas, 781 F.3d 772, 776 (5th Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). In reviewing the complaint, we “draw all inferences
in favor of the nonmoving party, and view all facts and inferences in the light
most favorable to the nonmoving party.” Club Retro, L.L.C. v. Hilton, 568 F.3d
181, 194 (5th Cir. 2009). Legal conclusions, however, are not entitled to an
assumption of truth and must be supported by factual allegations. Iqbal, 556
U.S. at 678–79. Thus, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (citing Iqbal, 556 U.S. at 678). When the motion to dismiss
raises the defense of qualified immunity, the plaintiff “must plead specific facts
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that both allow the court to draw the reasonable inference that the defendant
is liable for the harm . . . alleged and that defeat a qualified immunity defense
with equal specificity.” Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014)
(quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)).
“The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed
to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
To defeat a claim of qualified-immunity, the plaintiff has the burden to
demonstrate the inapplicability of the defense. Atteberry v. Nocona Gen. Hosp.,
430 F.3d 245, 253 (5th Cir. 2005). The plaintiff must show “(1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.” Whitley v. Hanna, 726 F.3d
631, 638 (5th Cir. 2013) (internal quotation marks omitted) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 735 (2011)). “Courts have discretion to decide which
prong of the qualified-immunity analysis to address first.” Morgan, 659 F.3d
at 371 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
IV.
McLin argues that the district court erred in dismissing his § 1983
Fourth Amendment claim. He contends that he was unreasonably “seized”
when he surrendered to arrest warrants issued without probable cause. The
Defendants respond that the issuance of the arrest warrants broke the causal
chain, immunizing the Defendants from liability. Alternatively, the
Defendants respond that McLin’s voluntary surrender to the arrest warrants
did not constitute a seizure, and McLin therefore failed to state a constitutional
violation.
A.
We first address whether issuance of the arrest warrants insulates the
Defendants from civil liability on McLin’s Fourth Amendment claim. Because
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McLin adequately pleads that the Defendants submitted false and misleading
affidavits for the purpose of obtaining arrest warrants, we hold that issuance
of the warrants does not insulate the Defendants.
“It is well settled that if facts supporting an arrest are placed before an
independent intermediary such as a magistrate or grand jury, the
intermediary’s decision breaks the chain of causation for false arrest,
insulating the initiating party.” Deville v. Marcantel, 567 F.3d 156, 170 (5th
Cir. 2009) (citing Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled
on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003)
(en banc)). “[T]he initiating party may be liable for false arrest,” however, “if
the plaintiff shows that the ‘deliberations of that intermediary were in some
way tainted by the actions of the defendant.’” Id. (quoting Hand v. Gary, 838
F.2d 1420, 1428 (5th Cir. 1988)). But, “because the intermediary’s
deliberations protect even officers with malicious intent,” a plaintiff must show
that the official’s malicious motive led the official to withhold relevant
information or otherwise misdirect the independent intermediary by omission
or commission. Buehler v. City of Austin/Austin Police Dep’t., 824 F.3d 548,
555 (5th Cir. 2016) (citing Hand, 838 F.2d at 1427).
We have previously held that “mere allegations of ‘taint,’ without more,
are insufficient to overcome summary judgment.” Cuadra v. Hous. Indep. Sch.
Dist., 626 F.3d 808, 813 (5th Cir. 2010); see, e.g., id. at 813–14 (finding no “fact
issue” regarding whether appellees tainted the decision of two grand juries to
return indictments); Taylor, 36 F.3d at 456–57 (finding that plaintiffs
presented no summary judgment evidence showing that the intermediary was
tainted by the actions of the defendants); Buehler, 824 F.3d at 555–56 (finding
no error in district court summary judgment ruling that appellant “failed to
show a triable issue whether the grand jury’s findings of probable cause were
obtained by false or misleading statements by the arresting officers”). We have
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not, however, addressed the “taint exception” at the motion to dismiss stage
where the standard is more permissive: a court must accept all factual
allegations as true, and the complaint must state only a plausible claim.
Phillips, 781 F.3d at 776. Thus, although our precedent demonstrates that
“mere allegations of ‘taint’” are insufficient at summary judgment, Cuadra, 626
F.3d at 813, such allegations may be adequate to survive a motion to dismiss
where the complaint alleges other facts supporting the inference. 3
McLin alleges that three arrest warrants were issued 4 on the basis of the
Council Defendants’ affidavits, which were based on information and advice
provided by the Officer Defendants. According to the complaint, the
Defendants, at several “individual and collective meetings” convened “for the
purposes of discussing the pursuit of criminal charges against [McLin],”
“conspired . . . to create false and materially misleading arrest warrant
affidavits as the necessary predicate to securing” arrest warrants. Ballard
purportedly drafted three “fatally flawed” arrest warrants falsely alleging
3 District courts in this circuit have denied motions to dismiss on these grounds,
finding the resolution of such factual disputes more proper for summary judgment. See
Sullivan v. Chastain, No. Civ.A.SA04CA0803XR, 2005 WL 354032, at *3 (W.D. Tex. Jan. 4,
2005) (denying motion to dismiss on qualified immunity grounds where the plaintiff alleged
that the defendant officer swore to a complaint that was without personal knowledge or
probable cause); Bustamante v. Christian, No. 3:96-CV-2299D, 1997 WL 42530, at *5 (N.D.
Tex. Jan. 29, 1997) (“Because [the plaintiff] maintains that the indictment was a product of
false and misleading testimony, the court cannot say in the context of Rule 12(b)(6) that the
indictment absolutely bars [plaintiff’s] claim that defendants caused her false arrest.”). But
see Saturn v. Barnett, No. A-16-CA-505-LY, 2016 WL7392240, *4 (W.D. Tex. Dec. 12, 2016)
(holding that the plaintiff failed to plead the taint exception because he “failed to identify any
actual material false statements in [the officer’s] sworn statement, only offering his own
conclusory beliefs of their falsity”); but cf. Goodarzi v. Hartzog, No. H-12-2870, 2013 WL
3110056, at *12, 21 (S.D. Tex. June 14, 2013) (dismissing false arrest claims without prejudice
where there was “no evidence of precisely what was said to the [independent intermediary],”
but the court found “substantial questions” about whether the defendant was insulated from
liability).
4 Although the complaint does not specifically allege who reviewed the affidavits and
issued the warrants, Louisiana law provides that a warrant of arrest may be issued by any
“magistrate,” which is defined to include any judge, justice of the peace, or a mayor of a
mayor’s court. La. Code Crim. Proc. art. 202; id. art. 931(4).
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“misconduct” by McLin. The Council Defendants signed “materially false”
arrest warrant affidavits, which were thereafter “sponsored, ratified, affirmed,
supported, and relied upon” by the Officer Defendants. More specifically,
McLin alleges that the Officer Defendants knew that McLin’s speech was
constitutionally protected, and that none of the Council Defendants “ever
possessed any information which would be sufficient to swear out affidavits”
alleging a violation of § 14:47. Further, McLin alleges that his arrest was
“effected based in whole or in part upon the material misrepresentations,
errors, omissions, and other inaccuracies” made by the Officer Defendants.
Viewing these allegations in a light most favorable to McLin and drawing
all appropriate inferences, the complaint pleads facts supporting the taint
exception sufficient to survive a motion to dismiss. According to McLin, the
Facebook comments criticized the official conduct of public officials. McLin
further alleged that, with knowledge that such speech does not constitute
criminal defamation, the Defendants met for the purpose of conspiring to
create false and misleading affidavits in order to obtain warrants for McLin’s
arrest. Finally, McLin alleged that the arrest warrants were issued on the
basis of the falsified affidavits. Accordingly, we hold that the arrest warrants
do not insulate the Defendants from liability at this stage because McLin
pleads that the Defendants’ false and misleading affidavits tainted the
magistrate’s deliberations.
B.
We next consider whether McLin alleges an unreasonable seizure under
the Fourth Amendment. McLin contends that he was “seized” when he
voluntarily surrendered to the arrest warrants at the sheriff’s office and signed
a misdemeanor summons pertaining to the three purported criminal
defamation violations. McLin further argues that his seizure was
unreasonable—and therefore unconstitutional—because the Defendants
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lacked probable cause to arrest him.
1.
A person is “seized” for Fourth Amendment purposes “when the officer,
by means of physical force or show of authority, has in some way restrained
the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968). 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.”
Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)). The reasonable-person test is objective
and ensures “that the scope of Fourth Amendment protection does not vary
with the state of mind of the particular individual” claiming a violation. Id. at
574. Physical force is not required to effect a seizure; however, absent physical
force, “submission to the assertion of authority” is necessary. California v.
Hodari D., 499 U.S. 621, 626 (1991).
Thus, seizures have been found when an encounter is precipitated
by a show of authority, such as when a siren was used to pull a
motorist over; when a motorist stepped out of his camper, with his
hands up, in response to an officer’s knock on the camper door; or
when under other circumstances it was ‘apparent . . . that the
individual was not free to ignore the officer and proceed on his
way.’
United States v. Elmore, 595 F.2d 1036, 1041 (5th Cir. 1979) (citations
omitted).
Substantial authority from both the Supreme Court and our court
establishes that voluntary submissions to a show of state authority can
constitute seizures for Fourth Amendment purposes. 5 Consistent with this
5See, e.g., Brower v. County of Inyo, 489 U.S. 593, 597–98 (1989) (“If the revenue agent
had shouted, ‘Stop and give us those bottles, in the name of the law!’ and the defendant and
his accomplice had complied . . . a Fourth Amendment seizure would have occurred.”); id. at
598–99 (“[A] roadblock that is designed to give the oncoming driver the option of a voluntary
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authority, the Supreme Court’s divided opinion in Albright v. Oliver, 510 U.S.
266 (1994) suggests that voluntary surrender to an arrest warrant constitutes
a seizure under the Fourth Amendment. In Albright, upon learning of an
outstanding warrant for his arrest on drug charges, Albright surrendered to a
city police detective. Id. at 268. Albright was released after posting bond. Id.
After the court dismissed the criminal action, Albright brought a § 1983 suit
against the police detective for violating his substantive due process rights
under the Fourteenth Amendment. Id. at 269. Although the Court affirmed the
district court’s dismissal of the case on other grounds, seven Justices
characterized Albright’s voluntary surrender to the arrest warrant as a Fourth
Amendment seizure. Chief Justice Rehnquist’s plurality opinion (joined by
Justices O’Connor, Scalia, and Ginsburg) observed that the plaintiff’s
“surrender to the State’s show of authority constituted a seizure for purposes
of the Fourth Amendment.” Id. at 271 (noting that Albright did not claim a
violation of the Fourth Amendment); see also id. at 276 (Ginsburg, J.,
concurring) (“Albright’s submission to arrest unquestionably constituted a
seizure for purposes of the Fourth Amendment.”). In a concurring opinion,
stop” could cause a seizure because “it [is] enough for a seizure that a person be stopped by
the very instrumentality set in motion or put in place in order to achieve that result.”); Evans
v. Ball, 168 F.3d 856, 861 (5th Cir. 1991) (finding the plaintiff seized when he voluntarily
appeared in court in response to a summons and then was released on his own recognizance
subject to pre-trial restrictions), abrogated on other grounds by Castellano v. Frogozo, 352
F.3d 939 (5th Cir. 2003) (en banc); United States v. Shabazz, 993 F.2d 431, 433–34 (5th Cir.
1993) (finding “no question” that a seizure occurred when defendants were pulled over by
officers for exceeding the speed limit); accord United States v. Nicholas, 448 F.2d 622, 624
(8th Cir. 1971) (finding a “clear” seizure “when the officers stationed themselves on either
side of Nicholas’s car and flashed their badges” “[e]ven though Nicholas may have been
physically free to drive away”); United States v. Ward, 488 F.2d 162, 168–69 (9th Cir. 1973)
(finding a “clear” seizure where agents “turned on the siren in their unmarked car and
motioned the [motorist] to go around the corner and stop,” and the motorist “immediately
complied”); White v. Wright, 150 F. App’x 193, 195, 197–98 (4th Cir. 2005) (unpublished)
(finding the plaintiff seized where he “voluntarily turned himself in after the [criminal grand
jury] indictment was returned,” and was detained briefly for fingerprinting and processing
before being released subject to conditions in a bond).
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Justice Souter also observed the “Fourth Amendment seizure that followed
when [Albright] surrendered himself into police custody.” Id. at 289 (Souter,
J., concurring in judgment). Likewise, Justice Stevens’s dissenting opinion,
which was joined by Justice Blackmun, recognized Albright’s “initial seizure.”
Id. at 307 (Stevens, J., dissenting).
Albright’s statements on the Fourth Amendment seizure issue, which
were not essential to that case’s outcome, are non-binding though indicative,
and our court has never decided whether voluntary surrender to an arrest
warrant constitutes a seizure. Several other circuit courts, however, have
relied on Albright to hold that a state official’s acceptance of a voluntary
surrender to an arrest warrant constitutes a seizure. In Whiting v. Traylor, the
plaintiff brought a § 1983 action for malicious prosecution after he voluntarily
surrendered to an arrest warrant that he claimed lacked probable cause. 85
F.3d 581, 583 (11th Cir. 1996). Upon turning himself in, the plaintiff was
detained overnight and then released on bond. Id. In vacating the district
court’s dismissal of the suit, the Eleventh Circuit found that the plaintiff’s
“initial surrender” was a seizure because “he subjected himself physically to
the force of the state in response to an arrest warrant.” Id. at 586 & n.6.
Likewise, the Tenth Circuit recently considered the § 1983 claim of a
plaintiff who, after learning of his arrest warrant, turned himself into the local
jail. Goad v. Town of Meeker, 654 F. App’x 916, 921 (10th Cir. 2016)
(unpublished). On review of the district court’s grant of summary judgment,
the court held that the plaintiff’s “surrender to the State’s show of authority
constituted a seizure for purposes of the Fourth Amendment.” Id. (quoting
Albright, 510 U.S. at 271) (plurality opinion)); see also Cummisky v. Mines, 248
F. App’x 962, 964, 965 n.1 (10th Cir. 2007) (unpublished) (noting that the
plaintiff was seized when, after learning about the warrant issued for his
arrest, he surrendered at the police station; was photographed and
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fingerprinted; and then allowed to leave after posting bond). 6
Here, McLin alleges that three warrants were issued for his arrest, and
that he “learned of the (false) charges and voluntarily surrendered unto the
Livingston Parish Sheriff’s Office . . . and Defendant Ballard” later that same
day. At the sheriff’s office, McLin signed a misdemeanor summons for the three
alleged criminal charges and then left. Issuance of the arrest warrants was a
“show of authority,” see Terry, 392 U.S. at 19 n.16, and McLin submitted to
that authority by voluntarily surrendering at the sheriff’s office. See Hodari,
499 U.S. at 626; Whiting, 85 F.3d at 585 n.6. At the moment the officer(s)
accepted McLin’s surrender by exercising authority consistent with those
warrants, no “reasonable person would have believed that he was . . . free to
leave.” Mendenhall, 446 U.S. at 554; see also United States v. Jaras, 86 F.3d
383, 390 (5th Cir. 1996) (“It is well established that a defendant’s mere
acquiescence to a show of lawful authority is insufficient to establish voluntary
consent.”); Albright, 510 U.S. at 271 (plurality opinion); Goad, 654 F. App’x at
921.
The Defendants argue that McLin fails to plead a seizure because he does
not allege that his pre-trial liberty was limited. In support, they point to cases
where courts have ruled that the issuance and receipt of a criminal summons
6 A number of district courts have also determined that acceptance of a voluntary
surrender to an arrest warrant constitutes a seizure under the Fourth Amendment. See
Garrett v. Stanton, No. 08-0175-WS-M, 2009 WL 4258135, at *6 (S.D. Ala. Nov. 19, 2009)
(observing the “considerable authority . . . finding that self-surrender upon issuance of a
warrant constitutes a Fourth Amendment seizure” and finding that that “[c]learly . . . Garrett
was seized for Fourth Amendment purposes when she surrendered to law enforcement
authorities upon issuance of an arrest warrant”); Groom v. Fickes, 966 F. Supp. 1466, 1474–
75 (S.D. Tex. 1997) (holding that the plaintiff pleaded a Fourth Amendment violation when
it was “obvious that the plaintiff surrendered to the government’s show of authority, i.e., in
response to the criminal indictment”); see also Pomykacz v. Borough of West Wildwood, 438
F. Supp. 2d 504, 512 (D.N.J. 2006) (finding a Fourth Amendment seizure when “police officers
showed their authority” by going to the plaintiff’s house “to advise her that a warrant for her
arrest had been issued” and the plaintiff thereafter “submitted to that authority when she
appeared at the police station”).
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or citation—without the imposition of additional, pre-trial restrictions—may
not implicate the Fourth Amendment. 7 If, however, the summons or citation is
accompanied by more burdensome restrictions—such as restrictions on out-of-
state travel and pre-trial reporting requirements—some courts, including this
one, have recognized that a seizure may occur incident to a pre-trial release.
See Karam, 352 F.3d at 1193–94. In Evans v. Ball, this court held that issuing
a summons, “coupled with the requirements that [the plaintiff] obtain
permission before leaving the state, report regularly to pretrial services, sign
a personal recognizance bond, and provide federal officers with financial and
identifying information, diminished his liberty enough to render him seized
under the Fourth Amendment.” 168 F.3d at 861.
The Defendants’ reliance on cases concerning seizures incident to pre-
trial release is misplaced. McLin’s Fourth Amendment claim does not stem
from any conditions imposed on him once he was issued the summons. Indeed,
McLin does not plead any pre-trial restrictions at all. Rather, McLin’s seizure
occurred when he surrendered to the arrest warrants and LPSO exercised
authority consistent with the warrants—even if McLin thereafter signed his
summons and was allowed to leave. The existence or non-existence of any pre-
7 See, e.g., Bielanski v. Cty. of Kane, 550 F.3d 632, 642 (7th Cir. 2008) (“No court has
held that a summons alone constitutes a seizure, and we conclude that a summons alone does
not equal a seizure for Fourth Amendment purposes.”); Martinez v. Carr, 479 F.3d 1292, 1299
(10th Cir. 2007) (“[T]he mere issuance of a citation requiring presence at future legal
proceedings does not qualify as a constitutional ‘seizure’ . . . .”); DiBella v. Borough, 407 F.3d
599, 603 (3rd Cir. 2005) (finding no seizure where plaintiffs were issued summonses, but
never were arrested, never posted bail, and never were subject to any travel restrictions or
pre-trial reporting requirements); Karam v. City of Burbank, 352 F.3d 1188, 1191, 1194 (9th
Cir. 2003) (finding no seizure where no arrest warrant issued and “all [plaintiff] had to do
was show up for court appearances and obtain permission from the court if she wanted to
leave the state”); Britton v. Maloney, 196 F.3d 24, 30 (1st Cir. 1999) (“Absent any evidence
that Britton was arrested, detained, restricted in his travel, or otherwise subject to a
deprivation of liberty before the charges against him were dismissed, the fact that he was
given a date to appear in court is insufficient to a establish a seizure within the meaning of
the Fourth Amendment.”).
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trial restrictions does not impact the analysis of this seizure. 8 The Defendants
have not pointed to a case in which a court found that a person surrendering
to an arrest warrant was not seized for Fourth Amendment purposes.
Moreover, in other voluntary surrender contexts—traffic stops, for example—
it makes no difference whether further restrictions follow the initial moment
of seizure. See, e.g. Delaware v. Prouse¸ 440 U.S. 648, 653 (1979) (“[S]topping
an automobile and detaining its occupants constitute a ‘seizure’ . . . even
though the purpose of the stop is limited and the resulting detention quite
brief.”). We therefore hold that McLin pleads that he was seized under the
Fourth Amendment.
2.
Having held that McLin pleads a Fourth Amendment seizure, we must
next determine whether such seizure was unreasonable and thus a
constitutional violation. See Elkins v. United States, 364 U.S. 206, 222 (1960)
(“[W]hat the Constitution forbids is not all searches and seizures, but
unreasonable searches and seizures.”). McLin’s seizure occurred when he
surrendered to an arrest warrant, the issuance of which required probable
cause. Thus, for McLin to allege an unreasonable seizure, his allegations must
make plausible that the Defendants lacked probable cause to arrest him.
“[P]robable cause is the ‘sum total of layers of information and the synthesis of
what police have heard, what they know, and what they observed as trained
8 See, e.g., Whiting, 85 F.3d at 585 n.6 (focusing on the plaintiff’s “initial surrender”
as the moment of seizure because “he subjected himself physically to the force of the state in
response to an arrest warrant”); Goad, 654 F. App’x at 921 (finding a seizure where the
plaintiff surrendered to an arrest warrant and was immediately booked and released, with
no mention of pre-trial restrictions); Garrett, 2009 WL 4258135 at *4, 6 (finding a seizure
where the plaintiff was subject to no pre-trial restrictions after surrendering and
immediately bonding out); see also Albright, 510 U.S. at 271 (plurality opinion) (“[Plaintiff’s]
surrender to the State’s show of authority [the arrest warrant] constituted a seizure for
purposes of the Fourth Amendment”).
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officers.’” United States v. Shaw, 701 F.2d 367, 376 (5th Cir. 1983) (quoting
United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en banc)).
In Garrison v. Louisiana, the Supreme Court held that the Louisiana
criminal defamation statute, La. Stat. 14:47, is unconstitutional “in the context
of criticism of the official conduct of public officials.” 379 U.S. 64, 77 (1964).
The court explained that only “false statement[s] ‘made with actual malice—
that is, with knowledge that it was false or with reckless disregard of whether
it was false or not’”—are unprotected under the First Amendment and validly
subject to criminal prosecution. Id. at 67 (quoting N.Y. Times Co. v. Sullivan,
376 U.S. 254, 279–80 (1964)). The Louisiana statute runs afoul of this
limitation because it “punishes false statements without regard to that test if
made with ill-will; even if ill-will is not established, a false statement
concerning public officials can be punished if not made in the reasonable belief
of its truth.” Id. at 78. Following Garrison, the Louisiana Supreme Court also
recognized the unconstitutionality of the statute when it circumscribes speech
about public officials. See State v. Defley, 395 So. 2d 759, 761 (La. 1981) (“LSA-
R.S. 14:47 is unconstitutional insofar as it punishes public expression about
public officials.”); State v. Snyder, 277 So. 2d 660, 665 (La. 1972) (“[A] charge
of defamation is well founded as to these [public officials] only when the
statement was made with actual malice, that is, with knowledge that it was
false or with reckless disregard of whether it was false or not.”).
The factual allegations in McLin’s complaint sufficiently plead that the
Defendants lacked probable cause to prosecute McLin for violating the
Louisiana criminal defamation statute. McLin alleges that the anonymous
Facebook comments—posted to a news story about Council members and the
Council’s misuse of public funds—did not amount to criminal defamation but
rather “merely constituted criticism of official conduct of public officials.”
Speech criticizing the official conduct of public officials is protected by the First
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Amendment and does not constitute criminal defamation. See Defley, 395 So.
2d at 761; Snyder, 277 So. 2d at 665. McLin further alleges that, upon linking
the comments to him, and with knowledge that McLin’s comments were
protected by the First Amendment, the Defendants met and conspired to create
falsified affidavits for the purpose of obtaining arrest warrants on charges of
criminal defamation. See Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987)
(“[A]n officer charged with enforcing Louisiana law[] can be presumed to know
that law.”). On these facts, which must be taken as true, we conclude that
McLin’s complaint adequately alleges an unreasonable seizure because the
Defendants could not have believed they had probable cause to arrest him. See
Spiller v. City of Tex. City Police Dep’t, 130 F.3d 162, 165–66 (5th Cir. 1997)
(holding that the plaintiff pleaded a Fourth Amendment claim where “the
events alleged in [her] complaint did not provide [the officer] with probable
cause to believe that [her speech] was likely to incite an immediate breach of
the peace,” and so “her arrest for disorderly conduct was not supported by
probable cause”).
C.
Although we hold that McLin pleads a Fourth Amendment violation, the
Defendants are still entitled to qualified immunity unless the particular
constitutional right at issue was “clearly established.” “When considering a
defendant’s entitlement to qualified immunity, we must ask whether the law
so clearly and unambiguously prohibited his conduct that ‘every reasonable
official would understand that what he is doing violates [the law].’” Morgan,
659 F.3d at 371 (quoting al-Kidd, 563 U.S. at 741); see also Lane v. Franks, 134
S. Ct. 2369, 2381 (2014) (noting that the right must be clearly established “at
the time of the challenged conduct”). “To answer that question in the
affirmative, we must be able to point to controlling authority—or a robust
consensus of persuasive authority—that defines the contours of the right in
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question with a high degree of particularity.” Morgan, 659 F.3d at 371–72
(internal quotation marks omitted) (quoting al-Kidd, 563 U.S. at 742); see also
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (“The dispositive question is
whether the violative nature of particular conduct is clearly
established.” (internal citation and quotation omitted)). “Where no controlling
authority specifically prohibits a defendant’s conduct, and when the federal
circuit courts are split on the issue, the law cannot be said to be clearly
established.” Morgan, 659 F.3d at 372.
Here, we cannot say that every reasonable officer would understand that
McLin was seized for purposes of the Fourth Amendment. To date, neither the
Supreme Court nor the Fifth Circuit has decided that an officer’s acceptance of
a voluntary surrender to an arrest warrant constitutes a Fourth Amendment
seizure. And there is no a “robust consensus of persuasive authority”: only one
circuit—the Eleventh—has found a seizure in these circumstances in a
published opinion, and a majority of circuit courts have not yet weighed in.
Although we now hold that McLin was seized, reasonable officers might not
have understood that accepting McLin’s surrender to the arrest warrants,
without imposing further pre-trial restrictions, constituted a seizure.
We therefore hold that McLin fails to plead a violation of a “clearly
established” constitutional right, and we affirm the district court’s grant of
qualified immunity to the Defendants and dismissal of McLin’s Fourth
Amendment claim on that basis.
V.
McLin also argues that the district court erred in dismissing his First
Amendment retaliation claim. He alleges that the Defendants violated his
First Amendment rights by retaliating against him for making critical public
comments about Council members. The district court determined that McLin
failed to state a claim because he failed to allege an injury that would chill a
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person of ordinary firmness from continuing to engage in protected speech.
ROA.70–73. We offer no opinion on the correctness of the district court’s
determination because we find that the complaint is deficient for another
reason: McLin fails to plead that the Defendants’ retaliatory conduct actually
curtailed his speech.
“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.” Keenan v. Tejeda,
290 F.3d 252, 258 (5th Cir. 2002). To prevail on a § 1983 claim for First
Amendment retaliation, McLin must show that “(1) [he] was engaged in
constitutionally protected activity[;] (2) the defendant’s actions caused [him] to
suffer an injury that would chill a person of ordinary firmness from continuing
to engage in that activity[;] and (3) the defendant’s adverse actions were
substantially motivated [by] the constitutionally protected conduct.” Id. 9 The
second element “requires some showing that the plaintiff’s exercise of free
speech has been curtailed.” Id. at 259 (citing Suarez Corp. Indus. v. McGraw,
202 F.3d 676, 686 (4th Cir. 2000); Spear v. Town of West Hartford, 954 F.2d
63, 67 (2d Cir. 1992); Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989)). 10 “A
required showing of actual injury does not necessarily mean that plaintiffs
must cease criticizing the government officials altogether in order to have a
claim for retaliation.” Id. at 260. “The effect on freedom of speech may be small,
but since there is no justification for harassing people for exercising their
9 Additionally, “retaliatory criminal prosecutions in violation of the First Amendment
are actionable only if a plaintiff can also prove the common-law elements of malicious
prosecution . . . .” Keenan, 290 F.3d at 260.
10 In Linzy v. Cedar Hill Independent School District, issued only a few weeks after
Keenan, the court noted that “[o]ur precedent does not appear to expressly require a showing
that a plaintiff’s speech has been actually inhibited by the retaliation.” No. 01-11145, 2002
WL 1021883, at *1 n.7 (5th Cir. May 9, 2002) (unpublished). The Linzy opinion fails to
mention Keenan, and is unpublished and thus not binding. See 5th Cir. R. 47.5.
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constitutional rights it need not be great in order to be actionable.” Id. at 259
(quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). 11 In Keenan, the
court found that the plaintiffs demonstrated curtailment when they asserted
that they “backed off from direct involvement in helping expose unlawful
practices in the constable’s office,” even though at least one plaintiff continued
to investigate and file complaints about such practices. Id. at 260 (internal
quotations omitted).
Here, McLin argues that he satisfied the curtailment requirement by
pleading that “he suffered ‘great personal damage’ from the Defendants’
actions, including a violations [sic] of his First Amendment rights.” From these
minimal allegations, McLin urges the court to infer that he “actually suffered
a curtailment of his speech.”
Even drawing all appropriate inferences in favor of McLin, these
allegations are insufficient to allege curtailment of McLin’s speech. The
assertion that McLin suffered “violations of his First Amendment rights” is a
legal conclusion and is not entitled to an assumption of truth. See Iqbal, 556
U.S. at 678–79. McLin is left with an allegation of “great personal damage,”
which does not demonstrate that he reduced or changed his exercise of free
speech in any way. See Spear, 954 F.2d at 67 (finding that a plaintiff’s
allegation of a chill “was conclusory and speculative” when “[t]he complaint
offered nothing beyond a bare assertion that the lawsuit cause[ed] a chilling
effect upon his First Amendment rights”); Mills v. Bogalusa, No. 13-5477, 2014
WL 2993426, at *4 (E.D. La. Jul. 2, 2014) (dismissing retaliation claim where
11The requirement that a retaliation claim show some curtailment of the plaintiff’s
speech has been criticized by some circuit courts because it punishes the brave plaintiff.
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999) (“[I]t would be
unjust to allow a defendant to escape liability for a First Amendment violation merely
because an unusually determined plaintiff persists in his protected activity.”); Smith v. Plati,
258 F.3d 1167, 1177 (10th Cir. 2011) (citing Mendocino approvingly).
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plaintiff failed to plead “specific facts showing actual curtailment in response
to defendants’ allegedly retaliatory activity”). Notably, McLin’s complaint
appears to be carefully drafted to avoid explicitly admitting that he was the
anonymous commentator, and accordingly, he never alleges that the
Defendants’ conduct stopped him from speaking further. 12 Thus, the district
court did not err by dismissing McLin’s First Amendment claim.
VI.
For the foregoing reasons, we AFFIRM the judgment of the district court.
12 The complaint repeatedly refers to “certain comments and statements alleged to
have been posted . . . by Mr. McLin,” and states that “Defendants . . . alleged Mr. McLin
created an anonymous Facebook profile / account and used the said account to post
disparaging comments . . . .”
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