Title: In Louisiana, Threatening to File a Complaint Against Police Can Lead to a Five-Year Prison Sentence

But it didn't happen at all. The higher courts are chewing up this unconstitutional law.

So this is #FakeNews, by definition.

I don't know why you bother to post this kind of worthless clickbait with deceptive titles constantly. Your schtick is well-known here; no one is much impressed.

Source: FromThe Kooks/In FakeNewsToday

What would the old koot do, if he wasn’t provided a FREE 24/7 venue to propagate FEAR to sell his pro drug, anti cop agenda?

lol

What would the old koot do, if he wasn’t provided a FREE 24/7 venue to propagate FEAR to sell his pro drug, anti cop agenda?

But where is the payoff really? A forum with maybe 15-20 regular posters and only about half of them are Deckard's fellow-kooks. So he goes to a lot of work to find and post his clickbait nothing-news stories.

He has the dedication of a missionary, a True Believer.

A forum with maybe 15-20 regular posters and only about half of them are Deckard's fellow-kooks.

It's odd that we all post here. Particularly given how very much we annoy each other. A strange addiction, that seems relatively harmless, but given where we go in debates, we're all on a list or two somewhere.

It's odd that we all post here. Particularly given how very much we annoy each other.

Ahhh, people in their own family annoy each other constantly. Annoyance is just an issue of life.

Aubin ruling v. Michael Stein

In Louisiana, Threatening to File a Complaint Against Police Can Lead to a Five-Year Prison Sentence

Michael Stein

Cited Aubin ruling at 14-16:

Normally, if an officer relies on a statute to make an arrest that is later declared unconstitutional, she is shielded from liability. Indeed, under Louisiana law, officers are exempted "from liability even if the statute upon which they rely is later declared unconstitutional as long as the officers reasonably believed it valid at the time they acted." Dontino v. Crowley City Police Dep't, 65 So. 3d 289, 293 (La. Ct. App. 2011) (quoting Kyle v. City of New Orleans, 353 So. 2d 969, 971 (La. 1977)). The question then is whether officers could reasonably believe that Louisiana's public intimidation statute was valid at the time of Mr. Aubin's arrest.

A statute that criminalizes entirely non-violent threats to an officer's employment is so patently and obviously unconstitutional, that no reasonable officer could believe it to have been valid.

[...]

In situations similar to the instant case, other courts have concluded that even though an officer relied on a state statute that had not yet been declared unconstitutional, it was unreasonable for them to do so because the statute was patently unconstitutional.

[...]

Based on the Supreme Court's repeated and long-standing precedent validating the right of citizens to verbally criticize police officers, no reasonable officer could rely on Louisiana's public intimidation statute to arrest a person who threatens to have them fired. Accordingly, Mr. Aubin's Motion for Partial Summary Judgment on his false arrest claim is granted.

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Sheriff Ard, one of the defendants in the Aubin lawsuit, argued in court filings that the statute is necessary to protect public officials from threats and coercion. “The government certainly has a substantial interest in ensuring that such threats are not allowed to influence the behavior of police officers and other officials,” Ard’s office wrote in a memo submitted to court in January 2017.

Michael Stein

Cited Aubin ruling at 7-8

2. Individual Capacity Claim

Plaintiffs claim that Sheriff Ard is liable in his individual capacity under a theory of supervisory liability because he improperly trained his deputies about the First Amendment protections guaranteed to residents of Livingston Parish. (Doc. 117 at ¶ 60). To establish supervisory liability under § 1983, "the plaintiff must show that: (1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate indifference." Branner v. Coody, 793 F.3d 493, 501 (5th Cir. 2015). A plaintiff must allege with specificity how a training program is defective. Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005). A plaintiff can establish deliberate indifference "based on a single incident if the constitutional violation was the highly predictable consequence of a particular failure to train." Davidson v. City of Stafford, Texas, 848 F.3d 384, 397 (5th Cir. 2017) (internal quotation omitted).

The Court finds that Plaintiffs' allegations of individual liability against Sheriff Ard satisfy the above-enumerated requirements. In addition to alleging that "Sheriff Ard failed to train and supervise his deputies, including Durkin, in the First Amendment protection of the speech of residents of Livingston Parish," (Doc. 117 at ¶ 60), Plaintiffs link Deputy Durkin's actions with Sheriff Ard's failure to properly train his deputies in First Amendment protections because Mr. Aubin was arrested for merely threatening to have Deputy Durkin fired. Id. at ¶ 58. Further, Plaintiffs make a legally cognizable showing of deliberate indifference because Mr. Aubin's

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arrest was the highly predictable consequence of Sheriff Ard's alleged failure to train his deputies on First Amendment protections afforded to citizens of Livingston Parish, and indeed all persons in the United States. As previously offered in the Court's ruling on the official capacity claim against Sheriff Ard, it is patently unconstitutional to direct officers to arrest someone for threatening to have someone fired. Sheriff Ard's motion to dismiss the individual capacity claim asserted against him is denied.³

[...]

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³ Sheriff Ard is also not entitled to qualified immunity on the failure to train claim because it is clearly established that non-violent threats are protected by the First Amendment. See Black, 538 U.S. at 359 (2003).

[8]

Aubin, Doc 133, 28 September 2017, Ruling and Order on Motions

At 1:

The right to criticize police without risk of arrest distinguishes a democracy from a police state. Here, however, a Sheriffs Deputy arrested Plaintiff for announcing "I'm gonna get you fired" and "I'm gonna have your job." The Livingston Parish Sheriff allegedly adopted a policy condoning this practice, permitting officers to arrest anyone who threatens an officer's employment. Yet our Constitution guarantees a citizen's right to criticize government officials without fear of retribution.

**

Before the Court is the Motion for Partial Summary Judgment (Doc. 41), and the Motion to Strike (Doc. 81) filed by Plaintiffs William Aubin and April Aubin, and the Motion to Dismiss (Doc. 119) filed by Defendant Sheriff Jason Ard. Each party filed oppositions, (Docs. 77, 85, 124), and replies (Docs. 87, 94). For the following reasons, the Motion for Partial Summary Judgment (Doc. 41) and the Motion to Dismiss (Doc. 119) are GRANTED IN PART AND DENIED IN PART. The Motion to Strike (Doc. 81) is DENIED.

At 4-8

1. Official Capacity Claim

Plaintiffs claim that Sheriff Ard is liable in his official capacity because he has an official policy or custom that his deputies may arrest anyone who makes threats against their jobs. (Doc. 117 at ¶ 61). Municipalities and other local government entities may be held liable under § 1983 for the constitutional torts of its agents only when an official policy of the entity itself caused the deprivation of the plaintiffs'

[4]

rights. Pembaur v. City of Cincinnati, 475 U.S. 469, 477-79 (1986). To succeed on such a claim, a plaintiff must establish: "(1) an official policy (or custom), of which (2) a policy maker² can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy or custom." Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).

Id.

An official policy includes:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.

Sheriff Ard argues that Plaintiffs have not adequately plead facts to establish that Sheriff Ard officially promulgated and adopted the policy at issue. (Doc. 119-1 at p. 7- 8). Plaintiffs allege, however, that Sheriff Ard has an official policy that his deputies may arrest anyone who makes threats against their jobs, (Doc. 117 at ¶ 61), including for making statements like "I'm gonna have your job" and "I'm gonna get you fired." Id. at ¶ 62. Plaintiffs further allege that at least two of Deputy Durkin's supervisors informed him that anyone who threatens his job may be arrested for public intimidation. Id. at ¶ 63. Considering these allegations, it is plausible that Sheriff Ard officially adopted and promulgated the policy in question because two

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² Sheriff Ard docs not dispute that he is a policy maker. (Doc. 119).

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supervisors allegedly confirmed the same policy to Deputy Durkin. At this stage, the Court is permitted to draw reasonable inferences from the facts alleged. Ashcroft, 556 U.S. at 679.

Sheriff Ard next argues that Plaintiffs have not alleged that his policy was adopted with deliberate indifference. (Doc. 119-1 at 9). A facially innocuous policy must be promulgated with deliberate indifference to support § 1983 liability. Piotrowski v. City of Houston, 237 F.3d 567, 579-80 (5th Cir. 2001). In contrast, an "unconstitutional official policy renders a municipality culpable under § 1983," without any need to consider deliberate indifference. Id.

Sheriffs Ard's alleged policy, which allegedly provides that his deputies may arrest anyone who threatens their jobs is patently unconstitutional. Only threats that constitute "true threats" are not protected by the First Amendment. "True threats" are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003) (emphasis added). The prohibition on "true threats" protects people "from the fear of violence." Id. Threatening to take non-violent action does not constitute a "true threat." See Id. However, Sheriffs Ard's purported policy permits deputies to arrest anyone who threatens to have them fired, which is a decidedly non-violent action. This alleged policy is patently and obviously unconstitutional and Plaintiffs need not establish deliberate indifference. Accordingly, Sheriff Ard's Motion to Dismiss Plaintiffs' official capacity claim is denied.

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2. Individual Capacity Claim

Plaintiffs claim that Sheriff Ard is liable in his individual capacity under a theory of supervisory liability because he improperly trained his deputies about the First Amendment protections guaranteed to residents of Livingston Parish. (Doc. 117 at ¶ 60). To establish supervisory liability under § 1983, "the plaintiff must show that: (1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate indifference." Branner v. Coody, 793 F.3d 493, 501 (5th Cir. 2015). A plaintiff must allege with specificity how a training program is defective. Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005). A plaintiff can establish deliberate indifference "based on a single incident if the constitutional violation was the highly predictable consequence of a particular failure to train." Davidson v. City of Stafford, Texas, 848 F.3d 384, 397 (5th Cir. 2017) (internal quotation omitted).

The Court finds that Plaintiffs' allegations of individual liability against Sheriff Ard satisfy the above-enumerated requirements. In addition to alleging that "Sheriff Ard failed to train and supervise his deputies, including Durkin, in the First Amendment protection of the speech of residents of Livingston Parish," (Doc. 117 at ¶ 60), Plaintiffs link Deputy Durkin's actions with Sheriff Ard's failure to properly train his deputies in First Amendment protections because Mr. Aubin was arrested for merely threatening to have Deputy Durkin fired. Id. at ¶ 58. Further, Plaintiffs make a legally cognizable showing of deliberate indifference because Mr. Aubin's

[7]

arrest was the highly predictable consequence of Sheriff Ard's alleged failure to train his deputies on First Amendment protections afforded to citizens of Livingston Parish, and indeed all persons in the United States. As previously offered in the Court's ruling on the official capacity claim against Sheriff Ard, it is patently unconstitutional to direct officers to arrest someone for threatening to have someone fired. Sheriff Ard's motion to dismiss the individual capacity claim asserted against him is denied.³

[...]

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³ Sheriff Ard is also not entitled to qualified immunity on the failure to train claim because it is clearly established that non-violent threats are protected by the First Amendment. See Black, 538 U.S. at 359 (2003).

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At 10-16:

2. False Arrest

Under Louisiana law, "a law enforcement officer may arrest a person without a warrant when that officer has 'reasonable cause' to believe that the person to be arrested has committed an offense." State v. Smith, 960 So.2d 369, 375 (La. Ct. App. 2007) (quoting La. C. Cr. Part. 213). This requires that an officer have something similar to probable cause. Id.

Deputy Durkin argues that he is shielded from liability for false arrest because a judge determined that probable existed to arrest Mr. Aubin. (Doc. 77 at p. 12). This argument misunderstands the applicable law. "Under Louisiana law, if a person is arrested pursuant to a valid warrant, there is no false arrest and false imprisonment." Jenkins v. Baldwin, 801 So.2d 485, 496 (La. Ct. App. 2001). Deputy

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Durkin points to no Louisiana case, and the Court is not aware of any, which provides that an officer is shielded from liability for false arrest because a judge later determines that probable cause existed for the arrest.⁴

The facts taken in the light most favorable to Deputy Durkin establish that Mr. Aubin was arrested without a warrant on April 30, 2015, at approximately 9:00 PM. (Doc. 77-3 at p. 1). The next morning, based on a probable cause affidavit, a Louisiana state court judge determined that there was "probable cause to continue to hold" Mr. Aubin. Id. Because Mr. Aubin was not arrested with a warrant, Deputy Durkin is not shielded from liability for false arrest. The Court must therefore determine whether Deputy Durkin had probable cause to arrest Mr. Aubin in the first instance.

Deputy Durkin argues that he had probable cause to arrest Mr. Aubin for interference with a law enforcement investigation and public intimidation. (Doc. 77-1 at p. 10). The Louisiana crime of interference with a law enforcement investigation is defined as:

the intentional interference or obstruction of a law enforcement officer conducting investigative work at the scene of a crime or the scene of an accident by refusing to move or leave the immediate scene of the crime or the accident when ordered to do so by the law enforcement officer when the offender has reasonable grounds to believe the officer is acting in the performance of his official duties.

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⁴ Apparently recognizing this limitation, Deputy Durkin argues that the federal independent intermediary doctrine should apply, which precludes a § 1983 false arrest claim if there is a post-arrest probable cause determination by a judge. (Doc. 77 at p. 10-11). The question here, however, is whether Mr. Aubin has a claim under Louisiana state law for false arrest, and the Louisiana Supreme Court has made clear that the Louisiana constitution is not merely coextensive with the U.S. Constitution. State v. Jackson, 764 So. 2d 64 , 71 (La. 2000).

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La. R.S. 14:329 (emphasis added).

Here, the facts taken in the light most favorable to Deputy Durkin establish that he responded to Mr. Aubin's neighbor's house, 30650 Anderson Drive, for a reckless driving complaint. (Doc. 81-2 at p. 1). Deputy Durkin, however testified in his deposition that Mr. Aubin never went onto his neighbor's property, but that he remained in the right of way. (Doc. 87-1 at 198: 10-19). First, the Court finds that the location from which a citizen makes a complaint does not qualify as the scene of a crime or accident. Otherwise, the statute would have specified that intentional interference with law enforcement may occur at the scene of a crime, the scene of an accident, or at the scene of a complaint. Additionally, even if Mr . Aubin's neighbor's house qualified as the scene of a crime or accident, Deputy Durkin himself testified that Mr. Aubin never went onto his neighbor's property during his exchange with him. (Doc. 87-1 at 198: 10-19). Therefore, Deputy Durkin did not have probable cause to arrest Mr. Aubin for interference with a law enforcement investigation.⁵

Deputy Durkin next argues that he had probable cause to arrest Mr. Aubin for violating La. R.S. § 14:122, the public intimidation statute. (Doc. 77 at p. 5). The statute provides that "[P]ublic intimidation is the use of violence, force, or threats upon any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty: (1) Public officer or public employee." In State

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⁵ Mr. Aubin was also arrested for resisting arrest. (Doc. 77-2 at ¶ 21). However, even in the light most favorable to Deputy Durkin. any resistance occurred after he was placed under arrest for public intimidation and/or interference with law enforcement. (See Doc. 77-2). The Court need not examine whether there was probable cause to arrest Mr. Aubin for actions that took place after he was initially arrested.

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v. Mouton, a Louisiana Circuit Court of Appeals affirmed a defendant's conviction under the public intimidation statute for threatening have him fired and threatening to sue him. See State v. Mouton 129 So. 3d 49, 54 (La. Ct. App. 2013).

The evidence in the light most favorable to Deputy Durkin establishes that on April 30, 2015, he was dispatched to an address in Denham Springs, Louisiana in reference to a citizen complaint. (Doc. 77-2 at ¶ 3). When he arrived at the address. Ms. Aubin flagged Deputy Durkin down to complain that a motorist had yelled at her and made a gesture at her. Id. at ¶ 5. As Deputy Durkin began to explain that making such a gesture was not illegal, Mr. Aubin began to yell at Deputy Durkin and told him that he would decide what was illegal. Id. at ¶ 6. Deputy Durkin told Mr. Aubin that he did not need to hear from him, and Mr. Aubin said "oh, you're the punk that did me wrong the other day," and then he said "I'm calling your supervisor, I'm going to have your job, I'm going to get you fired." Id. at ¶ 8-9. Deputy Durkin informed Mr. Aubin that if he threatened his job again, he would be arrested for public intimidation, at which point Mr. Aubin said "I'm gonna have your job." Id. at ¶ 10-11. Deputy Durkin then informed Mr. Aubin that he was under arrest for public intimidation and after a struggle, Deputy Durkin placed him under arrest. Id. at 12-20.

The instant case is therefore like Mouton, where the court upheld a conviction for public intimidation when the defendant threatened to have an officer fired. Deputy Durkin therefore had probable cause to arrest Mr. Aubin. This does not end the Court's inquiry, however, because Deputy Durkin relied on a statute that was

[13]

recently declared unconstitutional. See Seals v. McBee, No. CV 16-14837, 2017 WL 3252673, at *5 (E.D. La. July 31, 2017) (declaring Louisiana's public intimidation law unconstitutional). Normally, if an officer relies on a statute to make an arrest that is later declared unconstitutional, she is shielded from liability. Indeed, under Louisiana law, officers are exempted "from liability even if the statute upon which they rely is later declared unconstitutional as long as the officers reasonably believed it valid at the time they acted." Dontino v. Crowley City Police Dep't, 65 So. 3d 289, 293 (La. Ct. App. 2011) (quoting Kyle v. City of New Orleans, 353 So. 2d 969, 971 (La. 1977)). The question then is whether officers could reasonably believe that Louisiana's public intimidation statute was valid at the time of Mr. Aubin's arrest.

A statute that criminalizes entirely non-violent threats to an officer's employment is so patently and obviously unconstitutional, that no reasonable officer could believe it to have been valid. Time and again, the Supreme Court has upheld the right of citizens to criticize the police. The Court has declared that "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." City of Houston v. Hill, 482 U.S. 451, 454 (1987). The Court has also noted that "[s]peech is often provocative and challenging ... [but it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Id. at 461.

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In Hill, for example, the Court struck down a city ordinance that prohibited "oppos[ing], molest[ing], abus[ing] or interrupt[ing] any policeman in the execution of his duty. 482 U.S. at 455, 465-67. In Lewis v. City of New Orleans, 415 U.S. 130, 132-34 (1974), the Court struck down an ordinance making it unlawful "wantonly to curse or revile or to use obscene or opprobious language toward or with reference to any member of the city police while in the actual performance of his duty[.]" Moreover, for the reasons previously offered in the Court's ruling on Sheriff Ard's official capacity claims, threatening to have an officer fired, does not constitute a "true threat" because it is not an "expression of an intent to commit an act of unlawful violence." See Black, 538 U.S. at 359 (2003). To the contrary, it is a decidedly nonviolent comment.⁶

In situations similar to the instant case, other courts have concluded that even though an officer relied on a state statute that had not yet been declared unconstitutional, it was unreasonable for them to do so because the statute was patently unconstitutional. For example, in Lawrence v. Reed, 406 F.3d 1224, 1232 (10th Cir. 2005), the court held that it was unreasonable for an officer to rely on an ordinance allowing for the destruction of derelict automobiles without a hearing because the official could not reasonably have concluded that his actions were

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⁶ Courts have held that statements far worse than Mr. Aubin's that were directed toward the police are protected by the First Amendment. See Gooding v. Wilson, 405 U.S. 518 (1972)("White son of a b*tch, I'll kill you," "You son of a b*tch, I'll choke you to death," and "You son of a b*tch, if you ever put your hands on me again, I'll cut you all to pieces."); Sandul v. Larion, 119 F.3d 1250, 1255-56 (6th Cir. 1997) (shouting f*** you and giving an officer the middle finger); Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) ("I will have a nice day, a**hole."); Barboza v. D'Agata, 151 F. Supp. 3d 363, 370 (S .D.N.Y. 2015) ("f*** you shitty town b*tches"); Jackson v. City of New York, 939 F. Supp. 2d 235, 2'18 n.5 (E.D.N.Y. 2013) ("f***ing pig").

[15]

consistent with due process. In Carey v. Nevada Gaming Control Boardd., 279 F.3d 873,882 (9th Cir. 2002), the court held that it was unreasonable for an officer to rely on statutes requiring individuals stopped pursuant to Terry to identify themselves because there is a clearly established Fourth Amendment right not to identify oneself.

Further still, in Guillemard-Ginorio v. Contreras-Gomez, 490 F. 3d 31, 40 (1st Cir. 2007), the court held that it was unreasonable for state officials to rely on a statute that allowed them to suspend a professional license without a hearing because the statute was patently unconstitutional, in violation of the Due Process Clause.⁷ Based on the Supreme Court's repeated and long-standing precedent validating the right of citizens to verbally criticize police officers, no reasonable officer could rely on Louisiana's public intimidation statute to arrest a person who threatens to have them fired. Accordingly, Mr. Aubin's Motion for Partial Summary Judgment on his false arrest claim is granted.

[...]

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⁷ The Court recognizes that the cited cases a rise in the qualified immunity context and not under Louisiana law. However, there does not appear to be a difference between Louisiana law, which requires courts to consider if "officers reasonably believed (the statute they relied on was) valid at the time they acted" and qualified immunity which requires courts to consider if it was unreasonable for an officer to rely on a statute because it is "grossly and flagrantly unconstitutional." Michigan v. DeFillippo, 443 U.S. 31, 38 (1979).

[16]

Considering these allegations, it is plausible that Sheriff Ard officially adopted and promulgated the policy in question because two

. . .

supervisors allegedly confirmed the same policy to Deputy Durkin. At this stage, the Court is permitted to draw reasonable inferences from the facts alleged. Ashcroft, 556 U.S. at 679.

It seems this case will hinge on this question. I'd say that two supervisors enunciating the same policy and attributing it to the sheriff will be adequate to establish this as an official policy of the department. It may come down to how clearly the witness(es) can describe these statements as an obvious statement of policy and not just some "misunderstanding".

I do think the law itself should already be considered moot. The courts have hammered its entire basis pretty hard, at least as far as considering threats to get a cop fired or prosecuted for misconduct is concerned.