Case Information
*1 Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.
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 titlеd “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 numеrous 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 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” 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 [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 warrаnts 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, 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 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 oppоrtunity 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
,
“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
,
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 thаt 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 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
,
We have previously held that “mere allegations of ‘taint,’ without more,
are insufficient to overcome summary judgment.”
Cuadra v. Hous. Indep. Sch.
Dist.
,
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 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 somе way restrained
the liberty of a citizen.”
Terry v. Ohio
,
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 rеsponse 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. Consistent with this
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 policе 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 а person be stopped by
the very instrumentality set in motion or put in place in order to achieve that result.”);
Evans
v. Ball
,
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 surrendеr 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
,
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
,
The Defendants argue that McLin fails to plead a seizure because he does
not allege that his pre-trial liberty wаs limited. In support, they point to cases
where courts have ruled that the issuance and receipt of a criminal summons
or citation—without the imposition of additional, pre-trial restrictions
—
may
not implicate the Fourth Amendment. 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
,
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-
trial restrictions does not impact the аnalysis of this seizure. 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
¸
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
,
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 оfficials.” 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
,
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 officiаls.”
Speech criticizing the official conduct of public officials is protected by the First
Amendment and does not constitute criminal defamation.
See Defley
, 395 So.
2d at 761;
Snyder
,
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
reasonablе
official would understand that what he is doing violates [the law].’”
Morgan
,
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 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 becausе 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
,
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 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. 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.
Notes
[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.
[2] McLin sued all parties in both their individual and official capacities. He also brought § 1983 claims against the Livingston Parish Sheriff’s Office.
[3] District courts in this circuit have denied motions to dismiss on these grounds,
finding the resolution of such factual disputes more prоper for summary judgment.
See
Sullivan v. Chastain
, No. Civ.A.SA04CA0803XR,
[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).
[5]
See, e.g.
,
Brower v. County of Inyo
,
[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
,
[7]
See, e.g.
,
Bielanski v. Cty. of Kane
,
[8]
See, e.g.
,
Whiting
,
[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
,
[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 shоwing 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.
[11] The 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.
,
[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 . . . .”