Williams v. Dauthier

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BRANDON WILLIAMS CIVIL ACTION

VERSUS

EAST BATON ROUGE CITY/PARISH, NO. 23-01581-BAJ-EWD

ET AL.

RULING AND ORDER

This is a civil rights case. Before the Court is Defendant John Dauthier’s Rule

12(b)(6) Motion to Dismiss (Doc. 7, the “Motion”). Plaintiff Brandon Williams

opposes the Motion. (Doc. 10). For the reasons that follow, the Motion will be denied.

I. BACKGROUND

The Baton Rouge Municipal Fire and Police Civil Service Board (the Board)

“serves as the Hearing Board on Municipal Fire and Police issues” in East Baton

Rouge Parish. (Doc. 1-2 at 51 (citing La. Rev. Stat. § 38:2741)). If a police officer

employed by the Baton Rouge Police Department (BRPD) were to appeal any

disciplinary action, that appeal would go before the Board.

On October 15, 2020, the Baton Rouge Metropolitan Council appointed

Plaintiff to serve as a member of the Board. (/d. at 51). In the summer of 2021,

Plaintiff became Chairman of the Board—a position voted on by his fellow board

members. (/d.). John Dauthier worked as a BRPD police officer throughout Plaintiffs

time on the Board.

From the beginning, Dauthier opposed Plaintiffs appointment. (/d. at 49, 51).

Indeed, he “made no secret of his dislike for Plaintiff.” Ud. at 52). Further

complicating matters, Dauthier became a Board member himself in April of 2022—

serving alongside Plaintiff. 7d. at 52). Following Dauthier’s appointment, Plaintiff

alleges that Dauthier “initiated a systematic, nefarious, illicit and unlawful plot to

undermine the public trust and confidence in Plaintiff.” (/d.).

Plaintiff alleges that Dauthier used his position as a police officer to gather

“dirt about Plaintiff.” (Docs. 10 at 2; 1-2 at 52, 58). Using his “police department

computer,” Dauthier conducted an unauthorized investigation of Plaintiff, accessing

“private and confidential information” about his past “run ins [sic] with law

enforcement.” (Doc. 1-2 at 51). This information (or “dirt”) was not part of the public

record; it was allegedly gathered during investigations by law enforcement agencies

and held in secure law enforcement databases that are not available to the public.

Ud. (describing the information as taken from “sources and databases which are not

public and contain private information”); Jd. at 51 (describing “private and

confidential information ... available to law enforcement but otherwise generally

protected from public disclosure.”)). To “verify that specific police reports or files”

related to Plaintiff, and to otherwise aid in his investigation, Dauthier allegedly used

Plaintiffs personal identifying information “obtained from the driver’s license

database.” (/d. at 55 (alleging that Dauthier obtained and used personal identifying

information “such as driver’s license pictures, date of birth, identifying numbers and

address’”)).

Dauthier intended to make the “dirt” he had gathered public by providing it to

a local YouTuber. But first, Dauthier purchased certain public records about Plaintiff

from the EBRP Clerk of Court “to give the appearance that the [confidential]

information [Dauthier] .. . was [disclosing] to the [YouTuber] was legally obtained

through lawful means and public records.” (Ud. at 54). But Dauthier “knew of these

[public] records, and knew the person in the records was Plaintiff, only because of the

illegal access to Plaintiffs file.” (/d.).

Dauthier then provided that confidential information, along with the public

records, to a local YouTuber who published “the dirt” on June 18, 2022. Ud. at 52, 58).

In the post, the “[YouTuber] stated that according to police department records

Plaintiff had had ten run ins with law enforcement.” (/d. at 53). The published

information “included incidents in which Plaintiff was not at fault and of which there

was no public record.” (d.).

Given its nature and contents, “it was obvious that the information [] had to

have been released by an employee of the BRPD or a Police Officer who had access to

the confidential information” maintained on law enforcement databases. (d.).

However, BRPD’s Disciplinary Code precludes any officer from “instituteling] an

independent investigation” like the one at issue “without first obtaining authorization

from the Chief of Police... .” Ud. at 50 (quoting BRPD Disciplinary Article 3:6)).1 It

1 BRPD’S Disciplinary Code, “codiffies] the rules and procedures necessary to ensure the

orderly performance of duty.” BRPD General Order No. 112 at 1, Discipline (revised May 27,

2022). The Disciplinary Code “is structured in the same manner as the Louisiana Criminal

Code, with offenses grouped in categories based on the relative seriousness of the offense.

There are three categories numbered sequentially from least to most serious.” Id. at 1.

likewise mandates that “[a]ll department business is to be considered confidential

and no member shall release any information to anyone without proper

authorization.” (/d. (quoting BRPD Disciplinary Article 3:8)). For these reasons,

BRPD immediately opened an Internal Affairs Investigation into the “release of the

information.” (/d. at 53). That investigation revealed that Dauthier had “investigated

Plaintiff using his police department computer” just days before the information was

posted on YouTube. (/d. at 54).

The release of this “personal and confidential police department information”

damaged Plaintiff both personally and professionally. Ud. at 56). And so, he filed suit

in state court against Dauthier and the City of Baton Rouge. (Ud. at 49-57). Plaintiff

alleges the release of confidential information about his past “run ins with law

“Offenses” are defined as “violation of statutes, ordinances or those provisions of the Code of

Conduct or Procedural Manual which could threaten the integrity of the department, pose a

danger or threat to the public or members of the department, and/or have criminal

consequences.” Id. at 17, § 3.0.

Plaintiff alleges that Dauthier acted in violation of Disciplinary Code Articles 3:6

(Unauthorized Investigations) and 3:8 (Confidentiality)—.e., offenses found in the third and

most serious category:

3:6 Unauthorized Investigations

No member will institute an independent investigation of any other member

or any public official without first obtaining authorization from the Chief of

Police or his designee...

3:8 Confidentiality

All departmental business is to be considered confidential and no member shall

release any information to anyone without proper authorization. No member

shall make known to anyone a proposed action of the department or the details

of any police action.

(Doc. 1-2 at 50 (quoting BRPD General Order No. 112 at 18, §§ 3.6, 3.8)).

enforcement” infringed on his right to privacy secured by Article I, Section 5 of the

Louisiana Constitution. He also sues for invasion of privacy under state tort law, La.

Civ. C. art. 2315. Ud. at 49-55). Plaintiff later amended to add a claim under the

Driver’s Privacy Protection Act (DPPA), 18 U.S.C. § 2721, for Dauthier’s alleged use

of his personal information “obtained from the driver’s license database” to aid the

unauthorized investigation. (Ud. at 55).?

Following service of the amended Complaint (Ud. at 49-57), both Defendants

removed this cause of action to federal court. (Doc. 1). Once removed, Dauthier moved

to dismiss the amended Complaint. (Doc. 7).

Il. LEGAL STANDARD

Taken together, Rules 8(a)(2) and 12(b)(6) “call for a short and plain statement

of the claim showing that the pleader is entitled to relief; they do not countenance

dismissal of a complaint for imperfect statement of the legal theory supporting the

claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (‘no

heightened pleading rules” for plaintiffs alleging “violations of constitutional rights”);

Shah v. Inter-Continental Hotel Chi. Operating Corp., 314 F.3d 278, 282 (7th Cir.

2002) (‘The plaintiffis not required to plead facts or legal theories or cases or statutes,

but merely to describe his claim briefly and simply.”). Indeed, the complaint need only

contain enough factual allegations “to raise a reasonable hope or expectation that

2 The City of Baton Rouge has not joined in Dauthier’s Motion, or otherwise moved to dismiss.

In his Reply Memorandum, Dauthier briefly argues that Plaintiff seeks to hold the City

“liable for Dauthier’s alleged acts.” (Doc. 11 at 4). The argument is perfunctory and Dauthier’s

point in making it is not entirely clear. But nonetheless, Dauthier cannot raise arguments on

the City’s behalf.

discovery will reveal relevant evidence of each element of a claim.” Lormand v. U.S.

Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009). The allegations “need not be detailed

or specific,” Durham v. AMIKIDS, Inc., No. 17-cv-348, 2018 WL 11319406, at *2 (M.D.

La. Apr. 5, 2018), and are entitled to an “assumption of truth,” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

Likewise, the task of resolving a motion under Rule 12(b)(6) is not onerous —

it simply requires “common sense.” Diamond Servs. Corp. v. Oceanografia, S.A. De

C.V., No. 10-ev-177, 2011 WL 938785, at *8 (W.D. La. Feb. 9, 2011). The court’s job is

“not to decide if the plaintiff will eventually be successful, but to determine if a legally

cognizable claim has been asserted.” Durham, 2018 WL 11319406, at *2.

iI. DISCUSSION

A, Invasion of Privacy

The right to privacy secured by Article I, Section 5 of the Louisiana

Constitution has been described as the right to be “let alone” and free from

“unnecessary public scrutiny.” DeSalvo v. State, 624 So.2d 897, 901 (La. 1998).

“TArticle I, Section 5] applies only where one has a reasonable expectation of privacy

in the matter sought to be protected.” Capital City Press v. East Baton Rouge Par.

Metro. Council, 696 So. 2d 562, 566 (La. 1997). “A cause of action for invasion of

privacy [also] les under [Louisiana Civil Code Article] 2315 for, among other acts,

unreasonable disclosure of embarrassing private facts.” Daly v. Reed, 669 So. 2d 1293,

1294 (La. App. 4 Cir. 1996).

If a reasonable expectation of privacy is found, a plaintiff must then

“demonstrate that defendant’s conduct was unreasonable based on a balancing of [the

plaintiffs] interests in protecting [their] privacy from serious invasions” against the

disclosure interests. Stuard v. Terrebonne Par. Consol. Gov't, No. 09-cv-3790, 2011

WL 3378838, at *3 (E.D. La. Jan. 31, 2011). This balancing occurs whether the claim

sounds in state tort or constitutional law. See Henderson v. Bd. of Supervisors of S.

Univ. & A&M Coll., 663 F. Supp. 3d 542, 579 (M.D. La. 2023) (‘To be actionable, a

defendant’s conduct must be unreasonable .... [R]Jeasonableness . . . is determined

by balancing the interests of the plaintiff in protecting his privacy . . . with the

defendant’s interest in pursuing his course of conduct.”); City of Baton Rouge v. Cap.

City Press, L.L.C., 4 So. 3d 807, 819 (La. App. 1 Cir. 2008) (If, and only if, a

reasonable expectation of privacy is found, the court must weigh or balance the...

disclosure interest against the privacy interest.”).8

Here, Plaintiff alleges that Dauthier used his position as a police officer to

gather “dirt about Plaintiff and release it to the public.” (Docs. 10 at 2; 1-2 at 52, 58

(Dauthier provided the “dirt” to a local YouTuber)). More specifically, Plaintiff claims

that Dauthier used his “police department computer” to access “private and

3 In his Motion to Dismiss, Dauthier’s argument is limited to whether Plaintiff has

sufficiently alleged a reasonable expectation of privacy in the information disclosed. (Doc. 7-

1 at 8-9); (Doc. 11 at 6). For that reason, the Court’s analysis is likewise limited to this

element of the claim. See Mitchell v. City of Cent., No. 20-cv-294, 2021 WL 4256470, at *9

(M.D. La. Sept. 17, 2021) ([T]he Court will deny Central Defendants’ motion [to dismiss,

because] . . . neither party has offered significant briefing on the question of Plaintiff's

[clonstitutional right to privacy... . [Neither party has argued... about the appropriate

constitutional balance between Plaintiff's alleged privacy interest and the public's need for

disclosure. On this ground alone, the Court could deny the instant motion.”).

confidential information” about his past “run ins” with law enforcement. (Doc. 1-2 at

53 (The [YouTuber] stated that according to police department records Plaintiff had

had ten run ins with law enforcement.”)). This information (or “dirt”) was not part of

the public record; it was allegedly gathered during investigations by law enforcement

and held on secure law enforcement databases. (Id. at 51 (“sources and databases

which are not public and contain private information”; “private and confidential

information ... available to law enforcement but otherwise generally protected from

public disclosure.”)).

Based on Dauthier’s reading of the Complaint, the information (or “dirt’)

disclosed to the YouTuber consisted of only public records obtained from the clerk of

court, and the initial reports of investigating police officers, which are also matters of

public record. Dauthier therefore argues Plaintiff had no reasonable expectation of

privacy. (Doc. 7-1 at 8, 9). He later inconsistently complains that Plaintiff never

“identifies the alleged content of the ‘dirt,” or even alleges “a reasonable expectation

of privacy in the ‘dirt’.” (Doc. 11 at 6). Because of this, Dauthier insists that Plaintiff

cannot state a claim for relief. The Court disagrees.

To begin, Dauthier simply ignores the gravamen of Plaintiffs factual

allegations, cherry-picking a single allegation from the Complaint, in arguing that

only public records are at issue: “[Dauthier] went to the [East Baton Rouge Parish]

Clerk of Court’s Office and purchased certain public records regarding Plaintiff. .. .”

(Doc. 7-1 at 8 (citing Doc. 1-2 at 54)). Dauthier points out that public records obviously

“cannot serve as the basis for Plaintiffs invasion of privacy claim.” (/d. at 8).

Otherwise, Dauthier assumes any other evidence of Plaintiff's “run-ins” with law

enforcement must came from “initial reports.” Ud. at 9). And because the initial

reports of police officers investigating a complaint are also matters of public record,

Plaintiff had no reasonable expectation of privacy in the information at issue. (Ud. at

9 (citing La. Rev. Stat. § 44:3(A)(4)(a) Gnitial reports of investigating officers are

public record))).

But at no point does Plaintiff allege a reasonable expectation of privacy in any

public records—whether they be initial reports or records obtained from the clerk of

court. See Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 13886, 1891 (a. 1979) (‘no

right to privacy attaches to material in the public view”). In fact, the Complaint

makes no mention of initial reports, nor does it include language that would limit

“run ins with law enforcement” to the information contained in initial reports. See

La. Rev. Stat. § 44:3(A)(4)(b) (detailing information in initial reports). And while

Plaintiff does allege the universe of information given to the YouTuber included some

public records from the clerk of court, (Doc. 1-2 at 54), when put into context, this

allegation is not fatal.

Critical here, the Complaint alleges that Dauthier needed “authorization from

the Chief of Police” to independently investigate Plaintiff using law enforcement

databases. (Ud. at 50 (quoting BRPD Disciplinary Article 3:6)). BRPD policy also

precluded disclosure of any information on law enforcement databases “without

proper authorization.” (Ud. (quoting BRPD Disciplinary Article 3:8)). Disclosing the

confidential information would therefore violate these policies.

To conceal these violations, Plaintiff alleges some public records were included

in the disclosure only to “give the appearance” that the confidential information was

“legally obtained [by Dauthier] through lawful means and public records.” (Ud. at 54,

538 (Dauthier disclosed the private information gathered in his unauthorized

investigation, “representing it to be authentic police department information.”), 50

(YouTuber represented information about “run ins” with law enforcement as being

provided “from the police department’)). Aside from a single reference to public

records, Plaintiff repeatedly alleges that Dauthier provided private information, held

on secure law enforcement databases, concerning his past interactions (or “run ins”)

with law enforcement.

Common sense and experience dictate what’s clearly at issue—the private

information which the public records were only meant to legitimize. Dauthier simply

ignores this fact, which cannot warrant dismissal of Plaintiffs claim. See Mitchell v.

City of Cent., No. 20-cv-294, 2021 WL 4256470, at *11 (M.D. La. Sept. 17, 2021)

(“Central Defendants’ entire position rests on the premise that they disclosed only a

redacted letter. But, as explained above ... the Complaint alleges that one of the

Central Defendants released an unredacted version of the letter to the press and that

there was no justification for this conduct.”).

4 Plaintiff further alleges that Dauthier needed his personal identifying information to

“verify” whether certain law enforcement and public records actually concerned Plaintiff.

(Doc. 1-2 at 55). Interpreting this allegation in Plaintiffs favor, it suggests Plaintiff was not

readily identifiable from even some of the public records.

10

Alternatively, Dauthier suggests that “Plaintiff never identifies the alleged

content of the ‘dirt” and “never alleges that he had a reasonable expectation of

privacy” in it. (Doc. 11 at 6). According to Dauthier, these insufficient allegations are

“fatal to [Plaintiffs] claim under Article I, Section 5 of the Louisiana Constitution.”5

(d.). But again, Dauthier’s argument is inconsistent with the Complaint.

First, the ‘dirt’ is sufficiently described—it concerned Plaintiffs ten “run ins

with law enforcement,” (Doc. 1-2 at 51), and “included incidents in which Plaintiff

was not at fault and of which there was no public record,” (Ud. at 53). The information

was allegedly gathered during law enforcement investigations, (Ud. at 51), and

maintained on “private law enforcement database[s]” accessible only to “law

enforcement] agencies [in] East Baton Rouge Parish and the DA’s Office,” Ud. at 54

(“Due to the sensitive nature” of the information held on the DA’s Office database,

BRPD “rules require prior authorization and approval by the officer’s supervisor” to

obtain access.)). Dauthier ignores these allegations. And in doing so, he offers no

argument as to why they might be deficient.

Beyond that, Plaintiff does allege that he had a reasonable expectation of

privacy in the so-called “dirt.” Ud. at 55 (describing information as not part of the

public record and available only to law enforcement, and alleging an “absolute

protected constitutional right to privacy” in it)). Indeed, the Complaint repeatedly

claims the “dirt” provided to the YouTuber was “private,” “confidential,” and outside

5 Plaintiff alleges that Dauthier’s invasion of his privacy violated both Article I, Section 5 of

the Louisiana Constitution and Louisiana Civil Code Article 2315. But the Motion to Dismiss

is limited to Plaintiffs constitutional privacy claim. Therefore, Dauthier has not sought

dismissal of Plaintiffs privacy claim under state tort law.

11

the public record. Ud. at 52 (“private and confidential information regarding

[Plaintiff] ... that [Dauthier] obtained using the police department computers and

databases”), 51 (Dauthier used his BRPD laptop to “access sources and databases

which are not public and contain private information”), 51 (“The private and

confidential information ... included information available to law enforcement but

otherwise generally protected from public disclosure.”), 52 (“private and confidential

information ... obtained using the police department computers and databases”), 58

(“Because of the nature, substance and content of the information ... [it] had to have

been released by ... a police officer who had access to the confidential information.”),

54 (Dauthier accessed and obtained private information from Case365 without the

necessary approval; “Case365 is a private law enforcement database”) (“sensitive

nature of this private information”), 55 (Plaintiff had a right to privacy in the

“personal, confidential or private information contained ... within BRPD database”),

56 (‘private, personal and confidential police department information”)).

Plaintiff further alleges that Dauthier needed his personal identifying

information from the driver’s license database to “verify”? whether certain law

enforcement and public records actually concerned Plaintiff. Ud. at 55). This suggests

Plaintiff was not readily identifiable from certain confidential records, and even some

of the public records. Finally, Plaintiff alleges Dauthier violated BRPD policies that

preclude officers from “abusing [the] investigative tools” at their disposal and from

disclosing confidential information related to “ongoing investigations.” Ud. at 50).

12

Considering these allegations as true and in Plaintiffs favor, the Complaint

“clearly evinces [Plaintiffs] subjective expectation of privacy” in the information at

issue. Rasier, LLC v. City of New Orleans, 222 So.3d 806, 818 (La. App. 4 Cir. 2017).

Beyond that, Plaintiffs “expectation of privacy was a reasonable one,” as outlined

below. Rasier, LLC, 222 So.3d at 816 (relying on city ordinance on type of information

subject to disclosure in finding expectation of privacy was reasonable); see also Beckett

v. Serpas, 112 So. 3d 348, 352 2012-1349, 1352 (La. App. 4 Cir. 2013) ([A] court must

determine not only whether the individual has an actual or subjective expectation of

privacy, but whether that expectation is also of a type which society at large is

prepared to recognize as being reasonable.”).

In Louisiana, arrest records and the “investigative files” of law enforcement

are generally exempt from the public record pending criminal litigation. See In re

Matter Under Investigation, 15 So.8d 972, 990 (La. 2009) daw enforcement’s

“investigative files” are exempt from public record “as long as criminal litigation is

pending or reasonably anticipated”); La. Rev. Stat. § 44:3(A)(1)(a) daw enforcement

files and records “pertaining to pending” or “reasonably anticipated . . . criminal

litigation” are exempt from disclosure); La. Rev. Stat. § 44:3(A)(4)(a) (“arrest records”

are exempt from disclosure “until a final judgment of conviction or the acceptance of

a plea of guilty”). Elsewhere, the state has implemented regulations to “zealously

protect[]” the “integrity of personal information records” maintained on law

enforcement databases, having recognized that the “privacy of an individual is

directly affected by the collection, maintenance, use and dissemination of personal

13

information” by law enforcement agencies. 22 La. Admin. Code Pt III, §§ 301(8), (1)

(because “legal protections are endangered by the misuse of certain information

systems ... it is the purpose of these regulations to provide safeguards for an

individual against an invasion of his personal privacy... ensure the. .. integrity of

criminal history record information collected, maintained, and disseminated by

criminal justice agencies”).

Critical here, Louisiana courts have found that statutes exempting

information from the public record support an objectively reasonable expectation of

privacy. See Marine Shale Processors, Inc. v. State, 572 So. 2d 280, 284 (La. Ct. App.

1990) (“The language of LSA-R.S. 44:3 A(7) exempts disclosure” of the records at

issue “under the Public Records Act... . This privilege creates a reasonable

expectation of privacy” in the records. “Moreover, the statute in this instance

specifically creates a privilege consonant to the right of privacy granted generally by

our state constitution.”); Beckett, 112 So. 3d at 352 (because the information was

exempt from disclosure by La. Rev. Stat. § 40:2532, individuals had a “reasonable

expectation of privacy”); Raster, LLC, 222 So. 3d at 819 (“In this case, Section 162-

49(b) reflects a legislative choice to limit the ambit of potentially releasable

information to the names and addresses of TNC permittees ... Thlis] legislative

choice ... establishes that Mr. Doe had a reasonable expectation of privacy against

disclosure of the redacted driver registry information.”); Mitchell, 2021 WL 4256470,

at *10 (relying in part on statute exempting information from public record in finding

plaintiff had a clearly established right to privacy in information disclosed).

14

What’s more, Louisiana’s constitution “contains an affirmative establishment

of a right of privacy,” conveying a “higher standard of individual liberty than that

afforded by the jurisprudence interpreting the federal constitution.” State v.

Hernandez, 410 So. 2d 1881, 1385 (La. 1982). This is especially true of privacy rights

concerning dissemination of information, and autonomy. See State v. Jackson, 764 So.

2d 64, 71 & n.14 (La. 2000) (suggesting Article I, Section 5 parallels federal

constitution’s protection against unreasonable search and seizure, but expands

privacy rights concerning dissemination and autonomy, as compared to the federal

constitution (citing Devlin, J., Louisiana Constitutional Law, 51 La. L. Rev. 295

(1990) (labeling the three types of privacy rights as “search and_ seizure,”

“disclosural,” and “autonomy” rights, and proposing the invasion of privacy clause

was meant to expand protection in the latter two))); accord Moresi v. State Through

Dep't of Wildlife & Fisheries, 567 So. 2d 1081, 1092 (La. 1990) (“to the language of the

previous constitution ... was added protection ... against unreasonable invasions of

privacy. [Its] ancestry ...can be traced to the establishment in [Griswold] of a right

to privacy and to fear of unreasonable gathering and dissemination of information on

individuals through use of computer data banks.”).

With that in mind, Louisiana courts have recognized an individual’s right to

privacy may be infringed by release of their “criminal history summary,” Ellerbe v.

Andrews, 623 So. 2d 41, 44 (La. Ct. App. 1993) (recognizing “privacy interest” in

“criminal history summary ...in the BCI’s databank .. . [e]ven were we to find that

the ‘rap sheet’ is not statutorily exempt from the Public Records Act, the privacy

15

interest” precludes its disclosure), and “being falsely labeled” as a suspected criminal,

Stuard v. Terrebonne Par. Consol. Gov't, No. 09-cv-3790, 2011 WL 337888, at *3 (E.D.

La. Jan. 31, 2011) (“False light invasion of privacy requires the undesired publicity

to be objectionable to a reasonable person .. . Plaintiff alleges that as a result of

stretching in a public park he has been falsely labeled as a suspicious person who

watches children. ... and ifthe facts are as Plaintiff claims them to be, then labeling

him as a suspicious person who watches children is a false description.”); see also

Mitchell 2021 WL 4256470, at *9 (“Plaintiff has overcome qualified immunity with

respect to the disclosure to the press of his name, his medical condition, and the

unsubstantiated charges against him.”); Mullen v. City of Grenada, Miss., 704 F.

Supp. 2d 567, 574 (N.D. Miss. 2010) (officer had an informational privacy interest in

results of drug test and disclosure of results violated 14th Amendment to the U.S.

Constitution — “There is no dispute that Mullen had to submit to drug testing in

order to be a narcotics officer. However, there is no legitimate reason for that

information to be disclosed to the general public. No weighing of these factors can

allow for public disclosure of this fact.”).

And so, the Court rejects Dauthier’s argument that Plaintiff has not alleged a

reasonable expectation of privacy in the information at issue.6 See Braden v. Wal-

8 While Plaintiff has alleged facts sufficient to survive the cursory arguments raised in the

Motion to Dismiss, this does not mean his privacy claims will succeed on the merits. Indeed,

discovery may later reveal that the universe of information disclosed does not support a

reasonable expectation of privacy. Alternatively, even if a privacy interest exists, “Plaintiff

must also demonstrate that defendant's conduct was unreasonable based on a balancing of

his interests in protecting his privacy from serious invasions against Defendant's interest” in

notifying the public of Plaintiffs alleged association with criminal activity. Stuard □□□

16

Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (‘[T]he complaint should be read

as a whole, not parsed piece by piece to determine whether each allegation, in

isolation, is plausible.”). Because no other arguments are raised concerning Plaintiffs

invasion of privacy claims, the Court ends its analysis here and denies the Motion to

Dismiss as to this claim.

B. Driver’s Privacy Protection Act

The Driver's Privacy Protection Act (DPPA), 18 U.S.C. §8§ 2721-2725,

“regulates the disclosure of personal information contained in the records of state

motor vehicle departments (DMVs).” Maracich v. Spears, 570 U.S. 48, 52 (2018).

Congress enacted the DPPA to address privacy concerns associated with personal

information contained in motor vehicles records. See Gordon v. Softech Int'l, Inc., 726

F.3d 42, 45 (2d Cir. 2013). Relevant here, the DPPA makes it unlawful for “any person

knowingly to obtain or disclose personal information, from a motor vehicle record, for

any use not permitted under section 2721(b) of this title.” 18 U.S.C. § 2722(a).

“(P]ersonal information” is defined as any “information that identifies an

individual,” and includes a person’s “photograph, social security number, driver

identification number, name, address (but not the 5-digit zip code), telephone

number, and medical or disability information... .” 18 U.S.C. § 2725(8). There are 14

exceptions for which disclosure of this information is permitted. See 18 U.S.C. §

Terrebonne Par, Consol. Gov't, No. 09-cv-3790, 2011 WL 337888, at *8 (B.D. La. Jan. 31,

2011). Because neither party has addressed these elements of Plaintiffs privacy claims, they

are likewise not addressed by the Court.

17

2721(b)(1)-(14). These exceptions generally relate to various governmental and

business purposes, including “use by any... law enforcement agency in carrying out

its functions... .” See 18 U.S.C. § 2721(b)-(c).

To state a claim under the DPPA, a plaintiff must allege that: (1) a defendant

knowingly obtained, disclosed or used personal information; (2) from a motor vehicle

record; (8) for a purpose not permitted. See 18 U.S.C. § 2724(a); see also Taylor v.

Acxiom Corp., 612 F.8d 325, 335 (5th Cir. 2010). “The proper focus for courts is not

the manner in which the information was acquired, but the use to which it is

eventually put.” Cook v. ACS State & Local Solutions, Inc., 663 F.3d 989, 994 (8th

Cir. 2011).

Here, Plaintiff alleges that Dauthier used his ‘personal information,’ obtained

from the state’s driver’s license database, to run unauthorized searches of Plaintiff

on various law enforcement databases. Plaintiff further alleges that Dauthier used

the same personal information to “verify that specific police reports or files relate[d]”

to Plaintiff. (Doc. 1-2 at 55). In response, Dauthier does not address these allegations.

Instead, he emphasizes a separate allegation made at the beginning of the

Complaint—that Dauthier was acting “under the color of law and under the

imprimatur of law enforcement.” (Doc. 7-1 at 11 (quoting Doc. 1-2 at 50)). Based solely

on this allegation, Dauthier argues that Plaintiff has alleged he acted with “the

approval of law enforcement, and was carrying out his functions when he allegedly

accessed any information protected by the DPPA.” (Ud. at 11). For this reason alone,

Dauthier insists his “access” of Plaintiffs protected information “was [for] a

18

‘permissible use.” Ud. at 11); see 18 U.S.C. § 2721(b)(1) (one of the fourteen exceptions

is use of personal information by “law enforcement agency, in carrying out its

functions”). This argument does not hold water.

The Complaint does begin with language that is often used in actions against

police officers—t.e., Dauthier “was acting under color of law and under the

imprimatur of law enforcement” (Doc. 1-2 at 50). See Moresi v. State Through Dep’t of

Wildlife & Fisheries, 567 So. 2d 1081, 1094 (La. 1990) (“an action against state officers

or persons acting under color of state law for damages caused by a violation of Article

I, § 5 of the Louisiana Constitution’). But to be clear, this in no way equates to an

allegation that Dauthier’s use of personal information was therefore “approv[ed],”

legitimate, or otherwise “permissible,” as he claims. (Doc. 7-1 at 11). See Martinez v.

Colon, 54 F.3d 980, 986 (1st Cir. 1995) (for purposes of section 1983, “a person [still]

acts under color of state law when he abuses the position given to him by the State”);

West v. Atkins, 487 U.S. 42, 49 (1988) (“The traditional definition of acting under color

of state law requires that the defendant... have exercised power possessed by virtue

of state law and made possible only because the wrongdoer is clothed with the

authority of state law.”).

Instead, Plaintiff clearly and repeatedly alleges that Dauthier abused his

position as a police officer by investigating Plaintiff without the required

authorization or approval from his superiors. (Doc. 1-2 at 50 (Dauthier violated BRPD

rules requiring prior authorization and approval to investigate Plaintiff), 50

(“abusing investigative tools to invade the privacy of law-abiding citizens”), 55

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(Dauthier had no authorization”), 56 (‘without authorization or legal cause utilized

his position with law enforcement”)). Plaintiff even repeatedly calls the investigation

“llegal.” Ud. at 58, 54). And just to be sure, he further alleges:

[B]ecause of the nature, substance and content of the information

released by the [YouTuber], [BRPD] initiated an Internal Affairs

Investigation of the release of the information. The investigation

discovered that [Dauthier] . . . investigated Plaintiff using his police

department computer....

Ud. at 53-54). Clearly, Dauthier’s representation to this Court—that Plaintiff has

alleged Dauthier used his personal information and otherwise acted with the

approval of law enforcement—is not supported by the Complaint. Because Dauthier

does not offer any other valid argument supporting dismissal of Plaintiffs DPPA

claim,’ his Motion must be denied for this reason alone.

Nonetheless, the Court notes that Plaintiff has sufficiently plead a cause of

action under the DPPA to survive dismissal under Rule 12(b)(6). Plaintiff alleges

Dauthier used his “personal information” protected by the DPPA, and originally

7In his Reply, Dauthier argues for the first time that Plaintiff's DPPA claim should also be

dismissed because a single paragraph of this claim includes the phrase “on information and

belief.” (R. Doc 11 at 2). For this reason alone, Dauthier suggests Plaintiff has not alleged

sufficient detail to state a claim for relief under the DPPA. To begin, this argument was

readily available but not raised in Dauthier’s Motion to Dismiss. It will therefore not be

considered on appeal. See Parker v. Louisiana Dep't of Pub. Safety & Corr., No. 18-cv-1030,

2020 WL 43853564, at *8 (M.D. La. July 29, 2020) (“Because reply briefs cannot be used to

raise new arguments, the Court declines to consider these arguments.”). But even if it were

considered, this argument cannot carry the day. Like so many other conclusory arguments

raised by Dauthier, he simply ignores the remaining allegations of the Complaint. Inclusion

of the phrase “on information and belief’ does not warrant dismissal where it precedes

sufficient factual allegations. See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th

Cir. 2009) (“[T]he complaint should be read as a whole, not parsed piece by piece to determine

whether each allegation, in isolation, is plausible.”).

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“obtained from the driver’s license database,” to aid his investigation of Plaintiff.

(Doc. 1-2 at 55, § 30).

An unauthorized search of law enforcement databases to publicly discredit a

personal adversary is not one of the 14 permissible uses of personal information

enumerated under the DPPA. See 18 U.S.C.A. § 2722(a) (‘It shall be unlawful for any

person knowingly to obtain or disclose personal information, from a motor vehicle

record, for any use not permitted under section 2721(b) of this title.”). This is

sufficient to state a claim for relief under the DPPA and Dauthier’s Motion to Dismiss

(Doc. 7) must be denied. See Santarlas v. Minner, No. 15-cv-108, 2015 WL 3852981,

at *3 (M.D. Fla. June 22, 2015) (“Plaintiff [] alleges .. . [when] the individual

defendants accessed his personal information, they did not have a legitimate law

enforcement purpose or other purpose permitted under the law... . [I]t 1s hard to

plead a negative with great specificity; that there was no permissible purpose for the

disclosure is about as precise as one could be.”); Wilcox v. Swapp, 360 F. Supp. 3d

1140, 1146 (E.D. Wash. 2019) (“there is no requirement in the text of the statute that

the state licensing department be the direct source of the personal information.”);

Whitaker v. Appriss, Inc., No. 13-cv-826, 2014 WL 4536559, at *4 (N.D. Ind. Sept. 11,

2014) (Considering whether the allegations were sufficient to survive a Rule 12(b)(6)

motion to dismiss, the court explained: “Ifthe original source of the other government

agency’s information is the state department of motor vehicles, the DPPA protects”

the subsequent disclosure or use of that information by a police officer.); Mallak v.

Aitkin Cnty., 9 F. Supp. 3d 1046, 1058 (D. Minn. 2014) (“Plaintiff alleges that a

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number of [local officers] impermissibly accessed her Private Data. ... She also

alleges that misuse of state databases has been established by a state report and

hearing .... [S]he is a[n] [allegedly] well-known attorney in her area with strong ties

to the community. ...[T]hese facts taken together sufficiently state a plausible claim”

under the DPPA “that Plaintiffs records were not accessed for a permitted purpose .

...); Senne v. Village of Palatine, Illinois, 695 F.3d 597, 599 (7th Cir. 2012) (The

village police officer disclosed personal information that the village police department

got from the state department of motor vehicles. This was sufficient to state a claim

under the DPPA.); Center for Individual Rights v. Chevaldina, No. 16-cv-20905, 2018

WL 1795470, at *5 (S.D. Fla. Feb. 21, 2018) (It would also be premature at this stage

of the case to make a conclusive determination on the source of the information

Plaintiff allegedly disclosed and distributed. Nearly all of the information in question

appears on a driver’s license, so there is at least some support for the allegation that

Chevaldina’s license was the source of the information. For these reasons, we

conclude that Chevaldina has offered a plausible allegation that the protected

personal information was disclosed and distributed from a motor vehicle record.”);

Hatch v. LexisNexis Risk Sols., Inc., No. 19-cv-449, 2020 WL 1042256, at *4 (W.D.N.C.

Mar. 3, 2020) (“Plaintiff has alleged... that personal information in the accident

report may have come from ‘a DMV database of driver’s license information.’ If it did,

then the Amended Complaint plainly states a claim under the DPPA....”).

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C. Qualified Immunity

Dauthier has asserted the defense of qualified immunity with respect to

Plaintiffs claims under the federal DPPA and his state law claim for invasion of

privacy. Again, Dauthier’s Motion to Dismiss largely ignores Plaintiffs tort claim—

seemingly treating the state tort and constitutional privacy claims as one.

Nonetheless, “qualified immunity does not apply to Louisiana tort claims.” Beroid v.

LaFleur, No. 21-cv-516, 2022 WL 2826228, at *7 (W.D. La. June 2, 2022). To the

extent Dauthier asserts qualified immunity, the Court makes clear that Dauthier is

not entitled to the defense for Plaintiffs invasion of privacy claim under state tort

law.

Otherwise, the defense of qualified immunity is relevant to Plaintiffs federal

claim under the DPPA and his state constitutional claim for invasion of privacy. And

the standard “is the same” for both. Price v. Irons, No. 19-cv-11451, 2020 WL 1638377,

at *5 (E.D. La. Apr. 2, 2020). While “federal courts must apply the state’s substantive

law of qualified immunity” to a state constitutional law claim, see Brown v. Miller,

519 F.3d 231, 2839 (th Cir. 2008), Louisiana’s test “for qualified immunity is

indistinguishable from the federal test,” Buchicchio v. LeBlanc, 656 F. Supp. 3d 648,

655 n.3 (M.D. La. 2023). For that reason, the Court discusses the assertion of qualified

immunity with respect to both claims below, relying mainly on federal case law.

“Qualified immunity protects government officials acting within their

authority from individual lability when their actions could reasonably have been

believed to be legal.” Sweetin v. City of Texas City, Texas, 48 F.4th 387, 391 (5th Cir.

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2022); see also Brosseau v. Haugen, 548 U.S. 194, 198 (2004) (describing the “focus”

of any qualified immunity analysis as “whether the officer had fair notice that her

conduct was unlawful”). The doctrine provides “immunity from suit”—it is not a “mere

defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Critical here, qualified immunity “involves a shifting burden of proof.” Cherry

Knoll, L.L.C. v. Jones, 922 F.3d 309, 318 (5th Cir. 2019). First, the state official must

satisfy their “burden of establishing that the challenged conduct was within the scope

of [their] discretionary authority.” Cherry Knoll, LLC, 922 F.3d at 318. “Once a

government official establishes that [their] conduct was within the scope of [their]

discretionary authority, it is up to the plaintiff to show that (1) the official violated a

statutory or constitutional right, and (2) the right was clearly established at the

time.” Sweetin, 48 F.4th at 391.

Despite this clear two-step process, “[t]he first part of the rule often gets

overlooked.” Id. at 392. As the Fifth Circuit recently clarified:

To even get into the qualified-immunity framework, the government

official must satisfy [their] burden of establishing that the challenged

conduct was within the scope of [their] discretionary authority.

Id. at 392; see also Bevill v. Fletcher, 26 F.4th 270, 275 (5th Cir. 2022) (“Defendants

must first satisfy their burdens of establishing that the challenged conduct was

within the scope of their discretionary authority.”); Parker v. Armstrong, No. 22-cv-

418, 2024 WL 3730657, at *4 (W.D. Tex. Aug. 7, 2024) (“While it has become common

practice upon an assertion of qualified immunity to begin [with] the analysis of

plaintiffs rebuttal,” a court must instead perform “a preliminary analysis of the

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action taken by Defendants.”). “That oft-overlooked threshold requirement is

dispositive here.” Sweetin, 48 F.4th at 392.

To meet their initial burden, the officer must “demonstrate that [they] acted

with a good faith belief that [their] actions were within [their] lawful [discretionary]

authority.” Douthit v. Jones, 619 F.2d 527, 534 (5th Cir. 1980). Officials act within

their “discretionary authority when [they] perform[] non-ministerial acts within [the]

boundaries of [their] official capacity.” Cronen v. Tex. Dep't of Hum. Servs., 977 F.2d

934, 939 (5th Cir. 1992). “The scope of discretionary action is determined by relevant

state law.” Parker v. Armstrong, No. 22-cv-413, 2024 WL 3730657, at *4 (W.D. Tex.

Aug. 7, 2024). And so, if a rule or “policy allows no leeway for individual deliberation,

then it should be classified as ministerial.” Parker, 2024 WL 3730657, at *4. But “if

an action involves personal deliberation, decision and judgment, it is discretionary.”

Morris v. Dearborne, 181 F.3d 657, 674 (5th Cir. 1999).

Here, Dauthier completely bypasses his initial burden of showing he acted in

good faith and within his discretionary authority, focusing entirely on Plaintiffs

burden. He argues in conclusory fashion that Plaintiff has not pled a violation of a

“clearly established right” to privacy under the Louisiana constitution (Doc. 7-1 at

10), or “show[n] that no reasonable officer .. . could have believed he was accessing

Plaintiffs driver’s information for a permissible use under the DPPA” (id. at 12).

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Therefore, Plaintiff cannot “defeat [Dauthier’s] claim of qualified immunity.” (Id. at

10).8

And so, at no point does Dauthier allege his investigation of Plaintiff (including

the use of Plaintiffs personal information), or his disclosure to the YouTuber, were

within his discretionary authority as a BRPD officer. He points to no state law or

policy that might demonstrate the scope of his discretionary authority. And Dauthier

makes no argument that he acted in good faith when he investigated Plaintiff or

disclosed the information resulting from that investigation. Good faith and

discretionary authority have been completely overlooked. (Id. at 10, 12). Put simply,

Dauthier has wholly failed to meet his initial burden.

By contrast, Plaintiff specifically alleges that Dauthier knowingly lacked the

authority to initiate an investigation into Plaintiff and violated multiple BRPD

policies in both conducting the investigation and disclosing the information it yielded.

According to the Complaint, Dauthier “abus[ed]’ his position as a police officer to

investigate Plaintiff using his BRPD laptop to access confidential law enforcement

databases. (Doc. 1-2 at 50, 51). Dauthier is alleged to have knowingly violated the

8 Not only does Dauthier ignore his initial burden, the arguments he does present are “mostly

general legal statements and empty platitudes.” See A Brighter Day, Inc. v. Barnes, 860 F.

App’x 569, 575 (10th Cir. 2021) (“[T]he qualified-immunity argument was underdeveloped.”

“[Defendants] argue that the contours of any right were not clearly established . . . [and]

contend that Tucker conducted lawful investigations and the Department lawfully enforced

its standards in denying the renewal. These arguments are conclusory and inherently factual

in nature, and therefore, aren't appropriate considerations in deciding a motion to dismiss.”);

Tillmon v. Douglas Cnty., 817 F. App’x 586, 589 (10th Cir. 2020) (“Defendants argue they

adequately raised qualified immunity in their motion to dismiss, and they urge us to reach

the merits of their defense. But defendants’ analysis of qualified immunity in that motion

was cursory at best.”).

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BRPD Disciplinary Code in an effort to “ruin and destroy [Plaintiffs] public, personal

and professional reputation.” (Ud. at 52).

Dauthier does not even respond to these allegations which, if accepted as true,

may preclude the defense of qualified immunity. Compare Sweetin, 48 F.4th at 392

(“Wylie was not acting within the scope of his discretionary authority because state

law does not give a permit officer the authority to conduct stops of any kind.... Wylie

intentionally subjected [plaintiffs] to seizure, and Wylie admits he knew he had no

authority to stop them. ... Wylie is not entitled to qualified immunity.”), with Bevill

v. Fletcher, 26 F.4th 270, 275 (5th Cir. 2022) (Where defendant “contend[ed] that he

was authorized to direct resources such as assistant district attorneys and

investigators to specific matters at his discretion,” court found he was “entitled to

assert a defense of qualified immunity” and proceeded to plaintiffs burden.).

Because Dauthier has not met his initial burden of showing that he acted in

good faith and within his discretionary authority, the Court must deny his Motion to

Dismiss based on qualified immunity.? See Cherry Knoll, L.L.C., 922 F.3d at 319

(“Jones has failed to meet his burden of showing that the filing of the Subdivision

Plats was within the scope of his discretionary authority. Therefore, the district court

° This is not to say that Dauthier can never establish his entitlement to qualified immunity.

Rather, he has not done so based on the pleadings at this early stage of the litigation. See

McGee v. Carrillo, 297 F. App'x 319, 321-22 (5th Cir. 2008) (“In the present case, the district

court was correct in denying Carrillo's Motion to Dismiss because Carrillo has failed to

demonstrate that he acted in good faith and within his discretion .... The record as it

currently stands lacks .. . [information] that could guide a court as to whether or not Carrillo

was acting in good faith in a matter committed to his discretion. To ask for more is not to

commit this case to trial. But it is to say that the case needs to move to the summary judgment

stage.”).

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erred in determining that Jones was entitled to the protection of qualified immunity

at the Rule 12(b)(6) stage.”); Owens v. Stalder, No. 08-768, 2009 WL 4405794, at *5

(W.D. La. Dec. 2, 2009) (“Stalder has not pleaded his good faith, nor has he shown

that he was acting within the scope of his discretionary authority. Stalder has not ..

. [shown] he is entitled to qualified immunity ... .”); McFarland v. Brooks, No. 14-

cv-90, 2016 WL 1091096, at *7 (N.D. Miss. Mar. 21, 2016) (Brooks and Henry

submitted affidavits .... However, neither affidavit addresses the scope of their

discretionary authority or whether the actions about which McFarland complains

were undertaken in their official capacity. .. . [T]he Court cannot find that they are

entitled to qualified immunity.”); Williams v. Treen, 671 F.2d 892, 896-97 (5th Cir.

1982) (“Qualified immunity is an affirmative defense. The immunity is not

automatically available to every [] defendant merely by virtue of his status as a

government employee.”).

And because Dauthier has not met his initial burden, the Court does not

consider the remainder of the qualified immunity framework. See Heritage Hunter

Knoll, LLC v. Lamar Cnty., Mississippi, No. 19-cv-15, 2019 WL 3892425, at *4 (S.D.

Miss. Aug. 19, 2019) (denying motion to dismiss based on qualified immunity,

explaining: “Plaintiff argued in response that the Defendants have failed to carry

their initial burden of establishing that the challenged conduct was within the scope

of his discretionary authority. The Court agrees. Plaintiff, however, goes on to make

an argument, assuming arguendo that Defendants carried that burden. The

Defendants have not raised substantive qualified immunity arguments, and thus, the

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Court will not engage in an analysis of an argument not at issue before the Court.”).

Because Dauthier has not sufficiently asserted the defense of qualified immunity, his

Motion must be denied.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant John Dauthier’s Motion to Dismiss for

Failure to State a Claim (Doc. 7) be and is hereby “ate

Baton Rouge, Louisiana, this IT day of September, 2024

bad

a>

JUDGE BRIAN A aS SON

UNITED STATE YRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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