Royce McLin v. Jason Ard

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-30201 FILED

August 8, 2017

ROYCE DENTON MCLIN, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

JASON GERALD ARD, In his Individual and Official Capacity as Sheriff of

Livingston Parish; BENJAMIN THOMAS BALLARD, In his Individual and

Official Capacity as a Livingston Parish Sheriff's Office Detective; JACK R.

ALFORD, JR., In his Individual and Official Capacity as a Livingston Parish

Sheriff's Office Detective; STAN CARPENTER, In his Individual and Official

Capacity as a Livingston Parish Sheriff's Office Major; BRIAN P. SMITH, In

his Individual and Official Capacity as a Livingston Parish Sheriff's Office

Lieutenant Colonel; BONITA G. SAGER, In his/her Individual and Official

Capacity as a Livingston Parish Sheriff's Office Detective; WILLIAM

DORSEY, In his Individual and Official Capacity as a Livingston Parish

Sheriff's Office Deputy, also known as Willie; JAMES R. NORRED, JR., In

his Individual and Official Capacity as a Councilman, also known as Jim;

CYNTHIA G. WALE, In her Individual and Official Capacity as a

Councilwoman, also known as Cindy; CHANCE MCGREW PARENT, In his

Individual and Official Capacity as a Councilman,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.

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STEPHEN A. HIGGINSON, Circuit Judge:

Royce Denton McLin alleges that members of the Livingston Parish

Council and Livingston Parish Sheriff’s Office maliciously conspired to

prosecute him in retaliation for McLin’s online comments about certain Council

members. He contends that the Defendants obtained invalid arrest warrants,

to which McLin surrendered, and that, as a result, he was issued a

misdemeanor summons charging him with criminal defamation. After the

charges were dismissed, McLin sued the Defendants under 42 U.S.C. § 1983,

alleging violations of his First, Fourth, Fifth, and Fourteenth Amendment

rights. The district court dismissed all claims. McLin appeals the dismissal of

his First and Fourth Amendment claims. We AFFIRM.

I.

We recount the facts as alleged in McLin’s complaint. Sometime before

April 16, 2012, the Livingston Daily Times published an opinion piece titled

“Sue Happy Seven Councilmen,” which discussed complaints about the

Livingston Parish Council’s misuse of public funds. A URL link to the piece

was posted on a separate Facebook page maintained by the Livingston Daily

Times. The Facebook post was open to public comment. Using a pseudonym,

someone posted “critical comments” about three Council members—James R.

Norred, Jr., Cynthia G. Wale, and Chance McGrew Parent (the “Council

Defendants”). McLin alleges that the statements “merely constituted criticism

of official conduct of public officials.”

On April 20, 2012, Parent filed a report with the Livingston Parish

Sheriff’s Office (“LPSO”) alleging that the anonymous Facebook user had

“posted a comment in regards to numerous elected counsel [sic] members.” In

response, LPSO Detective Benjamin Thomas Ballard obtained subpoenas to

Facebook and Charter Communications. The subpoena responses linked

McLin’s home address to the Facebook account that posted the critical

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comments.

Ballard obtained a search warrant for McLin’s home, and he and LPSO

Detective Jack R. Alford, Jr. executed the search warrant on June 11, 2012.

Ballard and Alford confiscated electronic devices and equipment, and a forensic

analysis purportedly linked one of the confiscated computers to the anonymous

Facebook user.

Upon receiving this information, Ballard, Alford, and other officers

(together with Sheriff Jason Gerald Ard, the “Officer Defendants”), and the

Council Defendants (together with the Officer Defendants, the “Defendants”)

met on August 16, 2012, to discuss pursuing criminal charges against McLin.

Some of the officers urged that criminal defamation charges under Louisiana’s

criminal defamation statute—Louisiana Revised Statute § 14:47—were

warranted. The Council Defendants asked to pursue the charges against

McLin and “swore out criminal complaints” contending that they were each

subjected to criminal defamation as a result of comments McLin allegedly

posted to Facebook.

McLin alleges that these “arrest warrant affidavits” 1 were “materially

false.” According to McLin, the “false and misleading statements” contained in

the affidavits “originated, at least in part, from a self-serving and unreliable

‘review’ of illegally[ ]obtained evidence” by certain officers.” McLin alleges that

these “materially false statements were thereafter sponsored, ratified,

affirmed, supported, and relied upon” the officers. McLin further alleges that

the “facially[ ]invalid arrest warrants arose from the false statements made by

[the Defendants],” and that “the [Officer Defendants] conspired with the

1 The complaint refers to both sworn “criminal complaints” and “arrest warrant

affidavits.” Reading the complaint in a light most favorable to McLin, it appears that these

names refer to the same three documents that allegedly supported issuing the arrest

warrants.

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[Council Defendants] to create false and materially misleading arrest warrant

affidavits as the necessary predicate to securing a formal warrant for Mr.

McLin’s arrest.”

Based on the sworn criminal complaints, three warrants for McLin’s

arrest were issued on August 16, 2012. McLin learned of the charges, and later

that day, voluntarily surrendered at the sheriff’s office and signed a

misdemeanor summons pertaining to the three purported criminal defamation

violations. Four months later, an assistant district attorney dismissed the

charges.

II.

On August 16, 2013, McLin sued the Defendants for money damages

under 42 U.S.C. § 1983, 2 alleging First, Fourth, Fifth, and Fourteenth

Amendment violations, and several Louisiana state law claims. Specifically,

the complaint alleges that the Defendants maliciously investigated and

conspired to prosecute McLin in retaliation for McLin’s critical Facebook

comments.

The Council Defendants moved to dismiss the complaint pursuant to

Rule 12(b)(6), arguing that they were entitled to qualified immunity. The

district court granted the motion and dismissed McLin’s § 1983 First and

Fourth Amendment claims against the Council Defendants. The Officer

Defendants also moved to dismiss the complaint on the grounds of qualified

immunity. The district court granted the Officer Defendants’ motion as to

McLin’s First and Fourteenth Amendment claims and McLin’s Fourth

Amendment claim asserting an unconstitutional seizure. However, the district

court denied the motion as to McLin’s Fourth Amendment claim asserting an

2 McLin sued all parties in both their individual and official capacities. He also

brought § 1983 claims against the Livingston Parish Sheriff’s Office.

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unconstitutional search. The Officer Defendants appealed the district court’s

partial denial of their motion to dismiss. We found that the complaint failed to

allege the issuance of a search warrant and remanded for further proceedings,

including an opportunity for McLin to amend his complaint. McLin v. Ard, 611

F. App’x 806, 808–10 (5th Cir. 2015) (unpublished).

After remand, McLin filed an amended complaint. The Officer

Defendants again moved to dismiss. On February 5, 2016, the district court

granted the Officer Defendants’ motion to dismiss, and entered final judgment

for all the Defendants on all claims.

McLin appealed. He argues that that district court erred in dismissing

his First and Fourth Amendment § 1983 claims against the Defendants.

III.

We review de novo the district court’s grant of a motion to dismiss. Loupe

v. O’Bannon, 824 F.3d 534, 536 (5th Cir. 2016) (citing Martin K. Eby Constr.

Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive

a motion to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Phillips

v. City of Dallas, 781 F.3d 772, 776 (5th Cir. 2015) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). In reviewing the complaint, we “draw all inferences

in favor of the nonmoving party, and view all facts and inferences in the light

most favorable to the nonmoving party.” Club Retro, L.L.C. v. Hilton, 568 F.3d

181, 194 (5th Cir. 2009). Legal conclusions, however, are not entitled to an

assumption of truth and must be supported by factual allegations. Iqbal, 556

U.S. at 678–79. Thus, “[a] claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Gonzalez v. Kay, 577 F.3d 600,

603 (5th Cir. 2009) (citing Iqbal, 556 U.S. at 678). When the motion to dismiss

raises the defense of qualified immunity, the plaintiff “must plead specific facts

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that both allow the court to draw the reasonable inference that the defendant

is liable for the harm . . . alleged and that defeat a qualified immunity defense

with equal specificity.” Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014)

(quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)).

“The doctrine of qualified immunity protects government officials from

civil damages liability when their actions could reasonably have been believed

to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

To defeat a claim of qualified-immunity, the plaintiff has the burden to

demonstrate the inapplicability of the defense. Atteberry v. Nocona Gen. Hosp.,

430 F.3d 245, 253 (5th Cir. 2005). The plaintiff must show “(1) that the official

violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Whitley v. Hanna, 726 F.3d

631, 638 (5th Cir. 2013) (internal quotation marks omitted) (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 735 (2011)). “Courts have discretion to decide which

prong of the qualified-immunity analysis to address first.” Morgan, 659 F.3d

at 371 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

IV.

McLin argues that the district court erred in dismissing his § 1983

Fourth Amendment claim. He contends that he was unreasonably “seized”

when he surrendered to arrest warrants issued without probable cause. The

Defendants respond that the issuance of the arrest warrants broke the causal

chain, immunizing the Defendants from liability. Alternatively, the

Defendants respond that McLin’s voluntary surrender to the arrest warrants

did not constitute a seizure, and McLin therefore failed to state a constitutional

violation.

A.

We first address whether issuance of the arrest warrants insulates the

Defendants from civil liability on McLin’s Fourth Amendment claim. Because

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McLin adequately pleads that the Defendants submitted false and misleading

affidavits for the purpose of obtaining arrest warrants, we hold that issuance

of the warrants does not insulate the Defendants.

“It is well settled that if facts supporting an arrest are placed before an

independent intermediary such as a magistrate or grand jury, the

intermediary’s decision breaks the chain of causation for false arrest,

insulating the initiating party.” Deville v. Marcantel, 567 F.3d 156, 170 (5th

Cir. 2009) (citing Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled

on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003)

(en banc)). “[T]he initiating party may be liable for false arrest,” however, “if

the plaintiff shows that the ‘deliberations of that intermediary were in some

way tainted by the actions of the defendant.’” Id. (quoting Hand v. Gary, 838

F.2d 1420, 1428 (5th Cir. 1988)). But, “because the intermediary’s

deliberations protect even officers with malicious intent,” a plaintiff must show

that the official’s malicious motive led the official to withhold relevant

information or otherwise misdirect the independent intermediary by omission

or commission. Buehler v. City of Austin/Austin Police Dep’t., 824 F.3d 548,

555 (5th Cir. 2016) (citing Hand, 838 F.2d at 1427).

We have previously held that “mere allegations of ‘taint,’ without more,

are insufficient to overcome summary judgment.” Cuadra v. Hous. Indep. Sch.

Dist., 626 F.3d 808, 813 (5th Cir. 2010); see, e.g., id. at 813–14 (finding no “fact

issue” regarding whether appellees tainted the decision of two grand juries to

return indictments); Taylor, 36 F.3d at 456–57 (finding that plaintiffs

presented no summary judgment evidence showing that the intermediary was

tainted by the actions of the defendants); Buehler, 824 F.3d at 555–56 (finding

no error in district court summary judgment ruling that appellant “failed to

show a triable issue whether the grand jury’s findings of probable cause were

obtained by false or misleading statements by the arresting officers”). We have

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not, however, addressed the “taint exception” at the motion to dismiss stage

where the standard is more permissive: a court must accept all factual

allegations as true, and the complaint must state only a plausible claim.

Phillips, 781 F.3d at 776. Thus, although our precedent demonstrates that

“mere allegations of ‘taint’” are insufficient at summary judgment, Cuadra, 626

F.3d at 813, such allegations may be adequate to survive a motion to dismiss

where the complaint alleges other facts supporting the inference. 3

McLin alleges that three arrest warrants were issued 4 on the basis of the

Council Defendants’ affidavits, which were based on information and advice

provided by the Officer Defendants. According to the complaint, the

Defendants, at several “individual and collective meetings” convened “for the

purposes of discussing the pursuit of criminal charges against [McLin],”

“conspired . . . to create false and materially misleading arrest warrant

affidavits as the necessary predicate to securing” arrest warrants. Ballard

purportedly drafted three “fatally flawed” arrest warrants falsely alleging

3 District courts in this circuit have denied motions to dismiss on these grounds,

finding the resolution of such factual disputes more proper for summary judgment. See

Sullivan v. Chastain, No. Civ.A.SA04CA0803XR, 2005 WL 354032, at *3 (W.D. Tex. Jan. 4,

2005) (denying motion to dismiss on qualified immunity grounds where the plaintiff alleged

that the defendant officer swore to a complaint that was without personal knowledge or

probable cause); Bustamante v. Christian, No. 3:96-CV-2299D, 1997 WL 42530, at *5 (N.D.

Tex. Jan. 29, 1997) (“Because [the plaintiff] maintains that the indictment was a product of

false and misleading testimony, the court cannot say in the context of Rule 12(b)(6) that the

indictment absolutely bars [plaintiff’s] claim that defendants caused her false arrest.”). But

see Saturn v. Barnett, No. A-16-CA-505-LY, 2016 WL7392240, *4 (W.D. Tex. Dec. 12, 2016)

(holding that the plaintiff failed to plead the taint exception because he “failed to identify any

actual material false statements in [the officer’s] sworn statement, only offering his own

conclusory beliefs of their falsity”); but cf. Goodarzi v. Hartzog, No. H-12-2870, 2013 WL

3110056, at *12, 21 (S.D. Tex. June 14, 2013) (dismissing false arrest claims without prejudice

where there was “no evidence of precisely what was said to the [independent intermediary],”

but the court found “substantial questions” about whether the defendant was insulated from

liability).

4 Although the complaint does not specifically allege who reviewed the affidavits and

issued the warrants, Louisiana law provides that a warrant of arrest may be issued by any

“magistrate,” which is defined to include any judge, justice of the peace, or a mayor of a

mayor’s court. La. Code Crim. Proc. art. 202; id. art. 931(4).

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“misconduct” by McLin. The Council Defendants signed “materially false”

arrest warrant affidavits, which were thereafter “sponsored, ratified, affirmed,

supported, and relied upon” by the Officer Defendants. More specifically,

McLin alleges that the Officer Defendants knew that McLin’s speech was

constitutionally protected, and that none of the Council Defendants “ever

possessed any information which would be sufficient to swear out affidavits”

alleging a violation of § 14:47. Further, McLin alleges that his arrest was

“effected based in whole or in part upon the material misrepresentations,

errors, omissions, and other inaccuracies” made by the Officer Defendants.

Viewing these allegations in a light most favorable to McLin and drawing

all appropriate inferences, the complaint pleads facts supporting the taint

exception sufficient to survive a motion to dismiss. According to McLin, the

Facebook comments criticized the official conduct of public officials. McLin

further alleged that, with knowledge that such speech does not constitute

criminal defamation, the Defendants met for the purpose of conspiring to

create false and misleading affidavits in order to obtain warrants for McLin’s

arrest. Finally, McLin alleged that the arrest warrants were issued on the

basis of the falsified affidavits. Accordingly, we hold that the arrest warrants

do not insulate the Defendants from liability at this stage because McLin

pleads that the Defendants’ false and misleading affidavits tainted the

magistrate’s deliberations.

B.

We next consider whether McLin alleges an unreasonable seizure under

the Fourth Amendment. McLin contends that he was “seized” when he

voluntarily surrendered to the arrest warrants at the sheriff’s office and signed

a misdemeanor summons pertaining to the three purported criminal

defamation violations. McLin further argues that his seizure was

unreasonable—and therefore unconstitutional—because the Defendants

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lacked probable cause to arrest him.

1.

A person is “seized” for Fourth Amendment purposes “when the officer,

by means of physical force or show of authority, has in some way restrained

the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968). A seizure

occurs “only if, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that [they were] not free to leave.”

Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)). The reasonable-person test is objective

and ensures “that the scope of Fourth Amendment protection does not vary

with the state of mind of the particular individual” claiming a violation. Id. at

574. Physical force is not required to effect a seizure; however, absent physical

force, “submission to the assertion of authority” is necessary. California v.

Hodari D., 499 U.S. 621, 626 (1991).

Thus, seizures have been found when an encounter is precipitated

by a show of authority, such as when a siren was used to pull a

motorist over; when a motorist stepped out of his camper, with his

hands up, in response to an officer’s knock on the camper door; or

when under other circumstances it was ‘apparent . . . that the

individual was not free to ignore the officer and proceed on his

way.’

United States v. Elmore, 595 F.2d 1036, 1041 (5th Cir. 1979) (citations

omitted).

Substantial authority from both the Supreme Court and our court

establishes that voluntary submissions to a show of state authority can

constitute seizures for Fourth Amendment purposes. 5 Consistent with this

5See, e.g., Brower v. County of Inyo, 489 U.S. 593, 597–98 (1989) (“If the revenue agent

had shouted, ‘Stop and give us those bottles, in the name of the law!’ and the defendant and

his accomplice had complied . . . a Fourth Amendment seizure would have occurred.”); id. at

598–99 (“[A] roadblock that is designed to give the oncoming driver the option of a voluntary

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authority, the Supreme Court’s divided opinion in Albright v. Oliver, 510 U.S.

266 (1994) suggests that voluntary surrender to an arrest warrant constitutes

a seizure under the Fourth Amendment. In Albright, upon learning of an

outstanding warrant for his arrest on drug charges, Albright surrendered to a

city police detective. Id. at 268. Albright was released after posting bond. Id.

After the court dismissed the criminal action, Albright brought a § 1983 suit

against the police detective for violating his substantive due process rights

under the Fourteenth Amendment. Id. at 269. Although the Court affirmed the

district court’s dismissal of the case on other grounds, seven Justices

characterized Albright’s voluntary surrender to the arrest warrant as a Fourth

Amendment seizure. Chief Justice Rehnquist’s plurality opinion (joined by

Justices O’Connor, Scalia, and Ginsburg) observed that the plaintiff’s

“surrender to the State’s show of authority constituted a seizure for purposes

of the Fourth Amendment.” Id. at 271 (noting that Albright did not claim a

violation of the Fourth Amendment); see also id. at 276 (Ginsburg, J.,

concurring) (“Albright’s submission to arrest unquestionably constituted a

seizure for purposes of the Fourth Amendment.”). In a concurring opinion,

stop” could cause a seizure because “it [is] enough for a seizure that a person be stopped by

the very instrumentality set in motion or put in place in order to achieve that result.”); Evans

v. Ball, 168 F.3d 856, 861 (5th Cir. 1991) (finding the plaintiff seized when he voluntarily

appeared in court in response to a summons and then was released on his own recognizance

subject to pre-trial restrictions), abrogated on other grounds by Castellano v. Frogozo, 352

F.3d 939 (5th Cir. 2003) (en banc); United States v. Shabazz, 993 F.2d 431, 433–34 (5th Cir.

1993) (finding “no question” that a seizure occurred when defendants were pulled over by

officers for exceeding the speed limit); accord United States v. Nicholas, 448 F.2d 622, 624

(8th Cir. 1971) (finding a “clear” seizure “when the officers stationed themselves on either

side of Nicholas’s car and flashed their badges” “[e]ven though Nicholas may have been

physically free to drive away”); United States v. Ward, 488 F.2d 162, 168–69 (9th Cir. 1973)

(finding a “clear” seizure where agents “turned on the siren in their unmarked car and

motioned the [motorist] to go around the corner and stop,” and the motorist “immediately

complied”); White v. Wright, 150 F. App’x 193, 195, 197–98 (4th Cir. 2005) (unpublished)

(finding the plaintiff seized where he “voluntarily turned himself in after the [criminal grand

jury] indictment was returned,” and was detained briefly for fingerprinting and processing

before being released subject to conditions in a bond).

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Justice Souter also observed the “Fourth Amendment seizure that followed

when [Albright] surrendered himself into police custody.” Id. at 289 (Souter,

J., concurring in judgment). Likewise, Justice Stevens’s dissenting opinion,

which was joined by Justice Blackmun, recognized Albright’s “initial seizure.”

Id. at 307 (Stevens, J., dissenting).

Albright’s statements on the Fourth Amendment seizure issue, which

were not essential to that case’s outcome, are non-binding though indicative,

and our court has never decided whether voluntary surrender to an arrest

warrant constitutes a seizure. Several other circuit courts, however, have

relied on Albright to hold that a state official’s acceptance of a voluntary

surrender to an arrest warrant constitutes a seizure. In Whiting v. Traylor, the

plaintiff brought a § 1983 action for malicious prosecution after he voluntarily

surrendered to an arrest warrant that he claimed lacked probable cause. 85

F.3d 581, 583 (11th Cir. 1996). Upon turning himself in, the plaintiff was

detained overnight and then released on bond. Id. In vacating the district

court’s dismissal of the suit, the Eleventh Circuit found that the plaintiff’s

“initial surrender” was a seizure because “he subjected himself physically to

the force of the state in response to an arrest warrant.” Id. at 586 & n.6.

Likewise, the Tenth Circuit recently considered the § 1983 claim of a

plaintiff who, after learning of his arrest warrant, turned himself into the local

jail. Goad v. Town of Meeker, 654 F. App’x 916, 921 (10th Cir. 2016)

(unpublished). On review of the district court’s grant of summary judgment,

the court held that the plaintiff’s “surrender to the State’s show of authority

constituted a seizure for purposes of the Fourth Amendment.” Id. (quoting

Albright, 510 U.S. at 271) (plurality opinion)); see also Cummisky v. Mines, 248

F. App’x 962, 964, 965 n.1 (10th Cir. 2007) (unpublished) (noting that the

plaintiff was seized when, after learning about the warrant issued for his

arrest, he surrendered at the police station; was photographed and

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fingerprinted; and then allowed to leave after posting bond). 6

Here, McLin alleges that three warrants were issued for his arrest, and

that he “learned of the (false) charges and voluntarily surrendered unto the

Livingston Parish Sheriff’s Office . . . and Defendant Ballard” later that same

day. At the sheriff’s office, McLin signed a misdemeanor summons for the three

alleged criminal charges and then left. Issuance of the arrest warrants was a

“show of authority,” see Terry, 392 U.S. at 19 n.16, and McLin submitted to

that authority by voluntarily surrendering at the sheriff’s office. See Hodari,

499 U.S. at 626; Whiting, 85 F.3d at 585 n.6. At the moment the officer(s)

accepted McLin’s surrender by exercising authority consistent with those

warrants, no “reasonable person would have believed that he was . . . free to

leave.” Mendenhall, 446 U.S. at 554; see also United States v. Jaras, 86 F.3d

383, 390 (5th Cir. 1996) (“It is well established that a defendant’s mere

acquiescence to a show of lawful authority is insufficient to establish voluntary

consent.”); Albright, 510 U.S. at 271 (plurality opinion); Goad, 654 F. App’x at

921.

The Defendants argue that McLin fails to plead a seizure because he does

not allege that his pre-trial liberty was limited. In support, they point to cases

where courts have ruled that the issuance and receipt of a criminal summons

6 A number of district courts have also determined that acceptance of a voluntary

surrender to an arrest warrant constitutes a seizure under the Fourth Amendment. See

Garrett v. Stanton, No. 08-0175-WS-M, 2009 WL 4258135, at *6 (S.D. Ala. Nov. 19, 2009)

(observing the “considerable authority . . . finding that self-surrender upon issuance of a

warrant constitutes a Fourth Amendment seizure” and finding that that “[c]learly . . . Garrett

was seized for Fourth Amendment purposes when she surrendered to law enforcement

authorities upon issuance of an arrest warrant”); Groom v. Fickes, 966 F. Supp. 1466, 1474–

75 (S.D. Tex. 1997) (holding that the plaintiff pleaded a Fourth Amendment violation when

it was “obvious that the plaintiff surrendered to the government’s show of authority, i.e., in

response to the criminal indictment”); see also Pomykacz v. Borough of West Wildwood, 438

F. Supp. 2d 504, 512 (D.N.J. 2006) (finding a Fourth Amendment seizure when “police officers

showed their authority” by going to the plaintiff’s house “to advise her that a warrant for her

arrest had been issued” and the plaintiff thereafter “submitted to that authority when she

appeared at the police station”).

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or citation—without the imposition of additional, pre-trial restrictions—may

not implicate the Fourth Amendment. 7 If, however, the summons or citation is

accompanied by more burdensome restrictions—such as restrictions on out-of-

state travel and pre-trial reporting requirements—some courts, including this

one, have recognized that a seizure may occur incident to a pre-trial release.

See Karam, 352 F.3d at 1193–94. In Evans v. Ball, this court held that issuing

a summons, “coupled with the requirements that [the plaintiff] obtain

permission before leaving the state, report regularly to pretrial services, sign

a personal recognizance bond, and provide federal officers with financial and

identifying information, diminished his liberty enough to render him seized

under the Fourth Amendment.” 168 F.3d at 861.

The Defendants’ reliance on cases concerning seizures incident to pre-

trial release is misplaced. McLin’s Fourth Amendment claim does not stem

from any conditions imposed on him once he was issued the summons. Indeed,

McLin does not plead any pre-trial restrictions at all. Rather, McLin’s seizure

occurred when he surrendered to the arrest warrants and LPSO exercised

authority consistent with the warrants—even if McLin thereafter signed his

summons and was allowed to leave. The existence or non-existence of any pre-

7 See, e.g., Bielanski v. Cty. of Kane, 550 F.3d 632, 642 (7th Cir. 2008) (“No court has

held that a summons alone constitutes a seizure, and we conclude that a summons alone does

not equal a seizure for Fourth Amendment purposes.”); Martinez v. Carr, 479 F.3d 1292, 1299

(10th Cir. 2007) (“[T]he mere issuance of a citation requiring presence at future legal

proceedings does not qualify as a constitutional ‘seizure’ . . . .”); DiBella v. Borough, 407 F.3d

599, 603 (3rd Cir. 2005) (finding no seizure where plaintiffs were issued summonses, but

never were arrested, never posted bail, and never were subject to any travel restrictions or

pre-trial reporting requirements); Karam v. City of Burbank, 352 F.3d 1188, 1191, 1194 (9th

Cir. 2003) (finding no seizure where no arrest warrant issued and “all [plaintiff] had to do

was show up for court appearances and obtain permission from the court if she wanted to

leave the state”); Britton v. Maloney, 196 F.3d 24, 30 (1st Cir. 1999) (“Absent any evidence

that Britton was arrested, detained, restricted in his travel, or otherwise subject to a

deprivation of liberty before the charges against him were dismissed, the fact that he was

given a date to appear in court is insufficient to a establish a seizure within the meaning of

the Fourth Amendment.”).

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trial restrictions does not impact the analysis of this seizure. 8 The Defendants

have not pointed to a case in which a court found that a person surrendering

to an arrest warrant was not seized for Fourth Amendment purposes.

Moreover, in other voluntary surrender contexts—traffic stops, for example—

it makes no difference whether further restrictions follow the initial moment

of seizure. See, e.g. Delaware v. Prouse¸ 440 U.S. 648, 653 (1979) (“[S]topping

an automobile and detaining its occupants constitute a ‘seizure’ . . . even

though the purpose of the stop is limited and the resulting detention quite

brief.”). We therefore hold that McLin pleads that he was seized under the

Fourth Amendment.

2.

Having held that McLin pleads a Fourth Amendment seizure, we must

next determine whether such seizure was unreasonable and thus a

constitutional violation. See Elkins v. United States, 364 U.S. 206, 222 (1960)

(“[W]hat the Constitution forbids is not all searches and seizures, but

unreasonable searches and seizures.”). McLin’s seizure occurred when he

surrendered to an arrest warrant, the issuance of which required probable

cause. Thus, for McLin to allege an unreasonable seizure, his allegations must

make plausible that the Defendants lacked probable cause to arrest him.

“[P]robable cause is the ‘sum total of layers of information and the synthesis of

what police have heard, what they know, and what they observed as trained

8 See, e.g., Whiting, 85 F.3d at 585 n.6 (focusing on the plaintiff’s “initial surrender”

as the moment of seizure because “he subjected himself physically to the force of the state in

response to an arrest warrant”); Goad, 654 F. App’x at 921 (finding a seizure where the

plaintiff surrendered to an arrest warrant and was immediately booked and released, with

no mention of pre-trial restrictions); Garrett, 2009 WL 4258135 at *4, 6 (finding a seizure

where the plaintiff was subject to no pre-trial restrictions after surrendering and

immediately bonding out); see also Albright, 510 U.S. at 271 (plurality opinion) (“[Plaintiff’s]

surrender to the State’s show of authority [the arrest warrant] constituted a seizure for

purposes of the Fourth Amendment”).

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officers.’” United States v. Shaw, 701 F.2d 367, 376 (5th Cir. 1983) (quoting

United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en banc)).

In Garrison v. Louisiana, the Supreme Court held that the Louisiana

criminal defamation statute, La. Stat. 14:47, is unconstitutional “in the context

of criticism of the official conduct of public officials.” 379 U.S. 64, 77 (1964).

The court explained that only “false statement[s] ‘made with actual malice—

that is, with knowledge that it was false or with reckless disregard of whether

it was false or not’”—are unprotected under the First Amendment and validly

subject to criminal prosecution. Id. at 67 (quoting N.Y. Times Co. v. Sullivan,

376 U.S. 254, 279–80 (1964)). The Louisiana statute runs afoul of this

limitation because it “punishes false statements without regard to that test if

made with ill-will; even if ill-will is not established, a false statement

concerning public officials can be punished if not made in the reasonable belief

of its truth.” Id. at 78. Following Garrison, the Louisiana Supreme Court also

recognized the unconstitutionality of the statute when it circumscribes speech

about public officials. See State v. Defley, 395 So. 2d 759, 761 (La. 1981) (“LSA-

R.S. 14:47 is unconstitutional insofar as it punishes public expression about

public officials.”); State v. Snyder, 277 So. 2d 660, 665 (La. 1972) (“[A] charge

of defamation is well founded as to these [public officials] only when the

statement was made with actual malice, that is, with knowledge that it was

false or with reckless disregard of whether it was false or not.”).

The factual allegations in McLin’s complaint sufficiently plead that the

Defendants lacked probable cause to prosecute McLin for violating the

Louisiana criminal defamation statute. McLin alleges that the anonymous

Facebook comments—posted to a news story about Council members and the

Council’s misuse of public funds—did not amount to criminal defamation but

rather “merely constituted criticism of official conduct of public officials.”

Speech criticizing the official conduct of public officials is protected by the First

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Amendment and does not constitute criminal defamation. See Defley, 395 So.

2d at 761; Snyder, 277 So. 2d at 665. McLin further alleges that, upon linking

the comments to him, and with knowledge that McLin’s comments were

protected by the First Amendment, the Defendants met and conspired to create

falsified affidavits for the purpose of obtaining arrest warrants on charges of

criminal defamation. See Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987)

(“[A]n officer charged with enforcing Louisiana law[] can be presumed to know

that law.”). On these facts, which must be taken as true, we conclude that

McLin’s complaint adequately alleges an unreasonable seizure because the

Defendants could not have believed they had probable cause to arrest him. See

Spiller v. City of Tex. City Police Dep’t, 130 F.3d 162, 165–66 (5th Cir. 1997)

(holding that the plaintiff pleaded a Fourth Amendment claim where “the

events alleged in [her] complaint did not provide [the officer] with probable

cause to believe that [her speech] was likely to incite an immediate breach of

the peace,” and so “her arrest for disorderly conduct was not supported by

probable cause”).

C.

Although we hold that McLin pleads a Fourth Amendment violation, the

Defendants are still entitled to qualified immunity unless the particular

constitutional right at issue was “clearly established.” “When considering a

defendant’s entitlement to qualified immunity, we must ask whether the law

so clearly and unambiguously prohibited his conduct that ‘every reasonable

official would understand that what he is doing violates [the law].’” Morgan,

659 F.3d at 371 (quoting al-Kidd, 563 U.S. at 741); see also Lane v. Franks, 134

S. Ct. 2369, 2381 (2014) (noting that the right must be clearly established “at

the time of the challenged conduct”). “To answer that question in the

affirmative, we must be able to point to controlling authority—or a robust

consensus of persuasive authority—that defines the contours of the right in

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question with a high degree of particularity.” Morgan, 659 F.3d at 371–72

(internal quotation marks omitted) (quoting al-Kidd, 563 U.S. at 742); see also

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (“The dispositive question is

whether the violative nature of particular conduct is clearly

established.” (internal citation and quotation omitted)). “Where no controlling

authority specifically prohibits a defendant’s conduct, and when the federal

circuit courts are split on the issue, the law cannot be said to be clearly

established.” Morgan, 659 F.3d at 372.

Here, we cannot say that every reasonable officer would understand that

McLin was seized for purposes of the Fourth Amendment. To date, neither the

Supreme Court nor the Fifth Circuit has decided that an officer’s acceptance of

a voluntary surrender to an arrest warrant constitutes a Fourth Amendment

seizure. And there is no a “robust consensus of persuasive authority”: only one

circuit—the Eleventh—has found a seizure in these circumstances in a

published opinion, and a majority of circuit courts have not yet weighed in.

Although we now hold that McLin was seized, reasonable officers might not

have understood that accepting McLin’s surrender to the arrest warrants,

without imposing further pre-trial restrictions, constituted a seizure.

We therefore hold that McLin fails to plead a violation of a “clearly

established” constitutional right, and we affirm the district court’s grant of

qualified immunity to the Defendants and dismissal of McLin’s Fourth

Amendment claim on that basis.

V.

McLin also argues that the district court erred in dismissing his First

Amendment retaliation claim. He alleges that the Defendants violated his

First Amendment rights by retaliating against him for making critical public

comments about Council members. The district court determined that McLin

failed to state a claim because he failed to allege an injury that would chill a

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person of ordinary firmness from continuing to engage in protected speech.

ROA.70–73. We offer no opinion on the correctness of the district court’s

determination because we find that the complaint is deficient for another

reason: McLin fails to plead that the Defendants’ retaliatory conduct actually

curtailed his speech.

“The First Amendment prohibits not only direct limits on individual

speech but also adverse governmental action against an individual in

retaliation for the exercise of protected speech activities.” Keenan v. Tejeda,

290 F.3d 252, 258 (5th Cir. 2002). To prevail on a § 1983 claim for First

Amendment retaliation, McLin must show that “(1) [he] was engaged in

constitutionally protected activity[;] (2) the defendant’s actions caused [him] to

suffer an injury that would chill a person of ordinary firmness from continuing

to engage in that activity[;] and (3) the defendant’s adverse actions were

substantially motivated [by] the constitutionally protected conduct.” Id. 9 The

second element “requires some showing that the plaintiff’s exercise of free

speech has been curtailed.” Id. at 259 (citing Suarez Corp. Indus. v. McGraw,

202 F.3d 676, 686 (4th Cir. 2000); Spear v. Town of West Hartford, 954 F.2d

63, 67 (2d Cir. 1992); Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989)). 10 “A

required showing of actual injury does not necessarily mean that plaintiffs

must cease criticizing the government officials altogether in order to have a

claim for retaliation.” Id. at 260. “The effect on freedom of speech may be small,

but since there is no justification for harassing people for exercising their

9 Additionally, “retaliatory criminal prosecutions in violation of the First Amendment

are actionable only if a plaintiff can also prove the common-law elements of malicious

prosecution . . . .” Keenan, 290 F.3d at 260.

10 In Linzy v. Cedar Hill Independent School District, issued only a few weeks after

Keenan, the court noted that “[o]ur precedent does not appear to expressly require a showing

that a plaintiff’s speech has been actually inhibited by the retaliation.” No. 01-11145, 2002

WL 1021883, at *1 n.7 (5th Cir. May 9, 2002) (unpublished). The Linzy opinion fails to

mention Keenan, and is unpublished and thus not binding. See 5th Cir. R. 47.5.

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constitutional rights it need not be great in order to be actionable.” Id. at 259

(quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). 11 In Keenan, the

court found that the plaintiffs demonstrated curtailment when they asserted

that they “backed off from direct involvement in helping expose unlawful

practices in the constable’s office,” even though at least one plaintiff continued

to investigate and file complaints about such practices. Id. at 260 (internal

quotations omitted).

Here, McLin argues that he satisfied the curtailment requirement by

pleading that “he suffered ‘great personal damage’ from the Defendants’

actions, including a violations [sic] of his First Amendment rights.” From these

minimal allegations, McLin urges the court to infer that he “actually suffered

a curtailment of his speech.”

Even drawing all appropriate inferences in favor of McLin, these

allegations are insufficient to allege curtailment of McLin’s speech. The

assertion that McLin suffered “violations of his First Amendment rights” is a

legal conclusion and is not entitled to an assumption of truth. See Iqbal, 556

U.S. at 678–79. McLin is left with an allegation of “great personal damage,”

which does not demonstrate that he reduced or changed his exercise of free

speech in any way. See Spear, 954 F.2d at 67 (finding that a plaintiff’s

allegation of a chill “was conclusory and speculative” when “[t]he complaint

offered nothing beyond a bare assertion that the lawsuit cause[ed] a chilling

effect upon his First Amendment rights”); Mills v. Bogalusa, No. 13-5477, 2014

WL 2993426, at *4 (E.D. La. Jul. 2, 2014) (dismissing retaliation claim where

11The requirement that a retaliation claim show some curtailment of the plaintiff’s

speech has been criticized by some circuit courts because it punishes the brave plaintiff.

Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999) (“[I]t would be

unjust to allow a defendant to escape liability for a First Amendment violation merely

because an unusually determined plaintiff persists in his protected activity.”); Smith v. Plati,

258 F.3d 1167, 1177 (10th Cir. 2011) (citing Mendocino approvingly).

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plaintiff failed to plead “specific facts showing actual curtailment in response

to defendants’ allegedly retaliatory activity”). Notably, McLin’s complaint

appears to be carefully drafted to avoid explicitly admitting that he was the

anonymous commentator, and accordingly, he never alleges that the

Defendants’ conduct stopped him from speaking further. 12 Thus, the district

court did not err by dismissing McLin’s First Amendment claim.

VI.

For the foregoing reasons, we AFFIRM the judgment of the district court.

12 The complaint repeatedly refers to “certain comments and statements alleged to

have been posted . . . by Mr. McLin,” and states that “Defendants . . . alleged Mr. McLin

created an anonymous Facebook profile / account and used the said account to post

disparaging comments . . . .”

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