Robert Weisler, III v. Jefferson Parish Sheriff's

Case: 17-30951 Document: 00514515923 Page: 1 Date Filed: 06/18/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-30951 June 18, 2018

Summary Calendar

Lyle W. Cayce

Clerk

ROBERT WEISLER, III,

Plaintiff - Appellant

v.

JEFFERSON PARISH SHERIFF'S OFFICE; NEWELL NORMAND,

Jefferson Parish Sheriff; DAVID MICHEL, Officer; TRAVIS ENCLARD,

Officer; JULIO ALVARADO, Officer; MIKE LEYVA, Officer; RUSSELL

VARMALL, Officer; BLAKE HOLLIFIELD, Officer,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-14582

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Robert Weisler, III, was pulled over and arrested while driving his white

Ford Crown Victoria with darkly tinted windows. Although he was initially

charged with impersonating a police officer and possession of a controlled

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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No. 17-30951

substance, he ultimately pleaded guilty only to a violation of Louisiana’s

window-tint statute and paid a fine. He sued under 42 U.S.C. § 1983, alleging

an unlawful arrest in violation of the Fourth Amendment. The district court

ultimately granted summary judgment on the basis of qualified immunity after

it determined that the officers had probable cause to arrest based on a violation

of the window-tint statute. We AFFIRM.

I.

Robert Weisler, III, is a 55-year-old former police officer. In September

2015, two officers pulled him over for a traffic stop. Weisler was driving a white

Ford Crown Victoria with windows tinted dark enough that the officers could

not see inside. Once Weisler rolled down his window, the officers saw

additional items that raised their suspicion that he was impersonating a police

officer. The officers saw a computer stand, an emergency light on the front

dashboard, an emergency siren in the front grill, and what appeared to be

tactical equipment. They also noticed that Weisler was wearing a hat

emblazoned with the word “S.W.A.T.” The officers asked Weisler if he was “a

26”—that is, a law enforcement officer—and Weisler responded that he was

and produced identification for two different law enforcement agencies.

Weisler later admitted that he was retired.

After verifying that Weisler had resigned from his last law enforcement

job, the officers placed him under arrest. Weisler then spent roughly a day-

and-a-half in jail; he was released due to overcrowding. He was charged with

impersonating a police officer, La. R.S. § 14:112, possession of a controlled

dangerous substance, La. R.S. § 40:967, and illegal window tint, La. R.S.

§ 32:361.1. The impersonation and controlled-substance charges were dropped.

Weisler pleaded guilty to the window-tint charge and paid the attendant fine.

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No. 17-30951

Weisler then sued under 42 U.S.C. § 1983 alleging violations of his

Fourth, Fifth, Eighth, 1 and Fourteenth Amendment rights. He named as

defendants the officers involved in his arrest, the officers who helped to prepare

the police report, the officers at the parish jail, the sheriff of Jefferson Parish,

the president of Jefferson Parish, and Jefferson Parish itself. He named all

defendants in their personal and official capacities. The district court

dismissed Jefferson Parish and its president as parties and ultimately granted

summary judgment in favor of all other defendants.

II.

We review the district court’s grant of summary judgment de novo.

Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013). In doing so, we view the

facts in the light most favorable to the nonmovant and draw all reasonable

inferences in that party’s favor. Id. The ultimate question we ask is whether

there exists any “genuine dispute as to any material fact” that warrants a trial.

Fed. R. Civ. P. 56(a). If not, then “[t]he court shall grant summary judgment.”

Id.

The district court granted summary judgment on the basis of qualified

immunity. Qualified immunity shields government officials from suits for

damages unless a plaintiff shows “(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.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). For a

right to be clearly established, the relevant legal authorities must put the

officer on notice that his or her particular conduct was unlawful. See Kinney v.

Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004) (en banc). This does not require

that “the very action in question has previously been held unlawful,” merely

1 Weisler’s complaint alleges that the defendants violated his Eighteenth Amendment

rights, but the district court found that he intended to allege Eighth Amendment violations.

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that a reasonable officer would understand that his or her conduct was

unlawful. Id. at 350 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

If reasonable officers could disagree on the lawfulness of the defendant’s

actions, then the officer is entitled to qualified immunity. Haggerty v. Tex. S.

Univ., 391 F.3d 653, 655 (5th Cir. 2004). When a defendant pleads qualified

immunity, the plaintiff bears the burden of negating it. McClendon v. City of

Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc).

III.

On appeal, Weisler raises three purely legal issues. We reject each of his

claims of error.

A.

According to Weisler, it is clearly established that the Fourth

Amendment prohibits arrests for noncriminal regulatory offenses. 2 Because

the Louisiana window-tint statute is, in Weisler’s view, a regulatory offense,

any reasonable officer would have understood that the Fourth Amendment

prohibited arresting Weisler for violating it.

Weisler is wrong on both fronts. As an initial matter, he fails to cite any

cases from this circuit holding that an arrest for a noncriminal regulatory

offense violates the Fourth Amendment. Moreover, as this court recently made

clear, the Fourth Amendment does not limit arrests to criminal law violations. 3

See City of El Cenizo v. Texas, No. 17-50762, 2018 WL 2121427, at *13 (5th Cir.

May 8, 2018) (published opinion). “Courts have upheld many statutes that

2 Weisler appeals the dismissal of only his Fourth Amendment false arrest claim. As

a result, he has abandoned the remainder of his claims. Cf. Crose v. Humana Ins. Co., 823

F.3d 344, 351 n.5 (5th Cir. 2016) (“We have consistently held that failure to brief an issue in

the opening brief abandons that issue on appeal.”).

3 City of El Cenizo overruled the sole in-circuit district court case on which Weisler

relies. See 2018 WL 2121427, at *13 n.22 (“disavow[ing]” Mercado v. Dallas County, 229 F.

Supp. 3d 501 (N.D. Tex. 2017)).

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allow seizures absent probable cause that a crime has been committed.” Id.

(collecting cases). Accordingly, it was by no means clearly established at the

time of Weisler’s arrest that the Fourth Amendment allows arrests only on

probable cause of a criminal offense. See id. If anything, Supreme Court

caselaw would have suggested to the officers that the Fourth Amendment did

not stop them from arresting Weisler for a minor traffic offense, see Atwater v.

City of Lago Vista, 532 U.S. 318, 354 (2001)—even if state law prohibited them

from doing so, see Virginia v. Moore, 553 U.S. 164, 171-73, 176 (2008).

Even were that not so, the Supreme Court of Louisiana has described the

window-tint statute as “regulating the tinting of car windows and providing

criminal penalties and fines for infractions.” State v. White, 1 So. 3d 439, 442

(La. 2009) (emphasis added) (citing La. R.S. 32:361.1); see also State v. Wyatt,

775 So. 2d 481, 483 (La. Ct. App. 2000) (“LSA–R.S. 32:361.1 provides

restrictions on how darkly windows of a car may be tinted, and provides

criminal penalties . . . .” (emphasis added)); State v. Dillon, 670 So. 2d 278, 282

(La. Ct. App. 1996) (describing a “violation of the tint law” as “a criminal

offense”). Far from it being clear that a violation of the window-tint statute was

a non-criminal, regulatory offense, if anything just the opposite was clear.

Given that the state’s courts have repeatedly characterized a violation of the

window-tint statute as criminal, a reasonable officer could have believed that

the Fourth Amendment did not prohibit him or her from arresting a person for

violating it.

As such, it was not clearly established at the time of Weisler’s arrest that

the Louisiana window-tint statute was a non-criminal offense or that the

Fourth Amendment prohibited arrests for such offenses. A reasonable officer

who arrested a person under similar circumstances could have believed that

he or she could legally do so.

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B.

Weisler’s two remaining arguments may be quickly rejected. He argues

that courts should consider officers’ actual reasons for making arrests in the

qualified immunity analysis and that the qualified immunity doctrine is

contrary to § 1983. Essentially, he is arguing that Whren v. United States, 517

U.S. 806 (1996), and Harlow v. Fitzgerald, 457 U.S. 800 (1982), should be

overruled. That we cannot do. The Supreme Court has reserved for itself “the

prerogative of overruling its own decisions.” Rodriguez de Quijas v.

Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989); cf. State Oil Co. v. Khan,

522 U.S. 3, 20 (1997) (holding that court of appeals was correct to apply

Supreme Court precedent despite its “infirmities, [and] its increasingly

wobbly, moth-eaten foundations” (alteration in original)).

Moreover, neither argument is properly before this court on appeal.

Weisler argued in the district court that the window-tint violation is not an

arrestable offense and that he was therefore actually arrested for

impersonation of a police officer. Yet, he never argued that the Supreme Court

should overrule its objective reasonableness approach and take into account

officers’ subjective intent—indeed, he did not so much as cite Whren or a case

following it. And nowhere in his district court briefing did he argue that the

qualified immunity doctrine contravenes § 1983.

To preserve an argument for appeal, a party must “press” the argument,

meaning that it must “clearly identify[] a theory as a proposed basis for

deciding the case.” United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010)

(emphasis added) (quoting Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472,

483 (5th Cir. 2009)). “[M]erely ‘intimat[ing]’ an argument is not” enough. Id.

(alteration in original) (quoting Knatt, 327 F. App’x at 483). “Pressing” an

argument also generally entails identifying “any relevant Fifth Circuit cases.”

Id. (quoting Knatt, 327 F. App’x at 483). Weisler—who was represented by

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counsel in the district court and still is on appeal—did not “press” any of these

arguments below and thus cannot raise them for the very first time on appeal.

IV.

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

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