Allemang v. State of Louisiana

Case: 21-30360 Document: 00516426934 Page: 1 Date Filed: 08/10/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 10, 2022

No. 21-30360 Lyle W. Cayce

Clerk

Francis G. "Buddy" Allemang,

Plaintiff—Appellant,

versus

State of Louisiana through the Department of Public

Safety (Louisiana Office of State Police, Troop D);

Freddie Rogers,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:19-CV-128

Before Higginbotham, Dennis, and Graves, Circuit Judges.

James E. Graves, Jr., Circuit Judge:*

Plaintiff-appellant Francis G. “Buddy” Allemang sued a Louisiana

State Trooper and the State of Louisiana after he was arrested on suspicion

of driving while intoxicated for failing a standard field sobriety test (SFST),

*

Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.

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No. 21-30360

even though Allemang had informed the Trooper that back injuries would

inhibit his ability to complete the SFST, and even though Allemang would

later blow a clean Breathalyzer. The district court granted summary

judgment to the defendants, holding that the arrest did not violate

Allemang’s rights under the Fourth and Fourteenth Amendments. We

AFFIRM, but for slightly different reasons than the district court offered.

I.

In August 2015, plaintiff-appellant Francis G. “Buddy” Allemang was

fifty-five years old and had recently suffered spinal injuries. Allemang had

received medical treatment, including injections and various neck and back

surgeries, for the pain associated with these injuries. He would be deemed

disabled by a Social Security physician two years later in 2017. But on August

21, 2015, he was stopped at a DWI checkpoint at 11 p.m. in Calcasieu Parish,

Louisiana. Allemang was driving three passengers toward an RV park where

they were all staying that evening.

When Allemang approached the checkpoint, an unknown officer

asked him whether he had consumed any alcohol that day, to which Allemang

responded that he had four beers over a several-hour period, with the final

beer “around 9:30” with dinner. The officer then motioned for defendant-

appellee State Trooper Freddie Rogers to approach Allemang’s vehicle.

Allemang repeated to Rogers that he had consumed four beers that evening,

and Rogers would later assert in his incident report that he detected a “faint

to moderate odor of alcoholic beverage on [Allemang’s] breath.” Rogers

asked Allemang to submit to a SFST. Allemang consented and exited his

vehicle.

Before starting the SFST, Rogers asked Allemang whether there was

any reason he could not perform the tests. Allemang said “yes” and

explained his recent spinal injuries and surgeries, which he believed would

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impede his ability to complete the test’s physical portions. One of

Allemang’s passengers echoed Allemang’s concerns to the officers,

including that Allemang’s amblyopia could interfere with a nystagmus test.

Rogers proceeded with the full SFST.

Rogers placed Allemang in front of his squad car and performed a

horizontal nystagmus test followed by a one-leg stand test, a “heel-to-toe”

test, and an “alphabet” test. Rogers last instructed Allemang to count

backwards from 100. According to Rogers, Allemang had a “lack of smooth

pursuit in both eyes during the nystagmus test,” and did not pass the various

movement tests. Specifically, Rogers says that Allemang stopped once,

stepped off the line once, and missed heel-toe contact five times during the

walk-and-turn test. Rogers also says that Allemang was unable to stand on

one leg for more than a few seconds. Rogers arrested Allemang for driving

while intoxicated.

Rogers took Allemang to a nearby “Intoxilyzer Trailer” for a breath

test. Rogers asked Allemang if he would submit to a Breathalyzer test, to

which Allemang responded that he could not refuse the test because he would

lose his commercial driving license for at least a year. Rogers retorted that

Allemang would lose his license for a year anyway because he had just been

arrested for a DUI. Allemang submitted to the Breathalyzer test, and blew a

.000% blood-alcohol level. Still believing that Allemang was intoxicated,

Rogers asked whether Allemang had taken any medication that evening.

Allemang answered that he had taken Aleve for back pain, Metformin for

diabetes, and blood pressure medication. Despite the negative Breathalyzer

test, Rogers took Allemang to Louisiana State Police Troop D headquarters

to collect a urine sample and then sent him to Calcasieu Parish jail for

booking. A few days later, Allemang’s urinalysis results reported no

intoxicating drugs in his system when he was arrested. On February 1, 2016,

the Calcasieu Parish District Attorney rejected Allemang’s DWI charge.

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Allemang filed an administrative complaint with the Louisiana State

Police, alleging that he had been improperly arrested. An internal

investigation showed that Rogers’ dashboard camera did not capture the

sobriety tests due to condensation on Rogers’ windshield. Rogers’ body

camera also did not record any audio of the tests or arrest, although Rogers

would later state that his camera was functioning properly and did not know

“why the audio did not record.” The State closed Allemang’s complaint,

concluding that that Allemang’s allegations were “unfounded.”

Allemang then filed this suit against Rogers and the “State of

Louisiana Through the Department of Public Safety” in August 2016. He

alleged that Rogers violated his due process and privacy rights under the

Louisiana Constitution, as well as “other rights provided by Louisiana law

and the United States Constitution.” He later filed a supplemental petition

alleging that Rogers is individually liable, as well as more clearly asserting

wrongful arrest in violation of his Fourth and Fourteenth Amendment rights.

The defendants then removed the case to the Western District of Louisiana.

Rogers asserted qualified immunity in his answer to Allemang’s

complaint, but the State’s private counsel did not assert Eleventh

Amendment immunity or argue that the State could not be sued under 42

U.S.C. § 1983. The defendants then moved to dismiss under rule 12(b)(6).

After Rogers’ deposition, the parties asked the district court to convert that

motion to one for summary judgment.

On a magistrate judge’s recommendation and over Allemang’s

objections, the district court entered summary judgment on: (i) Allemang’s

individual-capacity claim against Rogers, finding that Rogers was entitled to

qualified immunity; (ii) Allemang’s vicarious liability claims; and

(iii) Allemang’s defamation claim. Allemang sought to appeal immediately,

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but we dismissed the appeal for lack of jurisdiction given that Allemang’s

official-capacity claim and several state tort claims remained pending.

Some evidentiary wrangling followed the defendants’ second motion

for summary judgment on Allemang’s remaining claims, with Allemang

seeking to either depose more troopers or to admit affidavits from two retired

State Police supervisors. The district court struck those affidavits for, among

other reasons, lack of relevancy. The district court then granted the

defendants’ second summary judgment motion and dismissed Allemang’s

remaining claims with prejudice. This appeal followed. We have jurisdiction

over this appeal from a final judgment under 28 U.S.C. § 1291.

II.

Allemang presents three overarching issues for our review. First, he

asserts that the district court wrongly concluded that Rogers had reasonable

suspicion to conduct the SFST or probable cause to arrest Allemang. Second,

he says that the district court erred in dismissing his “Monell and Louisiana

negligent training/supervision liability claims.” Third, he argues that the

district court erred in striking the affidavits from the retired State Troopers.

A.

We start with the most crucial question: whether Rogers violated

Allemang’s constitutional rights by subjecting him to a SFST and then by

arresting him despite Allemang’s explanation for his deficient SFST

performance and clean Breathalyzer. The constitutional tort of false arrest

requires a showing of no probable cause. Brown v. Lyford, 243 F.3d 185, 189

(5th Cir. 2001). “The Supreme Court has defined probable cause as the

‘facts and circumstances within the officer’s knowledge that are sufficient to

warrant a prudent person, or one of reasonable caution, in believing, in the

circumstances shown, that the suspect has committed, is committing, or is

about to commit an offense.’” Piazza v. Mayne, 217 F.3d 239, 245-46 (5th

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Cir. 2000) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). The facts

must be known to the officer at the time of the arrest; post-hoc justifications

based on facts later learned cannot post-rationalize an arrest. Sibron v. New

York, 392 U.S. 40, 62-63 (1968). The facts also must be particularized to the

arrestee. Ybarra v. Illinois, 444 U.S. 85, 91 (1979). “We apply an objective

standard, which means that we will find that probable cause existed if the

officer was aware of facts justifying a reasonable belief that an offense was

being committed, whether or not the officer charged the arrestee with that

specific offense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir.

2009) (citing Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004)).

Allemang was arrested for driving while intoxicated. Under Louisiana

law, one is guilty of this offense if he or she operates any motor vehicle while

“under the influence of alcoholic beverages” or “one or more drugs,” even

if those drugs are not controlled substances. La. Stat. Ann. § 14:98(A).

That is, Allemang need not specifically have been under the influence of

alcohol to violate the statute; impairment by prescription or over-the-counter

drugs would also suffice.

Allemang alleges two instances in which Rogers acted without the

requisite suspicion. First, he argues that Rogers lacked reasonable suspicion

to administer the SFST. Second, he argues that Rogers lacked probable cause

to arrest him based on his deficient SFST performance given Rogers’

knowledge of Allemang’s health conditions and Allemang’s clean

Breathalyzer. We hold that Allemang has not carried his burden of

demonstrating a violation of a clearly established right, and therefore Rogers

is entitled to qualified immunity.

1.

Rogers did not observe any deficiency in Allemang’s driving. Rogers

was brought to Allemang’s car after Allemang told another officer that he

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(Allemang) had consumed four beers that day, the first beer around noon,

and the last beer with his evening meal, around 9:30 p.m., about an hour and

half earlier. Allemang’s admission was enough to justify administering the

SFST, as Louisiana courts have consistently held. Cf. State v. Evans, 48,489

(La. App. 2 Cir. 12/4/13), 130 So. 3d 406, 410 (defendant admitted that he

drank two beers); State v. Shoemaker, 569 So. 2d 169, 171 (La. Ct. App. 1990),

writ denied, 572 So. 2d 73 (La. 1991) (defendant admitted drinking four

alcoholic beverages). Thus, Rogers had reasonable suspicion to ask Allemang

to submit to a SFST.

2.

Whether Rogers had probable cause to arrest Allemang after the

SFST, however, presents a much closer question. We conclude that the law

does not conclusively establish probable cause on this question. But that

uncertainty necessarily means that Rogers is entitled to qualified immunity,

because there is no caselaw clearly establishing that Rogers acted

unreasonably in arresting Allemang. See Parker v. Blackwell, 23 F.4th 517, 522

(5th Cir. 2022) (“Showing that a right is clearly established ‘is difficult,’ and

this showing is made only when ‘it is sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.’”

(quoting Cunningham v. Castloo, 983 F.3d 185, 191 (5th Cir. 2020)).

When Rogers asked Allemang whether he was able to perform a field

sobriety test, Rogers responded that his bad back would prevent him from

doing so, and that his amblyopia might interfere with a nystagmus test.

Nonetheless, Rogers proceeded with the SFST, including a nystagmus test,

and then arrested Rogers based on Allemang’s poor performance. Allemang

does not dispute that he was deficient on his SFST. Thus, the undisputed

evidence shows Rogers based his arrest on the following information:

• Allemang admitted to drinking four beers;

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• Rogers’ conclusion that Allemang failed the SFST (based on

Rogers’ inability to perform the nystagmus test, inability to

stand on one foot, and inability to perform the walk-the-line

test); and

• A “faint to moderate” smell of alcohol on Allemang’s breath.

On the ledger’s other side, however, we have Allemang’s statement

that his disabilities would inhibit his ability to perform the SFST and his

subsequent negative Breathalyzer. Allemang does not dispute that he was

deficient on his SFST. But he contends that any probable cause arising from

the SFST dissipated when he blew a negative Breathalyzer. The parties cite

no circuit-level authority that addresses whether a clean Breathalyzer test

negates probable cause for an arrest based on a failed SFST. Nor does there

appear to be consensus among the district courts on the issue. See Butler v.

City of Richardson, No. 3:95-CV-0533, 1997 WL 135651, at *3 (N.D. Tex. Mar.

14, 1997) (two negative Breathalyzer tests dispelled probable cause); Jason v.

Par. of Plaquemines, No. CV 16-2728, 2016 WL 4623050, at *3–4 (E.D. La.

Sept. 6, 2016) (0.022% Breathalyzer result did not negate probable cause

created by admission of drinking, failed SFST, and smell of alcohol);

Martinez v. Greater New Orleans Expressway Comm’n, No. CV 20-3101, 2021

WL 1023054, at *4–5 (E.D. La. Mar. 17, 2021) (negative Breathalyzer test did

not dispel probable cause because test was administered long after officer’s

observations of signs of intoxication such that alcohol would have

metabolized). Also lacking is any consensus or robust trend among the other

circuits that we could join. See Miller v. Sanilac Cty., 606 F.3d 240, 249 (6th

Cir. 2010) (negative Breathalyzer result creates fact issue as to

reasonableness of arrest precluding summary judgment); Barnett v.

MacArthur, 715 F. App’x 894, 907 (11th Cir. 2017) (negative Breathalyzer

test and disputed SFST results negated probable cause); but see Perdew v.

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Valiant, 21 F. App’x 703, 705 (9th Cir. 2001) (failed SFST supported

probable cause despite negative Breathalyzer).

Against this mixed precedential backdrop, we must conclude that

Rogers acted did not act unreasonably in light of then-prevailing caselaw.

Accordingly, the district court did not err in finding that Rogers is entitled to

qualified immunity against Allemang’s Fourth Amendment claim.

B.

Allemang also appeals the district court’s dismissal of his claims

against Rogers in his “official capacity.” The district court and both parties

analyze this claim under Monell v. Department of Social Services, 436 U.S. 658

(1978). Allemang similarly avers in his briefing that the “crux” of his

“[§] 1983 Monell claim (and corresponding Louisiana claim) against the State

sounds in its failure to sufficiently train its officers on the proper

administration of SFSTs, especially insofar as it relates to disabled

individuals.”

According to Allemang, his claim against Rogers in his official capacity

is a claim against the “State.” This is a correct description of official-capacity

claims. See, e.g., Will v. Mich. Dept. of State Police, 491 U.S. 58, 66 (1989) (“A

suit against a state official in his . . . official capacity is not a suit against the

official but rather is a suit against the official’s office,” and thus is “no

different from a suit against the State itself.”). The defendants did not assert

Eleventh Amendment immunity as a defense to this allegation, and, like the

district court, they analyze this claim under Monell. However, a claim for

damages against a state official in his official capacity or a state entity for an

alleged unconstitutional policy or custom is barred by both Eleventh

Amendment immunity and the rule that states are not “persons” under

§ 1983. See, e.g., Will, 491 U.S. at 66; Edelman v. Jordan, 415 U.S. 651, 663

(1974). The Louisiana State Police Department is a sub-unit of the Louisiana

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Department of Public Safety, an independent executive agency of the state

government, and thus is not a cognizable Monell defendant. See La. Rev.

Stat. § 36:401, et seq. Curiously, no party briefed these limitations during

this litigation, and the district court did not note them when it rejected

Allemang’s official capacity claim for other reasons. Though the defendants

may have waived Eleventh Amendment immunity by not raising it, see

Edelman, 415 U.S. at 678, § 1983—as interpreted by the Supreme Court—

does not allow for suits against state entities or against state officials in their

official capacities, Will, 491 U.S. at 65-66. Accordingly, the district court was

correct, albeit for the wrong reasons, in dismissing Allemang’s § 1983 claims

against the State of Louisiana.

C.

Last, Allemang challenges the district court’s decision to strike the

affidavits from retired Troopers Edgar and Reavis. But because Allemang

offered those affidavits in support of his barred official-capacity claim, we

need not address the district court’s evidentiary ruling.

IV.

In summary, we agree with the district court that Rogers is entitled to

qualified immunity, but only because there is no caselaw clearly establishing

that he acted unreasonably in proceeding to arrest Allemang for a failed SFST

despite a negative breathalyzer. We further conclude that Allemang’s

official-capacity claim against Rogers is not viable under § 1983. We therefore

AFFIRM the district court’s judgment.

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