September 21, 2021 opinions

Designated for publication

  • Kokesh v. Curlee, 20-30356, appeal from E.D. La.
    • Engelhardt, J. (Elrod, Willett, Engelhardt), Willett, J., dissenting; qualified immunity
    • Reversing district court’s denial of qualified immunity-based summary judgment on claim of illegal seizure of plaintiff by defendant State Trooper.
    • Plaintiff had been a passenger in a truck stopped on the shoulder on the Carrolton Avenue overpass in New Orleans. When the defendant officer initially pulled up behind the truck, he had seen the plaintiff outside the truck while another of the truck’s occupants was spraying something on the retaining wall of the overpass. The defendant officer subsequently ascertained that the occupants of the truck had been involved in power-washing a stencil of the word “freedom” into the dirt on the retaining wall, not using spray-paint. However, during his investigation, he asked the plaintiff for identification, then arrested the plaintiff for interfering with his investigation by not producing the identification.
    • The majority held that it could take judicial notice of the contents of the officer’s body-cam footage to determine that the officer did not confirm whether the spraying had been spray-paint (which would have been illegal) or power-washing (which would not have been illegal, though was still the basis for the officer issuing a ticket to the truck’s driver for illegally stopping in the emergency shoulder), until after he had sought the plaintiff’s identification and then arrested him for not complying. Accordingly, the Court held that the officer’s reasonable suspicion of illegal activity still existed at the time he sought the identification, and that the Terry stop actions of asking for the identification were justified, such that no constitutional violation had occurred. “Curlee’s responsibility to continue to investigate and resolve the situation of a pickup truck stopped on the Pontchartrain Expressway continued until the traffic hazard had been abated. And as previously stated, given the enigmatic answers he received, Curlee may even have been derelict in his duty had he departed with so many open questions. Further, given that, at a minimum, a potential traffic violation had occurred, Curlee continued assessing the situation, and indeed soon thereafter determined that a traffic citation would issue. And so, the detention properly continued.”
    • The majority concluded, “Under the facts presented here, this appears to be a regular investigation of an extraordinary and hazardous situation created voluntarily by the plaintiff himself, and this officer’s conduct appears to be in accord with reasonable expectations as the encounter unfolded. The Fourth Amendment and 42 U.S.C. § 1983 should not be employed as a daily quiz tendered by videotaping hopefuls seeking to metamorphosize law enforcement officers from investigators and protectors, into mere spectators, and then further converting them into federal defendants.”
    • Judge Willett, in dissent, noted that “[a]rresting someone under a stop-and-identify law is constitutionally dubious.” Quoting the Supreme Court’s standard analyzing such arrests, Judge Willett opined, “Trooper Curlee had to ‘point to specific and articulable facts’ that, ‘taken together’ with their ‘rational inferences,’ would warrant a reasonably cautious person to believe that Kokesh was involved in ‘criminal activity.’ If Trooper Curlee can do so, then he could have constitutionally demanded Kokesh’s identification papers. If he cannot, then he may have violated Kokesh’s clearly established rights. This is the very fact dispute that the district court found. And because it might affect the outcome of Kokesh’s Fourth Amendment claim, it is material.” Addressing the majority’s reliance on body-cam footage to resolve the factual issue, Judge Willett found, “I’ll admit that the bodycam shows Kokesh out of the truck and standing next to Gizzarrelli when Trooper Curlee first arrived. But reasonable suspicion does not persist forever. It lasts only for the ‘time needed’ to dispel it. And when Trooper Curlee dispelled it is the central question in this case.” Finding that the use of the body-cam footage led the majority to make inferences in favor of the officer, rather than in favor of the plaintiff as required under the review standard, Judge Willett would have affirmed the district court’s denial of summary judgment. “[B]y rationalizing Trooper Curlee’s actions the majority opinion draws inferences the wrong way and exceeds our jurisdiction to boot. And the rationalizations are rather feeble at that. Even assuming that some or all of them amount to crimes, reasonable suspicion requires articulable facts. A hunch that a suspicious-looking character surely must be violating some law in some criminal code somewhere is not good enough.”
    • Judge Willett went on to discuss the majority’s foundational holding, that the officer had reasonable suspicion to arrest the plaintiff when the plaintiff refused to show his identification: “Police are free to approach individuals and ask questions, ask for identification, or even ask to conduct a search. They may do it with no suspicion at all. What keeps these pre-reasonable-suspicion requests constitutional? Police cannot require compliance. Individuals are free to decline the officers’ requests or otherwise terminate the encounter. But under the majority’s view, there’s a catch. As of today, if a vehicle passenger invokes his right not to comply with an officer’s pre-reasonable-suspicion requests, then that gives the officer what he lacks: reasonable suspicion. Add in a stop-and-identify statute like Louisiana’s, and an officer now has a constitutional basis to demand identification on pain of arrest. The passenger can avoid arrest only by complying with the officer’s request for identification, which, of course, is the very kind of forced compliance that the Fourth Amendment guards against. That cannot be reasonable under the Constitution.” (Internal footnotes and quotation marks omitted).


  • U.S. v. Jackson, 19-30814, appeal from E.D. La.
    • per curiam (Smith, Stewart, Graves), habeas corpus
    • Affirming denial of § 2255 petition challenging 270-month sentence on conviction of conspiracy to commit sex trafficking of children and obstruction and attempted obstruction of enforcement of statute.
  • U.S. v. Smith, 21-30095, appeal from W.D. La.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Alexander-Juarez, 21-40125, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.