by David Reutter

The Fifth Circuit Court of Appeals affirmed a federal district court's dismissal of a Fourth Amendment claim on grounds that surrendering arrest warrant is a Fourth Amendment seizure, it was not clearly established so as to overcome the right to qualified immunity. It also affirmed dismissal of the First Amendment claim because the complaint failed to specify how the defendants' conduct curtailed his freedom of speech.

Royce McLin filed a 42 U.S.C. §1983 complaint against Sheriff Jason Ard and other members of the Livingston Parish Sheriff's office and members of the Livingston Parish City Council. He alleged that when an anonymous news article had been circulated criticizing council members in their public position, the council members colluded with the Sheriff's Office to falsify a complaint. This misleading information was used to obtain an unlawful search warrant to force Facebook to reveal the source of the article.

The information disclosed led to an arrest warrant being issued against McLin for defamation. McLin surrendered himself to the sheriff's Office for arrest. The charges were dropped four months later, and McLin filed his suit for illegal seizure and violation of his right to freedom of speech. The federal district court granted dismissal of all claims, and McLin appealed.

The Fifth Circuit held that even a false police report may insulate its initiator from liability if an independent judge reviews the facts and issues a warrant. An exception applies where misleading information is maliciously used to obtain the warrant. Where the council was accused of such a taint, the Fifth Circuit ruled, for the first time, that mere accusation of the taint may be sufficient to overcome dismissal although it would be insufficient to overcome summary judgment.

The Fifth Circuit also held, for the first time, that surrendering for a pending arrest warrant, is "seizure" per the Fourth Amendment. In light of these rulings, the court concluded McLin did prove a Fourth Amendment violation had occurred. However, dismissal was required because the violation was not based on clearly established law. In fact, neither the United States Supreme Court nor the Fifth Circuit had ever ruled that voluntary surrender constituted seizure. Only the Eleventh Circuit had ever made that ruling, so qualified immunity applied.

The Fifth Circuit also upheld dismissal of the First Amendment claim, not because McLin failed to allege an injury, as held by the district court, but because he failed to plead that the conduct actually curtailed his speech. McLin's assertion that the conduct violated his First Amendment right was ruled a "legal conclusion" and is not entitled to be assumed true. His allegation of "great personal damage" does not show any curtailment of his speech.

The court did note that the requirement of a show of curtailment has been criticized by the Ninth and Tenth Circuits because it punishes citizens who choose to persist in their protected rights despite the consequences. The district court's order was affirmed.

See: McLin v. Ard, No. 16-30201, F. 3d (5^th Cir. 2017)

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