           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 24, 2009

                                     No. 08-31221                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JERRY ROME

                                                   Plaintiff - Appellant
v.

TERRY GUILLORY; DANIEL EDWARDS, In His Official Capacity as
Sheriff of Tangipahoa Parish; UNIDENTIFIED PARTIES; DALE
ATHMANN; HENRY NEIHAUS

                                                   Defendants - Appellees




               Appeal from the United States District Court for the
                  Eastern District of Louisiana, New Orleans
                                 2:06-CV-2089


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jerry Rome was arrested on May 5, 2005, for simple assault after his
daughter warned the authorities that he was on his way to the Ponchatoula
Police Department with a loaded handgun and an eye toward “taking care of” the
officer who had earlier arrested him for soliciting prostitution. Rome now brings
claims against the sheriff of Tangipahoa Parish and the arresting deputies under

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-31221

28 U.S.C. § 1983 and Louisiana law, arguing that he was illegally arrested and
maliciously prosecuted. Defendants moved for summary judgment, and the
district court obliged. Because the court correctly determined that defendants
had probable cause to arrest Rome and that the record presents no genuine issue
of fact suggesting otherwise, we affirm the court’s order.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On May 5, 2005, Terri Rome, Jerry Rome’s daughter, called the
Ponchatoula Police Department dispatcher and the Tangipahoa Parish Sheriff’s
Department dispatcher and told them that she had just confronted her father
about his earlier arrest for soliciting prostitution and that he thereafter left in
his pick-up truck with a loaded handgun saying that he was going to hunt down
the officer that arrested him. The Ponchatoula dispatcher confirmed that Officer
John Cieutat had arrested Rome on February 5, 2005, for soliciting prostitution
and notified all officers on duty to be on the lookout for Rome.
      Deputy Terry Guillory was then dispatched to Rome’s house. There, he
interviewed Terri and Rome’s ex-wife, Dixie Catoire. Both women provided
written statements describing how Rome reacted by becoming angry after Terri
confronted him with the fact of his February arrest, how he stated that he was
going to hunt down the officer who had arrested him and “take care of all the lies
about him,” how he obtained and loaded his handgun, and how he left in his
black Chevy Silverado pick-up truck.
      Deputy Henry Neihaus, after hearing of these events over the radio,
encountered Rome’s pick-up truck on the road and performed a traffic stop near
Ponchatoula High School, which is roughly two miles from the Ponchatoula
Police Department. After Rome’s truck was stopped, Deputy Dale Athmann
arrived and observed a fully loaded handgun on the console of Rome’s truck.
Deputy Guillory then appeared, and Rome was arrested for simple assault.



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       Rome later filed this civil suit against Sheriff Daniel Edwards and
Deputies Guillory, Athmann, and Neihaus (collectively, “Defendants”) in the
United States District Court for the Eastern District of Louisiana. He alleged
claims under 42 U.S.C. § 1983, arguing that Defendants violated his Fourth
Amendment rights by illegally arresting him without probable cause and by
employing excessive force. Additionally, he brought state-law claims, asserting
that he was illegally arrested and maliciously prosecuted. Defendants filed a
motion for summary judgment, contending that the record evidence showed that
they were entitled to qualified immunity from the § 1983 claims and that the
state-law claims failed because Defendants had probable cause to arrest Rome
and because they had not used excessive force. Rome filed a cross-motion for
summary judgment, asserting otherwise. The district court ruled in favor of
Defendants.
       Rome filed a timely notice of appeal. He challenges the district court’s
dismissal of his § 1983 claim that he was illegally arrested without probable
cause and the court’s dismissal of his state-law claims.1
                                   II. DISCUSSION
       We review de novo the district court’s order granting Defendants’ motion
for summary judgment and apply the same standard as did the district court.
Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 133
(5th Cir. 2009). “We will affirm the district court’s order granting summary
judgment ‘if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.’” Id. (quoting F ED.
R. C IV. P. 56(c)).


       1
         Rome does not challenge the court's conclusion concerning his excessive force claim,
which is therefore waived. See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir.
2007).

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       All of Rome’s claims will fail if the district court correctly determined that
Defendants possessed probable cause to arrest Rome and that no genuine issue
exists as to that determination. To overcome Defendants’ qualified immunity
defense 2 to Rome’s § 1983 claim that he was arrested in violation of the Fourth
Amendment, Rome must make a showing of no probable cause. See Club Retro,
2006 WL 6245546, at *13 (“The constitutional claim of false arrest requires a
showing of no probable cause.”).              Similarly, both of Rome’s state law
claims—false arrest and malicious prosecution—require, among other things, a
showing of no probable cause. See Deville v. Marcantel, — F.3d —, 2009 WL
1162586, at *12–13 (5th Cir. May 1, 2009) (explaining (1) that false arrest occurs
when an officer arrests an individual without statutory authority and that,
absent a warrant, the officer has such authority when he has “probable cause for
the arrest,” and (2) that         an element of the state-law claim of malicious
prosecution requires “the absence of probable cause”).
       “Probable cause exists when the totality of the facts and circumstances
within a police officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.” Id. at *4; see also Club Retro, 2006 WL 6245546, at *13
(“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.”
(internal quotation marks omitted)).



       2
          Qualified immunity involves a two-prong test: first, did Defendants violate the
constitution under current law; second, were Defendants’ actions objectively unreasonable in
light of clearly established law as it existed at the time of the alleged violations. See Club
Retro LLC v. Hilton, — F.3d —, 2006 WL 6245546, at *13 (5th Cir. May 6, 2009). Here, the
analysis begins and ends with the first prong because we conclude, as did the district court,
that no fact issue exists suggesting that a constitutional violation occurred.

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                                  No. 08-31221

      Defendants assert, and the district court agreed, that they had probable
cause to arrest Rome for simple assault.         “Simple assault is an assault
committed without a dangerous weapon,” L A. R EV. S TAT. A NN. § 14:38, and
“[a]ssault is an attempt to commit a battery,” id. § 14:36. Battery, in turn, “is
the intentional use of force or violence upon the person of another.” Id. § 14:33.
A crime is attempted when “[a]ny person who, having a specific intent to commit
a crime, does or omits an act for the purpose of and tending directly toward the
accomplishing of his object,” regardless of “whether, under the circumstances,
he would have actually accomplished his purpose.” Id. § 14:27(A). The statute
further delineates what does and does not constitute an attempt:
      Mere preparation to commit a crime shall not be sufficient to
      constitute an attempt; but . . . searching for the intended victim
      with a dangerous weapon with the intent to commit a crime, shall
      be sufficient to constitute an attempt to commit the offense
      intended.
Id. § 14:27(B)(1).
      In this case, the district court determined that Defendants had probable
cause to arrest Rome and that the record raised no genuine issue as to that
determination. We agree. The summary judgment evidence demonstrates that
Defendants knew: (1) that Rome stated he was going to the Ponchatoula Police
Department to shoot the officer who had arrested him in February; (2) that
Rome loaded his handgun before leaving the house; (3) that he took his gun with
him when he left the house in his pick-up truck; and (4) that Rome had his gun
with him when he was pulled over nearly two miles from the Ponchatoula Police
Department. Based on this knowledge, a prudent person would believe that
Rome was committing assault—that is, attempted battery—because he was
searching for his intended victim with a dangerous weapon and with the intent
to use force or violence on that victim. Rome points to no fact that would raise
a genuine issue as to this conclusion, and, indeed, we find nothing in the record


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suggesting that a genuine issue exists concerning Defendants’ probable cause to
arrest Rome. Thus, summary judgment in favor of Defendants is proper.
      Rome argues that the district court reached its conclusion by improperly
“bootstrapping” its reasoning from a determination that Rome committed the
nonexistent offense of attempted assault. However, Rome misconstrues and
misunderstands the district court’s explanation. The court did not conclude that
Rome committed an attempted assault.         Instead, it properly looked at the
definition of attempt in § 14:27 to determine what constitutes an attempted
battery. In fact, it explicitly recognized that attempted assault is not an offense
because assault is, among other things, attempted battery. See State v. Eames,
365 So. 2d 1361, 1363 (La. 1978) (“If the definition of another crime includes the
attempt to do something, the attempt statute, [§] 14:27, cannot be employed, for
then a defendant would be charged with an attempt to attempt to do an illegal
act.”). We find no flaw in the district court’s reasoning, and Rome fails to
provide any authority suggesting that assault, as an attempted battery, cannot
be determined by looking to § 14:27. On the contrary, the Reporter’s Comment
to § 14:36, which defines assault, specifically references § 14:27 in discussing
assault as an attempted battery. See L A. R EV. S TAT. A NN. § 14:36 cmt. (stating
that “[a]ny attempt to commit a battery will constitute an assault” and
referencing § 14:27’s “discussion of ‘attempts’”).
      Rome additionally urges that the district court’s conclusion found a
violation of § 14:27 itself. This argument, again, ignores the district court’s
actual reasoning, and therefore fails for the same reasons stated above: the court
correctly looked to § 14:27 to determine whether the officers had probable cause
to believe an assault was about to be or was being committed.
      Because the record raises no genuine issue concerning the conclusion that
Defendants had probable cause to arrest Rome, Defendants are entitled to
summary judgment on Rome’s § 1983 and state law claims.

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                     III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment.




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