     Case: 11-30198   Document: 00511863449   Page: 1   Date Filed: 05/22/2012




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

                                                                    FILED
                                                                   May 22, 2012

                                 No. 11-30198                      Lyle W. Cayce
                                                                        Clerk

ERROL HOUSTON, JR.,

                                           Plaintiff - Appellant

v.

CITY OF NEW ORLEANS; LEON CANNIZZARO, District Attorney for the
Parish of Orleans; WARREN J. RILEY, Superintendent of the New Orleans
Police Department,

                                           Defendants - Appellees



                  Appeal from the United States District Court
                     for the Eastern District of Louisiana



                       ON PETITION FOR REHEARING


Before BARKSDALE, GARZA, and ELROD, Circuit Judges.
PER CURIAM:
        Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is GRANTED. We withdraw our
prior opinion, Houston v. City of New Orleans, 675 F.3d 441 (5th Cir. 2012), and
substitute the following.
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                                 No. 11-30198

      In this action under, inter alia, 42 U.S.C. § 1983, Errol Houston, Jr.,
claims defendants violated his Fourteenth Amendment rights (to keep and bear
arms, incorporated from Second Amendment, and to due process) by retaining
his lawfully-seized firearm after the district attorney refused charges. The
action was dismissed under Federal Rule of Civil Procedure 12. VACATED and
REMANDED.
                                        I.
      Because the dismissal was under Rule 12, the facts that follow are from
the allegations in Houston’s operative complaint.
      Houston was arrested by New Orleans police officers on 5 July 2008.
Pursuant to that arrest, Houston’s firearm, a Glock 22 .40-caliber pistol, was
seized. Approximately a month later, the district attorney entered nolle prosequi
(abandonment of prosecution) on the charges against Houston.
      Almost a year after his arrest, and following his requests for the return of
his firearm being denied by the district attorney’s office and the police
department, Houston filed this action on 2 July 2009, claiming, inter alia,
violations of the right to keep and bear arms and of due process, and seeking
primarily the return of his firearm. Houston alleged he had been informed that
the new district attorney (defendant Cannizzaro) had implemented a policy of
not returning firearms seized during arrests.
      Just over a month later, Houston again was arrested by New Orleans
police officers. He was informed that a warrant for his arrest, on the charge of
illegal possession of a firearm, had issued at the request of the new district
attorney on 5 July, three days after this action was filed. That charge was also
“nolle prossed”. In an amended complaint, Houston added claims for retaliation
and unlawful arrest.




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                                  No. 11-30198

      The district court dismissed, inter alia, Houston’s Second Amendment and
procedural due process claims under Rule 12(b)(6) as to the New Orleans district
attorney and Rule 12(c) as to the City and the former police superintendent.
                                       II.
                                       A.
      No authority need be cited for the long-established prudential rule that
federal courts do not decide constitutional issues where there is an adequate
state-law basis to resolve the dispute. In that regard, arguably state law will
resolve whether public officials could retain Houston’s handgun, whether as a
firearm or simply as his property, following the entry of nolle prosequi by the
district attorney. Only two statutes arguably confer on New Orleans officials the
ability to retain lawfully seized property.
      La. Rev. Stat. 40:1798 is titled “Firearms; disposal by law enforcement
agencies”. Subsection (D) states:
            If the seized . . . firearm is not contraband, and if the
            law enforcement agency knows the owner of the seized
            or forfeited firearm, and if the owner did not commit
            any violation of any federal or state law or local
            ordinance in which the seized or forfeited firearm was
            involved, and if the owner may lawfully possess the
            seized or forfeited firearm, the law enforcement agency
            shall return the seized or forfeited firearm to the owner.
      La. Rev. Stat. 15:41 governs “Disposition of property in connection with
criminal proceedings”. The general statute provides:
            A. If there is a specific statute concerning the
            disposition of the seized property, the property shall be
            disposed of in accordance with the provisions thereof.

            B. If there is no such specific statute, the following
            governs the disposition of property seized in connection
            with a criminal proceeding, which is not to be used as
            evidence or is no longer needed as evidence:


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                                  No. 11-30198

                    (1) The seized property shall be returned to the
                    owner [unless the property is contraband];
                    otherwise, Paragraph (2) of this Section shall
                    apply . . . .

            C. Where the release of seized property is sought by a
            person claiming to be the owner, it shall be released
            only upon motion contradictorily with the clerk of court.
            In all other cases the court may either render an ex
            parte order for the disposition of the property as herein
            provided . . . or the court may require a motion
            contradictorily with the apparent owner or the person
            in possession of the property at the time of the seizure.
Paragraph D of § 15:41 authorizes the destruction of any “controlled dangerous
substance” or paraphernalia thereof by a criminalistic laboratory after five
years, and upon prior notice to the district attorney and the seizing agency.
       Reasonable minds may differ on whether § 40:1798(D) automatically
entitles Houston to the return of his firearm, or whether, because a prosecution
occurred, § 15:41 prescribes the applicable procedures. One thing is clear: both
statutes mandate the return of property, firearm or other property, to its lawful
owner when it is not contraband and is no longer needed by law enforcement.
Section 40:1798(D) may be self-executing in this regard. But, even if the
property owner must resort to § 15:41, the upshot of its provisions is that, when
the government’s “use” or “need” for evidence “in connection with a criminal
proceeding” is ended, its right to withhold such property from the undisputed
owner also terminates. Thus, “[t]he seized property shall be returned to the
owner”. Cf. Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 508 (1995)
(explaining that the “use” of a firearm in a federal statute connotes active
employment of the weapon). This is a self-executing provision. Subsection C
may require the “person claiming to be the owner” to seek release from a court
if the government withholds his seized property on a contested claim that the
proceeding has ended or a contested claim of ownership. But, on the face of the

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                                  No. 11-30198

complaint, arguably neither of those contingencies existed here. There is no
authority for the government to hold the property when, by its own act, it has
ceased active “use” or “need” for the “evidence”.
      Accepting, as we must, the truth of the well-pleaded allegations in
Houston’s complaint, the government’s refusal to restore the firearm to Houston
following the second nolle prosequi (if not earlier) arguably placed it in violation
of these state-law provisions.
                                        B.
      Of course, in the light of the above discussion and our vacating the
dismissal of Houston’s Second Amendment and procedural due-process claims,
those two claims are pending. On remand, if Houston does not secure return of
his firearm under state law, those two constitutional claims must be addressed.
                                        III.
      For the foregoing reasons, the judgment is VACATED and this matter is
REMANDED for further proceedings consistent with this opinion, including,
but not limited to, determining whether the government has active “use” or
“need” for Houston’s firearm.




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