    Case: 15-30182    Document: 00513249899    Page: 1   Date Filed: 10/28/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 15-30182                    United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                October 28, 2015
                                                                  Lyle W. Cayce
CAROL J. VINCENT,                                                      Clerk

                                          Plaintiff–Appellee,

versus

CITY OF SULPHUR; LEWIS COATS;
CHESTER GREMILLION; GLENN MARTIN,

                                          Defendants–Appellants.




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




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      After an altercation at a bank during which Carol Vincent allegedly
threatened violence against the mayor of Sulphur, Louisiana, and a city council
member, police issued an “Official Notification of Trespass Warning” prohib-
iting Vincent from entering city-owned property, including City Hall. After the
district attorney determined that the allegations did not support prosecution,
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                                   No. 15-30182
police lifted the order. Claiming civil-rights violations, Vincent sued Sulphur
Police Chief Lewis Coats, Officers Chester Gremillion and Glenn Martin, and
the city under 42 U.S.C. § 1983.

      Defendants moved for summary judgment on all claims, asserting quali-
fied immunity. The district court held that the officers were entitled to quali-
fied immunity as to the majority of Vincent’s claims. The court denied qualified
immunity,    however,    on   Vincent’s        procedural-due-process   and    direct-
municipal-liability claims, concluding that issuance of the no-trespass order
without notice and an opportunity to be heard violated Mathews v. Eldridge,
424 U.S. 319 (1976), and its progeny and that the pertinent law was clearly
established at the time of the incident. Defendants appeal the denial of quali-
fied immunity. Because we agree with them that the law was not clearly estab-
lished, we reverse and remand.

                                          I.
      On August 7, 2012, Vincent went to a bank to discuss a financial matter
on a friend’s behalf. The meeting became acrimonious, and Vincent left. Later
that day, the Sulphur Police Department received information that, in the
course of the argument, Vincent had threatened to get a gun and kill Mayor
Christopher Duncan and City Councilman Mike Koonce. Because that alleged
incident occurred outside the city limits, the information was referred to the
sheriff’s department for investigation. The next day, a sheriff’s detective called
Vincent and requested that he come to the station for questioning; Vincent
complied. The detective interrogated him and specifically asked whether Vin-
cent had threatened to kill the two city officials, which Vincent denied.

      Two days later, Gremillion pulled Vincent’s car over, explaining that he
was being stopped to inform him that a no-trespass order had been issued and
that he was prohibited from entering onto certain city property. Vincent
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                                    No. 15-30182
specifically indicated that the ban, as he understood it, encompassed “‘city
hall,’ ‘old city hall,’ ‘city council chambers/building,’ ‘city of sulphur city council
meetings,’ ‘city of Sulphur police station,’ ‘city of sulphur court house,’ ‘city of
Sulphur business center across from the new city hall,’ ‘West Calcasieu busi-
ness center,’ and ‘ward 4 marshal’s office’” but excluded “public thoroughfares
and right-of-ways.”

      In early September, Vincent wrote Coats inquiring why the no-trespass
order had been issued. Coats tried to respond by phone but did not reach Vin-
cent and left a message. Vincent did not call back but on September 27
requested a written answer from Coats, who responded on October 4, indi-
cating that the order was to prevent Vincent from coming into contact with the
two individuals that he had allegedly threatened. Vincent answered by letter
of October 11 requesting a meeting at a “neutral” location (so as not to violate
the order by entering the police station).

      At about the same time, Coats followed up with the district attorney’s
office regarding its investigation of the August 7 incident. That office indicated
in response that it had not found sufficient evidence to prosecute. After consul-
tation with the mayor, Coats decided to terminate the no-trespass order and
notified Vincent of that by letter on October 16.

                                          II.
      Vincent sued pro se, alleging violations of his rights under the Privileges
and Immunities Clause of Article IV and the First, Fourth, and Fourteenth
Amendments. Defendants moved for summary judgment, asserting qualified
immunity. The district court addressed the motion for summary judgment in
two stages—in an initial ruling, it granted the motion on the substantive-due-
process, equal-protection, Fourth Amendment, and right-to-travel claims and


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                                    No. 15-30182
denied summary judgment as to Vincent’s procedural-due-process claims, 1
identifying what it deemed to be clearly established law prohibiting state offi-
cials from banning individuals from public areas without notice and an oppor-
tunity to be heard. The court also stayed the First Amendment claims for addi-
tional briefing. In a later ruling, it disposed of the remaining summary judg-
ment issue, granting qualified immunity on the First Amendment claims.

      After the court had finally disposed of all issues arising from the motion
for summary judgment, defendants filed what they styled a second motion for
summary judgment on the procedural-due-process issue, contending that the
individual defendants were entitled to qualified immunity and that the claims
against the city were barred by that immunity. Treating that as a motion to
reconsider, the court rejected both arguments; the defendants appealed.

                                          III.
                                          A.
      We have jurisdiction over this denial of qualified immunity because such
an order is immediately appealable to the extent that the appeal turns on an
issue of law. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
Vincent suggests that we lack jurisdiction because the individual officers’
qualified-immunity argument was initially rejected, as to the due-process
claims, in the district court’s May 15, 2014, Order and Memorandum Ruling,
and the officers did not appeal until February 27, 2015—more than the thirty
days allotted under Rule 4 of the Federal Rules of Appellate Procedure. Vin-
cent reasons that the appeal is thus untimely. But the May 15 order ruled only
on certain summary judgment items; it stayed final disposition of other issues


      1  The district court denied summary judgment on the procedural-due-process claims
against the individual defendants and against the city. This appeal, however, is only on
behalf of the officers.
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                                       No. 15-30182
to receive additional briefing. The court did not finally determine qualified
immunity until October 21, 2014, when it resolved the remaining immunity
issues and ordered that the matter proceed to trial on the claims as to which
qualified immunity had been denied. On November 4, 2014, the officers filed
a renewed motion urging summary judgment on the procedural-due-process
issues; on January 29, 2015, the court, treating the motion as one for reconsid-
eration, denied it.

       The appeal is therefore timely. The May 15 order was interlocutory,
because it did not dispose of all pending qualified-immunity issues presented
in the motion for summary judgment but rather stayed final resolution of the
motion for further briefing. The denial of summary judgment on qualified-
immunity grounds did not become final until the October 21 order, which dis-
posed of the pending qualified-immunity issue; that was the point at which the
court conclusively determined the officers’ entitlement vel non to immunity
and sent the case to trial. Therefore, that is the date from which the relevant
time to take an appeal should be calculated. The November 4 motion urging
the court to revisit the procedural-due-process claims was timely under the
28-day limit of Federal Rule of Civil Procedure 59(e) 2 and was sufficient to toll
the 30-day clock for an appeal from the October 21 order. 3 The officers filed a
notice of appeal within 30 days of the denial of the second motion, rendering
this appeal timely. See FED. R. APP. P. 4(a)(1)(A).

                                             B.
       The plaintiff has the burden of demonstrating that the defendant official


       2See Mangieri v. Clifton, 29 F.3d 1012, 1015 (5th Cir. 1994) (treating a motion for
reconsideration of a denial of qualified immunity as a Rule 59(e) motion for timeliness
purposes).
       3 See Charles L.M. v. Ne. Indep. Sch. Dist., 884 F.2d 869, 869 (5th Cir. 1989) (holding
that a timely filed Rule 59(e) motion tolls the time for an appeal).
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is not entitled to qualified immunity. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th
Cir. 2013). Qualified immunity protects “government officials performing dis-
cretionary functions . . . from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). This demands a two-step analysis: whether a constitutional right
was violated and whether the allegedly violated right was “clearly established.”
McClendon v. City of Columbia, 305 F.3d 314, 322–23 (5th Cir. 2002) (en banc)
(per curiam). This court has discretion to perform either prong first.

      To defeat qualified immunity, the plaintiff must show that the official’s
conduct was objectively unreasonable in light of a clearly established rule of
law. See id. at 323. This is a demanding standard: Because qualified immunity
protects “all but the plainly incompetent or those who knowingly violate the
law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), we do not deny its protection
unless existing precedent places the constitutional question “beyond debate,”
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)). The court must “ask whether
the law so clearly and unambiguously prohibited [the official’s] conduct that
every reasonable official would understand that what he is doing violates [the
law].” Id. (citing al-Kidd, 131 S. Ct. at 2083) (second alteration in original).

      Although a case directly on point is not necessary, there must be ade-
quate authority at a sufficiently high level of specificity to put a reasonable
official on notice that his conduct is definitively unlawful. See id. at 372.
Abstract or general statements of legal principle untethered to analogous or
near-analogous facts are not sufficient to establish a right “clearly” in a given
context; rather, the inquiry must focus on whether a right is clearly established
as to the specific facts of the case. See Brosseau v. Haugen, 543 U.S. 194, 198

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                                       No. 15-30182
(2004). Therefore, we must decide whether the cases cited by the district court
place beyond reasonable debate the proposition that a person under criminal
investigation for threatening to kill city officials has a procedural-due-process
right under Eldridge to receive notice and an opportunity to be heard before a
ban on entering city buildings goes into effect.

                                              IV.
       The district court found that, on the facts as viewed most favorably to
Vincent, Vincent’s procedural-due-process rights were violated when the offi-
cers issued the no-trespass warning without providing him with notice and an
opportunity to be heard. The court reasoned that the no-trespass order vio-
lated Vincent’s constitutionally protected right to go to or remain in public
places of his choosing and was issued without process sufficient to satisfy Eld-
ridge’s familiar three-factor balancing test. 4 It then determined, on a review
of the cases discussing the liberty interest in being free to move about in public,
that the right Vincent asserted was clearly established. Specifically, the court
relied on City of Chicago v. Morales, 527 U.S. 41 (1999); Papachristou v. City
of Jacksonville, 405 U.S. 156 (1972); Shuttlesworth v. City of Birmingham, 382
U.S. 87 (1965); Kent v. Dulles, 357 U.S. 116 (1958); Williams v. Fears, 179 U.S.
270 (1900); Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011);
and Anthony v. State, 209 S.W.3d 296 (Tex. App.―Texarkana 2006, no pet.), for
the proposition that policies giving unbridled discretion to police officers to
issue trespass warnings to those in public parks, on sidewalks, and the like
violate procedural-due-process rights. Finally, the district court cited Kennedy



       4 Under Eldridge, the court is to balance “(1) the private interest that will be affected
by the official’s actions, (2) the risk of an erroneous deprivation of that private interest and
the probable value, if any, that additional procedural protections would provide, and (3) the
interest that the government seeks to achieve.” Sys. Contrs. Corp. v. Orleans Parish Sch.
Bd., 148 F.3d 571, 575 (5th Cir. 1998) (citing Eldridge, 424 U.S. at 335).
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v. City of Cincinnati, 595 F.3d 327 (6th Cir. 2010), which held specifically that
an individual’s right lawfully to remain in a public place was clearly estab-
lished for purposes of qualified immunity. Id. at 337–38 (relying on Fears,
Papachristou, Kent, and Morales).

       The cited cases, however, do not reflect clearly established law in this
circuit under these facts. 5 Although the Supreme Court decisions amply sup-
port the proposition that there is a general right to go to or remain on public
property for lawful purposes, none comes near the level of specificity needed to
put “beyond debate” the related but distinct proposition that a person under
investigation for threatening deadly violence against city officials has a right
to notice and a hearing before being banned from entering city buildings. 6
None of the Supreme Court cases mirrors the facts or the district court’s legal
reasoning—in fact, none of them addresses an Eldridge-type procedural-due-
process claim at all.

       The cases from the Sixth and Eleventh Circuits and the Texas interme-
diate court come somewhat closer—they at least address procedural-due-
process claims in the context of the right to enter or remain on government
property. But two out-of-circuit cases and a state-court intermediate appellate
decision hardly constitute persuasive authority adequate to qualify as clearly



       5 Because the purported procedural-due-process right at issue was not clearly estab-
lished, we need not reach the question whether such a right was violated.
       6 In his brief, Vincent claims he did not in fact make the threats and, further, that the
police did not have credible evidence that he made them. But Coats’s affidavit states—and
Vincent does not dispute—that the police department did in fact receive information that
Vincent had made the threat. Coats additionally states the undisputed fact that the police
department referred the matter to the sheriff’s department, which, in conjunction with the
district attorney’s office, did not resolve the matter until sometime after October 11. The
officers have therefore established that their actions did occur in the context of an ongoing
investigation into Vincent’s conduct. On a motion for summary judgment, Vincent’s asser-
tions to the contrary are not sufficient.
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                                  No. 15-30182
established law sufficient to defeat qualified immunity in this circuit. A review
of the decisions on which the district court relied demonstrates their insuffi-
ciency for a “clearly established” finding.

      We begin with the Supreme Court cases, because to the extent any of
those is on point, the officers were fairly on notice under controlling authority.
The district court relied heavily on Morales, which it characterized as holding
that a local anti-loitering ordinance violated the Due Process Clause. That
description of the holding is generally correct. But the Court did not find a
Due Process Clause violation under the Eldridge procedural-due-process
doctrine—indeed, the decision does not cite Eldridge or seek to determine
whether notice and an opportunity to be heard were due before anti-loitering
orders issued.

      Morales instead turned on the determination that the ordinance was
unconstitutionally vague because it violated the requirement that criminal
statutes provide minimum guidelines for enforcement. Id. at 60. That is not
the sort of procedural-due-process claim that is made here, where the issue is
whether Vincent was entitled to notice and an opportunity to be heard; Morales
has nothing to say to that question. The district court also excerpted a lengthy
quotation to the effect that “the freedom to loiter for innocent purposes is part
of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amend-
ment.” Id. at 53 (plurality opinion). But the section of the opinion from which
that language is drawn commanded only three votes, and the court was not
performing a due-process analysis but rather an overbreadth inquiry when it
asserted the existence of that right. See Hannemann v. S. Door Cnty. Sch.
Dist., 673 F.3d 746, 757 (7th Cir. 2012).        And indeed, in discussing a
procedural-due-process claim regarding a right to enter onto public property,
the Seventh Circuit sharply distinguished this language in Morales on that

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                                  No. 15-30182
basis and noted that even to the extent the citation at issue would support
“some liberty interest in the right to loiter, it would not follow that this right
confers unfettered access to all public places.” Id. The Seventh Circuit’s obser-
vation is a strong indication that the language in Morales on which the district
court depended cannot serve as notice to a reasonable officer that there was a
clearly established procedural-due-process right in this context.

      The district court’s citations to Papachristou and Shuttlesworth are simi-
larly unpersuasive as to the existence of a clearly established procedural-due-
process right to notice and a hearing. Papachristou found an anti-vagrancy
ordinance unconstitutionally vague. Papachristou, 405 U.S. at 162. Shuttles-
worth, 382 U.S. at 90–91, similarly struck down as impermissibly vague an
anti-loitering ordinance. Neither of those vagueness decisions purports to
address the procedural-due-process right to notice and a hearing.

      Nor does Morales, Papachristou, or Shuttlesworth bear sufficient factual
similarity to the conduct here to serve as evidence of a clearly established rule.
None involved similar facts: a no-trespass warning covering city administra-
tive buildings issued as a prophylactic security measure for the duration of a
live investigation of alleged threats on the lives of city officials. In Papa-
christou, the various individual defendants appear to have been arrested fol-
lowing chance encounters with the police, before which they had been going
about their business as usual. Shuttlesworth involved the arrest of an indi-
vidual for standing peacefully on a city sidewalk after an officer instructed him
to move along. And although Morales does not even recite the facts giving rise
to the litigation there, the challenged ordinance gave officers essentially
unfettered discretion to order any group of individuals to disperse if a single
member of the group was, to the officer’s knowledge, a gang member.

      The other two Supreme Court cases that the district court cited—Kent

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                                  No. 15-30182
and Williams—are even further afield. Kent concerned the State Department’s
denial of passports to two persons for being communists. The Court did not,
however, reach any constitutional question, because it resolved the matter by
finding that the Secretary of State was not authorized by statute to deny pass-
ports on the basis of political affiliation. Kent, 357 U.S. at 129–30. And Wil-
liams concerned the validity of a state occupational tax levied on individuals
who served as agents to hire laborers in one state to work in another. Williams,
179 U.S. at 274. It is true that, like Morales, both decisions include strong
language in favor of a generalized right to go about as one pleases in the pur-
suit of one’s lawful business. But neither is addressed to facts remotely similar
to those here, and therefore they cannot be said to put a reasonable officer on
fair warning that his conduct was unlawful under the instant facts.

      The district court also relied on three out-of-jurisdiction lower-court
decisions to support its conclusion that the procedural-due-process right was
clearly established. Unlike the Supreme Court cases cited above, those three
cases—two from our sister circuits and one from an intermediate Texas state
court—do deal specifically with procedural due process in the context of the
right to go about lawfully in public areas. And Kennedy, 595 F.3d at 337–38,
even goes so far as to find that a procedural-due-process right in this context
is clearly established. But those decisions, taken together, cannot support a
finding of a clearly established right here.

      First, two cases from other circuits and one from a staye intermediate
court do not, generally speaking, constitute persuasive authority defining the
asserted right at the high degree of particularity that is necessary for a rule to
be clearly established despite a lack of controlling authority. In any event,
those three cases address matters that are sufficiently legally or factually dis-
tinguishable as to make a finding of clearly established law improper.

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      The district court relied most heavily on Kennedy, which concerned a no-
trespass order issued to an individual suspected of engaging in inappropriate
“child-watching” at a public pool. The pool manager called police, who ques-
tioned the person for fifteen minutes before they determined that there was no
basis for reasonable suspicion to continue questioning or to believe that a crime
had been or would be committed. Nonetheless, at the manager’s request, the
officer issued a no-trespass order prohibiting the individual from entering onto
any property owned by the Cincinnati Recreation Commission. That person
sued, and the Sixth Circuit held that the defendant officer was not entitled to
qualified immunity on a procedural-due-process claim alleging a deprivation
of the liberty interest in entering onto public property. Id. 335–38. The court
determined that, on the basis of the Supreme Court decisions discussed above,
there was a clearly established liberty interest in going to and remaining in
public places and that the officer’s actions in “depriving him of [that] interest,
without procedural due process, constituted a violation of a clearly established
constitutional right.” Id. at 338.

      For two reasons, Kennedy is not incompatible with qualified immunity
in the instant case. First, Kennedy is factually distinguishable: It was undis-
puted that when the officer issued the no-trespass warning, he had already
concluded that there was no basis for reasonable suspicion that the individual
had committed or would commit a crime. Not so here, where the no-trespass
order was issued at the outset and terminated at the close of an investigation
of Vincent’s alleged threats of deadly violence.

      Second, Kennedy does not reach the critical question for an Eldridge
procedural-due-process claim. The Kennedy court instead determined only
that the liberty interest itself was clearly established and then asserted that a
deprivation of that liberty interest “without procedural due process” was a

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violation of a clearly established constitutional right. Id. at 337–38. But that
is tautological: It is necessarily unconstitutional to deprive an individual of a
recognized liberty interest “without procedural due process.” The Kennedy
court never asked the question that such a statement begs, which is what pro-
cedure was due. More specifically, it never considered whether the Eldridge
balancing test dictated that the person was entitled to notice and a hearing
before he was deprived of his liberty interest in entry into public recreational
facilities.

       The district court’s brief references to Catron and Anthony are similarly
unavailing. Though both conducted the full Eldridge balancing test in deciding
that issuing a no-trespass order without notice and a hearing was unconstitu-
tional, see Catron, 658 F.3d at 1266–69; Anthony, 209 S.W.3d at 306–08, both
are distinguishable.

       Catron involved no-trespass warnings prohibiting homeless individuals
from entering onto public parks and similar property; it therefore addressed a
dramatically different set of asserted state interests in the Eldridge due-
process balancing test. See Catron, 658 F.3d at 1264, 1267. The defendant in
Anthony (a criminal case in which the procedural-due-process argument was
raised as a defense) was arrested for violating a criminal-trespass warning that
had issued in the immediate wake of a minor verbal altercation. See Anthony,
209 S.W.3d at 302. Neither case involved the sort of government security
interests at issue here, nor were the individuals who sued or defended on the
ground that the no-trespass warning was unlawful the subject of specific,
individualized suspicion of future violence directed at identifiable persons
when the warning was issued. Therefore, it is untenable to read these decisions
as clearly establishing, such that any reasonable officer would be aware, the
entitlement of a person in Vincent’s position to notice and a hearing before

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issuance of a no-trespass order designed to keep him from coming into contact
with the targets of alleged threats.

                                       V.
      In summary, as we have explained, the alleged constitutional right was
not clearly established, so the officers are entitled to qualified immunity. We
need not reach the question whether the officers in fact committed a
procedural-due-process violation. We therefore REVERSE the order denying
summary judgment and REMAND for further proceedings as needed.




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