                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                   In the                                 July 9, 2007
                       United States Court of Appeals                               Charles R. Fulbruge III
                                       for the Fifth Circuit                                Clerk
                                             _______________

                                               m 06-31044
                                             Summary Calendar
                                             _______________



                                           KENNETH GAINES,

                                                                Plaintiff-Appellant,

                                                  VERSUS

                     ARMANDO ASARO AND THE CITY OF NEW ORLEANS,

                                                                Defendants-Appellees.

                                      _________________________

                              Appeal from the United States District Court
                                 for the Eastern District of Louisiana
                                           m 2:05-CV-707
                                ______________________________




Before SMITH, WIENER, and OWEN,                         the City of New Orleans under 42 U.S.C.
  Circuit Judges.                                       § 1983 and Louisiana Civil Code article 2315.
                                                        The district court granted summary judgment
JERRY E. SMITH, Circuit Judge:*                         for the defendants, and we affirm.

   Kenneth Gaines sued Armando Asaro and                                      I.
                                                           In March 2004, Gaines entered a grocery
                                                        store to purchase cigarettes. He was followed
   *
     Pursuant to 5TH CIR. R. 47.5, the court has        by two masked men who ordered the employ-
determined that this opinion should not be pub-         ee behind the counter to “get down.” Upon
lished and is not precedent except under the limited    noticing the men, Gaines began moving slowly
circumstances set forth in 5TH CIR. R. 47.5.4.          toward the exit. One of the men then shot and
killed the employee, and Gaines and both               liable under article 2315 because the actions of
assailants quickly left the store. The incident        the officers constituted false arrest and battery.
was captured by a surveillance camera.
                                                          The district court granted summary judg-
   An enhanced version of the surveillance             ment, finding that the evidence available to
tape was played on the local news, and Gaines          Asaro “most definitely” supported the decision
was recognized by a New Orleans Police                 to arrest Gaines. That conclusion was based
Department (“NOPD”) officer who also                   primarily on the surveillance tape and the fact
worked as a security officer at Gaines’s place         that Gaines did not immediately report the
of employment.        Homicide investigators           shooting to police.
showed the tape to Gaines’s supervisor, who
confirmed his identity. When Gaines arrived at            The court noted that the tape established
work that evening, he agreed to go to the              that Gaines entered and exited the store nearly
police station for questioning and was trans-          simultaneously with the assailants, who ap-
ported there by three officers.                        peared to ignore him, did not give him any in-
                                                       structions, and walked right past him on their
    Asaro, a NOPD officer, was designated the          way to the counter. Gaines slowly backed up
lead detective for the investigation of the mur-       after the assailants reached the counter, and
der. He took a statement from Gaines, who              after the employee was shot, Gaines and both
admitted that he was present at the shooting           assailants quickly left the store. The court also
but denied involvement in the crime. When              found that, in light of the short time between
asked why he did not call police after witness-        the entry of Gaines and that of the assailants,
ing the shooting, Gaines said that he had no           it was highly likely that he had encountered
telephone but had planned to contact police            them outside the store, and thus his decision to
after he arrived at work that evening. Asaro           enter shortly before two masked men indicates
also took statements from two witnesses who            his involvement in the crime.
had been outside the store at the time of the
crime. Gaines was arrested on suspicion of                                     II.
having participated in the murder and was in-             “This Court reviews grants of summary
carcerated for two weeks, at which time a              judgment de novo, applying the same standard
judge found no probable cause for his arrest           as the district court, viewing the evidence in a
and ordered him released.                              light most favorable to the non-movant.”
                                                       Fruge ex rel. Fruge v. Parker Drilling Co.,
   This suit followed, with Gaines asserting           337 F.3d 558, 560 (5th Cir. 2003). Gaines
that his arrest was made without probable              claims that the court’s characterization of the
cause in violation of the Fourth and Fourteenth        surveillance tape was incorrect, that it improp-
Amendments of the U.S. Constitution, and               erly considered, in its analysis of probable
thus that Asaro and the city are liable under          cause, Gaines’s failure to report the crime
§ 1983.1 Gaines also claims defendants are             immediately, and that it erred in finding that
                                                       probable cause was not negated by Asaro’s

   1
     Before summary judgment was granted,
                                                          1
Gaines dismissed his claims against Walls,               (...continued)
                              (continued...)           McCleary, Ward, and Chiasson.

                                                   2
failure to ask certain questions during his inter-       gated because Asaro did not adequately ques-
view of the witnesses.                                   tion the two witnesses about Gaines’s involve-
                                                         ment in the crime. Gaines cites cases from our
   After reviewing the tape, we agree with the           sister circuits describing the general duty of
district court’s characterization of it. Gaines          law enforcement officers to conduct a rea-
enters the store, and the masked men follow a            sonable investigation of the available evidence
few seconds later, before the door has swung             before making an arrest. We are not bound by
completely shut. The assailants ignored                  the decisions of other circuits and, in any
Gaines, a potential witness to their crime; one          event, Asaro did not run afoul of them.
of them even bumped into him while ap-
proaching the counter and did not react at all              Gaines cites Moore v. Marketplace Rest.,
to the physical contact. Gaines slowly moved             Inc., 754 F.2d 1336 (7th Cir. 1985), in which
out of the way of the assailants and did not             the court reversed a grant of summary judg-
move quickly to leave the store until after the          ment because it found insufficient evidence of
shot had been fired, at which time all three             probable cause for an arrest. The plaintiffs
men exited simultaneously. As the district               were arrested and jailed overnight for failing to
court found, “[t]o say the least, Gaines’ ac-            pay a restaurant bill that they claimed they had
tions, when viewed in connection with the ac-            offered to pay. The only evidence was the
tions of the other two men, are suspicious.”             accusation of the restaurant’s owner, and other
                                                         than collecting this self-serving accusation, the
   Gaines contends that it was improper for              police conducted no investigation. Gaines also
the district court to give weight, in the proba-         refers to Kuehl v. Burtis, 173 F.3d 646 (8th
ble cause analysis, to the fact that he did not          Cir. 1999), in which an officer arrested the
contact authorities. He bases this argument on           plaintiff for assault after she pushed her way
his claim that individuals in high crime areas           around a man who had been threatening her to
generally do not report crimes, and he sup-              reach a phone and call for help. After she
ports the claim by noting that the other wit-            touched the man, he had hit her in the head,
nesses did not come forward voluntarily.                 knocking her eight feet through the air and
                                                         causing marked bruising. The officer ignored
   This does not, however, respond to the                the plaintiff’s statements, her bruises, and
court’s conclusion that Gaines was situated              several witness accounts before arresting her
differently from the other witnesses because             for assault.
they were outside the store at the time of the
murder, but Gaines was only a few feet from                 By way of contrast, Asaro’s investigation
the assailants. It was not error for the court to        went beyond the interview of the two witness-
consider, in the probable cause analysis,                es. He had a videotape of the crime showing
Gaines’s refusal to contact police after he had          Gaines acting suspiciously in close proximity
been in such close proximity to the gunman at            to the murder and an admission from Gaines
the time of the murder.                                  that he did not immediately report the crime.
                                                         Asaro also questioned the two witnesses, one
    Gaines claims that even if the tape, and his         of whom described seeing Gaines. Though
failure to report the crime immediately, estab-          neither witness saw any communication be-
lish probable cause, that cause should be ne-            tween Gaines and the two assailants before or


                                                     3
after the incident, this does not negate the
incriminating evidence that Asaro already pos-
sessed. The fact that Asaro did not ask further
questions about Gaines’s involvement does not
negate the probable cause based on the evi-
dence he had already obtained through his
investigation.

    In sum, the district court’s characterization
of the surveillance tape and of Gaines’s failure
to contact police was not error, and Asaro’s
failure to ask specific questions of the witness-
es did not negate probable cause. Accord-
ingly, we AFFIRM the summary judgment for
essentially the reasons stated in the court’s
order dated September 1, 2006.2




   2
     Gaines also claims that the court erred in find-
ing that, even if probable cause was lacking, Asaro
is entitled to qualified immunity. Because we
decide Gaines’s first two claims against him and
affirm the court’s finding that probable cause
existed to arrest Gaines, we do not reach this issue.

                                                        4
