     Case: 09-30726     Document: 00511247916          Page: 1    Date Filed: 09/29/2010




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

                                                  FILED
                                                                        September 29, 2010

                                       No. 09-30726                         Lyle W. Cayce
                                                                                 Clerk

SHANNON KOHLER,

                                                   Plaintiff - Appellant
v.

CHRISTOPHER JOHNSON,

                                                   Defendant - Appellee




                       Appeal from the United States District
                      Court for the Middle District of Louisiana
                               USDC No. 3:03-CV-857


Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
        In 2001, one Derrick Todd Lee began a terrifying spree around Baton
Rouge, Louisiana, raping and killing three women. While investigating these
crimes, law enforcement, acting pursuant to anonymous tips and a criminal
profile, identified Shannon Kohler, the plaintiff and appellant here, as a person
of interest. Detectives Christopher Johnson and David Hamilton asked Kohler
for a swab of his DNA. Kohler refused, so Johnson obtained a seizure warrant
from a judicial officer, and got Kohler’s sample. After he was cleared of the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 09-30726

crimes, Kohler brought this Section 1983 suit against Johnson and others,
alleging they had violated his Fourth Amendment rights. Following a winding
procedural journey, Kohler was awarded $20,000 in compensatory damages
against Detective Johnson only. Kohler, however, appeals, arguing the trial
court erred in two ways: by quashing his subpoena to the City of Baton Rouge
and issuing an accompanying protective order; and by denying, as a matter of
law, his claim for punitive damages.
       We hold that the trial court erred in dismissing Kohler’s punitive damage
claim, but that the trial court did not err in quashing the subpoena and granting
the protective order. We therefore affirm in part, reverse in part, and remand
for further proceedings on punitive damages.
                                              I.
       Kohler brought suit, under 42 U.S.C. § 1983, against Detective Johnson
and several others, asserting that collecting the swab against his wishes violated
his right to be free from unreasonable seizures, as provided by the Fourth and
Fourteenth Amendments to the United States Constitution and Article I, Section
5 of the Louisiana Constitution. The district court granted summary judgment
to all defendants. Kohler appealed to this court.
       On this first appeal, we affirmed the dismissal of all defendants except
Detective Johnson.1 We vacated the grant of summary judgment on the claim
that Johnson had submitted a facially insufficient affidavit when he applied for
the seizure warrant. Kohler v. Englade, 470 F.3d at 1115. We remanded this
single claim, pretermitting the issue of qualified immunity because Johnson had



       1
        We have previously stated the facts in some detail, and by reference, incorporate that
discussion. See Kohler v. Englade, 470 F.3d 1104, 1106-08 (5th Cir. 2006).

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not argued the defense when he moved for summary judgment. Id. at 1113 n.8.
We made clear that we affirmed the district court’s dismissal of Kohler’s claim
based on Johnson’s omission of exculpatory information from the seizure
affidavit. Id. at 1115.
      On remand, Kohler and Johnson submitted cross motions for summary
judgment. The district court found that, due to the abject deficiency of the
affidavit, Johnson was not entitled to qualified immunity. The court also found
that Johnson violated Kohler’s constitutional rights by submitting the affidavit
that ultimately caused the seizure of Kohler’s DNA. The only remaining jury
issue was the amount of Kohler’s damages.
      Six days before trial, Kohler issued a subpoena to the City of Baton Rouge
seeking numerous documents.       The City successfully moved to quash the
subpoena, a protective order was issued, and the trial commenced.
      At the close of Kohler’s case, Johnson moved for judgment as a matter of
law (“JMOL”). The claim for compensatory damages was permitted to proceed.
Over Kohler’s protest, the district court dismissed the claim for punitive
damages. In granting the JMOL,the district court held that Kohler had failed
to present evidence that demonstrated Johnson’s requisite mental state. After
Johnson presented his defense, the jury awarded Kohler $20,000 in
compensatory damages. Kohler’s motion for a new trial was denied. He appeals.
                                      II.
      On appeal, Kohler argues that the trial court erred on two grounds: by
quashing the subpoena issued to the City of Baton Rouge and granting the
accompanying protective order; and further by taking the question of punitive
damages away from the jury.


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                                         A.
         We review a district court’s decision to quash a subpoena for an abuse of
discretion and will affirm the court’s decision unless it was “arbitrary or clearly
unreasonable.” Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir.
2004) (footnotes and citation omitted).
         Kohler argues that the documents would prove intent by showing that
Johnson knew or should have known he had no reasonable basis to suspect
Kohler was the serial killer.        For present purposes, we will make this
assumption. Kohler fails, however, to address the trial court’s rationale for
quashing the subpoena.        The district court found, under Federal Rule of
Evidence 403, “the tenuous relevance of such documents to be substantially
outweighed by the danger of unfair prejudice as well as jury confusion.” In the
brief before us, Kohler devotes only one sentence of argument in response, and
fails to cite any authority in support of reversing this finding of the district
court.    The argument is thereby waived. See L & A Contracting Co. v. S.
Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994); see also F ED. R. A PP. P.
28(a)(9)(A).
         We thus hold the trial court did not err in quashing the subpoena and
issuing an accompanying protective order.
                                         B.
         We turn now to decide whether the jury should have been allowed to
decide the claim for punitive damages.
         On appeal, Kohler argues that he presented sufficient evidence to the jury
to support punitive, as opposed to compensatory, damages: Officer Hamilton
reported to Johnson that he was unable to continue with the investigation, yet


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Johnson continued to investigate Kohler; Kohler had an alibi that was never
checked out; Johnson sought a seizure warrant knowing that the bloody
footprint left at the scene could not be Kohler’s, as Kohler had a size thirteen
foot, and the print at the scene was size ten or eleven;2 Johnson’s affidavit
mentioned that Kohler had a burglary conviction, but Johnson failed to report
a corresponding pardon; and Detective Hamilton told Kohler that, should he fail
to cooperate, his name could wind up in the public records, and Johnson did, in
fact, subsequently file, with the clerk of court, unsealed copies of the affidavit,
warrant, and warrant return.
       Johnson addresses each argument in turn: Officer Hamilton was not
reporting on the merits of the investigation against Kohler, but merely reporting
Kohler’s refusal to provide his DNA; Kohler’s alibi was unspecified, and thus
unworthy of investigation; Kohler’s claim that Johnson omitted exculpatory
information was barred, see Kohler v. Englade, 407 F.3d at 1114, and thus
evidence thereof should not be considered to establish his mental state; the shoe
size disparity was not reason to cease investigating Kohler, as the footprint
could have been left by someone other than the criminal; under Louisiana Law,
a pardon is a mere “matter of grace from the state;” and the documents were
publicly filed in order to accommodate Kohler’s request that his DNA sample be
expunged.
       Under Federal Rule of Civil Procedure 50(a), “after a party has been fully
heard on an issue during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on the



       2
         It was later determined that the footprint was left not by the murderer, but by the
victim’s roommate.

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issue” a district court may resolve the issue against the party by granting a
motion for judgment as a matter of law. In resolving such motions, we view all
of the evidence “in the light and with all reasonable inferences most favorable
to the party opposed to the motion.” Hagan v. Echostar Satellite, L.L.C., 529
F.3d 617 (5th Cir. 2008). On the other hand, “[t]here must be a conflict in
substantial evidence to create a jury question.” Foreman v. Babcock & Wilcox
Co., 117 F.3d 800, 804 (5th Cir. 1997) (quotation marks and citation omitted).
      In a Section 1983 action, a plaintiff may be awarded punitive damages if
“the defendant’s conduct is shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected rights
of others.” Smith v. Wade, 461 U.S. 30, 56 (1983); see also Hale v. Fish, 899 F.2d
390, 404 (5th Cir. 1990).    The latter standard has been further defined as
“subjective consciousness of a risk of injury or illegality and a criminal
indifference to civil obligations.” Williams v. Kaufman County, 352 F.3d 994,
1015 (5th Cir. 2003) (citations and footnotes omitted). In a post-Smith decision,
the Supreme Court provided a less complex definition, stating that the standard
“at a minimum, require[s] recklessness in its subjective form.” Kolstad v. Am.
Dental Ass’n, 527 U.S. 526, 536 (1999). In Kaufman County, we found that the
defendant was recklessly indifferent because his actions conflicted with “well-
established” precedent requiring “individualized probable cause to search”
individuals in a public place. 352 F.3d at 1015.
      Accordingly, for us to reverse, we must determine that a reasonable jury
could find that Johnson had an evil intent or motive, or that he was recklessly




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                                        No. 09-30726

indifferent to the federally protected rights of others.                 We believe that a
reasonable jury could find that Johnson was recklessly indifferent.3
       Although this is a very close case, and Johnson makes plausible, even
strong, arguments that the evidence does not support a punitive damage award,
Kohler obviously argues to the contrary, and we must view all of the evidence “in
the light most favorable to the party opposed to the motion.” Hagan, 529 F.3d
at 622. It appears to us that the evidence presents a jury question as to whether
punitive damages can be supported based on Johnson’s conduct: he continued
the investigation, even though Hamilton was unable to proceed; omitted from his
affidavit the exculpatory information 4 regarding the footprint disparity and
Kohler’s pardon;5 and subsequently publicly filed the affidavit. This evidence
could support a finding by a reasonable jury that Johnson acted with reckless or
callous indifference to Kohler’s Fourth Amendment right to be free from
unreasonable seizures. The district court therefore erred in granting the JMOL 6

       3
        We thus need not determine whether there is sufficient evidence to meet the
heightened “evil motive or intent” standard.
       4
         It is appropriate to consider the information that Johnson did not include in his
affidavit, despite his argument to the contrary. We did rule that Kohler could not pursue his
constitutional claim that was based upon these omissions, but we did not foreclose Kohler’s
use of the evidence underlying that constitutional claim for other purposes. See Kohler v.
Englade, 407 F.3d at 1114. Here, the evidence is clearly relevant to Kohler’s attempt to prove
Johnson’s intent.
       5
         In reaching our conclusion, we do not rely upon Johnson’s failure to investigate
Kohler’s alibi, or to apprise the judge of the alibi. Johnson testified that the alibi was never
specified, and thus could not be investigated, and Kohler, during his case in chief, offered no
evidence to support his claim. Although Kohler identifies the alibi on appeal, that evidence
was not offered at trial and could not have been considered by the jury.
       6
         We should note that the district court’s error is in no small part due to the inadequacy
of the plaintiff’s response to the defendant’s argument in support of the Rule 50 motion. We
also note the inadequacy of the argument made in this respect in the Rule 59 post-verdict

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pursuant to Federal Rule of Civil Procedure 50(a), and we reverse. The case is
remanded for a trial on punitive damages alone.7
                                           III.
       Because Kohler failed to support his claim with an argument, we hold the
trial court did not err in quashing Kohler’s subpoena and granting an
accompanying protective order.
       We, however, hold that the trial court erred in granting Johnson’s motion
for judgment as a matter of law on Kohler’s punitive damage claim.                       In
considering a JMOL, we must draw all reasonable inferences in favor of the
nonmoving party. Hagan, 529 F.3d at 622. Applying this standard to the facts
of this case, and to the threshold for punitive damages under Section 1983, we
hold Kohler met his burden to avoid a JMOL. Specifically, we hold, drawing all
factual inferences in Kohler’s favor, he has presented sufficient evidence for a
reasonable jury to find that, under Williams v. Kaufman County, 352 F.3d at
1015, Johnson, in seeking a warrant against Kohler, not only lacked probable
cause but also acted with “subjective consciousness of a risk of injury or illegality
and a criminal indifference to civil obligations.” Accordingly, the case will be
remanded for a trial on punitive damages or for such other proceedings and
relief as are appropriate and not inconsistent with this opinion. The judgment




motion. Although the result in this case might be different if the defendant had made proper
objections below or on appeal regarding the plaintiff’s preservation of these errors, the
defendant has been silent on such defaults at each step of the case.
       7
           In remanding for a trial solely on punitive damages, we should note that only the
plaintiff appealed. The defendant did not appeal the $20,000 judgment against him and
consequently we have no jurisdiction to address it any manner.

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                               No. 09-30726

is therefore AFFIRMED in part and REVERSED in part, and the case is
REMANDED.
                   AFFIRMED in part, REVERSED in part, and REMANDED.




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