Phillips v. Whittington
| Docket Number | 20-30731 |
| Decision Date | 15 March 2022 |
| Parties | Todd Phillips; Jodi Phillips; Brooke Phillips; Abby Phillips, Plaintiffs-Appellees/Cross-Appellants, v. Julian C. Whittington, individually and in his official capacity as Sheriff of Bossier Parish; Bruce Bletz, in his individual capacity; Shawn Phillips, the supervisor of the investigation division, in his individual capacity; Charlie Owens, Former Chief Deputy, supervisor of day-to-day operations and adviser to Sheriff Whittington, in his individual capacity, Defendants-Appellants/Cross-Appellees, Hugo A. Holland, Jr., individually and in his official capacity as Special Prosecutor for the Bossier Parish District Attorney's Office; J. Schuyler Marvin, in his official capacity as District Attorney for Bossier Parish, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:17-CV-1524
Before King, Graves, and Ho, Circuit Judges.
This interlocutory appeal and cross-appeal arise from 42 U.S.C § 1983 claims filed by the Phillips family against Bossier Parish police officers and district attorneys who were involved in the arrest of Todd Phillips for two acts of arson. The defendants sought summary judgment based on qualified immunity, which the district court granted in part and denied in part. Now, the defendants appeal that denial of summary judgment on the Phillipses' false-arrest claim and the Phillipses cross-appeal the grant of summary judgment on various other claims. For the reasons discussed, we affirm the district court's judgments that the Phillipses challenge on cross-appeal and dismiss the defendants' interlocutory appeal for lack of jurisdiction.
Todd Phillips was arrested for two arsons, but these two arsons were a small part of a broader crime spree in Bossier Parish Louisiana. To fully understand the claims at issue, we must review the full scope of the original crime spree and the state's case against Todd, which culminated in a five-day 404(b) evidentiary hearing.
Todd and his family moved to Benton, Bossier Parish, Louisiana around 2004.[1] The Phillipses purchased 28 acres on Old Plain Dealing Road, which were heavily wooded and contained a barn and pasture for their horses. Beginning in 2010 and continuing over the next eight years, a series of property crimes directed against hunters occurred near the Phillipses' home.
These crimes included over 60 documented incidents of theft, vandalism, arson, and property damage by gunfire.
The perpetrator had a recognized modus operandi. He would frequently use homemade spikes to pop the tires of vehicles, and burn down or steal from deer camps, deer stands, and camp houses. The perpetrator would also leave behind or mail various threatening letters to locals, police, and attorneys involved with this case. Finally, the perpetrator would plant evidence at crime scenes apparently to frame local residents.[2] The consistent practices led the Bossier Parish Sheriff's Office ("BSO") to conclude that all acts were completed by the same person.
In September 2011, the BSO appointed Lt. Bruce Bletz as the lead investigator for the case. Lt. Bletz began to use Gary Wilson as his confidential informant, and the two communicated regularly. The BSO now believes that Wilson was the real perpetrator of these crimes, and state charges are currently pending against him; but at the time of the initial investigation, Lt. Bletz believed Wilson to be another victim of the crime spree. Wilson would feed Lt. Bletz information that he claimed to have heard throughout the community about potential suspects.
On October 24, 2012, two deer stands were burned down. At the scene of those stands, a Coleman fuel bottle was left behind with "Todd Phillips" written on its side in large letters. Then, on November 12, 2012, another deer stand, owned by Matt Caston, was burned down. Caston had a small GPS device at his deer stand, which the perpetrator stole. On that same night, at another nearby deer stand, the BSO found an incendiary device made from a grape Powerade Zero bottle filled with red diesel fuel, a veterinary bute syringe[3] with the name "Phillips" written on the syringe's label, and a blue plastic bag of trash later traced to the Phillipses' home.
With this new lead in hand, the BSO obtained a search warrant for the Phillipses' home. The search revealed nothing of evidentiary value. But the officers were able to interview Todd, his wife Jodi, and two of their daughters. The Phillipses recognized the bute paste as likely their own, but could not recall whether they had thrown it out at a rodeo the previous weekend or brought it home; they also recognized the trash. The Phillipses reported that they place their trash for pick up alongside Old Plain Dealing Road, approximately 0.3 miles away from their house. Soon after, Todd provided his fingerprints, DNA, and handwriting exemplars to the police.
A few days after the BSO executed its warrant, a neighbor came up to Jodi in her driveway. He said he found a GPS device in the bed of his truck that was parked near the Phillipses' property line and thought it may be theirs. Jodi contacted the BSO about the GPS, and the police eventually picked it up in late December 2012-but not until Lt. Bletz learned about the GPS from Wilson. The GPS was identified as Caston's.
Also during December 2012, various anonymous calls were made from a pay phone in Bossier City, Louisiana. Two are of particular note. The first call occurred on December 14 and was made to the crime-stoppers hotline. That caller accused one of the Phillipses' neighbors, Blake Barton, of the crime and stated that supporting evidence could be found at Barton's home. The BSO searched Barton's home and identified tire spikes as well as a bag of trash that had a magazine with a subscription label for Jodi Phillips. The second call occurred on December 24 and was directed to Barton's stepfather; it warned that Barton needed to leave town or else his trailer would be burned down.
In January 2013, based on the evidence pointing to Todd, Lt. Bletz obtained a warrant to place a GPS on Todd's vehicle. Despite tracking the vehicle from January 14, 2013, through April 19, 2013, the GPS data never showed the vehicle at or near any property crimes that occurred during that timeframe. Lt. Bletz subpoenaed the phone records of the Phillipses. The phone records identified that a cell tower pinged Jodi in the general area of the pay phone used to make the December 24 call.
Lt. Bletz continued to suspect that Todd was responsible for the crime spree. The theory was that Todd decided to frame himself in order to clear his name. Alternatively, Lt. Bletz testified that Todd had intended to burn the trash and syringe left behind on November 12, but rain had put the fire out. So, in March 2013, Lt. Bletz placed three white posters with bible verses along Old Plain Dealing Road across the street from the Phillipses' residence. The alleged intent of the posters was to coerce Todd into further acts.
In June 2013, Lt. Bletz consulted with other members of the BSO and the local district attorney to determine whether they could file charges against Todd. The district attorney advised that there was not sufficient evidence to formally charge Todd.
The perpetrator continued to commit crimes from 2013 through 2014-he shot and killed dogs, shot cars and houses, continued to plant spikes, vandalized homes, and left nails on the driveway of one of the Phillipses' neighbors. The perpetrator also continued to send threatening letters, now often insulting Lt. Bletz. Lt. Bletz continued to suspect Todd and told members of the community of his suspicions. Concerned for their safety, the Phillipses moved approximately sixty miles away to Marshal, Texas.
The crime spree continued. In March and June of 2015, a BSO detective and subordinate of Lt. Bletz, Mike Lombardino, investigated a vandalism and burglary and concluded that Wilson was the probable perpetrator of both. He advised Lt. Bletz of his conclusion, but Lt. Bletz said Wilson was cleared and told the detective to mark those cases inactive. Lombardino reported Lt. Bletz's apparent blind spot to Captain Shawn Phillips, but nobody at the BSO disclosed these incidents to the district attorney. (Capt. Phillips has no relation to the plaintiffs.) Also in spring of 2015, Assistant District Attorney Hugo Holland ("ADA Holland") was brought onto the case.
In July 2015, Lt. Bletz was tasked with preparing the narrative supplement that accused Todd of simple criminal damage to property based on the placing of tire spikes. The report documented dozens of incidents from the broader crime spree, but it did not include incidents that could be read to exculpate Todd-such as the perpetrator framing a different local before Todd, the March and June 2015 incidents where Wilson was the prime suspect, and several incidents where Todd had an alibi. Lt. Bletz and Wilson continued to frequently communicate, and Lt. Bletz repeatedly told Wilson that he believed Todd to be the perpetrator of the crimes.
In August 2015, ADA Holland sent a plea deal to Todd that offered that Todd plead guilty to simple damage to property and pay $59, 578.00 in restitution. Todd declined, and thus on September 14, 2015, Capt. Phillips issued a citation to Todd for a misdemeanor charge of simple criminal property damage under La. Rev. Stat. § 14.56. Acknowledging that the state could not rely on direct evidence to support its charge, ADA Holland filed a notice of intent to introduce evidence of the approximately 60 other crimes under rule 404(b); an...
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