Wearry v. Foster

Decision Date03 May 2022
Docket Number20-30406
Citation33 F.4th 260
Parties Michael WEARRY, Plaintiff—Appellee, v. Paulette H. FOSTER, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; Scott M. Perrilloux, in his Individual Capacity and in his Official Capacity as District Attorney for the 21st Judicial District of Louisiana; Kearney Matthew Foster, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; William Aaron Foster, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; Annette Foster Alford, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased, Defendants—Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

33 F.4th 260

Michael WEARRY, Plaintiff—Appellee,
v.
Paulette H. FOSTER, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; Scott M. Perrilloux, in his Individual Capacity and in his Official Capacity as District Attorney for the 21st Judicial District of Louisiana; Kearney Matthew Foster, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; William Aaron Foster, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; Annette Foster Alford, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased, Defendants—Appellants.

No. 20-30406

United States Court of Appeals, Fifth Circuit.

FILED May 3, 2022


James W. Craig, Eric Andrew Foley, Emily M. Washington, Roderick & Solange MacArthur Justice Center, New Orleans, LA, for Plaintiff—Appellee.

Druit George Gremillion, Jr., Esq., Attorney, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendants—Appellants Paulette H. Foster, Kearney Matthew Foster, William Aaron Foster, and Annette Foster Alford.

Christopher M. Moody, Albert David Giraud, Moody Law Firm, Hammond, LA, for Defendant—Appellant Scott M. Perrilloux.

Brianne Jenna Gorod, Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.

Jay Remington Schweikert, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.

Before King, Dennis, and Ho, Circuit Judges.

James L. Dennis, Circuit Judge:

After the Supreme Court overturned Michael Wearry's Louisiana capital murder conviction, Wearry v. Cain , 577 U.S. 385, 136 S.Ct. 1002, 194 L.Ed.2d 78 (2016), Wearry brought this §§ 1983 and 1988 suit against the state prosecutor and a sheriff's detective, alleging that they fabricated evidence that deprived him of due process

33 F.4th 263

and a fair trial. Defendants, District Attorney Scott Perrilloux and Livingston Parish Sheriff's Detective Marlon Foster, each moved to dismiss for failure to state a claim under Rule 12(c) based on assertions of absolute prosecutorial immunity. The district court denied the motions, holding that neither defendant was entitled to absolute immunity for fabricating evidence by intimidating and coercing a juvenile to adopt a false narrative the defendants had concocted out of whole cloth.

We agree with the district court that Wearry's complaint alleges misconduct that is fundamentally investigatory in nature. When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted. Therefore, District Attorney Perrilloux is not entitled to absolute immunity for his actions. Nor is Detective Foster absolutely immune. As the Supreme Court has made clear, a police officer is not entitled to the absolute immunity reserved for a prosecutor. We AFFIRM the district court's rulings.

I.

On the evening of April 4, 1998, Eric Walber, a high school honors student, was carjacked and brutally murdered on a deserted stretch of roadway in Livingston Parish while delivering pizza. For several years the crime went unsolved, generating national media attention and criticism of law enforcement in Livingston Parish. Then, in June 2000, Wearry was charged with Walber's murder. Wearry, whose alibi was that he was at a wedding in Baton Rouge on the night of the murder, had been initially dismissed as a suspect by law enforcement. But in April 2000, a jailhouse informant came forward claiming to have information linking Wearry to Walber's murder. Without any physical evidence directly connecting Wearry to the crime, a unanimous jury voted to convict Wearry and sentenced him to death. Sixteen years later, the United States Supreme Court overturned Wearry's conviction, stating that newly revealed Brady evidence undermined confidence in the State's case against him, which resembled "a house of cards." Wearry , 577 U.S. at 392, 136 S.Ct. 1002.

Wearry then filed this lawsuit seeking damages from Detective Foster and District Attorney Perrilloux. He alleged that the officials fabricated evidence against him in his murder prosecution in violation of the Fourteenth Amendment and Louisiana state law by coercing a vulnerable juvenile to adopt, and eventually testify to, a false story concocted entirely by the Detective and the District Attorney. Since the applicability of absolute immunity turns on whether the misconduct in question is advocatory or not, we recount the allegations of the complaint in detail. And since this appeal comes to us from a Rule 12(c) motion, we "assume [Wearry's] allegations are entirely true." Buckley v. Fitzsimmons , 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).

In December 2001, two and a half years after Walber's murder, Detective Foster pulled Jeffery Ashton out of school without his mother's permission and detained him at District Attorney Perrilloux's office. Ashton was barely a teenager at the time. Over the course of at least six separate meetings beginning three months before trial, Foster and Perrilloux intimidated the child, who was facing his own juvenile proceedings, into adopting a story they had invented that placed Wearry near the crime scene at the time of the murder. At one meeting, the District Attorney and Detective falsified the results of a photo array lineup, indicating that the child had

33 F.4th 264

identified Wearry as the person he had seen in the fabricated story. In truth Ashton had told the officials he did not recognize Wearry after they pointed him out in the photo array. At another meeting, Foster took the child to see the victim's blood-stained car. Before and after each of these meetings, Perrilloux and Foster met to confer upon their efforts to pressure Ashton into adopting and testifying to the story they fabricated.

Nothing in the story the defendants invented was based on information the child had provided to the Detective or the District Attorney. As Wearry's complaint plainly puts it, "Perrilloux and Foster made an intentional and deliberate decision to fabricate a narrative." In the District Attorney and Detective's narrative, Ashton had gone to a "musician appreciation" function at his church on the night of the murder. According to the false narrative, as he walked home alone, he heard footsteps and hid under a house. Following their script, Ashton testified that he then saw Wearry throw Walber's cologne bottle into a ditch and get into Walber's car. In reality, Ashton had been at a strawberry festival with his older sister in Ponchatoula miles away from the scene on the night of Walber's murder. Ashton had spent the night with his sister in Hammond without coming back to Livingston Parish. Ashton had never seen Wearry before Foster and Perrilloux presented Wearry's photo to him, and Ashton "had no personal knowledge" of any facts implicating Wearry in the murder, including the fabrications invented by the defendants. In short, Foster and Perrilloux knowingly "provided the adolescent with a completely fabricated story" and intimidated and coerced him to adopt and repeat the story in his testimony.1

In the district court, Perrilloux moved first to dismiss Wearry's suit arguing that he was entitled to absolute immunity because the allegations in the complaint described actions traditional to a prosecutor's role as an advocate for the state. The district court denied Perrilloux's motion, concluding that the alleged scheme to fabricate evidence fell outside of the prosecutorial functions protected by absolute immunity. Detective Foster then filed a Rule 12(c) motion for judgment on the pleadings, arguing that he, a sheriff's detective, was due the absolute immunity just denied to the District Attorney. Perrilloux filed his own Rule 12(c) motion the next day, stating only that "[f]or the same bases as are set forth in the similar motion filed" by Foster, the court should grant Perrilloux absolute immunity and judgment on the pleadings. The district court denied both motions. The defendants filed this interlocutory appeal of the district court's denial of their identical Rule 12(c) motions.

II.

The denial of absolute immunity on a § 1983 claim may be immediately appealed "to the extent that it turns on an issue of law," as a "final decision." Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Similarly, an order denying immunity under state law is

33 F.4th 265

immediately appealable as a final decision, so long as "the state's doctrine of qualified immunity, like the federal doctrine, provides a true immunity from suit and not a simple defense to liability." Sorey v. Kellett , 849 F.2d 960, 962 (5th Cir. 1988). Louisiana's doctrine of prosecutorial immunity is, like the federal doctrine, one of true immunity from suit. The Louisiana Supreme Court, in a decision relying heavily on the foundational U.S. Supreme Court cases Imbler v. Pachtman , 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) and Buckley v. Fitzsimmons , 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), held that absolute prosecutorial immunity "will defeat a suit at the outset." Knapper v. Connick , 681 So. 2d 944, 948 (La. 1996). As a result, this court has heard interlocutory appeals from denials of absolute prosecutorial immunity involving federal and Louisiana state law claims. See, e.g., Singleton v. Cannizzaro , 956 F.3d 773 (5th Cir. 2020).

We review a district court's denial of a Rule 12(c) motion for judgment on the pleadings de novo. Johnson v. Johnson , 385 F.3d 503, 529 (5th Cir. 2004). "The standard for...

To continue reading

Request your trial
10 cases
  • McKinney v. City of Middletown
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 26, 2022
    ...outraged by this state of affairs is that the American people have a remedy. Congress decides what our laws shall be." Wearry v. Foster , 33 F.4th 260, 278-79 (5th Cir. 2022) (Ho, J., dubitante). And that is true of the statute we apply today.CONCLUSIONFor the reasons set forth above, we AF......
  • Tucker v. Gaddis
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 11, 2022
  • Wearry v. Foster
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 27, 2022
    ...immunity is inconsistent with the text and original understanding of 42 U.S.C. § 1983, and I tend to agree. See Wearry v. Foster , 33 F.4th 260, 273, 279–80 (5th Cir. 2022) (Ho, J., dubitante) (discussing authorities). I've also said that "we [should] decide every case faithful to the text ......
  • Jameson v. Montgomery
    • United States
    • Louisiana Supreme Court
    • May 5, 2023
    ... ... act within a prosecutor's jurisdiction as a judicial ... officer."); Weary v. Foster , 33 F.4th 260, ... 26970 (5th Cir. 2022) ("A plea negotiation-in which ... charging, sentencing, and other purely prosecutorial ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT