IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30953

RUBENS MESA; JULIETA TARAZONA 

Plaintiffs - Appellants

v.

DWAYNE PREJEAN, Individually and in his official capacity as a Lafayette

City Police Officer 

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

This is a civil suit seeking damages against police officers for illegally and

with excessive force arresting Plaintiffs Rubens Mesa and Julieta Tarazona.

This appeal concerns the summary judgment granted in favor of one of the

officers on the basis of qualified immunity. We affirm as to the claims brought

by Mesa but reverse and remand in part the claims brought by Tarazona. 

I. Facts and Procedural Background

The Plaintiffs Rubens Mesa and Julieta Tarazona are married and own

Guama’s Restaurant and Bar in Lafayette, Louisiana. In the late-night hours

United States Court of Appeals

Fifth Circuit

F I L E D

September 23, 2008

Charles R. Fulbruge III

Clerk
No. 07-30953

2

of April 8, 2005, one ofthe Defendants, Lafayette Police Officer Dwayne Prejean,

was on duty patrolling an area near downtown where Guama’s and many other

bars were located. Patrons were in the businesses and on the sidewalks. Officer

Prejean visited a few establishments to have owners move tables and chairs that

were obstructing sidewalks in a manner that he believed to be violating state

statute and local ordinance. 

After stopping at Guama’s, Officer Prejean walked across the street to

another business. There, he arrested Tyler Guilbeau for disturbing the peace

due to intoxication. Officer Prejean placed Guilbeau inside his police car and

then stood next to the car while preparing paperwork on the arrest. Mesa

approached Prejean while he was writing in order to discuss the tables and

chairs on the sidewalk and to inquire about or object to Guilbeau’s arrest. 

Officer Prejean instructed Mesa to wait on the sidewalk. Mesa walked

across the street to the opposite sidewalk. Tarazona arrived and heard Mesa’s

version of events. Tarazona and Guilbeau’s girlfriend, an employee of Guama’s,

both walked over to Officer Prejean; Mesa remained on the sidewalk. Officer

Prejean testified that when Tarazona first approached, he had already arrested

Guilbeau and was in the process of writing up a misdemeanor summons to give

to Guilbeau before releasing him. Tarazona asked Officer Prejean why Guilbeau

was being arrested and about Prejean’s earlier demand that Guama’s chairs and

tables be moved off the sidewalk. 

At this point, the facts diverge as to Officer Prejean’s initial response to

Tarazona. Officer Prejean testified that he gave at least three clear orders for

Tarazona to remove herself from the street. Tarazona asserts that Officer

Prejean gave directions only twice. Moreover, the first was not an “imperative

command” but an invitation to discuss the matter of the tables and chairs when

he finished processing Guilbeau. Despite these assertions about the lack of

urgency of Officer Prejean’s initial directive, Tarazona’s deposition testimony
No. 07-30953

3

confirms that (1) Officer Prejean “told” her twice to get out of the street and

move on, and (2) she did not immediately comply with his initial directive.

There is evidence, though disputed, that Tarazona crossed the street to the

opposite sidewalk after the second request.

Upon reaching the sidewalk,Tarazona turned back toward Officer Prejean

and made some comments in his direction. Officer Prejean testified that

Tarazona began “yelling again about the media and she’s going to call the

Governor and have my job.” Tarazona testified that she made a comment to the

following effect: “If you didn’t have that badge you wouldn’t be treating me like

that.” After Tarazona made her comments, Officer Prejean immediately

informed her that she was under arrest and started toward her. 

When Officer Prejean approached Tarazona to place her under arrest,

Mesa moved toward him in what Officer Prejean described as an “aggressive

manner.” At least two officers became involved physically with Mesa while

detaining him. As a result, Mesa was bleeding and was taken to the hospital for

examination. While Mesa was being restrained, Officer Prejean placed his hand

on Tarazona’s shoulder near her upper back and neck because he had already

used his handcuffs on Guilbeau. Tarazona perceived the presence of Officer

Prejean’s hand as a requirement for her to kneel, and Tarazona knelt down.

Tarazona testified that, while she thought this manner of arrest was unusual,

Officer Prejean did not force her to the ground or otherwise inflict physical harm

upon her. Still, she complains that she was injured by Officer Prejean’s forcing

her to watch the other officers beat her husband, Mesa. Tarazona was

approximately eight feet away from the incident between Mesa and the other

officers. Less than one minute passed between Tarazona’s comments to Officer

Prejean and the point at which both she and Mesa were detained. 

Tarazona was charged with disturbing the peace by intoxication and with

remaining after forbidden. Mesa was charged with resisting an officer, battery
No. 07-30953

4

of an officer, obstruction of a public passage, and disturbing the peace by

intoxication. After a trial, a municipal court judge held that Mesa and Tarazona

were not guilty of the charges. 

Following the acquittals, Mesa and Tarazona brought this suit for

violation of constitutional rights under 42 U.S.C. § 1983 and under Louisiana

law for false arrest, false imprisonment, use of excessive force, defamation, and

malicious prosecution. 

Officer Prejean filed a motion for summary judgment, seeking dismissal

of all of the claims brought against him. The district court granted the motion

on the basis of qualified immunity. The court denied summary judgment

motions by the other Defendant officers. The City of Lafayette received a partial

summary judgment for matters related to prosecutorial immunity. 

The court entered a Rule 54(b) judgment certifying the finality ofthe order

favoring Officer Prejean. Mesa and Tarazona appeal from that judgment.

II. Discussion

This court reviews a district court’s grant of summary judgment de novo

and evaluates the evidence as the district court would. XL Specialty Ins. Co. v.

Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir. 2008). Summary

judgment is appropriate when “there is no genuine issue as to any material fact,

[and] the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The issue of qualified immunity is a question of law, but in certain

circumstances where “there remain disputed issues of material fact relative to

immunity, the jury, properly instructed, may decide the question.” Presley v.

City of Benbrook, 4 F.3d 405, 410 (5th Cir. 1993).

When an officer argues that he is entitled to qualified immunity from suit,

we first view the evidence “in the light most favorable to the party asserting the

injury” and decide if “the facts alleged show the officer’s conduct violated a

constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If that view
No. 07-30953

5

reveals no constitutional violation, there is no claim. However, “if a violation

could be made out on a favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly established.” Id. This

second inquiry “must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Id. For immunity to apply, the “actions of

the officer must be objectively reasonable under the circumstances, such that a

reasonably competent officer would not have known his actions violated

then-existing clearly established law.” Evett v. Deep E. Tex. Reg’l Narcotics

Trafficking Task Force, 330 F.3d 681, 688 (5th Cir. 2003).

We apply these standards first to Tarazona’s claims and then to Mesa’s.

A. Tarazona’s Fourth Amendment Claims

The validity of summary judgment on Tarazona’s claims turns on whether

Officer Prejean had “probable cause to believe that a criminal offense has been

or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “Probable

cause exists when the totality of the facts and circumstances within a police

officer’s knowledge atthe moment of arrest are sufficientfor a reasonable person

to conclude that the suspect had committed or was committing an offense.”

United States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006). A mistake

reasonably made as to probable cause justifies qualified immunity. Tarver v.

City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).

Two offenses were the alleged basis for the arrest: Tarazona’s remaining

after forbidden and her disturbing the peace by intoxication. We examine each

offense in turn.

1. Remaining After Forbidden

Officer Prejean first argues that he had probable cause to arrest Tarazona

under Louisiana’s criminal trespass statute, which provides as follows:

No person shall without authority go into or upon or attempt to go

into or upon or remain in or upon any structure, watercraft, or any
No. 07-30953

6

other movable or immovable property, which belongs to another,

including public buildings or structures, ferries and bridges, or any

part, portion, or area thereof, after having been forbidden to do so,

either orally or in writing . . . by any owner, lessee, or custodian of

the property or by any other authorized person.

La. Rev. Stat. § 14:63.3(A). The Louisiana Court of Appeal has held that this

statute “does not prohibit standing on a public sidewalk.” Melancon v. Trahan,

645 So. 2d 722, 726-27 (La. Ct. App.), writ denied, 650 So. 2d 1183 (La. 1995); see

also State v. Brooks, 755 So. 2d 311, 313-14 (La. Ct. App. 1999). Though quite

likely an officer has the right in Louisiana to require someone to move even from

a sidewalk to avoid interfering with an arrest,the issue framed for us is whether

refusing to do so violates this trespass statute. The state Supreme Court has not

ruled on these points, but these precedents at least raise doubt that a sidewalk

can be the situs for application of this specific statute.

There is some evidence that Tarazona was in the street, not on the

sidewalk. This statute’s applicability to public streets has not been the subject

of any Louisiana court opinion. It may not criminalize every instance of

remaining on a public street after being forbidden. See Melancon, 645 So. 2d at

726-27. Because the issue regarding the statute’s applicability to kinds of

locations has not been raised or briefed by the parties, and because resolution

of the point is not dispositive on appeal, we leave this issue to be decided by the

district court on remand after full presentation by the parties.

Regardless of the legal issue of whether an officer may expel an individual

from a street or sidewalk, the violator must be given “a reasonable time to

actually accomplish his departure.” State v. Kology, 785 So. 2d 1045, 1048 (La.

Ct. App. 2001). These disputed facts do not indicate whether Tarazona only

briefly and reasonably hesitated after an initial request to move on. Further, if

Tarazona’s explanation is accepted that Officer Prejean atfirst used what would

be a neighborhood policing technique of making a suggestion and not issuing a
No. 07-30953

7

command – though still“telling” her to move on – the resolution of disputed facts

could be that she promptly moved at the first clear command.

The district court determined that Tarazona’s failure to obey the first

order to move gave Officer Prejean probable cause to arrest. See Murray v.Town

of Mansura, 940 So. 2d 832 (La. Ct. App. 2006). The Murray court held that a

town police chief had probable cause to arrest two individuals who did not leave

the Mansura city hall premises after being given two warnings to move on. Id.

at 835, 841-42. We do not find the answer in Murray. First, the violators in

Murray refused to leave after being given two warnings and only departed from

the premises after being told they were under arrest. Id. In contrast, there is

some evidence that Tarazona complied with the one clear request and, arguably,

moved within a reasonable time after Officer Prejean’s first request. Second, the

individuals who refused to leave city hall violated Section 14:63.3, as it applies

to “public buildings and structures.” Sidewalks and streets, though, may not be

proper places for applying the statute as we have discussed.

Therefore, when viewing the evidence favorably to Tarazona, we conclude

that there are fact questions about a violation of a constitutional right to be free

from unreasonable seizures. See Saucier, 533 U.S. at 201. Because of that

uncertainty, we must take the next sequential step in qualified immunity

analysis and ask whether “a reasonably competent officer would not have known

his actions violated then-existing clearly established law.” Evett, 330 F.3d at

688. Here, too, the factual ambiguities regarding what Officer Prejean said and

how many times he said it, how quickly Tarazona moved, and whether no

reasonable officer would have thought he could arrest a person for her failure to

move from a sidewalk, make summary judgment inappropriate.

We should not be read as failing to distinguish the two analytical steps.

If there is no probable cause to arrest, the question of whether qualified

immunity nonetheless applies is a separate legal and factual issue. In one
No. 07-30953

8

precedent, we reversed a decision regarding probable cause and remanded; on

the next appeal, then-Chief Judge Clark wrote that whether a “search was

reasonable is not the equivalent of whether an officer participating in an

unreasonable search is entitled to qualified immunity.” Bigford v. Taylor, 896

F.2d 972, 975 (5th Cir. 1990). We later examined the trilogy of Bigford appeals

and concluded that the analysis of facts that might not support probable cause

to arrest needs to be distinguished from the analysis of whether a reasonable

officer would have known that he was violating clearly established law when

making an arrest. Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir. 1997). We find

the facts relevant to each analysis sufficiently disputed to require reversal.

2. Disturbing the Peace by Intoxication

Even though Officer Prejean should not have been granted qualified

immunity on summary judgment as to the first offense, we must examine the

alternate basis for arrest due to disturbing the peace by intoxication. Probable

cause to arrest for either offense gives immunity. Tarazona submitted sworn

eyewitness statements that she was not intoxicated. Officer Prejean posits that

Tarazona’s actual intoxication is not dispositive in the probable cause inquiry.

The relevant statutory language for the offense is this:

A. Disturbing the peace is the doing of any of the following in such

manner as would foreseeably disturb or alarm the public: 

(3) Appearing in an intoxicated condition . . . .

La. Rev. Stat. § 14:103(A)(3). This crime requires that a “defendant was

disturbing the peace by appearing drunk and in such a manner as would

foreseeably disturb or alarm the public.” State v. Trepagnier, 982 So. 2d 185, 191

(La. Ct. App. 2008). For a conviction,“the intoxication elementis satisfied when

the defendant is present ‘while intoxicated, and not when he merely looks like

he is intoxicated.’” Id. (quoting State v. Champagne, 520 So.2d 447, 451 (La. Ct.

App. 1988)). That test does not answer what is needed for arrest.
No. 07-30953

1 Under qualified immunity analysis, Tarazona bears the burden of proving that Officer

Prejean lacked probable cause to arrest her. Sorenson v. Ferrie, 134 F.3d 325, 330 & n.10 (5th

Cir. 1998). Tarazona “must show that the legality of her conduct was clearly established.” Id.

Her perceived intoxication is an alternative basis for arrest, and in response Tarazona did not

demonstrate that the legality of her conduct was clearly established. We use our discretion not

to affirm on that basis, never reached by the court below, because of the weakness of the

offered evidence to suggest that this offense was a legitimate basis for arrest.

9

Cases interpreting Section 14:103(A)(3) suggestthat probable cause for an

arrest for violating the statute requires that an officer observe evidence both of

actual intoxication and a likelihood that the public will be endangered or

disturbed. State v. Stowe, 635 So. 2d 168, 172 n.3 (La. 1994) (probable cause

existed “based on defendant’s offensive and derisive language in the middle of

a public highway, plus his visibly intoxicated condition”); State v. Chauvin, 945

So. 2d 752, 761-62 (La. Ct. App. 2006) (no probable cause because no evidence

of actual intoxication and no evidence “the defendant’s actions had the intent to

deride, offend or annoy the people he approached or that they were violent or

boisterous in a manner that would induce a foreseeable physical disturbance”).

The pertinentfacts as to probable cause under Section 14:103(A)(3) are not

well-developed in this record. Officer Prejean moved for summary judgment and

argued that he had probable cause to arrest under each of the statutes we have

discussed. The district court did not reach Officer Prejean’s arguments on

disturbing the peace by intoxication, finding the arrest under the criminal

trespass statute to be justified. On appeal, Tarazona has disputed the existence

of probable cause only by arguing she was not actually intoxicated. The

appropriate inquiry, though, is whether the officer had probable cause to believe

that she was. See Gibson v. Rich, 44 F.3d 274, 276-77 (5th Cir. 1995). 

While Tarazona’s evidence of her sobriety is not decisive on the probable

cause issue, there also is little evidence that would support a finding that, based

on Tarazona’s conduct preceding her arrest, a reasonable person could conclude

that she was violating the intoxication statute.1
No. 07-30953

2 An arrest may be upheld if the circumstances viewed objectively created probable

cause to arrest for a violation of some offense other than the one subjectively being considered

at the time by the officer. Devenpeck, 543 U.S. at 153. Because no offense other than two we

have considered is argued, we do not search for others.

10

Even under our de novo review, the litigants must present this court with

material facts before we can determine whether such facts are in dispute. The

district court made no finding of fact regarding probable cause to arrest under

Louisiana’s disturbing the peace by intoxication statute. Office Prejean has

shown little justification for the arrest, and Terazona has not shown an absence

of justification. Under these circumstances, we decline the opportunity to affirm

summary judgment on this alternative basis of probable cause. See U.S. ex rel.

Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 380 (5th Cir. 2004).

Because we have found that summary judgment based on qualified

immunity should not have been granted under either alleged basis for the arrest,

we reverse the dismissal of Tarazona’s claim of an illegal arrest.2

3. Excessive Force

Tarazona alleged that Officer Prejean used excessive force when placing

her under arrest. Tarazona admits that she suffered no physical injuries as a

result of the arrest but argues that the arrest caused psychological injuries.

Purely psychological injury can serve as a basis for liability under Section 1983.

Tarver, 410 F.3d at 752. However, Tarazona’s excessive force claim fails because

the undisputed facts show that Officer Prejean’s use of “force” was reasonable

and not excessive under the circumstances. Indeed, Tarazona’s own statements

in the record indicate the pressure from the officer’s hand on her shoulder that

caused her to kneel down was minimal. There is no fact question here.

B. Tarazona’s First Amendment Claim

Tarazona alleges that Officer Prejean violated her right to free speech by

arresting her in response to her comment that he would be treating her and
No. 07-30953

11

Mesa differently if he “didn’t have that badge.” There are different versions of

the comment, but we accept as true the language most favorable to Tarazona.

We apply the principle that “the First Amendment protects a significant

amount of verbal criticism and challenge directed at police officers.” Enlow v.

Tishomingo County, 962 F.2d 501, 509 (5th Cir. 1992) (quoting City of Houston

v. Hill, 482 U.S. 451, 462 (1987)). “The freedom of individuals verbally to oppose

or challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state.” Id.

(quoting Hill, 482 U.S. at 462-63). In Enlow, this court reversed the grant of

summary judgment on the basis of qualified immunity where the facts were

disputed whether an officer arrested the plaintiff because of violating a statute

or because the plaintiff asked the officer to furnish a warrant. Id. at 510. 

The district court here found that Tarazona’s arrest was due to her refusal

to leave. Based on this independent ground for arrest, the court found no merit

to Tarazona’s First Amendment claim. 

Courts need to be alert to arrests that are prompted by constitutionally

protected speech, even when the arrestee’s words are directed at a police officer

performing official tasks. Trained officers must exercise restraint when

confronted with a citizen’s anger over police action. Id. at 509; see also Lewis v.

City of New Orleans, 415 U.S. 130, 134-35 (1974) (Powell, J., concurring). 

Conversely, when a person’s conduct gives an officer probable cause to

believe that she is guilty of a crime, that person does not taint a proper arrest

by contemporaneously shouting “police officers are corrupt.” Probable cause is

an objective standard. If it exists, any argument that the arrestee’s speech as

opposed to her criminal conduct was the motivation for her arrest must fail, no

matter how clearly that speech may be protected by the First Amendment. Of

course, this is nothing more than a recognition that “the Fourth Amendment’s

concern with ‘reasonableness’ allows certain actions to be taken in certain
No. 07-30953

12

circumstances, whatever the subjective intent” of the officer. Whren v. United

States, 517 U.S. 806, 814 (1996).

Because the validity of Tarazona’s First Amendment claim hinges on

probable cause for her arrest – a fact question for the jury – we cannot resolve

the speech claim on summary judgment. If Officer Prejean had probable cause

to arrest Tarazona under Section 14:63.3, there can be no inquiry into whether

he was subjectively motivated by her comments. In such an event, there could

be no First Amendment violation. But if a jury finds no probable cause,

Tarazona’s First Amendment claim may be considered as well.

C. Tarazona’s State Law Claims

Tarazona also advanced a number state law claims, including false arrest,

malicious prosecution, battery, false imprisonment, and defamation. The district

court dismissed all of these state law claims because it found that Tarazona’s

arrest was both lawful and reasonable under the circumstances. Because we

have found the district court’s determination of probable cause to be in error, we

reverse the court’s dismissal of Tarazona’s state law claims. 

D. Mesa’s Fourth Amendment Claim

Mesa alleges that Officer Prejean violated his Fourth Amendment right

to be free from unreasonable seizures by failing adequately to supervise the

other officers who subdued and arrested him. Liability under Section 1983 for

a supervisor may exist based either on “(1) his personal involvement in the

constitutional deprivation, or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation.” Thompkins v.

Belt, 828 F.2d 298, 304 (5th Cir. 1987). 

Though Officer Prejean never had physical contact with Mesa, itis argued

that he was “personally involved” in Mesa’s arrest because Prejean precipitated

the arrest by falsely and unlawfully arresting Tarazona. Mesa does not offer any

authority that would support this novel theory of liability as a form of “personal
No. 07-30953

13

involvement.” We reject it because supervisory liability under the “personal

involvement” theory requires something more than mere presence at the scene

where subordinates allegedly violated the plaintiff’s constitutional rights. The

plaintiff must demonstrate an officer’s “overt personal participation” in the

violation of his own rights, not someone else’s. Id. There is no allegation that

Officer Prejean gave any command, signal, or any other form of direction to the

officers that prompted them to arrest and subdue Mesa. 

Absent Prejean’s “overt personal participation” in the events giving rise

to the claims, Mesa must demonstrate that “(1) the supervisor either failed to

supervise or train the subordinate official; (2) a causal link exists between the

failure to train or supervise and the violation of the plaintiff's rights; and (3) the

failure to train or supervise amounts to deliberate indifference.” Estate of Davis

v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (internal quotation

marks and citation omitted). Deliberate indifference is a “‘conscious’ choice to

endanger constitutional rights.” Snyder v. Trepagnier, 142 F.3d 791, 799 (5th

Cir. 1998). “[P]roof of deliberate indifference generally requires a showing of

more than a single instance of the lack of training or supervision causing a

violation of constitutional rights.” Burge v. St. Tammany Parish, 336 F.3d 363,

370 (5th Cir. 2003) (quotation marks omitted).

Mesa argues that Officer Prejean’s failure to supervise the officers who

arrested him caused the deprivation of Fourth Amendment rights. More

specifically, Mesa contends that Officer Prejean is liable as a supervisor because

he failed to intervene in the brief physical altercation between Mesa and the

other officers, which he should have due to his senior rank and close proximity.

We review what admittedly occurred. Mesa characterizes his actions after

Tarazona was arrested as raising “his forearms next to his side with the palms

of his hands up in a questioning manner . . . .” This gesture then triggered two

officers to subdue Mesa. Deposition testimony from witnesses and the parties
No. 07-30953

14

established that Mesa’s arrest happened very quickly; the altercation between

Mesa and other officers lasted approximately thirty to forty seconds. During this

time, Officer Prejean was occupied with maintaining control over his own

arrestee, Tarazona, whom he could not handcuff due to the fact that he had

already employed his only set of handcuffs on Guilbeau. 

Based on these facts, Officer Prejean’s failure to intervene in Mesa’s arrest

does not amount to a conscious choice to endanger Mesa’s constitutional rights.

Further, Mesa has not made any attempt to show a pattern of similar

“violations” by Officer Prejean. These omissions are fatal to his failure to

supervise claim under Section 1983. See Rios v. City of Del Rio, 444 F.3d 417,

427 (5th Cir. 2006). We affirm the district court’s summary judgment in favor

of Officer Prejean as to Mesa’s claims.

III. Conclusion 

The judgment dismissing Tarazona’s federal claims is REVERSED AND

REMANDED, with the exception that the judgment dismissing Tarazona’s

excessive force claim is AFFIRMED. 

The judgment dismissing Tarazona’s state law claims is REVERSED. 

The judgment dismissing Mesa’s claim is AFFIRMED.