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unreasonably in light of then-prevailing only because there is no caselaw clearly
caselaw. Accordingly, the district court did not establishing that he acted unreasonably in
err in finding that Rogers is entitled to qualified proceeding to arrest Allemang for a failed SFST
immunity against Allemang’s Fourth despite a negative breathalyzer. We further
Amendment claim. conclude that Allemang’s official-capacity claim
against Rogers is not viable under § 1983. We
Allemang also appeals the district court’s therefore AFFIRM the district court’s judgment.
dismissal of his claims against Rogers in his
“official capacity.” Allemang v. State of Louisiana, 5 th Cir., No. 21-
30360, Aug. 10, 2022.
According to Allemang, his claim against
Rogers in his official capacity is a claim against
the “State.” This is a correct description of PROBABLE CAUSE – arrest of protesters
official-capacity claims.
James Everard (“Everard”) and Christopher
The defendants did not assert Eleventh Grisham (“Grisham”) (collectively, “Plaintiffs”)
Amendment immunity as a defense to this filed this civil rights suit under 42 U.S.C. § 1983
allegation, and, like the district court, they against the City of Olmos Park (“the City”) and
analyze this claim under Monell. However, a several police officers (collectively,
claim for damages against a state official in his “Defendants”) alleging that their arrests were in
official capacity or a state entity for an alleged violation of their constitutional rights. The
unconstitutional policy or custom is barred by district court granted summary judgment in
both Eleventh Amendment immunity and the favor of the City and the officers and dismissed
rule that states are not “persons” under § 1983. Everard’s and Grisham’s claims. Because the
Curiously, no party briefed these limitations record evidence supports the district court’s
during this litigation, and the district court did summary judgment, we AFFIRM.
not note them when it rejected Allemang’s
official capacity claim for other reasons. Though Grisham and Everard are self-styled “Second
the defendants may have waived Eleventh Amendment protestors” who had been involved
Amendment immunity by not raising it,—as in several protests advocating for the
interpreted by the Supreme Court— does not repeal of a City ordinance that governs the
allow for suits against state entities or against unauthorized carrying of loaded firearms. This
state officials in their official capacities, Will, case arises out of their arrests on March 27,
491 U.S. at 65-66. Accordingly, the district 2018. Prior to this date, the Olmos Park Police
court was correct, albeit for the wrong reasons, Department had received calls from dispatch on
in dismissing Allemang’s § 1983 claims against numerous occasions and was aware of several
the State of Louisiana. Second Amendment demonstrations happening
throughout the City.
Last, Allemang challenges the district court’s
decision to strike the affidavits from retired On March 27, 2018, 911 operators received
Troopers Edgar and Reavis. But because several calls regarding a man “with an AK-47”
Allemang offered those affidavits in support of around his neck, standing on a busy street
his barred official-capacity claim, we need not corner in Olmos Park for about five minutes.
address the district court’s evidentiary ruling. Officers were dispatched to the scene to
In summary, we agree with the district court that investigate, with the idea that they would
Rogers is entitled to qualified immunity, but encounter “those Second Amendment people
May/June 2024 www.texaspoliceassociation.com • (512) 458-3140 33
