Spoon v. Bayou Bridge Pipeline, LLC

682 F.Supp.3d 594

Cynthia SPOON, et al. v. BAYOU BRIDGE PIPELINE, LLC, et al.

CIVIL ACTION 19-516-SDD-SDJ

United States District Court, M.D. Louisiana

Signed July 17, 2023

James William Craig, Emily Mottiel Washington, Eric Andrew Foley, Roderick & Solange MacArthur Justice Center, New Orleans, LA, for Cynthia Spoon, et al.

James Conner Percy, Frederick Gibbons Addison, Jones Walker LLP, Baton Rouge, LA, for Bayou Bridge Pipeline LLC.

Robert E. Dille, Nicholas G. Grest, Rebecca Abbott Zotti, Shelley Kathryn Napolitano, Maron Marvel Bradley Anderson & Tardy LLC, New Orleans, LA, for HUB Enterprises, Inc.

Andrew Blanchfield, Chelsea Acosta Payne, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, Fabian Holden Chance Edwards, Keogh Cox & Wilson, Holden, LA, for Jon T. Barbera, Herman Matherne, Heather M. Pennington, Mark Ward, Angela Adams, Douglas Black.

Patrick Bayard McIntire, Oats & Marino, Lafayette, LA, for Ronald Theriot, Sharay Arabie, Stacey Blanchard, Troy Dupuis, Gabe Gauthier, Waversun Guidry, Norris Huval, Chris Martin.

RULING

SHELLY D. DICK, CHIEF DISTRICT JUDGE

This matter is before the Court on the Motions for Summary Judgment filed by Defendants St. Martin Parish Sheriff Ronald Theriot, Deputy Sharay Arabie, Deputy Stacey Blanchard, Deputy Troy Dupuis, Deputy Gabe Gauthier, Deputy Waversun Guidry, Deputy Norris Huval, and Deputy Chris Martin ("SMPSO Defendants");¹ Defendant HUB Enterprises ("HUB");² and Louisiana Department of Public Safety and Corrections Division of Probation and Parole ("P&P") Defendants Heather Pennington, Herman Matherne, Jon Barbera, Mark Ward, Angela Adams, and Douglas Black ("P&P Defendants").³ Plaintiffs Cynthia Spoon ("Spoon"), Sophia Cook-Phillips ("Cook-Phillips"), and Eric Moll ("Moll") (or collectively, "Plaintiffs") filed an Opposition⁴ to each motion, and all Defendants filed Replies.⁵ The Court previously granted the Defendants' Motions for written reasons to be assigned;⁶ the Court's reasons are assigned below.

I. FACTUAL BACKGROUND⁷

Since the inception of the permitting process by the United States Army Corps of Engineers, the construction of the Bayou Bridge Pipeline ("the Pipeline") across the Atchafalaya Basin in Louisiana has been hotly contested by various environmental groups, Basin-dependent businesses, indigenous groups, and citizens.⁸ Protests began during the permitting process and persisted after the Pipeline became operational. Currently, the Pipeline transports oil from Nederland, Texas to St. James Parish, Louisiana.⁹

In August 2018, Plaintiffs joined activists and water protectors in the L'eau Est La Vie ("Water is Life") camp in St. Martin Parish, Louisiana to protest the construction of the Bayou Bridge Pipeline.¹⁰ On August 9, 2018, Plaintiffs and a journalist, Karen Savage ("Savage"), paddled small boats to the Pipeline construction site in the Atchafalaya Basin to protest the construction.¹¹ Plaintiffs were ultimately arrested by off-duty Probation and Parole Officers (P&P) who had been contracted to provide security for the construction.¹² This lawsuit arises out of those arrests.

Plaintiffs contend that Bayou Bridge Pipeline, LLC ("BBP"),¹³ HUB, the P&P Defendants, and the SMPSO Defendants acted in concert and pursuant to a "preconceived plan" to arrest citizens protesting the Pipeline in violation of their First Amendment Free Speech rights. Essentially, Plaintiffs argue that probable cause to arrest Pipeline protesters was manufactured by BBP and its subcontractors by co-opting legislative and law enforcement processes to serve BBP's interests and chill the free speech of protesters. Plaintiffs filed this lawsuit against all Defendants and asserted the following claims:

Count I - False Detention, Arrest, and Imprisonment in Violation of the Fourth and Fourteenth Amendments; (all Defendants)

Count II - Failure to Intervene to Prevent Unlawful Arrests; (P&P and SMPSO individual Defendants)

Count III - Retaliatory Arrest for Violation of First Amendment Rights; (all Defendants)

Count IV - Monell Liability for Violations of Plaintiffs' Civil Rights (Sheriff Theriot/SMPSO)

Count V - Violations of the Free Expression Protections of the Louisiana Constitution; (all Defendants)

Count VI - Violations of the Right to Privacy, the Right to be Left Alone, and the Rights of the Accused Established by the Louisiana Constitution; (all Defendants)

Count VII - Intentional Torts, Including Intentional Infliction of Emotional Distress, Assault, Battery, and False Imprisonment.¹⁴ (all Defendants, generally)

All Defendants moved for summary judgment on these claims.

A. Pipeline Security

The following facts are established by record evidence.

BBP is a subsidiary of Energy Transfer Partners ("ETP") and Phillips 66 Partners that was created to build and operate the Bayou Bridge Pipeline.¹⁵ Russell Sweeney ("Sweeney") was a Vice President and Senior Director of Security of ETP,¹⁶ who had "strategic responsibility for physical security" at all ETP facilities and construction sites.¹⁷ Sweeney was tasked with developing a security plan for the construction of the Bayou Bridge Pipeline.¹⁸ Rodney Winch ("Winch"), ETP's Project Security Manager, was assigned "to oversee the management of physical security for the construction project."¹⁹ Winch reported directly to Sweeney.²⁰

BBP contracted with Hillard Heinze, a Chicago, Illinois risk management firm, to provide security services for the Pipeline construction project.²¹ With BBP's approval, Hillard Heinze engaged HUB to provide security for the pipeline construction project in the Atchafalaya Basin.²²

Sweeney, Winch, BBP Project Manager Cary Farber ("Farber"), Hillard Heinze onsite Security Project Manager Eddie Langlinais ("Langlinais"), Hillard Heinze employee Steve Monachello ("Monachello"), and Hillard Heinze executive Nathan Hunt ("Hunt") participated in weekly security briefings for the Pipeline construction.²³ Reports from the field were circulated for the briefings, and they included specific descriptions of security incidents at the Pipeline construction site.²⁴ One specific matter discussed in the weekly security briefings was the progress of HB 727, proposed legislation to amend La. R.S. 14:61 to upgrade the misdemeanor "Unauthorized Entry to a Critical Infrastructure" to a felony offense.²⁵ BBP had engaged a lobbyist to solicit support for the amendment to La. R.S. 14:61.²⁶

Winch created a document entitled "Atchafalaya Basin Site Security Plan" and submitted it to Sweeney on June 15, 2018.²⁷ The purpose and scope of the Security Plan is in dispute. BBP maintains that that the Site Security Plan was always a draft, was never finalized, and was never used.²⁸ ETP maintains that, "the purpose of [the Site Security Plan] [was] to look to see what we've done previously, what we're doing on like projects, and what we're doing on the Bayou Bridge project, and create a document that we could use as a template going forward with other like projects."²⁹ The Plaintiffs argue that, the "final form" of the Site Security Plan³⁰ calls for identifying security measures for the Pipeline construction areas in the Atchafalaya Basin, with specific reference to protests, among other possible threats.³¹ Plaintiffs claim the Site Security Plan is evidence that BBP and ETP directed and controlled law enforcement. Plaintiffs cite to provisions of the plan which call for HUB to submit security post orders to Hillard Heinze and then to Winch, ETP's Project Security Manager, for review and approval. Under the plan, HUB's security supervisor is expressly directed to report to the ETP Project Security Manager.³² The Plaintiffs contend that the Security Plan is evidence that, through HUB, ETP and BBP exercised operational control over law enforcement officers from P&P and the St. Martin Parish Sheriff's Office ("SMPSO") to have protesters arrested.³³ The Court finds this factual dispute immaterial because, for the reasons that follow, the Court finds that the law enforcement defendants had actual probable cause to arrest Plaintiffs.

The record reveals that in late July 2018, security was increased at the Pipeline construction site. Hillard Heintze submitted a proposal that contemplated the "use of unarmed, local security guard personnel."³⁴ Initially HUB employed uniformed, private security officers who were not P.O.S.T. certified³⁵ and lacked official authority to make arrests.³⁶ Hillard Heintze advised Sweeney, "based on the current and projected protestor activity, there will be an increase of LEOs [law enforcement officers] and reduction of guards in August and September . . . ."³⁷ In late July 2018, HUB contracted with the SMPSO and officers of the Louisiana Department of Public Safety and Corrections Division of Probation and Parole (P&P) to provide security officers with law enforcement powers—including the authority to make felony arrests—as private duty security detail for the Pipeline.³⁸ The purpose of the security detail was to provide for protection of equipment and construction workers and to prevent trespassing or vandalism.³⁹

The SMPSO's General Order 314 governing Extra-Duty Employment provides that "[o]nly P.O.S.T. certified personnel will be allowed this type of employment since actual or potential use of law enforcement powers should be anticipated."⁴⁰ The Sheriff's Extra Duty General Order permits "the use of the St. Martin Parish Sheriff's Office time, facilities, equipment, supplies, uniforms, etc."⁴¹ and specifies that "the employment duties must be essentially the same as those that would be performed if the employee were assigned those duties while on-duty."⁴²

On August 1, 2018, BBP's security team was informed that the felony amendments to La. R.S. 14:61 became effective that day.⁴³ At 1:40 p.m. on August 8, 2018, Brandon Thompson ("Thompson"), a scheduler for P&P, emailed the P&P officers working the detail, advising that their orders had changed:

You have been very flexible and understanding when it comes to last minute change.

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