Case: 24-30272 Document: 113-1 Page: 1 Date Filed: 06/20/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 20, 2025
No. 24-30272 Lyle W. Cayce
____________ Clerk
Anne White Hat; Ramon Mejia; Karen Savage; Sharon
Lavigne; Harry Joseph; John Lambertson; Peter
Aaslestad; Theda Larson Wright; Alberta Larson
Stevens; Judith Larson Hernandez; RISE St. James; 350
New Orleans; Louisiana Bucket Brigade,
Plaintiffs—Appellants,
versus
Elizabeth B. Murrill, in her official capacity as Attorney General of
Louisiana; M. Bofill Duhe, in his official capacity as District Attorney of
the 16th Judicial District Attorney’s Office; Becket Breaux, in his official
capacity as Sheriff of St. Martin Parish,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:20-CV-983
______________________________
Before Graves, Higginson, and Wilson, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
Plaintiffs, comprised of ten individuals and three community
organizations, appeal the district court’s grant of summary judgment in favor
of three Louisiana officials. They chiefly contend that amendments to the
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state’s Infrastructure Trespass Statute rendered the law unconstitutionally
vague, in violation of the Due Process Clause, and substantially overbroad, in
violation of the First Amendment. Because we conclude that the statute in
question is neither impermissibly vague nor violative of the First
Amendment, we AFFIRM the district court’s disposition of this case.
I. Factual & Procedural History
A. Statutory Background
This appeal centers on constitutional challenges to Louisiana’s
Infrastructure Trespass Statute, La. R.S. § 14.61. 1 In addition to a general
criminal trespass statute, see La. R.S. § 14.63, Louisiana specifically
criminalizes the “unauthorized entry of a critical infrastructure.” La. R.S. §
14.61 (“Infrastructure Trespass Statute” or the “statute”). First-time
offenders face a possible fine of up to $1,000, as well as a five-year term of
imprisonment. La. R.S. § 14.61(C)(1).
When the Infrastructure Trespass Statute was enacted in 2004, it
defined the “[u]nauthorized entry of a critical infrastructure” as:
the intentional entry by a person without authority into any
structure or onto any premises, belonging to another, that
constitutes in whole or in part a critical infrastructure that is
completely enclosed by any type of physical barrier, including
but not limited to: (1) chemical manufacturing facilities; (2)
refineries; (3) electrical power generating facilities; (4) water
intake structures and water treatment facilities; (5) natural gas
transmission compressor stations; (6) LNG terminals and
storage facilities; and (7) transportation facilities, such as ports,
railroad switching yards, and trucking terminals.
_____________________
1
Unless specified, this opinion will refer to subsections of the Infrastructure
Trespass Statute as enumerated in the current version of the statute.
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La. R.S. § 14.61 (2004). In subsequent years, the Louisiana Legislature
passed legislation that generally broadened the statute’s scope. In 2015, for
example, the “act” of an “unauthorized entry” was expanded to encompass
the following:
(1) The intentional entry by a person without authority into any
structure or onto any premises, belonging to another, that
constitutes in whole or in part a critical infrastructure that is
completely enclosed by any type of physical barrier.
(2) The use or attempted use of fraudulent documents for
identification purposes to enter a critical infrastructure.
(3) Remaining upon or in the premises of a critical infrastructure
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.
(4) The intentional entry into a restricted area of a critical
infrastructure which is marked as a restricted or limited access
area that is completely enclosed by any type of physical barrier
when the person is not authorized to enter that restricted or
limited access area.
La. R.S. § 14.61 (2015) (emphasis added). Three years later, in 2018, the
Legislature worked in bipartisan fashion—though, according to the Plaintiffs,
at the behest of lobbyists—to incorporate pipelines within the statute. The
definition of “critical infrastructure” was accordingly revised to read:
any and all structures, equipment, or other immovable or movable
property located within or upon chemical manufacturing
facilities, refineries, electrical power generating facilities,
electrical transmission substations and distribution
substations, water intake structures and water treatment
facilities, natural gas transmission compressor stations,
liquefied natural gas (LNG) terminals and storage facilities,
natural gas and hydrocarbon storage facilities, transportation
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facilities, such as ports, railroad switching yards, pipelines, and
trucking terminals, water control structures including
floodgates or pump stations, wireline and wireless
communications and data network facilities, or any site where the
construction or improvement of any facility or structure referenced
in this Section is occurring.
La. R.S. § 14.61(B)(1) (2018) (emphases added). Legislators also added a
carveout stating that the statute would not “be construed to apply to or
prevent the following”:
(1) Lawful assembly and peaceful and orderly petition,
picketing, or demonstration for the redress of grievances or to
express ideas or views regarding legitimate matters of public
interest, including but not limited to any labor dispute between
any employer and its employee or position protected by the
United States Constitution or the Constitution of Louisiana.
(2) Lawful commercial or recreational activities conducted in
the open or unconfined areas around a pipeline, including but
not limited to fishing, hunting, boating, and birdwatching.
(3) Nothing in this Section shall be construed to prevent the
owner of an immovable [sic] from exercising right of
ownership, including use, enjoyment, and disposition within
the limits and under the conditions established by law.
La. R.S. § 14.61(D)(1) (2018). These amendments became effective on
August 1, 2018—and, as detailed below, were placed into immediate use by
local law enforcement authorities.
B. The Bayou Bridge Pipeline
In 2018, a pipeline construction company began building the second
phase of the Bayou Bridge Pipeline (the “BBP”). The now-complete BBP is
a 162-mile pipeline that connects an oil-and-gas hub in Nederland, Texas,
with oil refineries in Louisiana. But the BBP’s construction was
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controversial, as the pipeline’s path crossed through at least eight
watersheds, including the biodiverse Atchafalaya Basin.
The portion of the BBP that is central to this dispute cuts through a
38-acre tract of land in St. Martin Parish, Louisiana. At the time of the BBP’s
construction, the parcel was “very remote” and “only accessible by boat.”
The pipeline company was able to secure easements or right-of-way
agreements with about 350 of the over 400 landowners who possessed a
fractional property interest in the tract. State court litigation ensued over
remaining interests that belonged to nonconsenting and unresponsive
owners. In relevant part, the pipeline company sought an expropriation
action to assume property interests, while aggrieved landowners—including
Katherine 2 and Peter Aaslestad (“the Aaslestads”), and Theda Larson
Wright, Alberta Larson Stevens, and Judith Larson Hernandez (“the
Larsons”)—sought to enjoin further construction. The dispute concluded
in December 2018, when a state court approved the expropriation action, but
ordered the pipeline company to pay compensation and damages to
nonconsenting property owners, including the Aaslestads and Larsons
(together, the “Landowner Plaintiffs”).
Because the Landowner Plaintiffs failed to secure an immediate
injunction, pipeline construction—and related protests—continued on the
land tract. On August 18, 2018, just over two weeks after the 2018
amendments to the Infrastructure Trespass Statute went into effect,
Plaintiffs Ramon Mejía and Karen Savage were arrested after refusing to
leave a suspended structure that was attached to the in-progress pipeline.
Two weeks later, on September 3, Plaintiffs Savage and Anne White Hat
protested on a dirt berm located in a demarcated right-of-way that had been
_____________________
2
Katherine Aaslestad passed away in April 2021. Her widower, John Lambertson,
replaced her as a party in this suit.
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set aside for the pipeline’s construction. After performing a number of
disruptive activities (i.e., throwing mud into the engines of construction
equipment, and locking facilities used by the workers), the protestors agreed
to leave for the day on the condition that the construction workers do the
same. Two weeks later, Savage and White Hat were arrested for their
involvement in the September 3 protest.
Mejía, Savage, and White Hat (the “Arrested Plaintiffs”) faced
potential prosecution for violating Louisiana’s general trespass statute and
the Infrastructure Trespass Statute. But the Arrested Plaintiffs claimed that
they received permission from the Landowner Plaintiffs to protest on the
tract of land; they also noted that the Landowner Plaintiffs ordered that any
construction workers be excluded. The pipeline company, meanwhile,
maintained that it received the opposite instruction from other co-owners
with land interests within the tract: the workers were welcome to build the
pipeline, and any protestors were to be ejected. Ultimately, the District
Attorney of Louisiana’s 16th Judicial District (the “District Attorney”)
declined to prosecute the Arrested Plaintiffs, and subsequently issued letters
that disavowed prosecution for protest activity that occurred between August
and September 2018.
C. Procedural History
On May 22, 2019, a group of Plaintiffs sued the Louisiana Attorney
General (the “Attorney General”), the Sheriff of St. Martin Parish
(“Sheriff”), and the District Attorney in the federal district court for the
Middle District of Louisiana. Plaintiffs included the aforementioned
Arrested and Landowner Plaintiffs, as well as a third group of organizations
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and individuals described as “Advocacy Plaintiffs.” 3 Their complaint
alleged that the Infrastructure Trespass Statute was: facially unconstitutional
for vagueness, in violation of the Due Process Clause (Count I), facially
overbroad, unconstitutionally discriminatory on the basis of viewpoint, and
facially violative of the First Amendment’s association and expression rights
(Counts II, III, and IV), and unconstitutional as-applied to the Arrested
Plaintiffs (Count V).
All of the Defendants sought to dismiss the case on standing or
abstention grounds, or alternatively transfer venue to the Western District of
Louisiana, where St. Martin Parish is located. The Attorney General also
sought to remove himself from the lawsuit, citing the Eleventh
Amendment’s sovereign immunity doctrine. On July 30, 2020, the district
court partially granted the requested relief: it dismissed the claims against the
Attorney General, and transferred the remainder of the case to the Western
District of Louisiana for further disposition.
After being transferred to the Western District, the remaining
Defendants re-urged their dispositive motions. On May 5, 2021, the district
court issued an order dismissing the Advocacy Plaintiffs and Landowner
Plaintiffs for lack of standing. It concluded that at least some of the Advocacy
Plaintiffs had pled a cognizable injury-in-fact, but that those injuries were
neither traceable to or redressable by the two remaining Defendants—the
District Attorney and Sheriff. As for the Landowner Plaintiffs, the district
court concluded that their injuries were, in reality, injuries to the Arrested
_____________________
3
The Advocacy Plaintiffs include three organizations: 350 New Orleans, Louisiana
Bucket Brigade, and RISE St. James, along with two individuals: Sharon Lavigne and Harry
Joseph.
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Plaintiffs, as the Landowner Plaintiffs “did not reside on their St. Martin
Parish property at the time this case was commenced.”
The action thus continued with the Arrested Plaintiffs pressing their
claims against the District Attorney and Sheriff. The Arrested Plaintiffs
moved for summary judgment on all of their claims; in response, the District
Attorney sought summary judgment on mootness grounds, but otherwise
declined to take a position on the constitutionality of the Infrastructure
Trespass Statute. The Attorney General then successfully moved to
intervene for the limited purpose of defending the statute’s constitutionality.
The district court denied the Plaintiffs’ and District Attorney’s
respective motions for summary judgment, but also issued a show-cause
order as to why summary judgment for all Defendants was not proper. After
receiving further briefing, the district court issued an opinion on March 28,
2024, that granted summary judgment for Defendants on all of the Arrested
Plaintiffs’ remaining claims. Plaintiffs timely appealed.
II. Standard of Review
All appealed issues in this matter are reviewed de novo. See Moore v.
Louisiana Bd. of Elementary & Secondary Educ., 743 F.3d 959, 962 (5th Cir.
2014) (“The question of whether state defendants are entitled to sovereign
immunity is [] reviewed de novo.”); Sierra Club v. Cedar Point Oil Co. Inc.,
73
F.3d 546, 555 (5th Cir. 1996) (“We review a district court’s holding on the
issue of standing de novo.”); Holtzclaw v. DSC Commc’ns Corp.,
255 F.3d 254,
257 (5th Cir. 2001) (“We review a summary judgment de novo, applying the
same [Rule 56] standard as did the district court.”).
III. Sovereign Immunity & Standing
Before reaching the merits, we must first evaluate which of the
Plaintiffs and Defendants are proper parties to this dispute. As detailed
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above, during this case’s duration in the Middle District of Louisiana, the
district court dismissed all claims against the Attorney General on sovereign
immunity grounds. Later, during this case’s pendency in the Western
District of Louisiana, the district court (1) dismissed the Advocacy and
Landowner Plaintiffs’ claims for lack of standing, (2) found that the Arrested
Plaintiffs had standing to press their facial challenges to the Infrastructure
Trespass Statute, and (3) dismissed the Arrested Plaintiffs’ as-applied claims
on mootness grounds. We review each determination in turn.
A. The Attorney General & Sovereign Immunity
During this case’s duration in the Middle District of Louisiana, the
district court dismissed all claims against the Attorney General on sovereign
immunity grounds. Plaintiffs challenge that dismissal, asserting that the Ex
Parte Young exception to sovereign immunity applies because of the Attorney
General’s status as (1) a mandatory supervisor of all district attorneys within
the state, and (2) the legal advisor to the state’s Office of Homeland Security
and Emergency Preparedness.
A summary on how the Ex Parte Young exception operates may be a
helpful precursor to our analysis. Ordinarily, the Eleventh Amendment’s
grant of sovereign immunity prohibits nonconsenting states from being sued
by private litigants in federal forums. Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 363 (2001). This bar also applies to suits against state agencies,
as well as state officials sued in their official capacities. Edelman v. Jordan,
415 U.S. 651, 663–69 (1974) (extending sovereign immunity to state officers
in their official capacities).
Ex Parte Young is an equitable exception that overcomes an invocation
of sovereign immunity. 209 U.S. 123, 155–56 (1908). It permits suits against
state officials that seek the enjoinment of a state law that allegedly conflicts
with federal law.
Id. at 159–60. The availability of the Ex Parte Young
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exception is assessed as a threshold matter: the inquiry focuses on whether
the operative complaint asserts requisite claims and forms of relief.
This court employs two concurrent analyses to determine whether the
exception applies. First, and consistent with the “straightforward inquiry”
endorsed in Verizon Maryland, Inc. v. Public Service Commission of Maryland,
we review “whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” 535 U.S. 635, 645
(2002). The parties agree that this requirement is satisfied: the operative
complaint named the Attorney General in her official capacity, alleged that
enforcement of the Infrastructure Trespass Statute violated the Due Process
Clause and First Amendment, and sought enjoinment of the statute as
prospective relief. Ex Parte Young’s application thus turns on the second
requirement: whether the named official holds a sufficient “connection [to]
the enforcement of the act.”
209 U.S. at 157.
“What constitutes a sufficient connection to the enforcement is not
clear from our jurisprudence.” City of Austin v. Paxton, 943 F.3d 993, 998–
1002 (5th Cir. 2019) (quotation omitted). “But some guideposts have
emerged” from our caselaw, and those guideposts are sufficient to reject
Plaintiffs’ arguments for keeping the Attorney General as a party to this suit.
Texas All. for Retired Americans v. Scott,
28 F.4th 669, 672–74 (5th Cir. 2022).
As relevant here, the state official must have “the particular duty to enforce
the statute in question and a demonstrated willingness to exercise that duty.”
Texas Democratic Party v. Abbott,
978 F.3d 168, 179 (5th Cir. 2020) (quotation
omitted).
Plaintiffs aver that the Attorney General’s role includes a duty to serve
as the “chief legal officer of the state,” as well as the obligation to act as
“prosecutorial and supervisory authority in legal cases.” But the first
rationale, standing alone, is insufficient because an official must have more
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than a “general duty to see that the laws of the state are implemented” to
trigger the Ex Parte Young exception. City of Austin, 943 F.3d at 999–1000
(quoting Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014)).
The second argument, that the Attorney General holds statewide
supervisory authority over criminal prosecutions, fares slightly better. But
“[p]anels in this circuit have defined ‘enforcement’ as ‘typically involv[ing]
compulsion or constraint.” Mi Familia Vota v. Ogg, 105 F.4th 313, 332 (5th
Cir. 2024) (second alteration original) (quoting City of Austin,
943 F.3d at
1000). Here, however, the Attorney General appears to be a constrained
official with respect to enforcement of the Infrastructure Trespass Statute.
The Louisiana Constitution delegates “charge of every criminal
prosecution” to the applicable district attorney. La. Const. art. V, §
26(b). The Attorney General may only intervene “upon the written request
of a district attorney, to advise and assist in the prosecution of any criminal
cases.” La. Const. art. IV, § 8. If the Attorney General wished to initiate
a prosecution under the statute without approval from the applicable district
attorney, she would have to receive “authoriz[ation] by the court which
would have original jurisdiction.” Id.
Crucially, Plaintiffs do not allege that any sort of enforcement has
occurred here. That is fatal, because our caselaw requires “specific
enforcement action of the respective defendant state officials” to apply the Ex
Parte Young exception. City of Austin, 943 F.3d at 1001 (emphasis added)
(collecting cases with state officials that “prohibit[ed] payment of claims,”
participated in “rate-setting,” and “sen[t] letters threatening formal
enforcement.”).
The same concern applies to Plaintiff’s fleeting invocation of the
Attorney General’s status as the legal advisor to the state’s Office of
Homeland Security and Emergency Preparedness. The agency, according to
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Plaintiffs, “has the authority and mandate to protect critical infrastructure
against threats.” But the Attorney General’s “general dut[y]” to advise that
office does not necessarily make her “the enforcer of specific”
infrastructure-related statutes. Texas All. for Retired Americans, 28 F.4th at
674.
At bottom, because Plaintiffs have neither demonstrated that the
Attorney General has “the particular duty to enforce” the Infrastructure
Trespass Statute, nor shown that she holds “a demonstrated willingness to
exercise that duty,” the Ex Parte Young exception to sovereign immunity
does not apply. Texas Democratic Party, 978 F.3d at 179. The district court
did not err in dismissing claims against the Attorney General from this suit.
B. The Plaintiffs and Standing
As for Plaintiffs, the district court concluded that the Advocacy and
Landowner Plaintiffs had no standing for their claims, and that while the
Arrested Plaintiffs did have standing for their facial and as-applied
challenges, the expirations of the statute of limitations for violations of the
Infrastructure Trespass Statute mooted their as-applied claims. We consider
each of these determinations, while keeping the familiar standing
requirements in mind. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)
(“[T]o establish standing, a plaintiff must show (i) that he suffered an injury
in fact that is concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the injury would likely
be redressed by judicial relief.”).
1. Advocacy Plaintiffs
Plaintiffs first contest the dismissal of the Advocacy Plaintiffs for lack
of standing. They argue that the Advocacy Plaintiffs demonstrated a
sufficient injury-in-fact because they previously “organized protests at
pipelines” and alleged that “chilling activities caused by the criminal
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penalties” of the Infrastructure Trespass Statute “will curtail their protest
activities in the future.”
But Plaintiffs acknowledge that the Advocacy Plaintiffs’ alleged
injuries are only “traceable to, and redressable by a court order against” the
Attorney General—not the Sheriff or District Attorney. As discussed above,
the Ex Parte Young exception does not apply, and accordingly, the Attorney
General’s sovereign immunity remains effective. That fact severs the
causation and traceability elements that the Advocacy Plaintiffs require to
have standing. The district court, accordingly, did not err in dismissing the
Advocacy Plaintiffs from this lawsuit.
2. Landowner Plaintiffs
The Landowner Plaintiffs are differently situated from their Advocacy
Plaintiff counterparts: they hold property interests in St. Martin Parish, and
accordingly fall within the District Attorney and Sheriff’s jurisdiction. But
the district court concluded that they lacked an injury-in-fact because they
failed to “allege that they participated in the protests of White Hat, Savage,
and Mejía” and thus lacked participation in activities “arguably proscribed
by the statute.” The district court also noted that because the Landowner
Plaintiffs did not specify that they would “participate in protests at the
pipeline in the future,” they lacked a “credible threat of prosecution.”
It is true that prudential standing considerations prohibit the
Landowner Plaintiffs from asserting injuries suffered by the Arrested
Plaintiffs. In other words, the Aaslestads and Larsons cannot adopt the
arrests of White Hat, Savage, and Mejía as their own injuries. But according
to the evidentiary record, the Landowner Plaintiffs have maintained that they
“granted the protestors permission to be on the property.” In turn, the
allegedly unlawful arrest of those protestors may infringe upon the right of
the Landowner Plaintiffs to fully “control, use, [and] enjoy” their private
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property—a benefit secured by the Louisiana Constitution. La. Const.,
art. I, § 4(A).
The detainment of the Arrested Plaintiffs may also inflict a First
Amendment association injury upon the Landowner Plaintiffs. The First
Amendment’s associational protections stem from the understanding that
“[a]n individual’s freedom to speak, to worship, and to petition the
government for the redress of grievances [cannot] be vigorously protected
from interference by the State unless a correlative freedom to engage in group
effort toward those ends [is] not also guaranteed.” Roberts v. U.S. Jaycees,
468 U.S. 609, 622 (1984). Here, the basic elements of an associational injury
are present: the Landowner Plaintiffs offered their property interests to
facilitate the ability of the (like-minded) Arrested Plaintiffs to engage in
expressive freedoms, and Louisiana officials intruded upon that interest by
effectuating arrests and threatening prosecution. While the Landowner
Plaintiffs were not (and have no stated plans to be) physically present on the
tract of land in question, the association right broadly protects “a correlative
freedom to engage in group effort.”
Id.
At the same time, the Landowner Plaintiffs do not plead an intent to
continue hosting protests on the implicated land tract. At best, the operative
complaint expresses a “concern[] that they and other landowners, and guests
they allow on their property,” face some prospect of future prosecution
under the statute. This court requires “sufficiently concrete plans,” not just
a passing reference to future conduct, to sustain an injury-in-fact for future
injuries. Laufer v. Mann Hosp., L.L.C., 996 F.3d 269, 271 (5th Cir. 2021).
The district court accordingly did not err in finding that the Landowner
Plaintiffs failed to state an injury-in-fact sufficient to avoid dismissal of their
claims.
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D. Arrested Plaintiffs
Lastly, the district court concluded that the Arrested Plaintiffs
satisfied the standing inquiry for both their facial and as-applied claims
because they “alleged that they were arrested and are still under the threat of
prosecution for violating [the Infrastructure Trespass Statute].” It later
concluded that, because of the expiration of the statute of limitations for
charges associated with the 2018 protests, the Arrested Plaintiffs’ as-applied
challenge to the Infrastructure Trespass Statute was moot. On appeal,
Defendants allege that the Arrested Plaintiffs have not pled a sufficient
injury-in-fact to sustain either of their claims. The Arrested Plaintiffs,
meanwhile, contest the dismissal of their as-applied challenge to the
Infrastructure Trespass Statute, alleging that the challenges are subject to the
“capable of repetition, yet evading review” exception to mootness. The
exception has two requirements: first, there must be a “challenged action”
that “is in its duration too short to be fully litigated prior to cessation or
expiration,” and second, there must be “a reasonable expectation that the
same complaining party will be subject to the same action again.” Spencer v.
Kemna, 523 U.S. 1, 17 (1998).
To start, the district court correctly determined that at the time they
filed suit, the Arrested Plaintiffs had standing to pursue their facial and as-applied challenges to the Infrastructure Trespass Statute. “[P]laintiffs
seeking injunctive and declaratory relief can satisfy the redressability
requirement only by demonstrating a continuing injury or threatened future
injury.” Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019). As the district
court recognized, the Arrested Plaintiffs alleged two forms of injury: one
based on present conditions at the time of filing—“the specter of prosecution
for violating a potentially unconstitutional law,” and one based on future
conduct—enforcement of the Infrastructure Trespass Law would have “a
chilling effect” on their “future protests of the Bayou Bridge Pipeline.” And
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while the Defendants argue that the Arrested Plaintiffs “lack a sufficiently
imminent injury and an injury that is traceable to Defendants,” the Arrested
Plaintiffs have alleged—as the district court noted—that “they desire to
continue their protests over the Bayou Bridge Pipeline” but “have curtailed
their activities because of their fear of prosecution under the amended”
Infrastructure Trespass Statute.
Over the pendency of this litigation, however, the statute of
limitations for the Arrested Plaintiffs’ alleged violations of the Infrastructure
Trespass Statute passed without charges from the District Attorney. The
district court accordingly held that the Arrested Plaintiffs’ as-applied
challenges were moot. Plaintiffs contest this conclusion, alleging that their
as-applied challenges are subject to the aforementioned “capable of
repetition, yet evading review” exception to mootness. But while the second
element is met, given Plaintiffs’ self-professed intention to continue
protesting; the first element is not. Kemna, 523 U.S. at 17. Simply stated,
Plaintiffs are challenging an ordinary trespass prosecution brought by district
attorneys; that action is not inherently “too short to be fully litigated prior to
cessation and expiration” of the challenged action, and Plaintiffs do not
advance any argument in support of such a theory. The district court
accordingly did not err in dismissing the Arrested Plaintiffs’ as-applied
claims on mootness grounds.
IV. Due Process & Vagueness
Turning to the merits of their appeal, Plaintiffs first allege that the
Infrastructure Trespass Statute is impermissibly vague, in violation of the
Constitution’s Due Process Clause. When assessing criminal statutes for
vagueness, we employ the two-prong “test described in City of Chicago v.
Morales.” Ford Motor Co. v. Texas Dep’t of Transp., 264 F.3d 493, 507 (5th
Cir. 2001) (citing United States v. Escalante,
239 F.3d 678, 680 (5th Cir.
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2001)). Under Morales, a criminal statute is unconstitutionally vague if either
one of two prongs is satisfied: the statute “fail[s] to provide the kind of notice
that will enable ordinary people to understand what conduct it prohibits,” or
it “authorize[s] and even encourage[s] arbitrary and discriminatory
enforcement.” 527 U.S. 41, 56 (1999). We assess each prong in turn.
A. Clarity of Prohibited Conduct
Plaintiffs argue that the Infrastructure Trespass Statute is
impermissibly vague because the 2018 amendment “turned vast, unmarked
stretches of land into critical infrastructure and exposed individuals to up to
five years’ imprisonment for remaining on such infrastructure after being
forbidden.” This claim is primarily aimed at subsection (A)(3), which
criminalizes “[r]emaining upon or in the premises of a critical infrastructure
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.
R.S. § 14.61(A)(3). Plaintiffs claim that because there is no clarity as to what
constitutes the premises of a pipeline, and because pipelines have ill-defined
and unobvious features (i.e., they may be underground and unmarked, or
incorrectly marked), the subsection holds a substantial likelihood of
criminalizing lawful conduct on, say, an unmarked, buried gas pipeline in a
public park.
The Attorney General offers a two-part response. First, she cites to
and adopts the district court’s limiting construction of subsection (A)(3). In
the proceedings below, the district court concluded that the subsection’s
condition precedent—that an “owner, lessee, or custodian of the property”
would first have to “forbid[]” an individual—indicated that “premises”
referred to “property over which the owner, lessee, or custodian of the
critical infrastructure has the right under state law to control access to or
otherwise exclude others from the property.” The district court then
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concluded that the definition “does not exist with respect to the traditional
public forums”—i.e., public sidewalks, parks, or government buildings—
“cited by Plaintiffs.” 4
Plaintiffs object to the district court’s—and now, the Attorney
General’s—reading, and declare, in somewhat conclusory fashion, that
premises “clearly does include public property.” They specifically argue
that the absence of “private” or a similar adjective in subsection (A)(3)
means that the court’s limiting construction violates the statute’s plain text.
But Plaintiffs’ insistence that the Infrastructure Trespass Statute applies to
the “125,000 miles” of pipeline across Louisiana is not exactly accurate,
given that (1) the plain text of subsection (A)(3) requires an owner with “the
right under state law” to exclude others, and the government’s right of
exclusion can vary depending on a forum’s characteristics; and (2) the
statute’s First Amendment, recreation, and private ownership carveouts
(subsections (E)(1)-(3)) prevent a significant number of leisurely activities
from being transformed into criminal conduct. The district court’s narrower
interpretation is plausible, and a better reading of the statute when read as a
whole, for those same reasons. And, as the district court explained, even if
Plaintiffs’ more expansive reading (that all pipelines and the area above them
are fair game for prosecution) was also plausible, “the Court’s construction
of the statute avoids constitutional infirmities.”
_____________________
4
The dissenting opinion objects to this conclusion, highlighting that “police or
other government security officers ordinarily have the authority to exclude unauthorized
entrants from government property.” Post at 34. But in accordance with the limiting
construction, the Attorney General has clarified that a prerequisite to enforcement of
subsection (A)(3) is “(1) a pipeline construction site or pipeline on private property (or on
public property that is not open to the public).” Said otherwise, the Attorney General has
disclaimed enforcement of the statute on pipelines located on public property, unless that
property “is not open to the public.”
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Plaintiffs, as well as the dissent, also emphasize that the district
court’s limiting construction does not rescue the statute from overbreadth
claims “brought by Landowner Plaintiffs” over “interfere[nce] with their
rights over their own private property.” See, e.g., post at 34–35. But this is
not an insurmountable concern: for one, property documents will reveal who
has authority over a tract of land, including the scope of any servitude rights.
For two, rights-of-way in active construction areas, including the berm upon
which two of the Arrested Plaintiffs protested, are usually demarcated with
obvious markings, such as flags or signs. And in any event, vagueness is not
determined through identification of “close cases,” but rather, “the
indeterminacy of precisely what [an incriminating fact] is.” United States v.
Williams, 553 U.S. 285, 305–06 (2008). The court’s narrowing construction
clarifies how the statute is to be construed, thus limiting any indeterminacy.
A third consideration parallels Louisiana’s second argument for why
the Infrastructure Trespass Statute is not impermissibly vague. The State
points out that the crime contemplated by subsection (A)(3) requires the
additional act of remaining and “refusing to leave the premises of a pipeline
construction site or pipeline that is in a non-public forum after being
forbidden by a person with the authority to exclude.” The district court ruled
on similar grounds, emphasizing that the charge is triggered “only after an
authorized person instructs the trespasser to leave the premises.”
Plaintiffs dispute that a warning can cure statutory vagueness, and
quote Wright v. Georgia’s proposition that “one cannot be punished for
failing to obey the command of an officer if that command is itself violative
of the Constitution.” 373 U.S. 284, 291–92 (1963). But the “command”
issued in Wright carried an exponentially high degree of unconstitutionality:
the officers attempted to justify their “intention to enforce racial
discrimination” by arguing that the petitioners, who were playing basketball
at a public park, were breaching the peace.
Id. at 292. The instant Plaintiffs,
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in contrast, do not allege that the district court’s limiting construction of the
Infrastructure Trespass Statute carries a similar likelihood of
unconstitutional application. Thus, assuming that the district court’s
limiting construction is enforced, an ordinary person would comprehend
what conduct is prohibited under the Infrastructure Trespass Statute.
B. Law Enforcement Guidance
With respect to the alternative path for finding vagueness in a criminal
statute, Plaintiffs argue that the Infrastructure Trespass Statute evinces “a
lack of law enforcement guidance.” It is correct that a “principal element of
the vagueness doctrine is ‘the requirement that a legislature establish
minimal guidelines to govern law enforcement.’” United States v. Coleman,
609 F.3d 699, 706 (5th Cir. 2010) (quoting Kolender v. Lawson,
461 U.S. 352,
357 (1983)). But assuming that the district court’s construction is correct,
there are objective standards for police officers to follow when enforcing the
statute. As the state explains, enforcement of subsection (A)(3) has three
overlapping requirements: “(1) a pipeline construction site or pipeline on
private property (or on public property that is not open to the public) and (2)
a person who has refused to leave the construction site or pipeline right-ofway despite (3) a request made by a person with legal authority.” These
requirements constitute “clear questions of fact,” which generally limit the
“indeterminacy of what the [incriminating fact is]” that lies at the heart of
vagueness doctrine. Williams,
553 U.S. at 306.
In response, Plaintiffs argue that individuals associated with every
defendant in this suit—the Attorney General, District Attorney, and two
arresting officers employed by the Sheriff—have “offered conflicting
interpretations of the Statute’s scope.” But all of these “conflicting
interpretations,” including those referenced by the dissent, see post at 36,
came before the district court issued, and the Attorney General adopted, the
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limiting construction that clarifies the scope of the Infrastructure Trespass
Statute.
Moreover, a close review of the allegedly “conflicting
interpretations” reveals that Plaintiffs’ claims are vastly overstated. For
example, Plaintiffs allege that the following lines from the state’s initial
Motion to Dismiss suggest that the Attorney General “understood” that
“premises” referred to “the entirety of each tract of land that a pipeline runs
through.”
On a given tract of land, a pipeline exists or does not, a person
is present on that tract or is not, and the person has been
forbidden from remaining or not. Those facts are ascertainable,
and they place a person on notice of what is forbidden. Nothing
more is required.
But context is important: in those sentences, the Attorney General was
completing an argument by summarizing how the statute, as a whole, was not
vague. That generalization should not be construed as an attempt to precisely
delineate the premises of the pipeline.
A similar principle applies to Plaintiffs’ view of how the District
Attorney interpreted the Infrastructure Trespass Statute. According to
Plaintiffs’ telling, the District Attorney claimed that the statute only
“applied to critical infrastructure ‘completely enclosed by any type of
physical barrier.’” But the District Attorney made that statement as just one
“example” for how the entire Infrastructure Trespass Statute, as a whole,
was not vague. And while Plaintiffs point to the District Attorney’s comment
that that “premises” can be determined through a “technical”
interpretation of “referring to an expropriation judgment containing the
pipeline right of way,” that statement was specifically made with regard to
how the December 2018 expropriation judgment settled any vagaries
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associated with fractional interests on the 38-acre tract of land in St. Martin
Parish.
Meanwhile, the allegedly conflicting interpretations offered in
depositions of the arresting officers were, in reality, responses to different
questions. 5 Sergeant Martin testified, in response to a hypothetical
“situation where there’s a, supposedly, a pipeline underground that you
can’t see,” that he “wouldn’t enforce” the statute. Captain Gauthier,
meanwhile, replied “I really don’t know how to answer that question” to a
more detailed—and somewhat perplexing—hypothetical involving an
underground pipeline and “a landowner who’s saying this person or –- or a
pipeline company, which is saying that this -- these people are -- are on our
pipeline and it’s not a construction site.” Indeed, in questions preceding the
hypothetical, Gauthier outlined an analytical approach not dissimilar with
Martin’s approach: he would look at “survey lines placed there by the
surveyors” to determine whether protestors had crossed into the right-ofway.
At bottom, Plaintiffs hold the burden of demonstrating that the
Infrastructure Trespass Statute lacks “minimal guidelines to govern law
enforcement” activities. Kolender, 461 U.S. at 357. But they do not dispute
that the district court’s limiting construction of the statute establishes a triad
of factors that clarify subsection (A)(3)’s application. And Plaintiffs’ claims
of conflicting statutory interpretations from different law enforcement
officials are overstated and immaterial, given the superseding guidance
_____________________
5
The dissent suggests that we “point[] to” the officers’ statements for “the
proposition that individual officers testifying that they personally would not enforce the
statute provides a valid defense to vagueness.” Post at 35. We disagree; we only reference
the officers’ testimony to provide complete context for their statements, in response to
Plaintiffs’ claims of “conflicting interpretations” among rank-and-file officers.
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provided by the district court and adopted by the Attorney General.
Plaintiffs have accordingly not met the requisite burden, and the district court
did not err in rejecting their vagueness challenge.
V. First Amendment & Overbreadth
Plaintiffs lastly appeal the dismissal of their First Amendment facial
challenge to the Infrastructure Trespass Law. That challenge is judged on
whether “a substantial number of [the law’s] applications are
unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.” Moody v. NetChoice, LLC, 603 U.S. 707, 723–24 (2024) (quoting
Americans for Prosperity Foundation v. Bonta,
594 U.S. 595, 615 (2021)). In the
First Amendment context, “a law with a plainly legitimate sweep may be
struck down in its entirety . . . [but] only if the law’s unconstitutional
applications substantially outweigh its constitutional ones.”
Id. at 724
(quotation omitted).
To be sure, the standard is “still daunting.” Voting for Am., Inc. v.
Steen, 732 F.3d 382, 387 (5th Cir. 2013). Federal courts must take great care
when “enjoin[ing] the enforcement of a state statute.” Chisom v. Roemer,
853
F.2d 1186, 1189 (5th Cir. 1988). And an analysis of facial constitutionality
“requires that ‘every reasonable construction [] be resorted to, in order to
save a statute from unconstitutionality.” Steen,
732 F.3d at 387 (quoting
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519, 563 (2012)).
Plaintiffs allege that the Infrastructure Trespass Statute is facially
unconstitutional in two respects. First, they claim that the statute is a
content-based law, such that it is presumptively unconstitutional absent
narrow tailoring that is required under strict scrutiny. Second, they argue
that the law is overbroad in application, such that it is presumptively
unconstitutional. Each argument is addressed below in turn.
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A. Content-Based Restriction
A restriction is content-based if it is “based on ‘the specific motivating
ideology or the opinion or perspective of the speaker.’” Reed v. Town of
Gilbert, 576 U.S. 155, 168–69 (2015) (quoting Rosenberger v. Rector & Visitors
of Univ. of Va.,
515 U.S. 819, 829 (1995)). The district court concluded, and
Plaintiffs do not dispute, that the Infrastructure Trespass Statute primarily
“addresses purely conduct”—specifically, “it is essentially a trespass statute
that targets and provides enhanced protection for a specific type of real
property.”
But Plaintiffs maintain that the statute is content-based because (1) it
contains a provision that arguably holds the potential for arbitrary, content-based enforcement, and (2) its genesis lies in an intent to prevent protestors
from obstructing the construction of oil pipelines. The first argument is a
rather isolated reading of the statute’s carveout provision, which reads:
E. Nothing in this Section shall be construed to apply to or
prevent the following:
(1) Lawful assembly and peaceful and orderly petition,
picketing, or demonstration for the redress of grievances or to
express ideas or views regarding legitimate matters of public
interest, including but not limited to any labor dispute between
any employer and its employee or position protected by the
United States Constitution or the Constitution of Louisiana.
La. R.S. § 14.61(E)(1). Plaintiffs argue that subsection (E)(1)’s carveout,
which protects the right to “express ideas or views regarding legitimate
matters of public interest,” arbitrarily gives an officer the authority to
determine whether a protest advances “legitimate matters of public
interest.”
But that argument fails to consider the context in which the statutory
text appears. Subsection (E) evinces an intent to protect otherwise lawful
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activities from prosecution. The aforementioned subsection (E)(1) protects
“[l]awful assembly and peaceful and orderly petition, picketing, and
demonstration for the redress of grievances”—all protected First
Amendment activities. Subsection (E)(2) protects “recreational activities
conducted in the open or unconfined areas around a pipeline,” and
Subsection (E)(3) preserves the right of private property owners to continue
exercising all benefits associated with ownership. As the Attorney General
avers, then, the entirety of the subsection is best understood as a disclosure
that the Infrastructure Trespass Statute “does not interfere with pre-existing
Free Speech rights, property rights, or other lawful activities.”
Indeed, Plaintiffs’ argument does not consider the entirety of the
sentence in which the identified phrase appears. When read in context, the
allegedly unconstitutional phrase (“legitimate matters of public interest”)
simply conditions the protected right that begins the sentence: “[l]awful
assembly and peaceful and orderly petition, or demonstration.” La. R.S. §
14.61(E)(1). The caveat simply acknowledges that not all speech is
constitutionally protected (i.e., speech that incites imminent lawless action,
or true threats), and nothing more.
Separately, Plaintiffs argue that the Infrastructure Trespass Statute is
content-based because “the amendments were motivated by viewpoint
discrimination.” They specifically contend that the amendments stemmed
from model legislation proposed by the Louisiana Mid-Continent Oil and Gas
Association to discourage protest activity around pipeline construction areas.
But the “contention that a statute is viewpoint based simply because its
enactment was motivated by the conduct of the partisans on one side of a
debate is without support.” Hill v. Colorado, 530 U.S. 703, 724 (2000).
Plaintiffs also allege that a legislative hearing that discussed First
Amendment concerns surrounding the legislation was mere lip service, as
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No. 24-30272
“the law that emerged” lacked an additional damage requirement that was
contemplated. But “inquiries into [legislative] motives or purposes are a
hazardous matter” when considering whether “to void a statute.” United
States v. O’Brien, 391 U.S. 367, 383–84 (1968). That warning is particularly
acute when Plaintiffs’ evidence primarily consists of hand-picked quotes
from a legislative hearing in which several lawmakers stated a general intent
to adopt a “belt and suspenders approach” and ensure that any amendments
did not “prevent or prohibit [persons wishing to peacefully protest] from”
demonstrating. And, as discussed below, the Legislature had a valid interest
in not only preventing damage to critical infrastructure, but also, limiting
trespass on those facilities. Plaintiffs have accordingly not met their burden
to demonstrate that the statute is a content-based restriction on speech.
B. Overbreadth
As for Plaintiffs’ overbreadth challenge, “[t]he first step . . . is to
construe the challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute covers.”
Williams, 553 U.S. at 293. Here, Plaintiffs challenge the sweep of subsection
(A)(3), which criminalizes “[r]emaining upon or in the premises of a critical
infrastructure 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. R.S. § 14.61(A)(3); cf. SEIU, Local 5 v. City of Hous.,
595 F.3d
588, 598 (5th Cir. 2010) (“the overbreadth doctrine applies on a provision by
provision basis”). 6 As detailed above, the Attorney General has adopted the
_____________________
6
Note that because of the granular nature of Plaintiffs’ facial challenge (they argue
that subsection (A)(3) is facially unconstitutional, but in the specific context of pipelines),
the facial challenge analysis can also be applied to resolve the merits of the Arrested
Plaintiffs’ as-applied challenge. But see Section III.D, supra (dismissing the Arrested
Plaintiffs’ as-applied challenge on mootness grounds).
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district court’s limiting construction of the subsection: that it generally refers
to being present on “property over which the owner, lessee, or custodian of
the critical infrastructure has the right under state law to control access to or
otherwise exclude others from the property.”
Applying that construction to three categories of areas that are
contemplated under the statute—private property, traditional public forums,
and non-public forums—demonstrates that subsection (A)(3) is not
unconstitutionally overbroad. First, as to private property, landowners
maintain their authority to exclude unwelcome third parties from their
property. See La. R.S. § 14.61(E)(3). That is consistent with how modern
property rights operate; after all, the “[Supreme] Court has never held that
a trespasser or an uninvited guest may exercise general rights of free speech
on property privately owned and used nondiscriminatorily for private
purposes only.” Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 568 (1972).
Second, as to state-owned, non-public forums (such as a government-owned nuclear power plant), officials retain the authority to
nondiscriminatorily exclude persons or otherwise condition access to a
facility. That, again, is consistent with how property rights function: “[t]he
State, no less than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully dedicated.”
Adderley v. State of Fla., 385 U.S. 39, 47 (1966).
Lastly, in accordance with the district court’s limiting construction,
the Infrastructure Trespass Statute does not apply to traditional public
forums, such as public sidewalks or parks. This is because a traditional public
forum typically lacks an “owner, lessee, or custodian [with] the right under
state law to control access or otherwise exclude others from the property.”
See, e.g., Melancon v. Trahan, 94-0026, p. 7 (La. App. 3 Cir. 10/5/94); 645 So.
2d 722, 726, writ den.,
650 So. 2d 1183 (1995) (explaining that a Louisiana
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trespass statute did not apply to individuals standing on “a public sidewalk”)
(original emphasis). And, as detailed above, the inclusion of subsections
(E)(1) and (E)(3) further reinforces the notion that the Infrastructure
Trespass Statute does not impede on recreational or First Amendment
activities.
Once “the statute[’s] cover[age]” is ascertained, the next step is to
determine “whether the statute, as [] construed [], criminalizes a substantial
amount of protected expressive activity.” Williams, 553 U.S. at 293, 297.
That analysis neatly dovetails with an intermediate scrutiny analysis, as the
Infrastructure Trespass Statute is a content-neutral provision: it “serves
purposes unrelated to the content of expression . . . even if it has an incidental
effect on some speakers or messages but not others.” Ward v. Rock Against
Racism,
491 U.S. 781, 791 (1989). See Section V.A, supra (explaining why the
statute is not a content-based restriction).
Because Plaintiffs’ planned protest activities encompass both “speech
and nonspeech” elements, the O’Brien analytical framework, which
addresses whether “a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms,” is applicable. Littlefield v. Forney Indep. Sch. Dist.,
268 F.3d 275, 286 (5th Cir. 2001) (quoting O’Brien,
391 U.S. at 378). Under
the framework, a regulation will survive intermediate scrutiny if four factors
are met:
(1) it is within the constitutional power of the government, (2)
it furthers an important or substantial governmental interest,
(3) the interest is unrelated to the suppression of [] expression,
and (4) the incidental restrictions on First Amendment
activities are no more than is necessary to facilitate that
interest.
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Id. Keeping the district court’s limiting construction in mind, the first two
factors are easily met: the government has the authority to enact
nondiscriminatory laws that criminalize trespass, and the statute serves the
important interest of discouraging trespass on facilities that hold critical
infrastructure (both to avoid disruption of utilities and to limit injury to
trespassers).
The third factor is also easily resolved in Defendants’ favor: while
Plaintiffs claim that the statute is necessarily “related to the suppression of
free expression,” the analysis focuses on the stated governmental
“interest”—here, in preventing trespass. O’Brien, 391 U.S. at 378. And
expressive speech does not transform prohibitions on otherwise unlawful
conduct, including trespass, into the “suppression of free expression,” as
Plaintiffs put it. See, e.g., Virginia v. Hicks,
539 U.S. 113, 123 (2003)
(explaining that an individual was being “punished as a trespasser” for his
“nonexpressive conduct . . . not his speech”) (original emphasis); Clark v.
Cmty. for Creative Non-Violence,
468 U.S. 288, 296 (1984) (emphasizing that
a camping ban protected an interest in “limit[ing] the wear and tear on park
properties,” and that interest was “unrelated to suppression of expression”
even though protestors claimed an expressive right to “enhance [their]
message concerning the plight of the poor and homeless” by protesting in a
park).
The parties differ as to the final O’Brien factor—whether the
“incidental restrictions on First Amendment activity are no more than is
necessary” to facilitate the governmental interest. Plaintiffs contend that in
“penalizing unauthorized entry onto critical infrastructure before those
structures can be damaged or otherwise compromised,” the Infrastructure
Trespass Statute is a “[b]road prophylactic rule[] in the area of free
expression.” But the limiting construction, as applied to the context of where
critical infrastructure is located (a government-owned property, but
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nonpublic forum), passes constitutional muster because “the State [is] no
less than a private owner of property” and thus “has power to preserve the
property under its control for the use to which it is lawfully dedicated.”
Adderley, 385 U.S. at 47. Simply stated, the statute is nothing like the
measure in Button, which forbade the “improper solicitation of any legal or
professional business” and thus touched on the expression and association
rights of those seeking legal assistance from the NAACP.
In the proceedings below, Plaintiffs also offered examples of “content-neutral alternative laws” that have a higher threshold for triggering
criminality (i.e., statutes that criminalize damage to infrastructure facilities,
as opposed to presence near them). But as the district court explained, the
state’s interest is not just in ensuring that critical infrastructure remains
undamaged, but also, in “regulating entry on the premises of critical
infrastructure.” That concern is understandable—after all, there are ways
to disrupt the utilities that “critical infrastructure” facilitates without
necessarily damaging infrastructure itself. For example, flipping an “off”
switch on a circuit does not necessarily damage the circuit’s infrastructure,
but could cause widespread power outages. And in any event, intermediate
scrutiny does not demand that a government institute “the least restrictive
or least intrusive means” to further its governmental interests. Ward, 491
U.S. at 798.
At bottom, then, there is simply no “lopsided ratio” between
unconstitutional and constitutional applications of subsection (A)(3), even if
focused on the singular context of pipelines. United States v. Hansen, 599
U.S. 762, 770 (2023). “Rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or to
conduct necessarily associated with speech (such as picketing or
demonstrating).” Hicks,
539 U.S. at 124. That principle holds true here, and
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the district court did not err in dismissing Plaintiffs’ facial challenges to the
Infrastructure Trespass Statute.
VI. Conclusion
For the reasons discussed above, we AFFIRM the district court’s
grant of summary judgment in the Defendants’ favor.
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Stephen A. Higginson, Circuit Judge, dissenting:
The state of Louisiana contains over 125,000 miles of pipeline,
running under and on private property, highways, sidewalks, waterways, and
other public areas. A 2018 revision to the state’s Infrastructure Trespass
Statute, which prohibits “unauthorized entry of a critical infrastructure,” La.
Rev. Stat. 14.61(A), broadened the definition of “critical infrastructure” to
include such pipelines without limitation. 1 The district court and the
majority, recognizing that applying the statute to all 125,000 miles of pipeline
could be unconstitutionally vague, have adopted a narrowing construction
exempting public forums from the statute. But even if this interpretation was
grounded in the text of the statute, the narrowing construction still does not
save from vagueness the class of claims brought in this very case—that is,
claims in which an arrestee under the statute was invited by a landowner onto
private property while the entity enforcing the statute against the arrestee
was itself unlawfully trespassing.
Because the statute does not give notice of what conduct is actually
prohibited, it is unconstitutionally vague, and I respectfully dissent. 2
Subsection (A)(3) of the Infrastructure Trespass Statute criminalizes
“[r]emaining upon or in the premises of a critical infrastructure after having
_____________________
1
Critical infrastructure previously included “chemical manufacturing facilities,
refineries, electrical power generating facilities, electrical transmission substations and
distribution substations, water intake structures and water treatment facilities, natural gas
transmission compressor stations, liquified natural gas (LNG) terminals and storage
facilities, natural gas and hydrocarbon storage facilities, and transportation facilities[.]” La.
Stat. Ann. § 14:61(B)(1) (2017). The 2018 revision added to this list pipelines, which were
defined as “flow, transmission, distribution, or gathering lines, regardless of size or length,
which transmit or transport oil, gas, petrochemicals, minerals, or water in a solid, liquid, or
gaseous state.” La. Rev. Stat. § 14:61(B)(3).
2
I concur with the remainder of the majority’s analysis.
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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.
§ 14.61(A)(3). Critical infrastructure includes, but is not limited to, pipelines.
Subsections (A)(1) and (A)(4) of the same statute make liable those who
“[i]ntentional[ly] ent[er]” into an area “completely enclosed by any type of
physical barrier.” Id. § 14.61(A)(1), (A)(4). A similar statute in Oklahoma,
adopted in 2017, requires a “willful[]” state of mind and defines critical
infrastructure as “enclosed by a fence” or “other physical barrier.” Okla.
Stat. § 21-1792. The newly added subsection (A)(3), however, contains no
such clarifications in scope either as to the mental state of the arrestee or the
visibility of the infrastructure.
A criminal statute is unconstitutionally vague when “it fails to give
ordinary people fair notice of the conduct it punishes, or [is] so standardless
that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591,
595 (2015). By the text of Louisiana’s new, “enhanced,” felony trespass
statute, an individual could be criminally prosecuted for sitting on a public
park bench situated over an underground pipeline if an officer asks him to
leave for any reason—even if those reasons are racially motivated and
unrelated to critical infrastructure. Or an individual could be criminally
prosecuted if she is invited onto private property by her friend and told to
leave by a fractional owner unknown to her. Under the plain text of the
statute, an individual could even be criminally prosecuted for protesting on
their own property if a co-owner of the property instructs them to stop. Oral
Arg. at 31:25 (not contesting that landowners could become felons if they
weren’t certain about the easement).
The majority opinion adopts the district court’s reading that the term
“premises” does not apply “with respect to the traditional public forums.”
See ante at 18. The majority focuses on the fact that an Infrastructure
Trespass Statute defendant must have been excluded from a premises by an
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“owner, lessee, or custodian,” suggesting that such an owner “does not
exist” on “public sidewalks, parks, or government buildings.” Id. But there
is no basis in the text of the statute for this limitation. The full text of the
statute provides what is effectively an exclusionary right to “any owner,
lessee, or custodian of the property or . . . any other authorized person.” La.
Rev. Stat. § 14.61(A)(3). The majority’s reading suggests that government
buildings have no custodians. But plainly, police or other government
security officers ordinarily have the authority to exclude unauthorized
entrants from government property.
A court-grafted public exception has a second problem: it overlooks
Louisiana’s applications of the statute. The complaint alleges that the statute
was used by private security to arrest three individuals paddling on navigable
waters, and that the individuals were made to post bond by the St. Martin
Parish Sheriff’s Office. White Hat v. Landry, 6:20-cv-00983, Docket Entry
No. 1 at 24 (W.D. La. May 22, 2019). “We will not rewrite a law to conform
it to constitutional requirements, for doing so would constitute a serious
invasion of the legislative domain.” United States v. Stevens, 559 U.S. 460,
481 (2010) (cleaned up). Although we may apply a narrowing construction,
we should only do so when the statute is “easily susceptible” to a
constitutional construction. See Erznoznik v. City of Jacksonville,
422 U.S.
205, 216–17 (1975). But law enforcement officers applying the statute on
public waterways suggests that the statute is not “easily susceptible” to the
majority’s interpretation; indeed, it may “invite[] arbitrary enforcement.”
Johnson,
576 U.S. at 595. And neither Appellees nor the majority offer any
basis in case law for reading such a restriction into the statute.
Even if the narrowing construction could cure vagueness issues as to
presence on public property, enforcement on private property is similarly
vague. The majority suggests that the statutory requirement that an
individual be “forbidden to” “remain[] upon or in the premises” cures any
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No. 24-30272
vagueness via a warning. La. Rev. Stat. § 14.61(A)(3). But this reasoning is
vulnerable to serious problems. “One cannot be punished for failing to obey
the command of an officer if that command is itself violative of the
Constitution.” Wright v. Georgia, 373 U.S. 284, 291–92 (1963). In City of
Chicago v. Morales,
527 U.S. 41 (1999), the Supreme Court held that a
criminal loitering statute allowing officers discretion to determine whether
association was purposeful or amounted to loitering did “not provide
sufficiently specific limits on the enforcement discretion of the police[.]”
Id.
at 64. The Court observed that “[f]riends, relatives, teachers, counselors, or
even total strangers might unwittingly engage in forbidden loitering if they
happen to engage in idle conversation with a gang member,” and a dispersal
order could not cure this vagueness.
Id. at 63. Similarly, individuals may
“unwittingly engage in forbidden” trespass as an invitee of a fractional
property owner by standing near a hidden pipeline.
The majority points to testimony by individual officers that they
would not enforce the statute on an underground pipeline, or that they would
look to “survey lines placed there by the surveyors” to determine trespass.
Ante at 22–23. But there is no authority to support the proposition that
individual officers testifying that they personally would not enforce the
statute provides a valid defense to vagueness. See Morales, 527 U.S. at 63
(rejecting the defense that “the police have adopted internal rules limiting
their enforcement to certain designated areas in the city”). And looking to
the survey lines itself creates problems when ownership and land tract
information is not precisely or readily available. Indeed, in this case, Bayou
Bridge Pipeline contacted the police to remove the arrested plaintiffs,
claiming to have a right of way to the pipeline. But the Louisiana state courts,
after years of litigation over ownership of private tracts, found that Bayou
Bridge Pipeline itself was in fact the trespasser. Compare Bayou Bridge
Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Par.,
320 So.
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3d 1054, 1056 (La. 2021), with Oral Arg. at 31:30 (the Attorney General’s
argument that “landowners . . . would know the easement and the right of
way”). The majority’s interpretation of the statute functionally forces
anybody on private property to vacate when instructed by any enforcer—
even when there is no proof that a pipeline runs below, or that the enforcer
has a right to enforce—or risk criminal prosecution. The result is the
application before us, where the arrested plaintiffs were arrested for trespass
on the word of the actual trespasser.
Even the Attorney General has failed to offer a consistent and precise
interpretation of the statute. Before the district court, in motion to dismiss
briefing, the Attorney General represented that “[o]n a given tract of land, a
pipeline exists or does not, a person is present on that tract or is not, and the
person has been forbidden from remaining or not.” As to public forums, the
Attorney General stated there was a “careveout [sic] for ‘[l]awful
assembly.’” But at summary judgment, the Attorney General claimed that
the district court had properly construed the statute “as limited to private
property and non-public forums,” and also pointed to a First Circuit holding
that a “First Amendment carveout is sufficient to defeat standing absence
[sic] evidence of prosecutions under similar facts.” Not only has there been
an arrest on public waterways under this statute, but the Attorney General’s
changing definition of the statutory coverage shows that the legislature has
not “establish[ed] minimal guidelines to govern law enforcement.” Smith v.
Goguen, 415 U.S. 566, 574 (1974).
When even a property owner cannot be aware, from the text of the
statute, whether she might be criminally prosecuted for trespass if told to
leave her own property, the statute is vague in some of its applications. While
some applications of the statute are clear—such as an uninvited individual
damaging a clearly marked pipeline after being instructed to leave private
property—a vague statute cannot be saved “merely because there is some
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conduct that clearly falls within the provision’s grasp.” Johnson, 576 U.S. at
602.
I would hold that, taken together with (B)(3)’s definition of all
pipelines as critical infrastructure, subsection (A)(3) of the Infrastructure
Trespass Statute is unconstitutionally vague. Accordingly, I respectfully
dissent.
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