Case: 19-30702 Document: 00516041830 Page: 1 Date Filed: 10/05/2021
United States Court of Appeals
for the Fifth Circuit
_____________ United States Court of Appeals
Fifth Circuit
No. 19-30702 FILED
consolidated with October 5, 2021
No. 19-30989 Lyle W. Cayce
_____________ Clerk
Priscilla Lefebure,
Plaintiff—Appellee,
versus
Samuel D’Aquilla, 20th Judicial District, individually
and in his official capacity as District Attorney,
Defendant—Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:17-CV-1791
ON PETITION FOR REHEARING EN BANC
Before Owen, Chief Judge, and Graves and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is denied. No member of the
panel nor judge in regular active service of the court having requested that
Case: 19-30702 Document: 00516041830 Page: 2 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
the court be polled on Rehearing En Banc (Fed. R. App. P. and 5th Cir.
R. 35), the Petition for Rehearing En Banc is denied.
We withdraw the court’s prior opinion of February 9, 2021, and
substitute the following opinion.
…
If anyone deserves to have her day in court, it is Priscilla Lefebure.
The allegations in her complaint are sickening: Barrett Boeker, her cousin’s
husband, raped and sexually assaulted her on multiple occasions at his home
on the grounds of the Louisiana state prison where he serves as an assistant
warden. Boeker then conspired with the district attorney, Samuel D’Aquilla
(as well as his own counsel, who happens to be a relative of D’Aquilla’s), to
ensure that he would not be investigated or prosecuted for his crimes. In
response, Lefebure filed this suit against D’Aquilla (as well as Boeker and
others) on various constitutional and statutory grounds.
It is difficult to imagine anyone who deserves justice more than
Priscilla Lefebure. But her claim against D’Aquilla runs into a legal obstacle
that the panel has no discretion to ignore. Supreme Court precedent makes
clear that a citizen does not have standing to challenge the policies of the
prosecuting authority unless she herself is prosecuted or threatened with
prosecution. See Linda R.S. v. Richard D., 410 U.S. 614, 617–19 (1973).
Under this established principle of standing, each of us has a legal
interest in how we are treated by law enforcement—but not a legally
cognizable interest in how others are treated by law enforcement. So people
accused of a crime have an obvious interest in being treated fairly by
prosecutors. And victims of crime have a strong interest in their own physical
safety and protection. But victims do not have standing based on whether
other people—including their perpetrators—are investigated or prosecuted.
2
Case: 19-30702 Document: 00516041830 Page: 3 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
Every court to have addressed this question prior to this case agrees
that a crime victim may not challenge a prosecutor’s failure to investigate or
prosecute her perpetrator. Neither Lefebure nor the amicus brief filed in her
support cite any authority to the contrary. In sum, we have no choice but to
reverse and remand with instructions to dismiss the complaint for lack of
subject matter jurisdiction as to D’Aquilla.
I.
We accept, as we must at the motion to dismiss stage, the allegations
contained in Lefebure’s complaint as true. They are as follows:
Forced to evacuate her home in Baton Rouge due to flooding,
Lefebure resided temporarily with her cousin and her cousin’s husband,
Boeker. Their home is located on the grounds of the Louisiana State
Penitentiary, where Boeker serves as an assistant warden.
Boeker raped and sexually assaulted her on multiple occasions there.
First, he raped her in front of a mirror, where he made her watch, while telling
her that no one would hear her scream. Later, he sexually assaulted her with
a foreign object, after picking the lock of the room where she was attempting
to hide. Afterward, she tried to lock the door again, but he again proceeded
to pick the lock and blocked her escape.
A few weeks later, Boeker was arrested for second degree rape. But
no indictment was ever brought.
That’s because, shortly after his arrest, Boeker met on multiple
occasions with D’Aquilla, the district attorney for Louisiana’s 20th Judicial
District, along with Boeker’s defense counsel, a relative of the district
attorney, and Austin Daniel, West Feliciana Parish Sheriff. At those
meetings, they conspired to protect Boeker from investigation and
3
Case: 19-30702 Document: 00516041830 Page: 4 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
prosecution. They agreed that Boeker was telling the truth and that Lefebure
was lying.
Furthermore, Boeker falsely represented to others that he was being
investigated by D’Aquilla and Daniel, according to the complaint, “so as to
hide the conspiracy and ensure he would not face criminal liability for raping
Ms. Lefebure.”
Lefebure filed suit against D’Aquilla and the others, seeking damages
and declaratory and injunctive relief. With respect to D’Aquilla, she brought
various claims under (1) the Equal Protection Clause of the Fourteenth
Amendment, as well as Article I, Section 3 of the Louisiana Constitution
(Right to Individual Dignity); (2) the Due Process Clause of the Fourteenth
Amendment, as well as Article I, Section 2 of the Louisiana Constitution
(Right to Due Process); (3) 42 U.S.C. §§ 1983 and 1985 for civil conspiracy
to violate civil rights; and (4)
42 U.S.C. § 1983 for abuse of process.
D’Aquilla filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and
failure to state a claim upon which relief can be granted, and asserted various
defenses.
The district court granted in part and denied in part D’Aquilla’s
motion to dismiss. Lefebure v. Boeker, 390 F. Supp. 3d 729, 768 (M.D. La.
2019). It denied the motion to dismiss under Rule 12(b)(1), finding that
Lefebure had standing.
Id. at 746. It also dismissed some of her claims, and
rejected many of D’Aquilla’s asserted defenses as to her other claims.
Id. at
747–50, 758, 763, 767–68.
The district court certified the order for interlocutory appeal under
28 U.S.C. § 1292(b). D’Aquilla moved in this court for leave to appeal from
the interlocutory order. This court granted the motion.
4
Case: 19-30702 Document: 00516041830 Page: 5 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
On appeal, counsel for Lefebure declined multiple opportunities to file
a response brief. Counsel made four requests to extend the briefing deadline,
between June and August 2020. This court granted each of those requests.
After all those deadlines came and went, this court gave counsel further
opportunity to file a brief out of time within ten days. Counsel declined to
respond to our request or file a brief in this appeal, so the case was submitted
with only D’Aquilla’s brief. Counsel’s failure to submit a brief “does not
preclude our consideration of the merits” of D’Aquilla’s appeal. Hager v.
DBG Partners, Inc., 903 F.3d 460, 464 (5th Cir. 2018). It merely forfeits the
appellee’s right to oral argument. See Fed. R. App. P. 31(c) (“An appellee
who fails to file a brief will not be heard at oral argument unless the court
grants permission.”).
Following our initial decision in this case, counsel apologized for his
previous oversights and sought rehearing en banc, supported by an amicus
brief by three retired federal judges led by Alex Kozinski.
We review questions of subject matter jurisdiction de novo. Jones v.
United States, 625 F.3d 827, 829 (5th Cir. 2010). We now withdraw our
earlier opinion in this matter and substitute this opinion in order to explain
why the arguments presented in the petition for rehearing en banc and amicus
brief are foreclosed to this court as a matter of Supreme Court precedent.
II.
“Over the years, our cases have established that the irreducible
constitutional minimum of standing contains three elements.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have
suffered an ‘injury in fact.’”
Id. “Second, there must be a causal connection
between the injury and the conduct complained of.”
Id. “Third, it must be
‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed
5
Case: 19-30702 Document: 00516041830 Page: 6 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
by a favorable decision.’” Id. at 561 (quoting Simon v. Eastern Kentucky
Welfare Rights Organization,
426 U.S. 26, 38, 43 (1976)).
Lefebure seeks to hold the prosecutor accountable for injuries she
suffered from her assailant. No one doubts, of course, that crime victims
suffer an injury in fact. See Linda R.S., 410 U.S. at 618 (“appellant no doubt
suffered an injury”). And Lefebure suffered one of the most horrific crimes
imaginable. But longstanding Supreme Court precedent confirms that a
crime victim lacks standing to sue a prosecutor for failing to investigate or
indict her perpetrator, due to lack of causation and redressability. See
id.
(“the bare existence of an abstract injury meets only the first half of the
standing requirement”).
As Justice Marshall wrote for the Court in Linda R.S., even “if
appellant were granted the requested relief, it would result only in the jailing
of the child’s father.” Id. at 618 (emphasis added). As the majority
concluded, it is “only speculative” that “prosecution will . . . result in [the
deterrence of crime]”—“[c]ertainly the ‘direct’ relationship between the
alleged injury and the claim sought to be adjudicated . . . is absent.”
Id.
Accordingly, “[t]he Court’s prior decisions consistently hold that a citizen
lacks standing to contest the policies of the prosecuting authority when he
himself is neither prosecuted nor threatened with prosecution.”
Id. at 619.
In reaching this holding, the Court repeatedly emphasized “the
special status of criminal prosecutions in our system.” Id. See also, e.g.,
id.
at 617 (noting “the unique context of a challenge to a criminal statute”). It
is a bedrock principle of our system of government that the decision to
prosecute is made, not by judges or crime victims, but by officials in the
executive branch. And so it is not the province of the judiciary to dictate to
executive branch officials who shall be subject to investigation or
prosecution. As the Supreme Court has unanimously observed, “the
6
Case: 19-30702 Document: 00516041830 Page: 7 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
Executive Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693
(1974) (citing cases). Chief Justice Roberts has likewise noted that “[o]ur
entire criminal justice system is premised on the notion that a criminal
prosecution pits the government against the governed, not one private citizen
against another.” Robertson v. U.S. ex rel. Watson,
560 U.S. 272, 278 (2010)
(Roberts, C.J., dissenting from dismissal of the writ of certiorari as
improvidently granted). “The terrifying force of the criminal justice system
may only be brought to bear against an individual by society as a whole,
through a prosecution brought on behalf of the government.” Id. at 273.
The standing analysis in Linda R.S. reinforces this constitutional
allocation of power among the branches of government. The requirement of
standing under Article III of the Constitution is, of course, a doctrine that is
itself based on the separation of powers. “The law of Article III standing . . .
is built on separation-of-powers principles,” for it “serves to prevent the
judicial process from being used to usurp the powers of the political
branches.” Town of Chester, N.Y. v. Laroe Ests., Inc., 137 S. Ct. 1645, 1650
(2017) (quoting Clapper v. Amnesty Int’l USA,
568 U.S. 398, 408 (2013)). See
also Raines v. Byrd,
521 U.S. 811, 820 (1997) (quoting Allen v. Wright,
468
U.S. 737, 752 (1984)) (“[T]he law of Art. III standing is built on a single basic
idea—the idea of separation of powers.”).
In short, it is not the province of the judiciary to dictate prosecutorial
or investigative decisions to the executive branch. And if that is so, then it is
understandable why plaintiffs would lack standing to seek judicial review of
such executive decisions, as the Court held in Linda R.S. See, e.g., 410 U.S.
at 619 (invoking fundamental principles of “American jurisprudence” to
explain why “a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another”).
7
Case: 19-30702 Document: 00516041830 Page: 8 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
As a result, courts across the country have dutifully enforced this rule
in case after case—refusing to hear claims challenging the decision not to
investigate or prosecute another person. See, e.g., United States v.
Grundhoefer, 916 F.2d 788, 792 (2nd Cir. 1990) (“[A] private citizen
generally lacks standing ‘to contest the policies of the prosecuting authority
when he himself is neither prosecuted nor threatened with prosecution.’”)
(quoting Linda R.S.); Sattler v. Johnson,
857 F.2d 224, 227 (4th Cir. 1988)
(rejecting claim that crime victims have “an enforceable right as a member
of the public at large and as a victim to have the defendants criminally
prosecuted”); Oliver v. Collins,
914 F.2d 56, 60 (5th Cir. 1990) (affirming
dismissal of a prison inmate’s claim against the sheriff for failing to press
criminal charges against correctional officers involved in an alleged assault
because the plaintiff “does not have a constitutional right to have someone
criminally prosecuted”); Mitchell v. McNeil,
487 F.3d 374, 378 (6th Cir.
2007) (“There is no statutory or common law right, much less a
constitutional right, to an investigation.”); Parkhurst v. Tabor,
569 F.3d 861,
866 (8th Cir. 2009) (“federal courts have maintained the distinction in
standing between those prosecuted by the state and those who would urge
the prosecution of others”); Sargeant v. Dixon,
130 F.3d 1067, 1069–70 (D.C.
Cir. 1997) (if a person has “an interest in ‘being heard’ by the grand jury,” it
is “only because” he has an “interest in seeing certain persons
prosecuted”—which is “not legally cognizable within the framework of
Article III” under Linda R.S.).
And that is so whether the suit is for injunctive relief or damages. See,
e.g., Parkhurst, 569 F.3d at 865 (suit for damages and injunctive relief); Del
Marcelle v. Brown Cnty. Corp.,
680 F.3d 887, 901 (7th Cir. 2012) (en banc)
(Easterbrook, C.J., concurring)) (crime victims are “not entitled to an order
requiring arrest or prosecution of [their assailants], or to damages because of
public officials’ decision not to do so”) (collecting cases).
8
Case: 19-30702 Document: 00516041830 Page: 9 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
Yet that is precisely what this suit is—a complaint that a prosecutor
has failed to investigate and prosecute another person. See First Amended
Complaint & Jury Demand at 2, 7, 16, 21–22, Lefebure v. Boeker, 390 F. Supp.
3d 729 (M.D. La. 2019) (ECF No. 37) (alleging that D’Aquilla and other
officials conspired to ensure that Boeker “would not be held accountable for
his actions,” would be “protect[ed] . . . from prosecution,” “would not be
convicted of the alleged rapes,” would “walk[] free,” and would be
“protect[ed] . . . from criminal liability”). See also Lefebure,
390 F. Supp. 3d
at 745 (acknowledging that “the alleged failure to fully investigate was
motivated by a preference in the prosecutorial outcome”).
Accordingly, established precedent requires us to conclude that
Lefebure lacks standing to sue D’Aquilla based on his failure to prosecute or
even investigate Boeker.
A.
On appeal, Lefebure contests none of this. She simply insists that
courts must be able to review her case—notwithstanding Linda R.S.—
because the decision not to prosecute Boeker may have been based on a
broader, discriminatory non-prosecution policy.
But her complaint is premised on allegations of a specific conspiracy
between various officials and attorneys, including D’Aquilla, to shield Boeker
in particular from prosecution. Her complaint alleges a series of
conspiratorial meetings between the defendants to discuss the Boeker case in
particular, an agreement that Boeker was telling the truth and Lefebure was
lying, and a strategy to conceal the conspiracy by falsely representing to the
world that the case was being faithfully investigated and dutifully considered
for prosecution, when in fact the parties had already agreed to sweep her
claims under the rug.
9
Case: 19-30702 Document: 00516041830 Page: 10 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
And in any event, we do not see how we can in good faith distinguish
Linda R.S. based on the theory that the decision not to prosecute in this case
was in fact dictated by a broader, discriminatory policy not to investigate or
prosecute cases involving a certain protected class of victims in violation of
the Equal Protection Clause. After all, that was precisely the complaint in
Linda R.S. as well. There the plaintiff alleged that “the policies of the
prosecuting authority,” which require “declining prosecution” in cases like
hers, unconstitutionally “discriminate[]” against victims like her “without
rational foundation and therefore violate[] the Equal Protection Clause of the
Fourteenth Amendment.” Linda R.S., 410 U.S. at 616, 619. See also
id. at
621 (White, J., dissenting) (noting the implications of the Court’s logic for
other equal protection claims, including those based on race).
Our sister circuits have likewise construed Linda R.S. to foreclose
suit—and that is so despite the fact that the plaintiffs there alleged
unconstitutional discrimination.
For example, in Parkhurst, the Eighth Circuit observed that, “[w]hile
it is well settled that defendants subjected to or threatened with
discriminatory prosecution have standing to bring an equal protection claim,
this right has not been extended to crime victims. The lower federal courts
have maintained the distinction in standing between those prosecuted by the
state and those who would urge the prosecution of others, even when the
failure to prosecute was allegedly discriminatory.” 569 F.3d at 865–66 (cleaned
up and emphasis added) (citing Linda R.S. and other authorities).
Likewise, in Grundhoefer, the Second Circuit stated that “[t]he
interest in the just administration of the laws, including the interest in
nondiscriminatory criminal enforcement, is presumptively deemed
nonjusticiable even if invoked by persons with something beyond a
generalized bystander’s concern.” 916 F.2d at 792 (quotations omitted).
10
Case: 19-30702 Document: 00516041830 Page: 11 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
Similarly, in Sattler, the Fourth Circuit noted that “counsel suggested
that Sattler had an enforceable right . . . as a victim to have the defendants
criminally prosecuted. He further urged that such a right was protected by
the equal protection clause of the fourteenth amendment. There is, of
course, no such constitutional right.” 857 F.2d at 227.
As Professor Laurence Tribe explained in his widely noted treatise on
constitutional law, “while discriminatory enforcement of criminal laws may
be challenged by those against whom such laws are enforced, persons injured
by criminal conduct which goes unpunished because of discriminatory law
enforcement do not ordinarily have standing to challenge the
discrimination.” Laurence H. Tribe, American
Constitutional Law 417 (3rd ed. 2000) (citing Linda R.S.). “The
upshot of Linda R.S. . . . is that the interest in the just administration of the
laws, including the interest in nondiscriminatory criminal enforcement, is
presumptively deemed nonjusticiable even if invoked by persons with
something beyond a generalized bystander’s concern; only if the litigant is
immediately affected as a target of enforcement can that presumption be
overcome.” Id. at 418.
B.
Lefebure nonetheless suggests that various circuit precedents support
her standing to sue the prosecutor here—and thus conflict with our earlier
panel decision in this case.
1. Specifically, she claims that our decision conflicts with both
Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000), and Estate of Macias v. Ihde,
219 F.3d 1018 (9th Cir. 2000).
But neither of these cases even mention, let alone analyze, standing—
presumably because no one challenged standing in these cases. And the same
is true with the case identified by amici, Elliot-Park v. Manglona, 592 F.3d
11
Case: 19-30702 Document: 00516041830 Page: 12 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
1003 (9th Cir. 2010). We cannot rely on these decisions to justify standing
when they do not even mention standing—let alone offer a theory for
distinguishing Linda R.S.—let alone a theory that applies to the specific facts
presented here. See, e.g., United States v. Doe, 932 F.3d 279, 284 (5th Cir.
2019) (noting that we do not give precedential effect to a jurisdictional
holding in a previous case when “we never stated the basis of our
jurisdiction”).
The amicus brief suggests we look past all of this. It says it should be
enough that the courts in these cases “fail[ed] to perceive any standing
difficulties” anywhere in these opinions.
But that would contradict over two centuries of Supreme Court
teachings on this point—not to mention amici’s own prior observations.
The Supreme Court has repeatedly instructed lower courts that,
“[w]hen a potential jurisdictional defect is neither noted nor discussed in a
federal decision, the decision does not stand for the proposition that no defect
existed.” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144
(2011). See also Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 91 (1998)
(although “Article III standing was . . . assumed by the parties, and was
assumed without discussion by the Court,” “[w]e have often said that driveby jurisdictional rulings of this sort . . . have no precedential effect”); United
States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 38 (1952) (“[T]his Court
has followed the lead of Mr. Chief Justice Marshall who held that this Court
is not bound by a prior exercise of jurisdiction in a case where it was not
questioned and it was passed sub silentio.”) (collecting cases).
Indeed, amici have elsewhere expounded these very same principles,
explaining that “courts routinely reject claims that plaintiffs have Article III
standing based on the fact that prior similarly situated plaintiffs received a
ruling on the merits, even though such a ruling must have implicitly held that
12
Case: 19-30702 Document: 00516041830 Page: 13 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
the prior plaintiff did have standing.” Bryan A. Garner et al., The
Law of Judicial Precedent 87 (2016) (collecting cases). See also id.
at 121 (same) (collecting cases).
2. There’s an additional problem with the two cases cited by
Lefebure. As noted, under Linda R.S., victims of crime do not have a
cognizable interest in the investigation or prosecution of others. But they of
course have a compelling interest in their own physical safety and protection.
As a result, crime victims have standing to sue when the police refuse to
provide them with physical protection. That is because their complaint
concerns their own treatment, not the treatment of others.
That principle provides yet another basis for distinguishing Shipp and
Estate of Macias—both of which allege the failure to protect the plaintiff,
rather than the failure to prosecute another person.
Cherie Shipp alleged that a group of sheriffs and deputies refused to
provide police protection to women like her. She alleged that she was
attempting to escape her abusive marriage with Dalton Shipp, and that she
repeatedly called the sheriff’s office seeking protection from him—but that
the deputy “informed Shipp that he would do nothing about Dalton.” Shipp,
234 F.3d at 909. As a result, Dalton repeatedly beat and later raped and shot
his wife. Each time, the sheriff’s office did nothing to stop the violence. See,
e.g.,
id. at 910 (“Deputy Cropper . . . chose to take no action, despite his
knowledge of Dalton’s propensity for violent behavior.”);
id. (“She
screamed for help, but none of the deputies responded.”).
In sum, Shipp is not about prosecutorial inaction but “police
inaction.” Id. at 912. “Specifically, Shipp claims that the defendants
through their policies, practices, and customs afforded less protection to
victims of domestic assault than other assault victims.”
Id. at 913.
13
Case: 19-30702 Document: 00516041830 Page: 14 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
The facts of Estate of Macias are similarly grotesque: A woman was
repeatedly stalked and attacked by her former husband, with the full
knowledge of the police—yet the police did nothing. See 219 F.3d at 1020–
26. Over time, the violent acts escalated, and her husband eventually killed
her. Her relatives and estate brought suit alleging that the officers “denied
[her] right to equal protection by providing her with inferior police protection
on account of her status as a woman, a Latina, and a victim of domestic
violence.” Id. at 1019.
Here, by contrast, Lefebure does not contend that the police refused
to protect her before some future assault by her assailant. Instead, she
contends that prosecutors refused to investigate or prosecute him after the
assault took place. Here, the appeal concerns only the prosecutor—it does
not involve any police officer or other law enforcement official who could
have provided her physical protection from an assailant yet failed to do so.
See also Parkhurst, 569 F.3d at 866–67 (distinguishing Estate of Macias on the
ground that “crime victims . . . have a right to challenge the allegedly
discriminatory provision of police protection,” whereas “[t]he Parkhursts
claim to have been injured by a failure to prosecute . . . rather than by a failure
to provide police protection to [the victim]”) (emphasis added).
In sum, none of the cases cited by Lefebure allow a victim to challenge
a prosecutor’s decision not to investigate or prosecute another person.1
1
Lefebure also claims that our decision conflicts with Nader v. Saxbe, 497 F.2d 676
(D.C. Cir. 1974). But the court there found that “plaintiffs lack standing to sue.”
Id. at
680 (emphasis added).
Finally, the amicus brief also invokes Bailey v. Patterson, 369 U.S. 31 (1962). But it
is unclear why amici think Bailey helps their cause. For one, Bailey simply recognized that
railroad passengers have standing to challenge racial segregation on railroads—a
proposition no one challenges here. See
id. at 33 (“[A]s passengers using the segregated
transportation facilities they are aggrieved parties and have standing to enforce their rights
14
Case: 19-30702 Document: 00516041830 Page: 15 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
C.
Both Lefebure and the amicus brief suggest that we should collapse
this distinction between the failure to prosecute and the failure to protect—
between the failure of police to protect the plaintiff from future crime and the
failure of prosecutors to put a third party in jail for past crime.
To be sure, their reasoning is certainly understandable: If word were
to get out that a district attorney categorically refuses to prosecute a certain
type of crime, or will not prosecute crimes committed against a certain victim
demographic, that would surely lead to greater criminal activity of that kind.
So we do not doubt the underlying premise: Less police, more crime.
Likewise, less prosecution, more crime. Unquestionably, the denial of
prosecution may very well be tantamount to a denial of protection.
But we have no authority to take Lefebure’s premise where she wants
it to go. For the Supreme Court made clear in Linda R.S. that any connection
between a non-prosecution policy and subsequent criminal activity is too
“speculative” to support standing.
1. The suit in Linda R.S. concerned a criminal statute for failure
to pay child support. But the state applied that statute in an allegedly
unconstitutional manner, by enforcing it as to legitimate children, but not as
to illegitimate children.
Notably, the premise of the suit in Linda R.S. is indistinguishable from
the premise of Lefebure’s suit here: The prosecutor adopted a
discriminatory policy of non-prosecution—and that policy resulted in
to nonsegregated treatment.”). What’s more, Bailey expressly reaffirms the principle we
dutifully enforce here—that individuals “lack standing to enjoin criminal prosecutions
under Mississippi’s breach-of-peace statutes, since they do not allege that they have been
prosecuted or threatened with prosecution under them.” Id. at 32.
15
Case: 19-30702 Document: 00516041830 Page: 16 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
criminal misconduct that directly injured the plaintiff. As the complaint in
Linda R.S. put it: “Plaintiff sues on behalf of herself, her minor daughter,
and on behalf of all other women and minor children who have sought, are
seeking, or in the future will seek to obtain support for so-called illegitimate
children from said child’s father. . . . Plaintiff, Linda R.S. has been and will
continue to be subjected to economic coercion.” The plaintiff’s Supreme
Court brief made this point as well: “[I]f the District Attorney of Dallas
County would enforce Article 602 against the parents of illegitimate children,
those parents would contribute to the support and maintenance of their
children rather than face the possible consequence of jail. Clearly, because
the State of Texas through its District Attorney will not enforce the language
of this statute against fathers of illegitimate children those children are not
receiving economic benefits which they would otherwise receive.”
The Court nevertheless denied standing. As the Court explained, the
connection between punishing the perpetrator and preventing crime was too
“speculative” to support standing. After all, even “if appellant were granted
the requested relief, it would result only in the jailing of the child’s father”—
not the prevention of injury to the plaintiff. 410 U.S. at 618 (emphasis
added). To be sure, the jailing of the child’s father could have discouraged
him from further criminal failure to pay child support. So failing to prosecute
and jail the father could have caused the mother’s injury. And holding the
prosecutor liable could have redressed the mother’s injury. But the majority
in Linda R.S. held that any such connection was too attenuated and
“speculative” to support standing: “The prospect that prosecution will, at
least in the future, result in payment of support can, at best, be termed only
speculative. Certainly the ‘direct’ relationship between the alleged injury
and the claim sought to be adjudicated, which previous decisions of this
Court suggest is a prerequisite of standing, is absent in this case.”
Id.
16
Case: 19-30702 Document: 00516041830 Page: 17 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
2. Reasonable minds can of course disagree about the wisdom of
this conclusion. Indeed, Justice White did. In his dissent, he took on the
majority on precisely this point.
“The Court states that the actual coercive effect of those sanctions on
Richard D. or others ‘can, at best, be termed only speculative.’” Id. at 621
(White, J., dissenting). “This is a very odd statement.”
Id. “I had always
thought our civilization has assumed that the threat of penal sanctions had
something more than a ‘speculative’ effect on a person’s conduct. This
Court has long acted on that assumption in demanding that criminal laws be
plainly and explicitly worded so that people will know what they mean and be
in a position to conform their conduct to the mandates of law.”
Id.
“[C]riminal sanctions are useful in coercing fathers to fulfill their support
obligations to their legitimate children.”
Id.
But the majority went the other way, holding instead that the plaintiff
“made an insufficient showing of a direct nexus between the vindication of
her interest and the enforcement of the State’s criminal laws.” Id. at 619.
See also, e.g., Garner, supra, at 192 (“One important reason to read
dissenting opinions is that they may clarify what the majority is doing.”).
3. Our reading of Linda R.S. is further reinforced by Professor
Tribe. As he put it, the standing analysis in Linda R.S. is not some “doctrinal
quirk unique to the field of criminal law administration.” Tribe, supra, at
418. Rather, it reflects the Court’s “broader insistence on a clear showing
that the action challenged has in fact caused an individual injury, and that a
judicial pronouncement of rights will be likely to redress that injury.” Id.
In short, Lefebure lacks standing due to lack of causation and
redressability. As Tribe explains, Linda R.S. is based on the premise that “a
victim of an undeterred crime is not automatically a victim of
nonenforcement.” Id. at 417 (emphasis added). And because the connection
17
Case: 19-30702 Document: 00516041830 Page: 18 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
is not “automatic,” then it is too attenuated for purposes of causation and
redressability under Linda R.S.
D.
Undeterred, amici point out that Linda R.S. is merely a “5-to-4”
decision on the issue of standing. But that is wrong—not to mention
irrelevant. Two of the four justices who declined to join the majority did not
say that the plaintiff had standing—to the contrary, those two justices noted
that they would have preferred not to reach the standing issue at all, one way
or another. See Linda R.S., 410 U.S. at 622 (Blackmun, J., dissenting). And
regardless (and as amici should well know), federal judges have no right to
ignore Supreme Court decisions based on whether they are decided
unanimously or by a 5-4 (or 5-2) vote.
Amici also float the notion that Linda R.S. “seems unlikely to have
survived” various Supreme Court rulings issued over the “nearly fifty years”
since that decision. But once again, amici ignore decades of Supreme Court
teachings. As the Court has repeatedly reminded us, the only court that can
overturn a Supreme Court precedent is the Supreme Court itself. See, e.g.,
Agostini v. Felton, 521 U.S. 203, 237 (1997) (even “if a precedent of this Court
. . . appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.”) (quoting
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477, 484
(1989)). Once again, amici know this. See, e.g., Carter v. Derwinski,
987 F.2d
611, 613 n.1 (9th Cir. 1993) (Kozinski, J.) (en banc) (same) (quoting
Rodriguez).
E.
Our original decision in this case was unanimous. Today the court
reaches the same conclusion, based on the same reasoning, but this time by a
18
Case: 19-30702 Document: 00516041830 Page: 19 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
2-1 vote. Even so, there is substantial agreement over the substantive legal
principles that decide this appeal, not to mention the likely ultimate outcome
in this case.
To begin with, the dissent “agree[s] with the majority’s view that a
victim has no standing to pursue a claim against the district attorney for
failure to prosecute her assailant under Linda R.S.” Post, at 25. “[T]he
majority correctly observes [that] Linda R.S. precludes standing for those
who allege an injury based solely on law enforcement’s failure to prosecute
someone who had already harmed them.” Id.
In addition, the dissent agrees that “a dividing line exists between
failure-to-protect and failure-to-prosecute claims—that is, claims alleging a
failure to protect before harm occurs (ex-ante) and a failure to prosecute after
the fact (ex-post). A plaintiff has standing to pursue the former, but not the
latter.” Id. at 27. That is, of course, precisely our point. See ante, at 14
(“Lefebure does not contend that the police refused to protect her before
some future assault by her assailant. Instead, she contends that prosecutors
refused to investigate or prosecute him after the assault took place.”)
(emphasis added).2
1. The dissent nevertheless contends that this suit should be
allowed to proceed based on the text and original understanding of the Equal
Protection Clause: “As its words indicate, the Equal Protection Clause
recognizes a right to equal enforcement of the law that encompasses equal
protection for crime victims.” Post, at 33. The dissent quotes Judge
Easterbrook, who distilled the original meaning of the Equal Protection
2
It is not clear what the dissent means by “the majority’s apparent avoidance” of
the distinction between failure to prosecute and failure to protect claims. Post, at 27. Far
from avoiding the issue, the distinction is essential to our analytical framework—indeed,
it’s precisely why we are required to reverse.
19
Case: 19-30702 Document: 00516041830 Page: 20 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
Clause as follows: “if the police and prosecutors protect white citizens, they
must protect black citizens too.” Id. at 34 (quoting Del Marcelle, 680 F.3d at
901 (Easterbrook, C.J., concurring)).
But Judge Easterbrook also explained that a faithful reading of
precedent requires us to deny relief due to lack of standing. As he explained,
“Linda R.S. [holds] that ‘a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.’” Del Marcelle, 680
F.3d at 901 (Easterbrook, C.J., concurring) (quoting Linda R.S.,
410 U.S. at
619). “That is a limit on standing; Linda R.S. holds that there is no justiciable
controversy, which knocks out all substantive legal theories.”
Id. So a
plaintiff “is not entitled to an order requiring arrest or prosecution of [his
assailants], or to damages because of public officials’ decision not to do so.”
Id. See also
id. (a plaintiff “needs to show how he was injured by what the
defendants did to him, rather than by what they didn’t do to other people or
what they didn’t do for him”).
2. The dissent attempts to avoid established precedent by
recasting this case as a failure to protect case, rather than as a failure to
prosecute case. But the dissent acknowledges that at least “some of
Lefebure’s allegations sound in failure to prosecute.” Post, at 30. And even
setting those allegations aside, the dissent’s theory is foreclosed by Supreme
Court precedent.
In essence, the dissent theorizes that D’Aquilla’s failure to prosecute
might very well have “led to her assault.” Id. at 32. And make no mistake—
we have no quarrel with this logic as a conceptual matter. Indeed, we have
said as much ourselves: Less prosecution can lead to more crime—and
liability rules can encourage or deter law enforcement activity and thereby
affect crime rates. See ante, at 15.
20
Case: 19-30702 Document: 00516041830 Page: 21 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
But as we’ve explained, Supreme Court precedent prevents us from
taking the dissent’s logic where it wants us to go. After all, the dissent’s
theory is the same theory of standing that was pressed in the complaint in
Linda R.S., and embraced in Justice White’s dissent, but rejected in Justice
Marshall’s majority opinion. Professor Tribe has confirmed this. All agree
that causation and redressability are too attenuated and speculative in cases
such as this to warrant standing. And no one has cited a single case to the
contrary. The cases cited by the dissent, much like the cases cited by
Lefebure, involve the failure to protect, not the failure to prosecute recast as
a failure to protect.
3. The dissent suggests that Linda R.S. is somehow
distinguishable because the plaintiff here pleaded her case more carefully
than the plaintiff did there. Post, at 31–32. But that ignores the passages from
the complaint and substantive briefing in Linda R.S. that we noted earlier.
See ante, at 15–16. Those passages confirm that, both here and in Linda R.S.,
the plaintiff theorized that the defendant’s discriminatory failure to
prosecute “led to” her injury.
Moreover, if the dissent’s theory were correct, it could presumably be
deployed in every discriminatory failure to prosecute case—just replead every
failure to prosecute claim as a failure to protect claim. But there’s nothing in
either the language or the logic of Linda R.S. to indicate that the Court saw
this as a pleading problem, rather than as a standing problem. And the dissent
certainly does not identify any such language in Linda R.S.
4. Finally, we note that the dissent ultimately concedes that the
debate over the interpretation of Linda R.S. may not matter—that Lefebure
might simply win the battle, only to lose the war. Because it’s not enough to
merely plead causation to survive dismissal—the plaintiff also must prove it
to obtain judgment. To survive summary judgment, the plaintiff needs
21
Case: 19-30702 Document: 00516041830 Page: 22 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
evidence that the prosecutor’s failure did in fact cause the criminal act that
she suffered. And as the dissent notes, this might not be easy. “[I]t might be
difficult for Lefebure to ultimately prove on the merits that the district
attorney’s policy, custom, or practice played a role in her assault.” Post, at
35. So there may be little difference between the majority and the dissent as
a practical matter.
III.
Reasonable minds can of course disagree over whether Linda R.S. was
correctly decided.
As we have noted, for example, Justice White rejected the majority’s
notion that the connection between criminal law enforcement and crime rates
is too “speculative” to confer standing. 410 U.S. at 621. See ante, at 17
(quoting Justice White). We have likewise observed that less police and less
prosecution will indeed lead inevitably to more crime. See ante, at 15.
In addition, Professor Erwin Chemerinsky has persuasively criticized
Linda R.S. as inconsistent with how courts characterize the nature of the
injury in other equal protection contexts. Ordinarily, he explained, “[w]hen
a plaintiff alleges a denial of equal protection, the injury is the denial of the
ability to evenly compete.” Erwin Chemerinsky,
Constitutional Law: Principles and Policies 87 (6th ed.
2019) (citing, inter alia, Northeastern Fla. Chapter of the Assoc. Gen.
Contractors of Am. v. Jacksonville, 508 U.S. 656 (1993), and Regents of the Univ.
of Cal. v. Bakke,
438 U.S. 265 (1978)). So “[e]ven if ultimately the plaintiff
would not receive the benefit, a favorable court decision redresses the harm
by providing equal opportunity.”
Id. “Linda v. Richard seems inconsistent
with [these principles] because there the claimed denial of equal protection
was not deemed sufficient for standing.”
Id.
22
Case: 19-30702 Document: 00516041830 Page: 23 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
Professor Tribe has likewise disparaged Linda R.S. as “harsh,”
“bizarre,” and not based on “sound reason” considering how courts have
analyzed standing in other equal protection contexts. Tribe, supra, at 417
n.8.
But if there is a case for revisiting Linda R.S. on these or other
grounds, only the Supreme Court has the authority to do so.
…
Lefebure’s story is one that is shared by all too many survivors who
have been doubly victimized by the horrifying crime of sexual assault—first
by their assailants, and then by a criminal justice system that fails to enforce
the laws on the books. See, e.g., Pierre v. Vannoy, 891 F.3d 224, 229 & n.5 (5th
Cir. 2018) (reversing district court for its “troubling” decision to release
convicted child rapist on the ground that rape is a form of sexual activity, and
therefore it was perjury not to disclose prior rape when asked about child’s
prior sexual activity).
Moreover, Lefebure’s story is particularly appalling because her
alleged perpetrator holds a position of prominence in our criminal justice
system as an assistant prison warden. We expect law enforcement officials
to uphold the law, not to violate it—to protect the innocent, not to victimize
them. “Nothing is more corrosive to public confidence in our criminal
justice system than the perception that there are two different legal
standards—one for the powerful, the popular, and the well-connected, and
another for everyone else.” United States v. Taffaro, 919 F.3d 947, 949 (5th
Cir. 2019) (Ho, J., concurring) (discussing lack of prison time for chief deputy
sheriff in Jefferson Parish despite multiple criminal convictions).
Put simply, Lefebure deserved to have the support of her state’s
elected and appointed prosecutors, investigators, and other officials in her
pursuit of justice. If her account is correct, then the system failed her—badly.
23
Case: 19-30702 Document: 00516041830 Page: 24 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
We are horrified by the allegations in this case—the repeated acts of
rape and sexual assault, followed by grotesque acts of prosecutorial
misconduct. But we have no authority to overturn Supreme Court
precedent. If we are to take seriously our obligation to follow Supreme Court
precedent, whether we like it or not, then we must conclude that Lefebure
lacks standing to sue D’Aquilla. As the adage goes, a principle is not a
principle until it costs you. Cf. Psalm 15:4 (honoring those who “keep[] an
oath even when it hurts”).
If Lefebure or amici believe the Supreme Court erred in Linda R.S.,
they are of course welcome to petition for a writ of certiorari. But for us to
do as counsel and amici suggest would “replace judicial hierarchy with
judicial anarchy.” M.D. v. Abbott, 977 F.3d 479, 483 (5th Cir. 2020). See also
The Federalist No. 78 (Alexander Hamilton) (“[t]o avoid an arbitrary
discretion in the courts, it is indispensable that [judges] should be bound
down by strict rules and precedents, which serve to define and point out their
duty in every particular case that comes before them”).
We have no choice but to reverse and remand with instructions to
dismiss the complaint for lack of subject matter jurisdiction as to D’Aquilla.
24
Case: 19-30702 Document: 00516041830 Page: 25 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
James E. Graves, Jr., Circuit Judge, dissenting:
I agree with the majority’s view that a victim has no standing to pursue
a claim against the district attorney for failure to prosecute her assailant
under Linda R.S. v. Richard D., 410 U.S. 614, 618–19 (1973). But an individual
may nevertheless have standing to pursue an equal protection claim against
law enforcement for discriminatory underenforcement of the law. Because
Lefebure seeks to do just that, I respectfully dissent.
I. Failure to Prosecute v. Failure to Protect
Linda R.S. holds that “a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.” 410 U.S. at 619.
Specifically, in that case, the Supreme Court determined that a plaintiff
lacked standing to seek an injunction requiring her child’s father to be
prosecuted for failing to make support payments. As the majority correctly
observes, Linda R.S. precludes standing for those who allege an injury based
solely on law enforcement’s failure to prosecute someone who had already
harmed them. Parkhurst v. Tabor,
569 F.3d 861, 866 (8th Cir. 2009); see Leeke
v. Timmerman,
454 U.S. 83, 85–86 (1981); United States v. Grundhoefer,
916
F.2d 788, 792 (2d Cir. 1990); Doe v. Mayor & City Council of Pocomoke City,
745 F. Supp. 1137, 1139–40 (D. Md. 1990); see also Sattler v. Johnson,
857 F.2d
224, 227 (4th Cir. 1988) (noting that there is no “enforceable right . . . as a
victim to have [] defendants criminally prosecuted”).
In contrast, our circuit has recognized that equal protection suits
based on discriminatory underenforcement of the law, known as failure-toprotect claims, can be brought against law enforcement officials. Shipp v.
McMahon, 234 F.3d 907, 914 (5th Cir. 2000), overruled in part on other grounds
by McClendon v. City of Columbia,
305 F.3d 314 (5th Cir. 2002) (en banc); see
Beltran v. City of El Paso,
367 F.3d 299, 304 (5th Cir. 2004); Cook v. Hopkins,
795 F. App’x 906, 915 (5th Cir. 2019); Kelley v. City of Wake Village,
264 F.
25
Case: 19-30702 Document: 00516041830 Page: 26 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
App’x 437, 442–44 (5th Cir. 2008). In Shipp, on which the district court
relied, we held that treating domestic violence allegations—a category of
crimes disproportionately reported by women—as less of a priority than
others violates the Equal Protection Clause. Shipp, 234 F.3d at 914; see
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 197 n.3 (1989)
(“The State may not, of course, selectively deny its protective services to
certain disfavored minorities without violating the Equal Protection
Clause.”). In doing so, we joined every circuit to consider this issue1 and
adopted the standard articulated in Watson v. City of Kansas City,
857 F.2d
690 (10th Cir. 1988): “[T]o sustain a gender-based Equal Protection claim
based on law enforcement policies, practices, and customs toward domestic
assault and abuse cases, a plaintiff must show: (1) the existence of a policy,
practice, or custom of law enforcement to provide less protection to victims
of domestic assault than to victims of other assaults; (2) that discrimination
against women was a motivating factor; and (3) that the plaintiff was injured
by the policy, custom, or practice.” Shipp,
234 F.3d at 914. We also explained
that under the last requirement—causation—“law enforcement would not
be held liable for generalized harms that are not traceable to their conduct,
policies, or customs” and “would not be called to answer for those injuries
that are solely attributable to the perpetrators of the underlying domestic
assault.”
Id.
The basic holding of the Shipp line of cases is this: an equal protection
violation may be found when women who have suffered domestic abuse
1
See Soto v. Flores, 103 F.3d 1056, 1066 (1st Cir. 1997); Eagleston v. Guido,
41 F.3d
865, 878 (2d Cir. 1994); Hynson v. City of Chester Legal Dep’t,
864 F.2d 1026, 1030–31 (3d
Cir. 1988); Jones v. Union County,
296 F.3d 417, 426–27 (6th Cir. 2002); Hilton v. City of
Wheeling,
209 F.3d 1005, 1007 (7th Cir. 2000); Ricketts v. City of Columbia,
36 F.3d 775,
780 (8th Cir. 1994); Estate of Macias v. Ihde,
219 F.3d 1018, 1028 (9th Cir. 2000); Watson v.
City of Kansas City,
857 F.2d 690, 695–96 (10th Cir. 1988).
26
Case: 19-30702 Document: 00516041830 Page: 27 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
allege that law enforcement’s discriminatory policy of underenforcing
domestic violence laws provided a breeding ground for the abuse to occur.
Shipp, 234 F.3d at 914; see, e.g., Soto v. Flores,
103 F.3d 1056, 1066 (1st Cir.
1997); Watson,
857 F.2d at 696. None of these cases suggests there is any
standing problem with a failure-to-protect claim like that of a failure-toprosecute claim.
Thus, despite the majority’s apparent avoidance of it, a dividing line
exists between failure-to-protect and failure-to-prosecute claims—that is,
claims alleging a failure to protect before harm occurs (ex-ante) and a failure
to prosecute after the fact (ex-post). A plaintiff has standing to pursue the
former, but not the latter. See Parkhurst, 569 F.3d at 867; see also Nader v.
Saxbe,
497 F.2d 676, 681 & n.27 (D.C. Cir. 1974) (explaining that while Linda
R.S. precludes standing for a plaintiff to seek the “prosecution of a particular
individual,” it does not prevent standing in all suits in which “victims or
potential victims of criminal acts sue to correct allegedly unlawful
prosecutorial conduct”). In other words, one does not have standing to allege
an injury based solely on law enforcement’s failure to prosecute someone
who has already harmed her, but she does have standing to allege that a
discriminatory underenforcement of the law played a part in causing the
harm she suffered. See Kentucky v. Graham,
473 U.S. 159, 166 (1985) (“[I]n
an official-capacity suit the entity’s ‘policy or custom’ must have played a
part in the violation of federal law.”); M.D. by Stukenberg v. Abbott,
907 F.3d
237, 253 (5th Cir. 2018) (“[P]laintiffs must show that the State is the ‘moving
force’ behind the deprivation.”) (quoting Kentucky,
473 U.S. at 166); Bedford
v. City of Mandeville, No. 98-31168,
1999 WL 33964096, at *3 (5th Cir. Oct.
22, 1999) (“In an official capacity suit against a public official the government
entity’s policy or custom must have played a role in the constitutional
violation.”).
27
Case: 19-30702 Document: 00516041830 Page: 28 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
Unlike in failure-to-prosecute cases, where a third-party wrongdoer is
the source of the direct harm the plaintiff suffered as a crime victim, the
allegation in failure-to-protect claims is that law enforcement practices
played a role in the plaintiff’s victimization. See, e.g., Shipp, 234 F.3d at 909
(failure to enforce laws meant to prevent domestic abuse led to plaintiff’s
shooting at hands of estranged spouse); Estate of Macias v. Ihde,
219 F.3d
1018, 1022–26 (9th Cir. 2000) (repeated failure to enforce restraining order
led to death at hands of abuser); Watson,
857 F.2d at 696 (holding that a jury
could infer the plaintiff’s “injuries were a result of the policy” of
nonenforcement).
Such failure-to-protect claims may include allegations that law
enforcement’s discriminatory inaction increased the likelihood of crimes or
even directly led to crimes against a certain group. This is implicit in some
cases—that is, discriminatory refusal to enforce restraining orders and other
domestic violence laws logically increases the risk of harm to women—but
explicitly stated in others, like here. For example, a court held that a plaintiff
stated a failure-to-protect claim by alleging that police officials’ “failure to
prosecute known and identified perpetrators” of attacks against Indian
Americans was based upon race and had the effect of encouraging such
attacks, leading to the death of the plaintiff’s son. Mody v. City of Hoboken,
758 F. Supp. 1027, 1028, 1031 (D.N.J. 1991), aff’d,
959 F.2d 461 (3d Cir.
1992). The plaintiff alleged that the “defendants refused to file criminal
complaints against people who had engaged in attacks against Indians,
sending a message to the larger community that if they committed violent
acts against Indians they would not be held accountable.” Id. at 1031. These
kinds of claims may be difficult to prove on the merits, see 959 F.2d at 461
(noting verdict was for the defense), but they are cognizable; their ultimate
success depends on the plaintiff’s establishing a causal link between the
28
Case: 19-30702 Document: 00516041830 Page: 29 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
discriminatory policy and a subsequent injury.2 See Shipp, 234 F.3d at 914
(noting the “causation requirement” for failure-to-protect claims); accord
Mody, 959 F.2d at 466 (stating a plaintiff must “establish[] a causal
relationship between the discriminatory policy and the injury [suffered]”).
Although failure-to-protect claims are usually brought against the
police, the same logic applies to prosecutors. Prosecutors are, after all, part
of law enforcement, and if anything, they may have more power to implement
discriminatory policies than the average officer out on patrol. See Morrison v.
Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting) (“Only someone who
has worked in the field of law enforcement can fully appreciate the vast power
. . . placed in the hands of a prosecutor with respect to the objects of his
investigation.”); John F. Pfaff, Criminal Punishment and the Politics of Place,
45 Fordham Urb. L.J. 571, 574 (2018) (“Perhaps the single most
important actor in the criminal justice system today is the prosecutor.”). The
paucity of failure-to-protect cases against prosecutors likely stems in part
from absolute prosecutorial immunity. But while prosecutors enjoy
immunity from suits filed against them in their individual capacity, see Imbler
v. Pachtman,
424 U.S. 409 (1976), Lefebure sued D’Aquilla in both his
individual and official capacities. The latter is essentially a Monell claim of
municipal liability, for which there is not an immunity defense. See Connick
v. Thompson,
563 U.S. 51, 59–60 (2011) (addressing claim brought against
Orleans Parish District Attorney in his official capacity under Monell
standards); see also Owen v. City of Independence,
445 U.S. 622, 638 (1980)
(refusing to apply immunities for personal liability to Monell claims against
2
As I discuss more fully below, we must carefully avoid conflating the
requirements for ultimate success on the merits and that which is necessary to confer
standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“At the pleading stage,
general factual allegations of injury resulting from the defendant’s conduct may suffice” to
confer standing.”)
29
Case: 19-30702 Document: 00516041830 Page: 30 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
local governments because “there is no tradition of immunity for municipal
corporations”).
Accordingly, if Lefebure were challenging only the failure to prosecute
her attacker, then her claim would be barred by Linda R.S. But if Lefebure
instead, or additionally, challenges an unconstitutional and discriminatory
pattern of conduct that contributed to her assault, she has standing to pursue
those allegations.
II. Operative Complaint
Though some of Lefebure’s allegations sound in failure to prosecute,
her complaint does allege a failure to protect caused by Defendant
D’Aquilla’s underenforcement of the law. We need not, as the majority
suggests, recast Lefebure’s suit to reach this conclusion. Indeed, she
expressly addressed the dividing line for these claims in a brief filed in the
district court:
Defendant mischaracterizes Plaintiff’s claims as asserting a
right to have Boeker criminally prosecuted and/or convicted. .
..
But, Plaintiff is not claiming a right to have Boeker prosecuted
or convicted, she claims no more than what the Fifth Circuit
has recognized for more than a decade, that where a law
enforcement policy, practice, or custom provides less
protection to victims of domestic violence, including rape and
sexual assault, such a custom unconstitutionally violates the
right to equal protection where discrimination against a specific
class was a motivating factor and the plaintiff was injured by
the policy, custom, or practice. Shipp v. McMahon, 234 F.3d
907, 914 (5th Cir. 2000) . . . .
The district court agreed that Lefebure’s allegations sounded in failure to
protect, noting the “distinction” between the Shipp cases and failure-toprosecute claims like Linda R.S. See Lefebure v. Boeker,
390 F. Supp. 3d 729,
30
Case: 19-30702 Document: 00516041830 Page: 31 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
747–48 (M.D. La. 2019). After reviewing both lines of precedent, the court
concluded that it “d[id] not view Plaintiff’s claim as one demanding the
prosecution of her alleged attacker. Rather, Plaintiff’s claim is that the
Defendants have an implied policy or custom to not properly investigat[e]
claim[s] of sexual assault by women which violates their official duties to
protect the public equally.” Id. at 747.
And Lefebure’s operative complaint directly alleges how the failure of
the district attorney’s office to protect women violated her equal protection
rights. She alleges, for example, that:
D’Aquilla has “a history of discriminating against women . . . [and
has] failed to investigate or take seriously reports of sexual assault
from women and generally treat[ed] these allegations with less priority
than other crimes.”
D’Aquilla’s office “does not have a policy requiring rape kits and sexual assault examinations to be picked up and reviewed or sent to the
state crime lab for testing.”
D’Aquilla “created a danger of an increased risk of harm to Plaintiff
and other victims of sexual assault, which are disproportionately
women, by failing to investigate sexual assault crimes, [and] by fostering an environment whereby perpetrators of sexual assault are allowed
to prey on victims without fear of investigation.”
Lefebure also alleges that her rapist “knew of Defendant D’Aquilla’s
longstanding refusal to properly investigate sexual assault crimes against
women” and that this emboldened him to rape her. These allegations—that
the district attorney had a policy of not prosecuting sex crimes against women
and that Lefebure’s rapist knew about the policy (a plausible allegation since
he worked in law enforcement)—support a classic failure-to-protect claim.
31
Case: 19-30702 Document: 00516041830 Page: 32 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
This conclusion is not premised on abstract or conjectural causation,
and to the extent the majority relies on Linda R.S. to argue as such, I
respectfully disagree. In Linda R.S., appellant “made no showing that her
failure to secure support payments result[ed] from the nonenforcement, as
to her child’s father” of the challenged law. 410 U.S. at 618. Under the Texas
statute, even if the law was properly enforced, it would result in the child’s
father being incarcerated, not actual payment of child support. Thus, the
Supreme Court found only a speculative—not direct—relationship between
the injury and the claim sought to be adjudicated.
In contrast, Lefebure concretely alleges that Defendant D’Aquilla’s
known failure to properly investigate sexual assault crimes against women led
to her assault. Lefebure explains that after the attack, she saw for herself the
allegedly discriminatory enforcement practices that allegedly led to her rape:
the district attorney’s office did not pick up her rape kit for months and failed
to present it to the grand jury; no one from the office spoke to her about the
crime; and D’Aquilla failed to call relevant witnesses to testify before the
grand jury.3 Lefebure’s injuries are, at minimum, “fairly . . . trace[able]” to
Defendant D’Aquilla’s alleged failure to investigate. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992) (quoting Simon v. Eastern Ky. Welfare
Rights Org.,
426 U.S. 26, 41–42 (1976). Causation need only be “logical.”
Linda R.S.,
410 U.S. at 618. It appears, however, that the majority holds
Lefebure to a higher standard.
3
As the majority points out, Lefebure’s pleadings also refer to her attacker “not
be[ing] held accountable for his actions” and being “protect[ed] . . . from prosecution.”
But these allegations can be read not to argue for Boeker’s prosecution but to illustrate
D’Aquilla’s underenforcement of rape crimes. That is how the district court understood
her claims. Lefebure, 390 F. Supp. 3d at 747.
32
Case: 19-30702 Document: 00516041830 Page: 33 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
The bigger point is that even if some of Lefebure’s allegations are
unviable failure-to-prosecute claims, the others I have noted describe a
failure to protect. As the district court highlighted, Lefebure alleges a “longstanding” pattern of discrimination that played a role in her harm. Id. at 745–
46. Lefebure has maintained from the beginning that the district attorney’s
history of treating sexual assaults reported by women as less of a priority than
other crimes “foster[ed] an environment whereby perpetrators of sexual
assault [were] allowed to prey on victims,” including herself. She thus
articulates a failure-to-protect injury that we have recognized for at least
twenty years—and one that invokes the original concerns of the Equal
Protection Clause.
III. Origins of the Equal Protection Clause
Although courts first recognized failure-to-protect claims in the
1980s, see Shipp, 234 F.3d at 912, the seeds of these claims were sown more
than a century earlier. As its words indicate, the Equal Protection Clause
recognizes a right to equal enforcement of the law that encompasses equal
protection for crime victims. “‘Protection of the laws’ is, after all, a peculiar
way to express a general freedom from discrimination,” David P.
Currie, The Constitution in the Supreme Court: The
First Hundred Years, 1789-1888, at 349 (1985), and the language
reflects that “achieving equal protection against lawbreakers was at the core
of the Clause’s objectives.” Lawrence Rosenthal, Policing and Equal
Protection, 21 Yale L. & Pol’y Rev. 53, 70 (2003).
As a leading criminal law scholar explained: “When the Fourteenth
Amendment’s guarantee of the ‘equal protection of the laws’ was enacted,
one of its chief goals was to ensure that criminal law meant one law alike for
blacks and whites—that both ex-slaves and ex-slaveowners would be held to
the same legal standards, and that crime victims among both groups received
33
Case: 19-30702 Document: 00516041830 Page: 34 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
roughly the same measure of legal protection.” William J. Stuntz,
The Collapse of American Criminal Justice 6 (2011). Judge
Easterbrook succinctly described the Clause’s “original meaning”: “[I]f the
police and prosecutors protect white citizens, they must protect black
citizens too.” Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 901 (7th Cir.
2012) (en banc) (Easterbrook, C.J., concurring). Likewise, Professor Currie
has observed that the equal protection was originally understood “to mean
that the states must protect blacks to the same extent that they protect
whites: by punishing those who do them injury.” Currie, supra, at 349.
Congressional debates from the Fourteenth Amendment’s passage
reveal this original understanding of equal protection. Congressman
Thaddeus Stevens, co-chair of the Joint Committee on Reconstruction,
noted that the Clause would ensure that “[w]hatever law protects the white
man shall afford ‘equal’ protection to the black man. Whatever means of
redress is afforded to one shall be afforded to all.” Cong. Globe, 39th
Cong., 1st Sess. 2459 (1866). Another member of the Committee, Senator
Jacob Howard, remarked that the Clause “gives the humblest, the poorest,
the most despised of the race . . . the same protection before the law as it gives
to the most powerful, the most wealthy, or the most haughty.” Id. at 2766.
Failure-to-protect claims based on discriminatory enforcement of the law
therefore touch on the original concern of equal protection.4
This protection-centered understanding of the Clause has informed
courts’ approaches to modern cases involving discriminatory police
4
The majority opines that any plaintiff could simply replead every failure-toprosecute claim as a failure-to-protect claim. Maj. Op. at 21. This red herring conflates the
requirements of plausibly alleging a claim and establishing a basis for standing. A failure-toprotect claim would still be subject to the standing requirements of injury, causation, and
redressability. See Lujan, 504 U.S. at 560–61. And most failure-to-protect claims arise in
the context of a protected category—a scenario that does not always apply.
34
Case: 19-30702 Document: 00516041830 Page: 35 Date Filed: 10/05/2021
No. 19-30702
c/w No. 19-30989
practices. As one court put it, the “selective withdrawal of police protection,
as when the Southern states during the Reconstruction era refused to give
police protection to their black citizens, is the prototypical denial of equal
protection.” Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000)
(citing Slaughter–House Cases,
83 U.S. (16 Wall.) 36, 70 (1872); Currie,
supra, at 349); see also Del Marcelle,
680 F.3d at 889 (Posner, J.) (describing
“law enforcers who systematically withdraw protection from a group against
which they are prejudiced” as “the original target of the equal protection
clause”); Mody,
758 F. Supp. at 1028 (“An express or implied policy which
permits or condones attacks upon members of a particular minority group is
the very evil which the post-Civil War statutes sought to eradicate.”).
IV. Conclusion
Lefebure raises that prototypical equal protection claim, centered on
the injuries she alleges resulted from a discriminatory failure to enforce the
law when it comes to rape cases. A right to be free from discriminatory law
enforcement policies that enable crime is distinct from an affirmative right to
prosecution. As the injury Lefebure asserts is one caused by a policy of
discrimination, it implicates the chief original concern of equal protection.
This is an injury she has standing to vindicate.
For these reasons, Lefebure has alleged the type of failure-to-protect
claim that has long been cognizable. Such claims guard against the dangerous
and discriminatory underenforcement of the law based on a victim’s status.
Although it might be difficult for Lefebure to ultimately prove on the merits
that the district attorney’s policy, custom, or practice played a role in her
assault, she does have standing to pursue such a claim. Accordingly, I dissent.
35
