Qualified immunity for Arrest with failed sobriety test and negative breathalyzer


In August 2015, Francis G. “Buddy” Allemang was fifty-five years old and had recently suffered spinal injuries. Allemang had received medical treatment, including injections and various neck and back surgeries, for the pain associated with these injuries. He would be deemed disabled by a Social Security physician two years later in 2017.

But on August 21, 2015, he was stopped at a DWI checkpoint at 11 p.m. in Calcasieu Parish, Louisiana. Allemang was driving three passengers toward an RV park where they were all staying that evening. When Allemang approached the checkpoint, an unknown officer asked him whether he had consumed any alcohol that day, to which Allemang responded that he had four beers over a several-hour period, with the final beer “around 9:30” with dinner.

The officer then motioned for State Trooper Freddie Rogers to approach Allemang’s vehicle. Allemang repeated to Rogers that he had consumed four beers that evening, and Rogers would later assert in his incident report that he detected a faint to moderate odor of alcoholic beverage on Allemang’s breath. Rogers asked Allemang to submit to a standard field sobriety test (SFST). Allemang consented and exited his vehicle.

Before starting the SFST, Rogers asked Allemang whether there was any reason he could not perform the tests. Allemang said “yes” and explained his recent spinal injuries and surgeries, which he believed would impede his ability to complete the test’s physical portions. One of Allemang’s passengers echoed Allemang’s concerns to the officers, including that Allemang’s amblyopia could interfere with a nystagmus test. Rogers proceeded with the full SFST.

Rogers placed Allemang in front of his squad car and performed a horizontal nystagmus test followed by a one-leg stand test, a “heel-to-toe” test, and an “alphabet” test. Rogers last instructed Allemang to count backwards from 100. According to Rogers, Allemang had a lack of smooth pursuit in both eyes during the nystagmus test, and did not pass the various movement tests. Specifically, Rogers says that Allemang stopped once, stepped off the line once, and missed heel-toe contact five times during the walk-and-turn test. Rogers also says that Allemang was unable to stand on one leg for more than a few seconds. Rogers arrested Allemang for driving while intoxicated.

Rogers took Allemang to a nearby “Intoxilyzer Trailer” for a breath test. Rogers asked Allemang if he would submit to a Breathalyzer test, to which Allemang responded that he could not refuse the test because he would lose his commercial driving license for at least a year. Rogers retorted that Allemang would lose his license for a year anyway because he had just been arrested for a DUI. Allemang submitted to the Breathalyzer test, and blew a .000% blood-alcohol level.

Still believing that Allemang was intoxicated, Rogers asked whether Allemang had taken any medication that evening. Allemang answered that he had taken Aleve for back pain, Metformin for diabetes, and blood pressure medication. Despite the negative Breathalyzer test, Rogers took Allemang to Louisiana State Police Troop D headquarters to collect a urine sample and then sent him to Calcasieu Parish jail for booking. A few days later, Allemang’s urinalysis results reported no intoxicating drugs in his system when he was arrested. On February 1, 2016, the Calcasieu Parish District Attorney rejected Allemang’s DWI charge.

Allemang filed an administrative complaint with the Louisiana State Police, alleging that he had been improperly arrested. The State closed Allemang’s complaint, concluding that that Allemang’s allegations were unfounded.

Allemang then filed this suit against Rogers and the “State of Louisiana Through the Department of Public Safety” in August 2016. He alleged that Rogers violated his due process and privacy rights under the Louisiana Constitution, as well as “other rights provided by Louisiana law and the United States Constitution.” He later filed a supplemental petition alleging that Rogers is individually liable, as well as more clearly asserting wrongful arrest in violation of his Fourth and Fourteenth Amendment rights.

Rogers asserted qualified immunity in his answer to Allemang’s complaint, but the State’s private counsel did not assert Eleventh Amendment immunity or argue that the State could not be sued under 42 U.S.C. § 1983. The defendants then moved to dismiss under rule 12(b)(6).

On a magistrate judge’s recommendation and over Allemang’s objections, the district court entered summary judgment on: (i) Allemang’s individual-capacity claim against Rogers, finding that Rogers was entitled to qualified immunity; (ii) Allemang’s vicarious liability claims; and (iii) Allemang’s defamation claim. Allemang sought to appeal immediately, but we dismissed the appeal for lack of jurisdiction given that Allemang’s official-capacity claim and several state tort claims remained pending.

Some evidentiary wrangling followed the defendants’ second motion for summary judgment on Allemang’s remaining claims, with Allemang seeking to either depose more troopers or to admit affidavits from two retired State Police supervisors. The district court struck those affidavits for, among other reasons, lack of relevancy. The district court then granted the defendants’ second summary judgment motion and dismissed Allemang’s remaining claims with prejudice. This appeal followed. The 5th affirmed.


Allemang presents three overarching issues for our review. First, he asserts that the district court wrongly concluded that Rogers had reasonable suspicion to conduct the SFST or probable cause to arrest Allemang. Second, he says that the district court erred in dismissing his “Monell and Louisiana negligent training/supervision liability claims.” Third, he argues that the district court erred in striking the affidavits from the retired State Troopers.

A. Stop and arrest

We start with the most crucial question: whether Rogers violated Allemang’s constitutional rights by subjecting him to a SFST and then by arresting him despite Allemang’s explanation for his deficient SFST performance and clean Breathalyzer.

A1. Stop

Rogers did not observe any deficiency in Allemang’s driving. Rogers was brought to Allemang’s car after Allemang told another officer that he had consumed four beers that day, the first beer around noon, and the last beer with his evening meal, around 9:30 p.m., about an hour and half earlier. Allemang’s admission was enough to justify administering the SFST, as Louisiana courts have consistently held. Thus, Rogers had reasonable suspicion to ask Allemang to submit to a SFST.

A2. Probable cause

Whether Rogers had probable cause to arrest Allemang after the SFST, however, presents a much closer question. We conclude that the law does not conclusively establish probable cause on this question. But that uncertainty necessarily means that Rogers is entitled to qualified immunity, because there is no caselaw clearly establishing that Rogers acted unreasonably in arresting Allemang. See Parker.

When Rogers asked Allemang whether he was able to perform a field sobriety test, Rogers responded that his bad back would prevent him from doing so, and that his amblyopia might interfere with a nystagmus test. Nonetheless, Rogers proceeded with the SFST, including a nystagmus test, and then arrested Rogers based on Allemang’s poor performance. Allemang does not dispute that he was deficient on his SFST. Thus, the undisputed evidence shows Rogers based his arrest on the following information:

• Allemang admitted to drinking four beers;
• Rogers’ conclusion that Allemang failed the SFST (based on Rogers’ inability to perform the nystagmus test, inability to stand on one foot, and inability to perform the walk-the-line test); and
• A “faint to moderate” smell of alcohol on Allemang’s breath.

On the ledger’s other side, however, we have Allemang’s statement that his disabilities would inhibit his ability to perform the SFST and his subsequent negative Breathalyzer. Allemang does not dispute that he was deficient on his SFST. But he contends that any probable cause arising from the SFST dissipated when he blew a negative Breathalyzer.

The parties cite no circuit-level authority that addresses whether a clean Breathalyzer test negates probable cause for an arrest based on a failed SFST. Nor does there appear to be consensus among the district courts on the issue. Also lacking is any consensus or robust trend among the other circuits that we could join.

Against this mixed precedential backdrop, we must conclude that Rogers did not act unreasonably in light of then-prevailing caselaw. Accordingly, the district court did not err in finding that Rogers is entitled to qualified immunity against Allemang’s Fourth Amendment claim.

B. Monell claim

Allemang also appeals the district court’s dismissal of his claims against Rogers in his “official capacity.” The district court and both parties analyze this claim under Monell v. Department of Social Services, 436 U.S. 658 (1978). Allemang similarly avers in his briefing that the crux of his § 1983 Monell claim (and corresponding Louisiana claim) against the State sounds in its failure to sufficiently train its officers on the proper administration of SFSTs, especially insofar as it relates to disabled individuals.

According to Allemang, his claim against Rogers in his official capacity is a claim against the “State.” This is a correct description of official-capacity claims. However, a claim for damages against a state official in his official capacity or a state entity for an alleged unconstitutional policy or custom is barred by both Eleventh Amendment immunity and the rule that states are not “persons” under § 1983. The Louisiana State Police Department is a sub-unit of the Louisiana Department of Public Safety, an independent executive agency of the state government, and thus is not a cognizable Monell defendant. See La. Rev. Stat. § 36:401, et seq.

Though the defendants may have waived Eleventh Amendment immunity by not raising it,  § 1983—as interpreted by the Supreme Court— does not allow for suits against state entities or against state officials in their official capacities. Accordingly, the district court was correct, albeit for the wrong reasons, in dismissing Allemang’s § 1983 claims against the State of Louisiana.

C. Affidavits from retired troopers

Last, Allemang challenges the district court’s decision to strike the affidavits from retired Troopers Edgar and Reavis. But because Allemang offered those affidavits in support of his barred official-capacity claim, we need not address the district court’s evidentiary ruling.

In summary, we agree with the district court that Rogers is entitled to qualified immunity, but only because there is no caselaw clearly establishing that he acted unreasonably in proceeding to arrest Allemang for a failed SFST despite a negative breathalyzer. We further conclude that Allemang’s official-capacity claim against Rogers is not viable under § 1983. We therefore AFFIRM the district court’s judgment.