Gaines v. Asaro, et al

United States Court of Appeals
Fifth Circuit
F I L E D
July 9, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-31044
Summary Calendar
_______________
KENNETH GAINES,
Plaintiff-Appellant,
VERSUS
ARMANDO ASARO AND THE CITY OF NEW ORLEANS,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:05-CV-707
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Kenneth Gaines sued Armando Asaro and
the City of New Orleans under 42 U.S.C.
§ 1983 and Louisiana Civil Code article 2315.
The district court granted summary judgment
for the defendants, and we affirm.
I.
In March 2004, Gaines entered a grocery
store to purchase cigarettes. He was followed
by two masked men who ordered the employ-
ee behind the counter to “get down.” Upon
noticing the men, Gaines began moving slowly
toward the exit. One of the men then shot and
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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killed the employee, and Gaines and both
assailants quickly left the store. The incident
was captured by a surveillance camera.
An enhanced version of the surveillance
tape was played on the local news, and Gaines
was recognized by a New Orleans Police
Department (“NOPD”) officer who also
worked as a security officer at Gaines’s place
of employment. Homicide investigators
showed the tape to Gaines’s supervisor, who
confirmed his identity. When Gaines arrived at
work that evening, he agreed to go to the
police station for questioning and was trans-
ported there by three officers.
Asaro, a NOPD officer, was designated the
lead detective for the investigation of the mur-
der. He took a statement from Gaines, who
admitted that he was present at the shooting
but denied involvement in the crime. When
asked why he did not call police after witness-
ing the shooting, Gaines said that he had no
telephone but had planned to contact police
after he arrived at work that evening. Asaro
also took statements from two witnesses who
had been outside the store at the time of the
crime. Gaines was arrested on suspicion of
having participated in the murder and was in-
carcerated for two weeks, at which time a
judge found no probable cause for his arrest
and ordered him released.
This suit followed, with Gaines asserting
that his arrest was made without probable
cause in violation of the Fourth and Fourteenth
Amendments of the U.S. Constitution, and
thus that Asaro and the city are liable under
§ 1983.1 Gaines also claims defendants are
liable under article 2315 because the actions of
the officers constituted false arrest and battery.
The district court granted summary judg-
ment, finding that the evidence available to
Asaro “most definitely” supported the decision
to arrest Gaines. That conclusion was based
primarily on the surveillance tape and the fact
that Gaines did not immediately report the
shooting to police.
The court noted that the tape established
that Gaines entered and exited the store nearly
simultaneously with the assailants, who ap-
peared to ignore him, did not give him any in-
structions, and walked right past him on their
way to the counter. Gaines slowly backed up
after the assailants reached the counter, and
after the employee was shot, Gaines and both
assailants quickly left the store. The court also
found that, in light of the short time between
the entry of Gaines and that of the assailants,
it was highly likely that he had encountered
them outside the store, and thus his decision to
enter shortly before two masked men indicates
his involvement in the crime.
II.
“This Court reviews grants of summary
judgment de novo, applying the same standard
as the district court, viewing the evidence in a
light most favorable to the non-movant.”
Fruge ex rel. Fruge v. Parker Drilling Co.,
337 F.3d 558, 560 (5th Cir. 2003). Gaines
claims that the court’s characterization of the
surveillance tape was incorrect, that it improp-
erly considered, in its analysis of probable
cause, Gaines’s failure to report the crime
immediately, and that it erred in finding that
probable cause was not negated by Asaro’s
1 Before summary judgment was granted,
Gaines dismissed his claims against Walls,
(continued...)
1(...continued)
McCleary, Ward, and Chiasson.

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failure to ask certain questions during his inter-
view of the witnesses.
After reviewing the tape, we agree with the
district court’s characterization of it. Gaines
enters the store, and the masked men follow a
few seconds later, before the door has swung
completely shut. The assailants ignored
Gaines, a potential witness to their crime; one
of them even bumped into him while ap-
proaching the counter and did not react at all
to the physical contact. Gaines slowly moved
out of the way of the assailants and did not
move quickly to leave the store until after the
shot had been fired, at which time all three
men exited simultaneously. As the district
court found, “[t]o say the least, Gaines’ ac-
tions, when viewed in connection with the ac-
tions of the other two men, are suspicious.”
Gaines contends that it was improper for
the district court to give weight, in the proba-
ble cause analysis, to the fact that he did not
contact authorities. He bases this argument on
his claim that individuals in high crime areas
generally do not report crimes, and he sup-
ports the claim by noting that the other wit-
nesses did not come forward voluntarily.
This does not, however, respond to the
court’s conclusion that Gaines was situated
differently from the other witnesses because
they were outside the store at the time of the
murder, but Gaines was only a few feet from
the assailants. It was not error for the court to
consider, in the probable cause analysis,
Gaines’s refusal to contact police after he had
been in such close proximity to the gunman at
the time of the murder.
Gaines claims that even if the tape, and his
failure to report the crime immediately, estab-
lish probable cause, that cause should be ne-
gated because Asaro did not adequately ques-
tion the two witnesses about Gaines’s involve-
ment in the crime. Gaines cites cases from our
sister circuits describing the general duty of
law enforcement officers to conduct a rea-
sonable investigation of the available evidence
before making an arrest. We are not bound by
the decisions of other circuits and, in any
event, Asaro did not run afoul of them.
Gaines cites Moore v. Marketplace Rest.,
Inc., 754 F.2d 1336 (7th Cir. 1985), in which
the court reversed a grant of summary judg-
ment because it found insufficient evidence of
probable cause for an arrest. The plaintiffs
were arrested and jailed overnight for failing to
pay a restaurant bill that they claimed they had
offered to pay. The only evidence was the
accusation of the restaurant’s owner, and other
than collecting this self-serving accusation, the
police conducted no investigation. Gaines also
refers to Kuehl v. Burtis, 173 F.3d 646 (8th
Cir. 1999), in which an officer arrested the
plaintiff for assault after she pushed her way
around a man who had been threatening her to
reach a phone and call for help. After she
touched the man, he had hit her in the head,
knocking her eight feet through the air and
causing marked bruising. The officer ignored
the plaintiff’s statements, her bruises, and
several witness accounts before arresting her
for assault.
By way of contrast, Asaro’s investigation
went beyond the interview of the two witness-
es. He had a videotape of the crime showing
Gaines acting suspiciously in close proximity
to the murder and an admission from Gaines
that he did not immediately report the crime.
Asaro also questioned the two witnesses, one
of whom described seeing Gaines. Though
neither witness saw any communication be-
tween Gaines and the two assailants before or

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after the incident, this does not negate the
incriminating evidence that Asaro already pos-
sessed. The fact that Asaro did not ask further
questions about Gaines’s involvement does not
negate the probable cause based on the evi-
dence he had already obtained through his
investigation.
In sum, the district court’s characterization
of the surveillance tape and of Gaines’s failure
to contact police was not error, and Asaro’s
failure to ask specific questions of the witness-
es did not negate probable cause. Accord-
ingly, we AFFIRM the summary judgment for
essentially the reasons stated in the court’s
order dated September 1, 2006.2
2 Gaines also claims that the court erred in find-
ing that, even if probable cause was lacking, Asaro
is entitled to qualified immunity. Because we
decide Gaines’s first two claims against him and
affirm the court’s finding that probable cause
existed to arrest Gaines, we do not reach this issue.

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