Unreported / Non-Citable
Background
Red Rover Group, L.L.C. operated a business in Bossier City, Louisiana, next door to Steven Pennell, the City’s Deputy Chief of Operations. At Pennell’s behest, the City issued Red Rover multiple citations for violating two municipal noise ordinances — referred to in the litigation as the “Barking Ordinances” — found in Sections 14-63(c) and 46-31(b)(4) of the City’s Code of Ordinances. Red Rover filed suit in the Western District of Louisiana against the City and against Pennell, Wade Rich, and Rodney Taylor in their individual capacities, alleging a coordinated and unlawful enforcement campaign.
Red Rover’s complaint raised federal constitutional claims under the Equal Protection Clause of the Fourteenth Amendment and a void-for-vagueness challenge to the ordinances themselves. It also asserted Monell claims against the City for maintaining an unconstitutional policy and for failure to train, sought injunctive relief against the individual officers, and brought parallel state law claims. The individual defendants invoked qualified immunity. Both the City and the individual defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), and the district court granted both motions in full. Red Rover timely appealed.
On appeal, Red Rover argued that its allegations were sufficient to survive the pleading stage across all claims. It conceded before the district court that its official-capacity claims against the individual defendants were duplicative of the claims against the City and did not pursue them on appeal; it also abandoned its failure-to-intervene Monell theory by failing to brief it.
The Court’s Holding
The Fifth Circuit affirmed the dismissal of every claim. On the equal protection challenge, the court held that Red Rover failed to identify a sufficiently similarly situated comparator. Red Rover pointed to an entertainment district across town that had not received noise citations, but the district court found — and the Fifth Circuit agreed — that the comparison was fatally flawed: Red Rover did not allege that any noise complaints had ever been filed against the entertainment district, so the absence of citations there was unremarkable. Without an adequate comparator, the class-of-one equal protection theory could not proceed even at the pleading stage.
On vagueness, the court held that the Barking Ordinances were not impermissibly vague. Applying the standard from Roy v. City of Monroe, the court found that the plain language of the ordinances gives a person of ordinary intelligence fair notice of what conduct is prohibited. The ordinances impose no criminal penalties and do not restrict constitutionally protected conduct, conditions that would require a more demanding vagueness analysis. The court drew a favorable comparison to noise ordinances upheld in Leibowitz v. City of Mineola.
Because neither underlying constitutional claim survived, the Monell policy and failure-to-train claims necessarily failed — Hicks-Fields v. Harris County requires a predicate constitutional violation for any Monell theory. The same absence of a constitutional violation defeated qualified immunity analysis (the individual defendants were entitled to immunity) and required dismissal of the injunctive relief requests, which must rest on a viable underlying cause of action. Red Rover’s state law claims, which it conceded rose and fell with its constitutional claims, were likewise dismissed.
Key Takeaways
- A class-of-one equal protection claim requires a genuinely comparable business; a comparator that never attracted complaints cannot show disparate treatment, and courts may scrutinize comparator adequacy at the Rule 12(b)(6) stage.
- Municipal noise ordinances using plain, ordinary-language standards are not void for vagueness when they provide fair notice of prohibited conduct, carry no criminal penalties, and do not burden constitutional rights.
- Monell policy claims and failure-to-train claims are derivative and collapse when no underlying constitutional violation is established, as does any request for injunctive relief lacking a viable predicate cause of action.
- Individual government defendants retain qualified immunity where the plaintiff fails to plead a constitutional violation in the first place — the immunity analysis need not proceed further.
Why It Matters
The decision reinforces that constitutional challenges to local noise enforcement face significant pleading hurdles. Businesses that believe they are being singled out for selective enforcement must identify a genuine comparator — one similar in all relevant respects, including having generated complaints — before an equal protection theory can survive dismissal. Merely pointing to another business that escaped citation is not enough if the circumstances of their situations differ in ways that could explain the differential treatment.
The ruling also illustrates the derivative nature of Monell liability: even where a municipal ordinance can qualify as official policy for Monell purposes, the entire structure of § 1983 municipal liability collapses if the plaintiff cannot first establish a constitutional violation. Practitioners litigating selective-enforcement or municipal-policy cases in the Fifth Circuit should treat the underlying constitutional merits as the threshold question, because every ancillary claim — Monell, failure to train, injunctive relief, and pendent state claims — depends on its success.