Heaney v. Roberts et al, No. 2:2014cv02104 - Document 55 (E.D. La. 2015)
Court Description: ORDER granting in part and denying in part 36 Motion for Summary Judgment; granting in part and denying in part 37 Motion for Summary Judgment. Signed by Judge Jay C. Zainey on 12/1/15. (jrc)
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Heaney v. Roberts et al Doc. 55 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TOM HEANEY CIVIL ACTION VERSUS NO: 14-210 4 CHRISTOPHER L. ROBERTS, ET AL. SECTION: "A" (2) ORD ER AN D REASON S The following m otions are before the Court: Mo tio n fo r Su m m ary Ju d gm e n t ( Re c. D o c. 3 7) filed by defendants Christopher L. Roberts and the Parish of J efferson; Mo tio n fo r Su m m ary Ju d gm e n t ( Re c. D o c. 3 6 ) filed by defendants Ronald Black and the City of Gretna. Plaintiff Tom Heaney opposes the m otions. The m otions, noticed for subm ission on August 12, 20 15, are before the Court on the briefs without oral argum ent.1 For the reasons that follow, both m otions are GRANTED IN PART AND DENIED IN PART. I. BACKGROU N D Plaintiff Tom Heaney has filed this com plaint pursuant to 42 U.S.C. § 1983 and state law. Heaney contends that the defendants violated his constitutional rights during a J efferson Parish Council m eeting. The defendants are Councilm an Christopher L. Roberts, the Parish of J efferson, Gretna police officer Ronald Black, and the City of Gretna. Heaney alleges that he attended the regularly scheduled J efferson Parish Council m eeting on Septem ber 18, 20 13, which was held in Gretna, Louisiana. (Rec. Doc. 1, Com plaint ¶ 3). Heaney was registered to speak that night during the tim e allotted for public com m ent. Roberts was presiding as chair of the m eeting. Per council rules, Heaney was 1 Roberts and J efferson Parish have requested oral argum ent but the Court is not persuaded that oral argum ent would be helpful. 1 Dockets.Justia.com allotted five m inutes to speak. (Id. at 3). Heaney expressed his opinion on the legality of certain cam paign contributions by no-bid contractors and he contends that having used only three m inutes of his tim e, Roberts asked him to yield the floor so that the Parish Attorney could opine on the issue. (Com plaint ¶¶ 6-7). Heaney asked that he be allowed the full balance of his rem aining tim e allotm ent, and Roberts confirm ed that he would receive it. (Id.). When Heaney began speaking again he challenged the Parish Attorney's legal opinion, which he contends was done in a "calm " voice, using no inappropriate language. (Com plaint ¶ 8). Heaney alleges that it was at this point that Roberts "rudely" interrupted him , and m ischaracterized his "polite" disagreem ent as "berrating" the parish attorney. (Id.). Roberts then had defendant Ronald Black, a police officer with the City of Gretna, rem ove Heaney from the council cham bers. (Id.). Heaney contends that Black shoved him to the floor and then fell on top of him before forcibly rem oving him from the building. (Id. ¶ 10 ). Heaney filed the instant com plaint on Septem ber 12, 20 14. Heaney contends that Roberts and Black prevented him from exercising his First Am endm ent rights, and violated his Fourth Am endm ent rights by unlawfully seizing him . (Com plaint ¶ 12). Heaney seeks dam ages and attorney's fees pursuant to 42 U.S.C. §§ 1983 and 1988, and punitive dam ages. Original jurisdiction is therefore grounded on 28 U.S.C. § 1331 (federal question). Heaney also asserts claim s under state law against Roberts and Black. Both defendants are sued for violations of the Louisiana Constitution, Article I, § 7. Heaney alleges that Black is also liable in tort. (Com plaint ¶ 12). For these state law claim s, Heaney joined J efferson Parish and the City of Gretna, alleged to be the em ployers of Roberts and Black, respectively. (Id. ¶ 2). Heaney contends that J efferson Parish is vicariously liable for the conduct of Roberts and that the City of Gretna is vicariously liable for the conduct of Black. 2 (Id. 14). All defendants now m ove for sum m ary judgm ent on Heaney's claim s. II. D ISCU SSION Sum m ary judgm ent is appropriate only if "the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any," when viewed in the light m ost favorable to the non-m ovant, "show that there is no genuine issue as to any m aterial fact." TIG Ins. Co. v. Sedgw ick Jam es, 276 F.3d 754, 759 (5th Cir. 20 0 2) (citing Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a m aterial fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-m oving party. Id. (citing Anderson, 477 U.S. at 248). The court m ust draw all justifiable inferences in favor of the non-m oving party. Id. (citing Anderson, 477 U.S. at 255). Once the m oving party has initially shown "that there is an absence of evidence to support the nonm oving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-m ovant m ust com e forward with "specific facts" showing a genuine factual issue for trial. Id. (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials, speculation, im probable inferences, unsubstantiated assertions, and legalistic argum entation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 10 93, 10 97 (5th Cir. 1993)). 3 A. Firs t Am e n d m e n t/ State Co n s titu tio n Claim s 2 Roberts argues that he did not violate Heaney's First Am endm ent right to free speech because the council m eeting was a lim ited public forum which gives a m oderator in Roberts' position the discretion to place reasonable, viewpoint-neutral restrictions on speech. According to Roberts, he only restricted Heaney's speech and rem oved him from the m eeting when his speech becam e repetitive, disruptive, and hostile. Thus, according to Roberts, Heaney cannot establish that he suffered a First Am endm ent violation. Roberts argues that if he did violate Heaney's First Am endm ent rights, he is entitled to qualified im m unity. Roberts' contention with respect to qualified im m unity is that his actions were objectively reasonable, and that on Septem ber 18, 20 13, the law was not clearly established such that the actions he took constituted a First Am endm ent violation. Heaney does not dispute Roberts' contention that the parish council m eeting was a lim ited public forum , and as such Roberts, as chair of the m eeting, could im pose reasonable and viewpoint-neutral restrictions on the public speakers. But Heaney contends that Roberts cut him off and prevented him from speaking because he attem pted to rebut the legal opinion given by the parish attorney, and to opine that parish council m em bers were violating federal law by accepting cam paign contributions from no-bid contractors. Heaney posits that the 2 The parties agree that separate determ inations of Plaintiff's federal and state free speech claim s are unnecessary because federal standards apply to the state claim s. (Rec. Doc. 371, Roberts' Mem o in Support at 5); (Rec. Doc. 41, Heaney's Opposition at 7 n.12). But see State v. Schirm er, 646 So. 2d 890 , 90 4-0 5 (La. 1994) (Dennis, J ., concurring) (suggesting that the protections of Article I, § 7 of the state constitution are arguably broader than those under the First Am endm ent). Although the parties did not expressly m ention the qualified im m unity defense when noting that federal standards will apply to the claim s under the state constitution, this Court's Erie determ ination is that the Louisiana Suprem e Court would recognize the sam e qualified im m unity defense for claim s under Article I, § 7 of the state constitution that the federal courts recognize for § 1983 First Am endm ent claim s. See Moresi v. State Dep't of W ildlife & Fisheries, 567 So. 2d 10 81, 10 94 (La. 1990 ) (holding that the sam e qualified im m unity defense available under § 1983 applies to a claim under Article I, § 5 of the Louisiana State Constitution). Unless otherwise stated, references to "the First Am endm ent claim " refer to the federal and state freedom of speech claim s collectively. 4 restrictions that Roberts put on his speech were clearly content-based because Roberts was trying to silence Heaney's m essage, and that Roberts' attem pt to justify his actions by characterizing Heaney as hostile or disruptive is m erely pretextual. Public bodies m ay confine their m eetings to specified subject m atter and m ay hold nonpublic sessions to transact business. Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 759 (5th Cir. 20 10 ) (quoting City of Madison Joint Sch. Dist. v. W isconsin Em ploy . Relations Com m 'n, 429 U.S. 167, 175 n.8 (1976)). A city council m eeting is generally recognized to be a "lim ited public forum ," which m eans that the governm ent does not have to allow persons to engage in every type of speech. Id. (quoting Good New s Club v. Milford Cent. Sch., 533 U.S. 98 (20 0 1)). In lim ited public forum s, the governm ent m ay im pose reasonable, viewpointneutral restrictions on speech to preserve "the civility and decorum " necessary to further the purpose of the m eeting. Ream v. City of Heath, No. 14-4338, 20 15 WL 439330 7, at *3 (N.D. Tex. J uly 16, 20 15) (quoting W enthold v. City of Farm ers Branch, No. 11-748, 20 12 WL 467325, at *7 (N.D. Tex. Feb. 14, 20 12)). Therefore, consistent with the First Am endm ent, the governing body m ay restrict speakers to the subject at hand, im pose tim e lim its on speakers, and prevent disruptions of the m eeting. W enthold, 20 12 WL 467325, at *8 (citing Steinburg v. Chesterfield County Plan. Com m 'n, 527 F.3d 377, 385 (4 th Cir. 20 0 8)). The governm ent cannot under any circum stances, however, restrict speech based on viewpoint, and even viewpoint-neutral restrictions m ust be reasonable in light of the forum 's purpose. Fairchild, 697 F.3d at 760 . The determ ination of whether any restrictions on speech were viewpointbased turns upon the facts of each case.3 W enthold, 20 12 WL 467325, at *8 (citing Content 3 The Court recognizes that a parish council m eeting like the one at issue in this case is not ipso facto a lim ited public forum . See Fairchild, 597 F.3d at 759 n.42. Because the governm ent is free to conduct a public m eeting without any restrictions on the speakers, a council m eeting can conceivably be a "designated public forum ," which affords speakers even greater protections under the First Am endm ent. In this case, the parties do not dispute that the Septem ber 18, 20 13 m eeting was a lim ited public forum , and both the parish ordinances covering 5 and View point Discrim ination: Malleable Term s Beget Malleable Doctrine, 13 Com m . L. & Pol'y 131, 180 (20 0 8)). At the outset, the Court notes that there are no ostensible factual disputes regarding Heaney's and Roberts' conduct pertaining to the First Am endm ent claim because Defendants have provided the Court with the video (including audio) of the Septem ber 18, 20 13 council m eeting. That video clearly presents the exchange between Roberts and Heaney that culm inated in Heaney's expulsion from the council m eeting. The video is consistent for the m ost part with the factual allegations in Heaney's com plaint. As the Court explained when it denied Roberts' Rule 12(b)(6) m otion to dism iss, if Roberts acted because of the content of Heaney's speech as opposed to Heaney's allegedly disruptive conduct then Heaney's rights were violated. (Rec. Doc. 24, Ruling on Roberts' MTD at 4). Roberts' contention that sum m ary judgm ent is appropriate because Heaney's First Am endm ent rights were not violated as a m atter of law turns on the sam e contention that Roberts' counsel m ade in support of the m otion to dism iss, i.e., that Roberts acted not because of the content of Heaney's speech or his viewpoint but because Heaney was disrupting the m eeting and "berrating" the parish attorney—in other words, that Roberts' actions constituted viewpoint-neutral restrictions. But what defense counsel's argum ent fails to recognize is that the pivotal question with respect to the First Am endm ent claim is one of Roberts' m otive or intent in silencing and ejecting Heaney. If Roberts acted because of Heaney's viewpoint as opposed to his conduct, then Heaney suffered a First Am endm ent violation. Thus, im proper m otive is an elem ent of Heaney's First Am endm ent claim . Subjective questions of m otive or intent are issues of fact that are jury determ inations not council m eetings and the video of the m eeting itself confirm that designation. (Rec. Docs. 37-2 & 37-4, Exhibits 1 & 3). Because the parish council m eeting was a lim ited public forum as opposed to a designated public forum , Roberts could, consistent with the First Am endm ent, place reasonable, viewpoint-neutral restrictions on the speakers. 6 resolvable on sum m ary judgm ent. Defense counsel's position fails because in order to adopt it, the Court would have to resolve the subjective question of intent in his favor based on the video evidence. But the video evidence in this case does not resolve the factual dispute regarding Roberts' subjective intent. It is obvious from the video that Heaney was confrontational and argum entative in the exchange with Roberts. On the video Roberts characterized Heaney as being "hostile." But Heaney's conduct was not so disruptive that this Court could properly decide as a m atter of law that Roberts' actions were not m otivated, even if in part, by Heaney's m essage. For exam ple, it is not beyond dispute that an attem pt to express disagreem ent with the parish attorney would be "berrating" her given that Heaney's rem arks did not suggest any type of ad hom inem attack.4 Heaney did interrupt Roberts while he was trying to speak but Heaney was never warned that he would be ejected from the public m eeting as a sanction if he continued 4 At this juncture the Court finds it appropriate to point out a distinction in the First Am endm ent jurisprudence that neither party has addressed: the distinction between a contentbased restriction on speech and a viewpoint-based restriction on speech. Viewpoint-based restrictions on speech are per se violative of the First Am endm ent. Content-based restrictions can, however, under som e circum stances qualify as valid tim e, place, and m anner restrictions on speech, particularly in a lim ited public forum like the council m eeting. See, e.g., Jones v. Tow n of Quartzsite, No. 12-1383, 20 14 WL 4771851 (D. Ariz. Sept. 24, 20 14) (citing Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9 th Cir. 20 10 ). For instance, if Heaney had wanted to address the council about parking m eters in Orleans Parish, Roberts could have validly prohibited him from doing so because such a topic would be wholly off-subject and beyond the scope of the J efferson Parish Council's business and control. A content-based restriction of this nature surely could pass m uster under the appropriate level of scrutiny. And assum ing that all other speakers were likewise prohibited from speaking about parking m eters in Orleans Parish, the restriction would not be viewpoint-based. See Tex. Div., Sons of Confed. Vets., Inc. v. Vandergriff, 759 F.3d 388, 397 (5 th Cir. 20 14) (discussing the distinction between content-based and viewpoint-based restrictions), reversed on other grounds, W alker v. Tex. Div., Sons of Confed. Vets., Inc., 135 S. Ct. 2239 (20 15); Monteiro v. City of Elizabeth, 436 F.3d 397, 40 7 (3d Cir. 20 0 6) (Fisher, J ., dissenting). When the Court encountered this distinction in the law during the course of its own research the Court was rem inded that on the video Roberts tried to explain to Heaney that a parish council m eeting was not the proper venue for challenging the legal opinions of the parish attorney, and that if Heaney wanted to do so, he could go downstairs to the clerk's office and file a lawsuit. (Rec. Doc. 37-2, Exhibits 1). The Court is not suggesting that such an argum ent would have carried the day for Roberts had he raised it but there m ight be som e validity to it. 7 to interrupt. The video does not suggest that Heaney's conduct was inciting disorder am ong the other attendees at the m eeting or that public safety was becom ing an issue. Black testified that the exchange between Heaney and Roberts had not caught his attention prior to Roberts instructing Black to rem ove Heaney. (Rec. Doc. 36-3, Exhibit C Black depo at 25-26). And the video dem onstrates that the m ost "hostile" or disruptive part of the exchange between Heaney and Roberts occurred after Roberts had already silenced Heaney and ordered him rem oved from the m eeting. Although the Court can envision a situation where video evidence m ight establish that the plaintiff's conduct was so disruptive or egregiously inappropriate so as to leave no fact question that truncation of speech and ejection from a m eeting were appropriate, this is not such a case.5 In this case, particularly in light of the som ewhat unpalatable subject m atter that Heaney was attem pting to discuss, i.e., that council m em bers were violating federal law, a jury could reasonably infer that Roberts silenced Heaney and rem oved him from the m eeting because of the content of his speech as opposed to a need to m aintain order at the m eeting.6 In the end the question becom es one of Roberts' credibility in 5 The Court is not necessarily suggesting that the question of subjective intent can be resolved on sum m ary judgm ent when video evidence depicts particularly egregious behavior by the plaintiff. But at tim es, the plaintiff's conduct m ight be so objectively obstreperous and disruptive so as to allow a court to credit a defendant's contention on sum m ary judgm ent that regardless of unconstitutional m otive, the defendant would have taken the sam e actions anyway. See Monteiro v. City of Elizabeth, 436 F.3d 397, 40 8 (3d Cir. 20 0 6) (Fisher, J ., dissenting). In Craw ford, infra, note 9, the Suprem e Court referred to this as “causation.” 523 U.S. at 593. Even if the plaintiff establishes that im proper m otive played a role in the defendant’s conduct, the defendant m ight nonetheless prevail by showing that he would have taken the sam e actions in light of the plaintiff’s conduct. Id. In this case, Roberts does not m ake such an argum ent, and even if he had, he could not prevail on sum m ary judgm ent because the Court is not persuaded that Heaney's conduct was objectively offensive enough to support such an argum ent as a m atter of law. The argum ent could be persuasive to a jury. 6 The Court clarifies that it in no way is suggesting that Heaney's conduct was insufficient as a m atter of law to support the actions that Roberts took if those actions were not actuated by an im proper m otive. The Court stresses that the proper inference to be drawn from the evidence, regardless of in whose favor it is drawn, is a question of fact to be resolved by the jury. 8 explaining his reasons for the actions that he took.7 Even though this Court, upon viewing the video, could understand why Roberts did what he did, it is the sole province of the jury to judge a party's credibility.8 For these reasons, Defendants are not entitled to sum m ary judgm ent based on the contention that Heaney's First Am endm ent rights were not violated as a m atter of law. That said, Roberts contends that he is entitled to qualified im m unity on the First Am endm ent claim . As a general rule, governm ent officials acting within their discretionary authority are im m une from civil dam ages if their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known. Hernandez v. Tex. Dept. of Prot. & Reg. Servs, 380 F.2d 872, 879 (5th Cir. 20 0 4) (citing Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982)). The qualified im m unity analysis is a two-step inquiry. First, a court m ust decide whether a plaintiff's allegation, if true, establishes a violation of a clearly established constitutional right. W y att v. Fletcher, 718 F.3d 496, 50 2 (5th Cir. 20 13) 7 Defense counsel argues that Heaney's speech was repetitive thereby justifying Roberts' actions. Defense counsel also points out that under the council's rules, a speaker is not guaranteed an entire five m inute allotm ent to address the council, but only "no m ore than five (5) m inutes." (Rec. Doc. 37-4, Roberts Exhibit 3 at 3). To the extent that Defendants characterize Heaney as being repetitive because other citizens had already spoken on a sim ilar topic, this type of repetitiveness would hardly justify silencing Heaney. Roberts did indicate on the video that Heaney was addressing the council for the third tim e on the topic of cam paign contributions from no-bid contractors. But the video does not support the contention that Roberts cut Heaney's speaking tim e because he was being repetitive by speaking for a third tim e. To the contrary, the video supports the inference that notwithstanding the allegedly repetitive nature of the address, Roberts originally had intended to give Heaney the entire five m inutes allowed under the rules. And there is no indication that Heaney or any other speaker had addressed the council about legal authority that was contrary to the parish attorney's opinion. Thus, while silencing a speaker based on repetitiveness can in som e circum stances constitute a valid viewpoint-neutral restriction, defense counsel's argum ent based on repetitiveness is not a persuasive one in this case. 8 Roberts did not subm it an affidavit in support of his m otion for sum m ary judgm ent and the record contains no deposition testim ony from him . The Court notes, however, that even with sworn statem ents from Roberts as to his intent the video would create an issue of fact precluding sum m ary judgm ent. 9 (citing Jones v. City of Jackson, 20 3 F.3d 875, 879 (5th Cir. 20 0 0 )). A right is clearly established only if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (quoting W ooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 20 0 0 )). If the first step is m et, i.e., the official's conduct violates an established right, then the second step is to determ ine whether the defendant's conduct was objectively reasonable. Id. (citing Jones, 20 3 F.3d at 879). An official's conduct is ordinarily not objectively reasonable if it violates a clearly established right because "a reasonably com petent public official should know the law governing his conduct." Guillory v. Thom as, 355 Fed. Appx. 837, 841 (5th Cir. 20 0 9) (unpublished) (quoting Harlow , 457 U.S. at 818-19). For the reasons that the Court has already explained, the first step in the qualified im m unity analysis, i.e., whether Heaney has established a violation of his First Am endm ent rights, presents an issue of fact as to subjective intent that cannot be resolved on sum m ary judgm ent. The Court m ust therefore assum e solely for purposes of the qualified im m unity analysis that Roberts did in fact violate Heaney’s First Am endm ent rights, i.e., that Roberts’ conduct was m otivated by viewpoint discrim ination. It is beyond cavil that a reasonable governm ent official in Roberts’ position would have known that it would be im perm issible under the First Am endm ent to prevent Heaney from speaking and to eject him from the m eeting based on the m essage that he was conveying. If Roberts’ conduct was m otivated by an im proper constitutional m otive then ejecting Heaney from the m eeting would be objectively unreasonable and qualified im m unity would be unavailable as a defense. The erroneous prem ise that pervades defense counsel's argum ents in support of qualified im m unity is the contention that the video evidence elim inates the possibility of im proper m otive and renders Roberts' actions objectively reasonable under the circum stances. To the contrary, as the Court has already explained, the video evidence m erely presents a scenario 10 from which the trier of fact m ay or m ay not conclude that im proper m otive played a role in Roberts’ actions. Roberts is not entitled to qualified im m unity in light of the disputed issues of fact surrounding subjective intent.9 Heaney contends that Ronald Black is also liable for violating his First Am endm ent rights. The video dem onstrates that Black only approached Heaney and rem oved him from the council cham bers after Roberts instructed him to do so. Heaney takes issue with the suggestion that Black was m erely following Roberts’ orders, and that the First Am endm ent violation was already com plete when Black approached Heaney at the lectern.10 (Rec. Doc. 40 , Heaney’s Opposition at 11). Heaney also argues that no aspect of state law gave Black “the authority to act as a bouncer for Roberts.” (Rec. Doc. 40 , Heaney Opposition at 11). The Court recognizes that in this circuit police officers who m erely carry out the orders of their superiors are not entitled to qualified im m unity on that basis alone. See Cozzo v. Tangipahoa Par. Council, 279 F.3d 273 (5th Cir. 20 0 2). And in this case Roberts was not 9 In Craw ford v. Britton, 523 U.S. 574 (1998), the Suprem e Court confronted the dicey issue of qualified im m unity, which strives to turn solely on objective determ inations, in the case of a constitutional tort such as First Am endm ent retaliation which requires proof of im proper m otive as an elem ent of the plaintiff’s claim . In that decision the m ajority declined to fashion a special rule that would protect a defendant’s right to qualified im m unity in cases involving im proper m otivation—cases that would frequently involve a disputed issue of fact that would preclude sum m ary adjudication. Id. at 60 0 -0 1. 10 The suggestion that the First Am endm ent violation began and ended with Heaney’s speech would be ignoring the fact that as a citizen Heaney had a First Am endm ent right to attend a public m eeting. See Laskow si v. Sny der, No. 0 5-50 2, 20 0 7 WL 118535 (N.D. Ind. J an. 10 , 20 0 7) (exam ining First Am endm ent im plications of rem oving a citizen from a public m eeting); Tim m on v. W ood, No. 0 5-127, 633 F. Supp. 2d 453 (Apr. 21, 20 0 8). Black tries to m ake m uch of the fact that Heaney never asked whether he could stay in the building or the council cham bers, (Rec. Doc. 36-1, Black Mem orandum at 4), but from the video it would appear that he never had the chance. The order to rem ove Heaney cam e without a prior warning and it was perem ptory in nature. Heaney was not required to force the police to drag him out in order to evince a desire to stay at the m eeting even if he could not continue to be heard. See Laskow ski, 20 0 7 WL 118535, at *3 n.2 (citing Dom brow ski v. Pfister, 380 U.S. 479, 486 (1965) (explaining that plaintiff's decision to leave on his own does not affect the First Am endm ent analysis where the defendant ordered him rem oved and in fact attem pted to rem ove him ). 11 even Black’s superior on the police force. But m em bers of the Gretna Police Departm ent provide security at the council m eetings, and judging from the video of the m eeting, they fulfill the role of sergeant-at-arm s for the m eetings. This Court is persuaded that no officer in Black’s position would have understood that acting in obedience to a presum ptively valid request by the council chairm an to rem ove a citizen following an argum entative exchange with a council m em ber would violate that citizen’s First Am endm ent rights. See Collinson v. Gott, 895 F. 2d 994, 10 0 4-0 5 (4 th Cir. 1990 ); Osborne v. Lohr-Robinette, No. 0 5-10 6, 20 0 6 WL 3761597, at *6 (S.D. W. Va. Dec. 20 , 20 0 6). Again, while not conclusive one way or the other, the video does not foreclose the inference that Roberts validly silenced and rem oved Heaney from the m eeting for reasons that had nothing to do with his m essage. Under the circum stances, Black was not required to cross-exam ine and second-guess Roberts regarding his First Am endm ent m otives before acting. And the Court is not persuaded that Black could only act in response to Roberts’ request to rem ove Heaney if Black had probable cause to arrest Heaney for a crim e. If this proposition is true as a m atter of law, then the Court is persuaded that the law was not clearly established as to this point. Ronald Black is entitled to qualified im m unity on Heaney's First Am endm ent claim . B. Fo u rth Am e n d m e n t Heaney alleges that Black's actions constituted a seizure in violation of his Fourth Am endm ent rights. (Rec. Doc. 1, Com plaint ¶ 12). Heaney alleges that Roberts is also liable for the Fourth Am endm ent violation because Black acted based upon Roberts' direct orders. (Id.). Both Black and Roberts deny that Heaney was "seized" at all, and therefore argue that the Fourth Am endm ent was not im plicated in this case. If the Fourth Am endm ent was im plicated, Defendants argue that Black had probable cause to rem ove Heaney. Finally, even if Heaney's Fourth Am endm ent rights were technically violated, Defendants argue that they 12 are entitled to qualified im m unity. There are three types of encounters between police and individuals, each with different ram ifications under the Fourth Am endm ent. United States v. Cooper, 43 F.3d 140 , 145 (5th Cir. 1995) (citing Florida v. Bostick, 50 1 U.S. 429, 435 (1991)). The first is a consensual encounter, which is not a "seizure" and requires no objective level of suspicion. Id. The second type of encounter, based on Terry v. Ohio, 392 U.S. 1 (1968), involves a lim ited investigative stop. Prior to Terry , any restraint on the person am ounting to a seizure for purposes of the Fourth Am endm ent was invalid unless justified by probable cause. Id. Terry created a lim ited exception to the general probable cause requirem ent: certain seizures are justifiable under the Fourth Am endm ent if there is articulable suspicion that a person has com m itted or is about to com m it a crim e. Id. The third type of police-citizen encounter is an arrest, which is plainly a Fourth Am endm ent "seizure" that m ust be based on probable cause to believe that the individual has com m itted a crim e. Id. The characterization of a policecitizen encounter turns on the objective determ ination of whether a reasonable person would feel free "to disregard the police and go about his business." California v. Hodari D., 499 U.S. 621, 628 (1991). The touchstone of the Fourth Am endm ent is "reasonableness" based on the totality of the circum stances. See Freem an v. City of Dallas, 242 F.3d 642, 649-50 & n.9 (5th Cir. 20 0 1). The Court is persuaded that Heaney's encounter with Black was a "seizure," as that term is defined in the context of the Fourth Am endm ent. Heaney testified at his deposition that he would have stayed at the m eeting after Roberts silenced him had he been given the chance to do so. But Black approached Heaney at the lectern in order to rem ove him from the council cham bers. The encounter was clearly not consensual, and a reasonable person in Heaney's position would not have believed that he was free to leave the encounter. In fact, it is undisputed that Heaney was not free to leave because he was detained briefly by Black 13 after they left the council cham bers so that Black could consult with his supervisor to determ ine whether Heaney should be arrested for a crim e. The video evidence confirm s Heaney's testim ony that Black used som e force, even if m inim al, to effect the rem oval, and Heaney has produced photographs of the bruises that he sustained in the encounter. Defendants' contention that no seizure occurred is belied by the undisputed facts. It is not clear that Heaney's conduct would rise to the level of constituting probable cause to believe that he had com m itted a crim inal offense, but the Court is not persuaded that this particular seizure had to be supported by probable cause pertaining to a crim e. The exchange between Roberts and Heaney had becom e argum entative and Roberts, as chairm an of the m eeting, requested that Heaney be rem oved from the cham bers. Roberts never im plied that crim inal activity was an issue. Because reasonableness for the Fourth Am endm ent claim is judged solely on objective factors, the Court is persuaded that for Fourth Am endm ent purposes it was perm issible for Black to effect the rem oval per the chairm an's order even in the absence of probable cause to believe that Heaney had broken the law. The seizure was brief, m inim ally intrusive, and reasonable under the totality of the circum stances. Even if the seizure constituted a violation of Heaney's Fourth Am endm ent rights, the Court is persuaded that both Black and Roberts would be entitled to qualified im m unity because even now (m uch less at the tim e of the incident) the law is not sufficiently clear that rem oving a citizen from a public m eeting based on the chairm an's judgm ent that the citizen was disrupting the m eeting requires probable cause to believe that a crim e has been com m itted. Sum m ary judgm ent is GRANTED as to both Roberts and Black on the Fourth Am endm ent claim . C. Pu n itive D am age s Roberts m oves for sum m ary judgm ent on the issue of punitive dam ages arguing that the evidence in the case cannot support such an award. The purpose of punitive dam ages is 14 to punish the defendant for his conduct and to deter him and others like him from sim ilar behavior. Edm onson v. County of Van Zandt, 15 F.3d 180 (5th Cir 1994) (unpublished) (citing Sm ith v. W ade, 461 U.S. 30 , 54 (1994)). Punitive dam ages m ay be awarded even in the absence of actual dam ages where there has been a constitutional violation.11 Id. (quoting La. ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 30 3 (5th Cir. 20 0 0 )). But punitive dam ages m ay be awarded only where the defendant's conduct is "m otivated by evil intent" or dem onstrates "reckless or callous indifference" to a person's constitutional rights. Id. (quoting Sockw ell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994)). The latter standard requires "recklessness in its subjective form , i.e., a subjective consciousness of a risk of injury or illegality and a crim inal indifference to civil obligations." Id. (quoting Kolstad v. Am . Dental Ass'n, 527 U.S. 526, 536 (1999)). The Court is persuaded that while the evidence could allow a reasonable jury to infer the necessary subjective intent to support a First Am endm ent violation, it will not perm it a reasonable jury to infer the level of "evil intent" or recklessness necessary to support a claim for punitive dam ages. The m otion for sum m ary judgm ent is therefore GRANTED as to punitive dam ages. D. State Law Claim s : Fals e Arre s t, Batte ry, N e glige n ce Fa ls e Ar r e s t . Wrongful arrest, or the tort of false im prisonm ent, occurs when one arrests and restrains another against his will and without statutory authority. Miller v. Desoto Regional Health Sy s., 128 So. 3d 649, 655-56 (la. App. 3d Cir. 20 13) (citing Ky le v. 11 No party raised this issue but it appears that all of the com pensable injuries in this case, if any, resulted from the incident between Black and Heaney, which did not involve Roberts. Given that under federal law Roberts is only liable for his own conduct, the Court suspects that a nom inal dam ages instruction will be appropriate vis à vis the First Am endm ent claim against Roberts if this case is ultim ately tried to a jury. The law is well-established in this circuit that a plaintiff m ay recover nom inal dam ages when his constitutional right have been violated but he is unable to prove actual injury. W illiam s v. Kaufm an County , 352 F.3d 994, 10 14 (5th Cir. 20 0 3) (citing LeBlanc, 211 F.3d at 30 2). 15 City of N ew Orleans, 353 So. 2d 969 (La. 1977)). The tort has two essential elem ents: 1) detention of the person; and 2) the unlawfulness of the detention. Id. (quoting Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 20 0 6)). In this case Heaney was not form ally arrested and the only detention that occurred as part of the rem oval took place after Black rem oved Heaney from the council cham bers when Black was conferring with his supervisor to determ ine whether Heaney should be placed under arrest for a crim inal violation or released. Under state law, probable cause was not required to conduct such a brief and reasonable detention. See La. Code Crim . Proc. 213. The m otion for sum m ary judgm ent is GRANTED as to both Defendants on this claim . Ba t t e r y / N e g lig e n ce . It is undisputed that Black m ade physical contact with Heaney in order to rem ove him from the council cham bers and the building elevators. It is also undisputed that Heaney went to the ground as he was leaving the council cham bers—whether the fall resulted from tripping on his own or from a shove by Black is a fact in dispute. Heaney contends that after he went down Black fell on top of him . (Rec. Doc. 40 -1, Exhibit 1 Heaney Decl.). Heaney's claim in this lawsuit is that he suffered serious physical injuries as a result of being pushed to the floor and having Black land on top of him . (Rec. Doc. 1, Com p. ¶ 11). The Court agrees with Heaney's assertion that the jury m ust determ ine whether Black was at fault for injuring Heaney. The m otion for sum m ary judgm ent is therefore DENIED as to Black and the City of Gretna (respondeat superior) on the state law battery and negligence causes of action. The m otion is GRANTED as to Roberts and J efferson Parish on those state law claim s because Roberts was not personally involved in the physical altercation. III. CON CLU SION Sum m ary judgm ent is DENIED as to the First Am endm ent claim against Roberts in his individual capacity. Because the free speech claim under the state constitution rem ains 16 pending, see note 2, supra, the Parish of J efferson will rem ain in the lawsuit under the state law theory of respondeat superior as the em ployer of Roberts.12 Sum m ary judgm ent is DENIED as to the state law battery/ negligence claim s against Black. The City of Gretna will rem ain in the lawsuit under the state law theory of respondeat superior as the em ployer of Black. Sum m ary judgm ent is GRANTED as to Black on the First Am endm ent claim , GRANTED as to Roberts on the state law battery/ negligence claim s, and GRANTED as to both Black and Roberts on the Fourth Am endm ent and state law false arrest claim s, and on the claim for punitive dam ages. Finally, the parties should not construe this ruling as suggesting that the Court believes that Roberts acted with an im proper or unconstitutional m otive during the council m eeting, or that proving such a contention will be an easy burden. The Court's ruling only recognizes that this Court's own opinion regarding the events of Septem ber 18, 20 13 is not relevant to the legal issues before the Court, and that under the well established First Am endm ent jurisprudence that this Court m ust follow, the question of m otive m ust be left for the jury. Accordingly, and for the foregoing reasons; IT IS ORD ERED that the Mo tio n fo r Su m m ary Ju d gm e n t ( Re c. D o c. 3 7) filed by defendants Christopher L. Roberts and the Parish of J efferson, and the Mo tio n fo r Su m m ary Ju d gm e n t ( Re c. D o c. 3 6 ) filed by defendants Ronald Black and the City of Gretna are GRAN TED IN PART AN D D EN IED IN PART as explained above. If Roberts does not seek interlocutory review of the qualified im m unity determ ination, the Court will 12 Roberts m entions discretionary im m unity under La. R.S. § 9:2798.1(B) but it is not clear to the Court which claim s Roberts believes that im m unity would apply to. (Rec. Doc. 37-1, Roberts' Mem orandum at 23). State law im m unities have no effect on the federal cause of action and the state law tort claim s have now been dism issed as to Roberts. 17 schedule a status conference in J anuary for the purpose of selecting a trial date. Decem ber 1, 20 15 _______________________________ J AY C. ZAINEY UNITED STATES DISTRICT J UDGE 18
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