Wilson v. Tregre

Filing 71

ORDER & REASONS: ORDERED that Plaintiff's Motion for Summary Judgment (Rec. Doc. 52 ) is DENIED. FURTHER ORDERED that Defendant's Motion for Summary Judgment (Rec. Doc. 56 ) is hereby GRANTED. FURTHER ORDERED that all of Plaintiff's claims against Defendant in this matter are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 9/11/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TREGG WILSON

CIVIL ACTION

VERSUS

NO: 13-5612

MIKE TREGRE

SECTION:
J(5)

ORDER AND REASONS
Before the Court are cross Motions for Summary Judgment filed
by Plaintiff, Tregg Wilson, ("Plaintiff") (Rec. Doc. 52) and
Defendant, Sheriff Mike Tregre ("Sheriff Tregre") (Rec. Doc. 56).
Having considered the motion, the parties’ submissions, the record,
and the applicable law, the Court finds, for the reasons expressed
below, that Plaintiff’s Motion for Summary Judgment (Rec. Doc. 52)
should be DENIED and that Defendant’s Motion for Summary Judgment
(Rec. Doc. 56) should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
The facts as alleged by Plaintiff are as follows: Plaintiff
has been a member of the Louisiana State Bar since 2001 but closed
his law practice in 2012 to begin working as Chief Deputy in the
Sheriff's Office of St. John the Baptist Parish, Louisiana. At that
time, Sheriff Tregre was just beginning his tenure as Sheriff of
St. John the Baptist Parish. On May 14, 2013, Plaintiff attended a
task force meeting at the Criminal Investigative Division ("CID").
Plaintiff alleges that after that meeting, Detective Robert Hay,
1

one of the highest ranking officers in the CID, informed Plaintiff
that he believed the interrogation rooms at CID were under 24-hour
video and audio surveillance.
The CID contains three interrogation rooms, which are used for
detectives to interview suspects, but are occasionally used for
other purposes, such as allowing suspects to meet with their
attorneys. It appears to be undisputed that each interrogation room
contains visible equipment that records audio and video.1 Plaintiff
alleges:
All three rooms have a video camera that sends an
audio/video feed back to the computer network at CID. The
video feed can be viewed on three large monitors (one for
each room) near the back of the CID office. On the same
rack as the monitors are three DVD recorders that, with
the press of the record button, can permanently capture
the interview of the person in the room. This manual
control is used by detectives in CID to capture for
future
use,
including
trial,
interviews
and
interrogations of witnesses and suspects. After recording
an interview, the detective would check the video, then
make multiple copies for use by the DA’s office, the
Sheriff’s office and for production in criminal discover
[sic].
Detective Hay, however, suspected that the video was
going a third place. According to the Head of IT for the
department, the video feed was also being recorded by a
device called a Milestone Server. Originally set up to
record video feeds from crime cameras throughout the
Parish, IT Head Troy Hidalgo had also routed the video
feed from the CID Interrogation rooms to the Milestone
1

Sheriff Tregre describes the equipment in the following way:
Each of the three CID interrogation rooms has an overt camera
mounted on the ceiling above the door. Two microphones are also
installed for redundancy in each room. One is hard mounted to the
desk and the second on the ceiling above the desk. Both microphones
are plainly visible to occupants of the room.

(Rec. Doc. 56-2, p. 2).

2

Server, ostensibly for a “backup copy” of the
interrogations. This feed, unlike the manual feed,
however, operated on a motion-activated sensor and would
record video whenever a person was in the room.
(Rec. Doc. 52-1, p. 3). Defendant admits that there are motionoperated recordings saved on the Milestone server, and claims that
these recordings are intended to serve as emergency backups in case
of an equipment failure in the primary recording system. According
to Defendant, these backup recordings are "redundant" and are
archived for thirty (30) days, at which time the older backup
videos are automatically overwritten by newer backup videos.
Plaintiff alleges that as an attorney, he saw potential legal
problems with these motion-activated recordings because a recording
might be motion-activated while the rooms are in use for suspects
to meet with their clients, and this could violate attorney-client
privilege, the Fourth Amendment, Louisiana's wiretapping laws, and
laws regarding disclosure of evidence, such as Louisiana Code of
Criminal Procedure Article 716 and the United States Supreme
Court's decision in Brady v. Maryland. Plaintiff alleges that his
concern was realized because a certain criminal defendant used an
interrogation room to meet with his attorney, and the detective
turned off the monitors, but all the while a video was being
recorded due to motion activation and was being stored on the
Milestone server. Plaintiff claims that he knew that the Sheriff's
office was not disclosing the automatic backup recordings in
criminal proceedings.
3

Plaintiff alleges that he discussed the problem with Sheriff
Tregre, and while the Sheriff shut down the backup recordings, he
informed Wilson that the Sheriff's Office would not disclose any
video recordings in any criminal proceedings. Plaintiff claims that
Sheriff Tregre ordered an internal investigation, and so Wilson
made a report to Internal Affairs. Plaintiff then forwarded emails
detailing his correspondence with Sheriff Tregre to the District
Attorney. The District Attorney then requested that the State
Police investigate the matter, and the State Police took statements
from

several

parties,

including

Plaintiff,

Sheriff

Tregre,

Detective Hay, and Troy Hidalgo. The State Police found no criminal
intent on the part of the Sheriff's Office but found that Brady may
have been violated. The District Attorney then sent a letter to the
Sheriff's Office, requesting that all video be produced for review
under Brady.
On

June

10,

2013,

Sheriff

Tregre

terminated

Plaintiff's

employment, and Plaintiff claims that his termination was in
retaliation for having exercised his right to free speech and
having acted as a whistle blower in reporting illegal activity on
the part of the Sheriff's Office. Plaintiff filed suit against
Sheriff Tregre on August 28, 2013, bringing the following causes of
action: (1) a Section 1983 claim based on retaliation against
Plaintiff for his exercise of protected speech under the First

4

Amendment,2 (2) retaliation against Plaintiff for his exercise of
protected speech under Article I, Section 7 of the Louisiana
Constitution, and (3) violation of the Louisiana Whistleblower
statutes.3 On August 12, 2014, both parties filed the instant cross
motions for summary judgment.
LEGAL STANDARD
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c));
Little v. Liquid Air Corp., 37 F.2d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers "all of the evidence in the record but refrains
from making credibility determinations or weighing the evidence."
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir. 2008). The Court will examine the evidence in
the light most favorable to the nonmoving party. Naquin v. Fluor
Daniel Servs. Corp., 935 F. Supp. 847, 848 (E.D. La. 1996) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). While
all reasonable inferences are drawn in favor of the nonmoving
party, a party cannot defeat summary judgment with conclusory
2

Plaintiff also sought an award of attorneys' fees pursuant to 42 U.S.C.

§ 1988.
3

Plaintiff stated causes of action pursuant to both La. R.S. § 23:967 and
La. R.S. § 42:1169.

5

allegations or unsubstantiated assertions. Little, 37 F.2d at 1075.
A Court ultimately must be satisfied that "a reasonable jury could
not return a verdict for the nonmoving party." Delta, 530 F.3d at
399.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence which would 'entitle it to a directed verdict
if the evidence went uncontroverted at trial.'" Int'l Shortstop,
Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
"showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings but must identify specific facts that establish

6

a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.
DISCUSSION
A.

Section

§

1983

Claim

Based

on

First

Amendment

Retaliation
To succeed in a First Amendment retaliation claim, a public
employee must prove four elements:
(1) he suffered an adverse employment action;
(2) he spoke as a citizen on a matter of public concern;
(3) his interest in the speech outweighs the government's
interest in the efficient provision of public services; and
(4) the speech precipitated the adverse employment action.
Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007)
(internal citations omitted).4
The Court finds that Plaintiff has failed to meet his burden
of proof with respect to the second element because Plaintiff
engaged in speech in his capacity as Chief Deputy, not as a
citizen. For First Amendment purposes, the question of whether a
public employee is speaking as a citizen on a matter of public
concern is a question of law for the Court. See Garcetti v.
4

Plaintiff was discharged, and the termination of his employment clearly
constitutes an adverse employment action. Under Fifth Circuit precedent,
"[a]dverse employment actions are discharges, demotions, refusals to hire,
refusals to promote, and reprimands." Pierce v. Texas Dep't of Criminal Justice,
Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994) (citing Rutan v.
Republican Party, 497 U.S. 62, 74 (1990)).
Because the Court finds that Plaintiff has failed to meet his burden of
proof with respect to the second element of the First Amendment retaliation
analysis, the Court need not analyze the third and fourth elements.

7

Ceballos, 547 U.S. 410, 421 (2006). If the Court finds that the
employee did not speak as a citizen on a matter of public concern,
there is no First Amendment protection. Id. at 418. "[W]hen public
employees make statements pursuant to their official duties, the
employees
purposes,

are
and

not
the

speaking

as

citizens

Constitution

does

communications from employer discipline."

for

First

Amendment

not

insulate

their

Id. Public employee

speech can be protected even "when speech concerns information
related to or learned through public employment." Lane v. Frank,
134 S.Ct. 2369, 2377 (2014).
The Supreme Court has recently noted that the "critical
question" regarding whether an employee's speech is protected as a
citizen is "whether the speech at issue is itself ordinarily within
the scope of an employee's duties, not whether it merely concerns
those duties." Lane, 134 S.Ct at 2379. The question before the
court is thus whether Plaintiff's disclosures to the District
Attorney and subsequently to the State Police regarding what he
perceived to be illegal recordings fell within his job duties as
Chief Deputy.5 Defendant argues that Plaintiff, as the commissioned
5

Plaintiff notes that there are four different types of speech at issue
in this case: "(1) the disclosures to Sheriff Tregre after the initial discovery,
(2) the disclosures to Internal Affairs pursuant to the Sheriff's direction, (3)
the disclosures to the District Attorney after Wilson believed the internal
investigation was not proceeding and (4) sworn testimony before the Louisiana
State Police in their investigation." (Rec. Doc. 63, p. 3). The Court finds that
it is unnecessary to address the first two instances, finding that they are
clearly within Plaintiff's official duties as an employee of the Sheriff's
Office, because it is the duty of a police officer to internally report any
criminal activity performed by his fellow officers. Rivera v. City of Everman,
No. 08-56, 2008 WL 4923107, at *7-8 (N.D. Tex. Nov. 18, 2008) (finding that a
police officer's internal report to his supervisor regarding criminal activity

8

Chief Deputy, was required by his position to report what he
believed to be illegal recordings, and therefore, Plaintiff's
speech was made in his capacity as Chief Deputy. (Rec. Doc. 56-2,
p. 7-8). Plaintiff contends that his report to the District
Attorney and the State Police was made outside of his duties as
Chief Deputy Sheriff, and in his individual capacity, as seen by
the fact that he made the report "without the knowledge or consent
of the Sheriff." (Rec. Doc. 63, p. 4).
The Court finds, regardless of the Sheriff's knowledge of
Plaintiff's actions, that Plaintiff's disclosures were made within
his official employment duties, and are thus unprotected. The Court
agrees with Defendant that as Chief Deputy Sheriff, Plaintiff had
a duty to report to outside law enforcement any action he believed
contravened

the

law

or

violated

Constitutional

rights.

Specifically, as Defendant notes, Plaintiff was bestowed with the
"responsibility for enforcement of all state, parish, local laws
and ordinances." (Rec. Doc. 56-2, p. 7). As such, Plaintiff had a
duty to report the redundant recording capabilities of the CID, as
he reasonably believed this was a violation of suspects' Fourth
Amendment rights. Moreover, Plaintiff made the disclosures to both
the District Attorney as well as the State Police during working
hours. As such, the Court finds that the disclosure of conduct

among his fellow officers was not protected speech). The court will thus only
address the latter two instances of speech.

9

which Plaintiff reasonably believed violated Constitutional rights
fell within his duties as Chief Deputy Sheriff.
Plaintiff's disclosures to the District Attorney and State
Police were made pursuant to his duties as a public employee,
rather than as a citizen, and in accordance with the Supreme
Court's ruling in Lane, these disclosures do not receive First
Amendment protection. Because Plaintiff has failed to satisfy the
second element of a First Amendment retaliation claim, Plaintiff's
Section 1983 claim, alleging First Amendment retaliation, should be
dismissed with prejudice.
B. Supplemental Jurisdiction
The Court having dismissed Plaintiff's Section 1983 claim, the
only issues remaining in this litigation are issues of Louisiana
state law. Although it is the general rule that where federal
claims are dismissed before trial, a federal court should also
dismiss pending state claims, that rule "is neither absolute nor
automatic." Newport Ltd. v. Sears, Roebuck and Co., 941 F.2d 302,
307 (5th Cir. 1991), cert. denied, 502 U.S. 1096 (1992). Rather,
the

federal

court

has

discretion

to

exercise

supplemental

jurisdiction over the remaining state law claims. Id.; see also
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988). The
court may decline to exercise supplemental jurisdiction pursuant to
28 U.S.C. § 1367 if:
(1) the claim raises a novel or complex issue of State
10

law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C.A. § 1367(c) (West 1990). In determining whether to
exercise supplemental jurisdiction, the court must also balance
"judicial economy, convenience, fairness, and comity." Batiste v.
Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999), cert.
denied, 528 U.S. 1076 (2000) (internal citations omitted).
The Court finds that there is no novel or complex issue of
state law present in this case such that the Court should decline
to exercise supplemental jurisdiction. Additionally, this matter
has been pending in federal court for approximately one year,
discovery is closed, and the case is ripe for trial. The jury trial
in this matter is set to commence on September 29, 2014, less than
a month from the date of this order. The Court will exercise
supplemental jurisdiction over the pending state law claims in this
matter, finding that it would constitute a waste of judicial
resources to decline to exercise such jurisdiction. See generally
Newport,

941

F.2d

at

307-08;

Batiste,

179

F.3d

at

227-28;

Brookshire Bros. Holding, Inc. v. Dayco Prods. Inc., 554 F.3d 595,
602-04 (5th Cir. 2009), cert. denied, 557 U.S. 936 (2009); Doddy v.
Oxy USA, Inc., 101 F.3d 448, 455-56 (5th Cir. 1996); Port of S. La.
v. Tri-Parish Indus., Inc., 927 F.Supp.2d 332, 338-39 (E.D. La.
11

2013) (Milazzo, J.); Chauvin v. Radioshack Corp., No. 08-4255, 2009
WL 961247, at *2-3 (E.D. La. Apr. 8, 2009) (Africk, J.), aff'd, 332
Fed. App'x 994 (5th Cir. 2009).
C. Louisiana Constitutional Claim Based on Protected Speech
Retaliation
The Constitution of the State of Louisiana of 1974 states: "No
law shall curtail or restrain the freedom of speech or of the
press. Every person may speak, write, and publish his sentiments on
any subject, but is responsible for abuse of that freedom." La.
Const. art. I, § 7. This Court has held:
[U]nder Louisiana jurisprudence, judicial determination
of a claim brought pursuant to the parallel sections of
the federal constitution is applicable to Article 1,
sections 7 and 8 of the state constitution. State v.
Franzone, 384 So.2d 409, 411 (La.1980) (The state
constitution's guarantee of freedom of the press and of
expression was designed to serve the same purpose as the
same guarantee in the federal constitution, and provides
at least coextensive protection.) . . . .
Delcarpio v. St. Tammany Parish Sch. Bd., 865 F. Supp. 350, 362
(E.D. La. 1994) (Carr, J.) rev'd on other grounds, Campbell v. St.
Tammany Parish Sch. Bd., 64 F.3d 184 (5th Cir. 1995).
Plaintiff's claims pursuant to the Louisiana Constitution are
essentially identical to his claims under the First Amendment to
the Constitution of the United States. (Rec. Doc. 1, p. 5-7).
Therefore, for the reasons expressed above, the Court finds that
Plaintiff's

claim

pursuant

to

Article

I,

Section

7

of

Constitution of Louisiana should be dismissed with prejudice.
12

the

D. Louisiana Whistleblower Statutes
Plaintiff's complaint stated causes of action pursuant to both
La. R.S. § 23:967 and La. R.S. § 42:1169. (Rec. Doc. 1). Sheriff
Tregre moved for summary judgment with respect to Plaintiff's
claims under both statutes.
1. La. R.S. § 42:1169
It is undisputed that Plaintiff did not make a proper report
as required by this statute. See LA. REV. STAT. ANN § 42:1169 (2014).
Plaintiff does not oppose Sheriff Tregre's motion with regard to
his claim under La. R.S. § 42:1169. (Rec. Doc. 63, p. 8 n.6).
Therefore, the Court finds that Plaintiff's claim under La. R.S. §
42:1169 should be dismissed with prejudice.
2. La. R.S. § 23:967
Under La. R.S. § 23:967, the Louisiana Whistleblower Statute:
A. An employer shall not take reprisal against an
employee who in good faith, and after advising the
employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or
practice that is in violation of state law.
(2) Provides information to or testifies before any
public body conducting an investigation, hearing, or
inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment
act or practice that is in violation of law.
B. An employee may commence a civil action in a district
court where the violation occurred against any employer
who engages in a practice prohibited by Subsection A of
this Section. If the court finds the provisions of
Subsection A of this Section have been violated, the
plaintiff may recover from the employer damages,
reasonable attorney fees, and court costs.
C. For the purposes of this Section, the following terms
shall have the definitions ascribed below:
13

(1) “Reprisal” includes firing, layoff, loss of benefits,
or any discriminatory action the court finds was taken as
a result of an action by the employee that is protected
under Subsection A of this Section; however, nothing in
this Section shall prohibit an employer from enforcing an
established employment policy, procedure, or practice or
exempt an employee from compliance with such.
(2) “Damages” include compensatory damages, back pay,
benefits, reinstatement, reasonable attorney fees, and
court costs resulting from the reprisal.
D. If suit or complaint is brought in bad faith or if it
should be determined by a court that the employer's act
or practice was not in violation of the law, the employer
may be entitled to reasonable attorney fees and court
costs from the employee.
LA. REV. STAT. ANN § 23:967 (1997). To succeed in a claim under the
Whistleblower Statute, a plaintiff "must prove that her employer
committed an actual violation of state law." Goulas v. LaGreca, 945
F.Supp.2d 693, 702 (E.D. La. 2013) (Fallon, J.), aff'd, 557 Fed.
App'x 337 (5th Cir. 2014) (emphasis added).
Plaintiff contends that the motion-activated video tapping
conducted by the Sheriff's Office violates (1) attorney-client
privilege, (2) the Fourth Amendment, (3) Louisiana wiretapping
laws, and (4) laws regarding disclosure of evidence, such as
Louisiana Code of Criminal Procedure Article 716 and the United
States Supreme Court's decision in Brady v. Maryland.
a. Attorney-Client Privilege
Sheriff Tregre argues that:
the attorney-client privilege is an evidentiary provision
regarding rules of disclosure related to communications
between a lawyer and his client. It is a testimonial
privilege, not a law, and it provides no basis for a
claim under La. R.S. 23:967.

14

(Rec. Doc. 56-2, p. 15). The Court agrees that the attorney-client
privilege

is

solely

a

testimonial

privilege

and

is

not

a

substantive law that the Sheriff’s Office could have potentially
violated.
b. Fourth Amendment
The Fourth Amendment prohibition of unreasonable searches
“protects only reasonable expectations of privacy.” In re U.S. for
Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013).
Sheriff Tregre argues that a suspect could have no reasonable
expectation of privacy in the interrogation rooms at issue, which
are located at a police station and “in the obvious presence [of]
a video camera and multiple microphones.” (Rec. Doc. 56-2, p. 15).
Plaintiff agrees that “normally there would be no Fourth Amendment
right of privacy in a police interrogation room.” (Rec. Doc. 63, p.
8).
However, Plaintiff argues that in this case, the police
assured suspects that their communications were private. Plaintiff
alleges that this happened in at least one particular instance with
a criminal defendant named Dante Bond. To support this contention,
Plaintiff cites only to the following deposition testimony of
Christie Chauvin, an employee at the Sheriff’s Office:
Examination by Counsel for Sheriff Tregre:
Chauvin: I can remember a few times where attorneys
were there. Now if they were ever, you know, left
alone, I don’t know.

15

Defense Counsel: When you say attorneys were there,
meaning where?
Chauvin: Um – Where attorneys came in with their
clients. It wasn’t specifically on my cases, so, you
know, I’m not going to say that I paid attention to
the case the whole time. . . . You know, sometimes an
attorney may come in with his client to give a
statement, and again, it’s rare, and we may give them
a few minutes. And we turn the monitor off.
Defense Counsel: In the interrogation room?
Chauvin: Yes. . . . [B]ecause again, we’ve always been
under the assumption that we controlled what’s going
on right there at that time.
Defense Counsel: … Is there a particular case, or –
was it your case, or was it something told you, where
the attorney came in and said, hey, look, I need a few
minutes with my client, can we talk here in this
interrogation room, and you left them there to talk?
Chauvin: Well, I’m not saying – I’m just saying that
I can remember a few cases where attorneys came in. I
don’t know if they took a few moments with their
client. Um – you know, sometimes attorneys will come
in – I don’t know if they take – you know, sometimes
they do … come in with their client. It’s not very
often that you have attorneys come in.
Defense Counsel: But you’re not aware of any specific
case, as we sit here today, where you can think of the
attorney, the attorney’s name, the suspect’s name, or
the defendant’s name, where that actually happened.
Can you? … Where the attorney says, I need a few
minutes with my client, can you step out and let me
talk to my client?
Chauvin: Well, I’m not exactly sure if it happened,
so, no, I’m not going to speculate. So, no.
Defense Counsel: Okay. . . .
Examination by Plaintiff’s Counsel:
Plaintiff’s Counsel: For a detective to turn off a

16

monitor so somebody could meet privately, they would
come right next to your desk, wouldn’t they?
Chauvin: Yes.
Plaintiff’s Counsel: Do you ever recall a detective
coming next to your desk to turn off a monitor in a
situation like that? Is that why you’re struggling
with it?
Chauvin: I mean, I have on[e] case that I think it may
have happened in. But I’m not 100 percent sure.
Plaintiff’s Counsel: Okay. And why do you think it may
have happened?
Chauvin: Um – I mean, I have a – I think Dante Bond,
and the attorney was, um – Peter John. I think that
may have happened in that case.
(Rec. Doc. 52-7, p. 3). Based solely on this deposition testimony,
Plaintiff argues that:
the Sheriff’s Office created a reasonable expectation of
privacy when it informed a criminal defendant and his
attorney that the detectives would “give them a few
minutes” alone in the room and would “turn the monitor
off.” By giving the attorney and his client an
expectation that they wouldn’t be recorded, the
expectation of privacy is created … . It is undisputed
that the conversations were recorded by the Milestone
video motion-activated recording despite the detective’s
assurances to the contrary.
(Rec. Doc. 63, p. 8).
Even assuming, arguendo, that a detective’s statement that he
would give a suspect and his attorney “a few minutes” and would
“turn the monitor off” would be sufficient to create a reasonable
expectation

of

privacy

on

the

part

of

the

suspect

in

an

interrogation room, the Court finds that Ms. Chauvin’s admittedly
speculative testimony is insufficient to create a genuine issue of
17

material

fact

as

to

whether

any

detective

ever

made

such

a

statement. Ms. Chauvin admits that although she recalls a few cases
where attorneys were present, she does not recall whether an
attorney ever spent any time alone in an interrogation room with
his or her client. The closest that Ms. Chauvin’s deposition
testimony comes to creating a genuine issue of material fact as to
whether the Sheriff’s Office might have violated some reasonable
expectation of privacy is Ms. Chauvin’s statement that “I think
that may have happened in that case” with reference to defendant
Dante Bond. Plaintiff’s motion for summary judgment should be
denied on this issue because Ms. Chauvin’s deposition testimony is
clearly insufficient to entitle Plaintiff to a directed verdict if
the evidence went uncontroverted at trial. For purposes of Sheriff
Tregre’s motion, Sheriff Tregre has pointed to a lack of evidence
in the record with respect to this issue, and Plaintiff has failed
to meet his burden to refer to specific facts showing that a
genuine issue exists. Therefore, the Court finds that there is no
genuine issue of material fact as to whether the Sheriff's Office
violated any reasonable expectation of privacy, and thus violated
the Fourth Amendment.
c. Louisiana Wiretapping Laws
A

finding

that

a

defendant

has

violated

the

Louisiana

Wiretapping Statute, La. R.S. § 15:1303, also requires a finding
that there was a reasonable expectation of privacy. Louisiana v.

18

Smith, 2002-2736 (La. App. 4 Cir. 5/21/03); 848 So.2d 650, 654.
Therefore, for the reasons expressed above with respect to the
Fourth Amendment, the Court finds that there is no genuine issue of
material fact as to whether the Sheriff’s Office violated the
Louisiana Wiretapping Statute.
d. Disclosure of Evidence: La. Code Crim. Proc. Art.
716 & Brady
Plaintiff claims that the Sheriff’s Office violated Article
716 of the Louisiana Code of Criminal Procedure, which is a
discovery rule requiring the court to order the District Attorney
to disclose certain evidence to a criminal defendant, upon written
motion of the defendant. LA. CODE CRIM. PROC. ANN. art. 716 (2014).
This rule is “intended to eliminate unwarranted prejudice arising
from surprise testimony and evidence, to permit the defense to meet
the state's case, and to allow a proper assessment of the strength
of its evidence in preparing a defense.” State v. Allen, 94-2262
(La. 11/13/95); 663 So.2d 686, 688. When the government violates
this procedural rule during the pendency of a criminal proceeding,
the court has discretion to design a remedy that serves the
interests of justice. Louisiana v. Clark, 446 So.2d 293, 296 (La.
1984).

Available

remedies

include

mistrial,

exclusion

of

the

government’s evidence, and calling a recess to allow defense
counsel to examine the government’s evidence and prepare to meet
it. See id.; Louisiana v. Williams, 632 So.2d 893, 894 (La. App. 2
19

Cir. 1994); Louisiana v. Williams, 457 So.2d 902 (La. App. 3 Cir.
1984), cert. denied, 461 So.2d 313 (La. 1984). The Court finds that
there is no independent, substantive cause of action for violation
of

this

procedural

rule

outside

of

a

particular

criminal

proceeding.
With respect to Brady v. Maryland, according to the Supreme
Court of the United States:
There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and
prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Plaintiff has
failed to submit sufficient evidence to show that the Sheriff’s
Office actually failed to turn over any evidence that was favorable
to any particular accused and actually caused prejudice. Plaintiff
has thus failed to show that the Sheriff’s Office’s failure to
disclose any recordings constitutes an actual violation of state
law. Therefore, the Court finds that Plaintiff has not met his
burden of proof to show that the Sheriff's Office committed an
actual violation of law that will support Plaintiff's claim under
the Whistleblower Statute. Accordingly, Plaintiff’s claim should be
dismissed with prejudice.
CONCLUSION
Accordingly,

20

IT IS HEREBY ORDERED that Plaintiff’s Motion for
Summary Judgment (Rec. Doc. 52) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment (Rec. Doc. 56) is hereby GRANTED.6
IT IS FURTHER ORDERED that all of Plaintiff’s claims against
Defendant in the above-captioned matter are hereby DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this 11th day of September, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

6

Because the Court finds that Plaintiff has failed to raise a genuine
issue of material fact as to any of his claims, and therefore that Sheriff
Tregre’s motion should be granted, the Court has not addressed the parties’
arguments regarding Sheriff Tregre’s potential qualified immunity defense.

21