Heaney v. Roberts et al

Filing 55

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)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TOM HEANEY

CIVIL ACTION

VERSUS

NO: 14-2104

CHRISTOPHER L. ROBERTS, ET AL.

SECTION: "A" (2)

ORDER AND REASONS
The following motions are before the Court: Motion for Summary Judgment
(Rec. Doc. 37) filed by defendants Christopher L. Roberts and the Parish of Jefferson;
Motion for Summary Judgment (Rec. Doc. 36) filed by defendants Ronald Black and
the City of Gretna. Plaintiff Tom Heaney opposes the motions. The motions, noticed for
submission on August 12, 2015, are before the Court on the briefs without oral argument.1
For the reasons that follow, both motions are GRANTED IN PART AND DENIED IN PART.
I.

BACKGROUND
Plaintiff Tom Heaney has filed this complaint pursuant to 42 U.S.C. § 1983 and state

law. Heaney contends that the defendants violated his constitutional rights during a
Jefferson Parish Council meeting. The defendants are Councilman Christopher L. Roberts,
the Parish of Jefferson, Gretna police officer Ronald Black, and the City of Gretna.
Heaney alleges that he attended the regularly scheduled Jefferson Parish Council
meeting on September 18, 2013, which was held in Gretna, Louisiana. (Rec. Doc. 1,
Complaint ¶ 3). Heaney was registered to speak that night during the time allotted for public
comment. Roberts was presiding as chair of the meeting. Per council rules, Heaney was

Roberts and Jefferson Parish have requested oral argument but the Court is not
persuaded that oral argument would be helpful.
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allotted five minutes to speak. (Id. at 3). Heaney expressed his opinion on the legality of
certain campaign contributions by no-bid contractors and he contends that having used only
three minutes of his time, Roberts asked him to yield the floor so that the Parish Attorney
could opine on the issue. (Complaint ¶¶ 6-7). Heaney asked that he be allowed the full
balance of his remaining time allotment, and Roberts confirmed 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. (Complaint
¶ 8). Heaney alleges that it was at this point that Roberts "rudely" interrupted him, and
mischaracterized his "polite" disagreement as "berrating" the parish attorney. (Id.). Roberts
then had defendant Ronald Black, a police officer with the City of Gretna, remove Heaney
from the council chambers. (Id.). Heaney contends that Black shoved him to the floor and
then fell on top of him before forcibly removing him from the building. (Id. ¶ 10).
Heaney filed the instant complaint on September 12, 2014. Heaney contends that
Roberts and Black prevented him from exercising his First Amendment rights, and violated
his Fourth Amendment rights by unlawfully seizing him. (Complaint ¶ 12). Heaney seeks
damages and attorney's fees pursuant to 42 U.S.C. §§ 1983 and 1988, and punitive damages.
Original jurisdiction is therefore grounded on 28 U.S.C. § 1331 (federal question).
Heaney also asserts claims 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. (Complaint ¶ 12). For these state law claims, Heaney joined
Jefferson Parish and the City of Gretna, alleged to be the employers of Roberts and Black,
respectively. (Id. ¶ 2). Heaney contends that Jefferson Parish is vicariously liable for the
conduct of Roberts and that the City of Gretna is vicariously liable for the conduct of Black.

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(Id. 14).
All defendants now move for summary judgment on Heaney's claims.
II.

DISCUSSION

Summary judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the nonmoving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come 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, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993)).

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A.

First Amendment/State Constitution Claims2

Roberts argues that he did not violate Heaney's First Amendment right to free speech
because the council meeting was a limited public forum which gives a moderator in Roberts'
position the discretion to place reasonable, viewpoint-neutral restrictions on speech.
According to Roberts, he only restricted Heaney's speech and removed him from the meeting
when his speech became repetitive, disruptive, and hostile. Thus, according to Roberts,
Heaney cannot establish that he suffered a First Amendment violation. Roberts argues that if
he did violate Heaney's First Amendment rights, he is entitled to qualified immunity.
Roberts' contention with respect to qualified immunity is that his actions were objectively
reasonable, and that on September 18, 2013, the law was not clearly established such that the
actions he took constituted a First Amendment violation.
Heaney does not dispute Roberts' contention that the parish council meeting was a
limited public forum, and as such Roberts, as chair of the meeting, could impose reasonable
and viewpoint-neutral restrictions on the public speakers. But Heaney contends that Roberts
cut him off and prevented him from speaking because he attempted to rebut the legal opinion
given by the parish attorney, and to opine that parish council members were violating federal
law by accepting campaign contributions from no-bid contractors. Heaney posits that the

The parties agree that separate determinations of Plaintiff's federal and state free
speech claims are unnecessary because federal standards apply to the state claims. (Rec. Doc. 371, Roberts' Memo in Support at 5); (Rec. Doc. 41, Heaney's Opposition at 7 n.12). But see State v.
Schirmer, 646 So. 2d 890, 904-05 (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 Amendment). Although the parties did not expressly mention the qualified immunity
defense when noting that federal standards will apply to the claims under the state constitution,
this Court's Erie determination is that the Louisiana Supreme Court would recognize the same
qualified immunity defense for claims under Article I, § 7 of the state constitution that the
federal courts recognize for § 1983 First Amendment claims. See Moresi v. State Dep't of Wildlife
& Fisheries, 567 So. 2d 1081, 1094 (La. 1990) (holding that the same qualified immunity defense
available under § 1983 applies to a claim under Article I, § 5 of the Louisiana State Constitution).
Unless otherwise stated, references to "the First Amendment claim" refer to the federal and state
freedom of speech claims collectively.
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restrictions that Roberts put on his speech were clearly content-based because Roberts was
trying to silence Heaney's message, and that Roberts' attempt to justify his actions by
characterizing Heaney as hostile or disruptive is merely pretextual.
Public bodies may confine their meetings to specified subject matter and may hold
nonpublic sessions to transact business. Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747,
759 (5th Cir. 2010) (quoting City of Madison Joint Sch. Dist. v. Wisconsin Employ. Relations
Comm'n, 429 U.S. 167, 175 n.8 (1976)). A city council meeting is generally recognized to be a
"limited public forum," which means that the government does not have to allow persons to
engage in every type of speech. Id. (quoting Good News Club v. Milford Cent. Sch., 533 U.S.
98 (2001)). In limited public forums, the government may impose reasonable, viewpointneutral restrictions on speech to preserve "the civility and decorum" necessary to further the
purpose of the meeting. Ream v. City of Heath, No. 14-4338, 2015 WL 4393307, at *3 (N.D.
Tex. July 16, 2015) (quoting Wenthold v. City of Farmers Branch, No. 11-748, 2012 WL
467325, at *7 (N.D. Tex. Feb. 14, 2012)). Therefore, consistent with the First Amendment, the
governing body may restrict speakers to the subject at hand, impose time limits on speakers,
and prevent disruptions of the meeting. Wenthold, 2012 WL 467325, at *8 (citing Steinburg
v. Chesterfield County Plan. Comm'n, 527 F.3d 377, 385 (4th Cir. 2008)). The government
cannot under any circumstances, however, restrict speech based on viewpoint, and even
viewpoint-neutral restrictions must be reasonable in light of the forum's purpose. Fairchild,
697 F.3d at 760. The determination of whether any restrictions on speech were viewpointbased turns upon the facts of each case.3 Wenthold, 2012 WL 467325, at *8 (citing Content
The Court recognizes that a parish council meeting like the one at issue in this case is
not ipso facto a limited public forum. See Fairchild, 597 F.3d at 759 n.42. Because the
government is free to conduct a public meeting without any restrictions on the speakers, a
council meeting can conceivably be a "designated public forum," which affords speakers even
greater protections under the First Amendment. In this case, the parties do not dispute that the
September 18, 2013 meeting was a limited public forum, and both the parish ordinances covering
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and Viewpoint Discrimination: Malleable Terms Beget Malleable Doctrine, 13 Comm. L. &
Pol'y 131, 180 (2008)).
At the outset, the Court notes that there are no ostensible factual disputes regarding
Heaney's and Roberts' conduct pertaining to the First Amendment claim because Defendants
have provided the Court with the video (including audio) of the September 18, 2013 council
meeting. That video clearly presents the exchange between Roberts and Heaney that
culminated in Heaney's expulsion from the council meeting. The video is consistent for the
most part with the factual allegations in Heaney's complaint. As the Court explained when it
denied Roberts' Rule 12(b)(6) motion to dismiss, 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 summary judgment is appropriate because Heaney's First
Amendment rights were not violated as a matter of law turns on the same contention that
Roberts' counsel made in support of the motion to dismiss, i.e., that Roberts acted not
because of the content of Heaney's speech or his viewpoint but because Heaney was
disrupting the meeting and "berrating" the parish attorney—in other words, that Roberts'
actions constituted viewpoint-neutral restrictions. But what defense counsel's argument fails
to recognize is that the pivotal question with respect to the First Amendment claim is one of
Roberts' motive 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 Amendment
violation. Thus, improper motive is an element of Heaney's First Amendment claim.
Subjective questions of motive or intent are issues of fact that are jury determinations not
council meetings and the video of the meeting itself confirm that designation. (Rec. Docs. 37-2 &
37-4, Exhibits 1 & 3). Because the parish council meeting was a limited public forum as opposed
to a designated public forum, Roberts could, consistent with the First Amendment, place
reasonable, viewpoint-neutral restrictions on the speakers.
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resolvable on summary judgment.
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 argumentative 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 matter
of law that Roberts' actions were not motivated, even if in part, by Heaney's message. For
example, it is not beyond dispute that an attempt to express disagreement with the parish
attorney would be "berrating" her given that Heaney's remarks did not suggest any type of ad
hominem 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 meeting as a sanction if he continued

At this juncture the Court finds it appropriate to point out a distinction in the First
Amendment 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 Amendment. Content-based restrictions
can, however, under some circumstances qualify as valid time, place, and manner restrictions on
speech, particularly in a limited public forum like the council meeting. See, e.g., Jones v. Town of
Quartzsite, No. 12-1383, 2014 WL 4771851 (D. Ariz. Sept. 24, 2014) (citing Norse v. City of Santa
Cruz, 629 F.3d 966, 975 (9th Cir. 2010). For instance, if Heaney had wanted to address the
council about parking meters 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 Jefferson
Parish Council's business and control. A content-based restriction of this nature surely could
pass muster under the appropriate level of scrutiny. And assuming that all other speakers were
likewise prohibited from speaking about parking meters 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 (5th Cir. 2014) (discussing the distinction between content-based and viewpoint-based
restrictions), reversed on other grounds, Walker v. Tex. Div., Sons of Confed. Vets., Inc., 135 S.
Ct. 2239 (2015); Monteiro v. City of Elizabeth, 436 F.3d 397, 407 (3d Cir. 2006) (Fisher, J.,
dissenting).
When the Court encountered this distinction in the law during the course of its own
research the Court was reminded that on the video Roberts tried to explain to Heaney that a
parish council meeting 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 argument would
have carried the day for Roberts had he raised it but there might be some validity to it.
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to interrupt. The video does not suggest that Heaney's conduct was inciting disorder among
the other attendees at the meeting or that public safety was becoming an issue. Black testified
that the exchange between Heaney and Roberts had not caught his attention prior to Roberts
instructing Black to remove Heaney. (Rec. Doc. 36-3, Exhibit C Black depo at 25-26). And the
video demonstrates that the most "hostile" or disruptive part of the exchange between
Heaney and Roberts occurred after Roberts had already silenced Heaney and ordered him
removed from the meeting. Although the Court can envision a situation where video evidence
might 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 meeting were
appropriate, this is not such a case.5 In this case, particularly in light of the somewhat
unpalatable subject matter that Heaney was attempting to discuss, i.e., that council members
were violating federal law, a jury could reasonably infer that Roberts silenced Heaney and
removed him from the meeting because of the content of his speech as opposed to a need to
maintain order at the meeting.6 In the end the question becomes one of Roberts' credibility in

The Court is not necessarily suggesting that the question of subjective intent can be
resolved on summary judgment when video evidence depicts particularly egregious behavior by
the plaintiff. But at times, the plaintiff's conduct might be so objectively obstreperous and
disruptive so as to allow a court to credit a defendant's contention on summary judgment that
regardless of unconstitutional motive, the defendant would have taken the same actions anyway.
See Monteiro v. City of Elizabeth, 436 F.3d 397, 408 (3d Cir. 2006) (Fisher, J., dissenting). In
Crawford, infra, note 9, the Supreme Court referred to this as “causation.” 523 U.S. at 593. Even
if the plaintiff establishes that improper motive played a role in the defendant’s conduct, the
defendant might nonetheless prevail by showing that he would have taken the same actions in
light of the plaintiff’s conduct. Id. In this case, Roberts does not make such an argument, and
even if he had, he could not prevail on summary judgment because the Court is not persuaded
that Heaney's conduct was objectively offensive enough to support such an argument as a matter
of law. The argument could be persuasive to a jury.
5

The Court clarifies that it in no way is suggesting that Heaney's conduct was insufficient
as a matter of law to support the actions that Roberts took if those actions were not actuated by
an improper motive. 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.
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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 summary
judgment based on the contention that Heaney's First Amendment rights were not violated
as a matter of law.
That said, Roberts contends that he is entitled to qualified immunity on the First
Amendment claim. As a general rule, government officials acting within their discretionary
authority are immune from civil damages 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. 2004) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified immunity analysis is a two-step inquiry.
First, a court must decide whether a plaintiff's allegation, if true, establishes a violation of a
clearly established constitutional right. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013)

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 minute allotment to address the council, but only "no more than five
(5) minutes." (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 similar 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 time on the topic of campaign contributions
from no-bid contractors. But the video does not support the contention that Roberts cut
Heaney's speaking time because he was being repetitive by speaking for a third time. 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 minutes 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 some circumstances constitute a valid
viewpoint-neutral restriction, defense counsel's argument based on repetitiveness is not a
persuasive one in this case.
7

Roberts did not submit an affidavit in support of his motion for summary judgment
and the record contains no deposition testimony from him. The Court notes, however, that even
with sworn statements from Roberts as to his intent the video would create an issue of fact
precluding summary judgment.
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(citing Jones v. City of Jackson, 203 F.3d 875, 879 (5th Cir. 2000)). 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 Wooley v. City of Baton
Rouge, 211 F.3d 913, 919 (5th Cir. 2000)). If the first step is met, i.e., the official's conduct
violates an established right, then the second step is to determine whether the defendant's
conduct was objectively reasonable. Id. (citing Jones, 203 F.3d at 879). An official's conduct
is ordinarily not objectively reasonable if it violates a clearly established right because "a
reasonably competent public official should know the law governing his conduct." Guillory v.
Thomas, 355 Fed. Appx. 837, 841 (5th Cir. 2009) (unpublished) (quoting Harlow, 457 U.S. at
818-19).
For the reasons that the Court has already explained, the first step in the qualified
immunity analysis, i.e., whether Heaney has established a violation of his First Amendment
rights, presents an issue of fact as to subjective intent that cannot be resolved on summary
judgment. The Court must therefore assume solely for purposes of the qualified immunity
analysis that Roberts did in fact violate Heaney’s First Amendment rights, i.e., that Roberts’
conduct was motivated by viewpoint discrimination. It is beyond cavil that a reasonable
government official in Roberts’ position would have known that it would be impermissible
under the First Amendment to prevent Heaney from speaking and to eject him from the
meeting based on the message that he was conveying. If Roberts’ conduct was motivated by
an improper constitutional motive then ejecting Heaney from the meeting would be
objectively unreasonable and qualified immunity would be unavailable as a defense. The
erroneous premise that pervades defense counsel's arguments in support of qualified
immunity is the contention that the video evidence eliminates the possibility of improper
motive and renders Roberts' actions objectively reasonable under the circumstances. To the
contrary, as the Court has already explained, the video evidence merely presents a scenario
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from which the trier of fact may or may not conclude that improper motive played a role in
Roberts’ actions. Roberts is not entitled to qualified immunity in light of the disputed issues
of fact surrounding subjective intent.9
Heaney contends that Ronald Black is also liable for violating his First Amendment
rights. The video demonstrates that Black only approached Heaney and removed him from
the council chambers after Roberts instructed him to do so. Heaney takes issue with the
suggestion that Black was merely following Roberts’ orders, and that the First Amendment
violation was already complete 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 merely carry out the
orders of their superiors are not entitled to qualified immunity on that basis alone. See Cozzo
v. Tangipahoa Par. Council, 279 F.3d 273 (5th Cir. 2002). And in this case Roberts was not

In Crawford v. Britton, 523 U.S. 574 (1998), the Supreme Court confronted the
dicey issue of qualified immunity, which strives to turn solely on objective determinations, in
the case of a constitutional tort such as First Amendment retaliation which requires proof of
improper motive as an element of the plaintiff’s claim. In that decision the majority declined
to fashion a special rule that would protect a defendant’s right to qualified immunity in cases
involving improper motivation—cases that would frequently involve a disputed issue of fact
that would preclude summary adjudication. Id. at 600-01.
9

The suggestion that the First Amendment violation began and ended with Heaney’s
speech would be ignoring the fact that as a citizen Heaney had a First Amendment right to attend
a public meeting. See Laskowsi v. Snyder, No. 05-502, 2007 WL 118535 (N.D. Ind. Jan. 10,
2007) (examining First Amendment implications of removing a citizen from a public meeting);
Timmon v. Wood, No. 05-127, 633 F. Supp. 2d 453 (Apr. 21, 2008). Black tries to make much of
the fact that Heaney never asked whether he could stay in the building or the council chambers,
(Rec. Doc. 36-1, Black Memorandum at 4), but from the video it would appear that he never had
the chance. The order to remove Heaney came without a prior warning and it was peremptory in
nature. Heaney was not required to force the police to drag him out in order to evince a desire to
stay at the meeting even if he could not continue to be heard. See Laskowski, 2007 WL 118535, at
*3 n.2 (citing Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (explaining that plaintiff's
decision to leave on his own does not affect the First Amendment analysis where the defendant
ordered him removed and in fact attempted to remove him).
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even Black’s superior on the police force. But members of the Gretna Police Department
provide security at the council meetings, and judging from the video of the meeting, they
fulfill the role of sergeant-at-arms for the meetings. This Court is persuaded that no officer in
Black’s position would have understood that acting in obedience to a presumptively valid
request by the council chairman to remove a citizen following an argumentative exchange
with a council member would violate that citizen’s First Amendment rights. See Collinson v.
Gott, 895 F. 2d 994, 1004-05 (4th Cir. 1990); Osborne v. Lohr-Robinette, No. 05-106, 2006
WL 3761597, at *6 (S.D. W. Va. Dec. 20, 2006). Again, while not conclusive one way or the
other, the video does not foreclose the inference that Roberts validly silenced and removed
Heaney from the meeting for reasons that had nothing to do with his message. Under the
circumstances, Black was not required to cross-examine and second-guess Roberts regarding
his First Amendment motives before acting. And the Court is not persuaded that Black could
only act in response to Roberts’ request to remove Heaney if Black had probable cause to
arrest Heaney for a crime. If this proposition is true as a matter of law, then the Court is
persuaded that the law was not clearly established as to this point. Ronald Black is entitled to
qualified immunity on Heaney's First Amendment claim.
B.

Fourth Amendment

Heaney alleges that Black's actions constituted a seizure in violation of his Fourth
Amendment rights. (Rec. Doc. 1, Complaint ¶ 12). Heaney alleges that Roberts is also liable
for the Fourth Amendment 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 Amendment was not implicated in this case. If the Fourth Amendment was
implicated, Defendants argue that Black had probable cause to remove Heaney. Finally, even
if Heaney's Fourth Amendment rights were technically violated, Defendants argue that they
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are entitled to qualified immunity.
There are three types of encounters between police and individuals, each with
different ramifications under the Fourth Amendment. United States v. Cooper, 43 F.3d 140,
145 (5th Cir. 1995) (citing Florida v. Bostick, 501 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
limited investigative stop. Prior to Terry, any restraint on the person amounting to a seizure
for purposes of the Fourth Amendment was invalid unless justified by probable cause. Id.
Terry created a limited exception to the general probable cause requirement: certain seizures
are justifiable under the Fourth Amendment if there is articulable suspicion that a person has
committed or is about to commit a crime. Id. The third type of police-citizen encounter is an
arrest, which is plainly a Fourth Amendment "seizure" that must be based on probable cause
to believe that the individual has committed a crime. Id. The characterization of a policecitizen encounter turns on the objective determination 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 Amendment is "reasonableness" based on the
totality of the circumstances. See Freeman v. City of Dallas, 242 F.3d 642, 649-50 & n.9 (5th
Cir. 2001).
The Court is persuaded that Heaney's encounter with Black was a "seizure," as that
term is defined in the context of the Fourth Amendment. Heaney testified at his deposition
that he would have stayed at the meeting after Roberts silenced him had he been given the
chance to do so. But Black approached Heaney at the lectern in order to remove him from the
council chambers. 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
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after they left the council chambers so that Black could consult with his supervisor to
determine whether Heaney should be arrested for a crime. The video evidence confirms
Heaney's testimony that Black used some force, even if minimal, to effect the removal, 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 committed a criminal offense, but the Court is not persuaded
that this particular seizure had to be supported by probable cause pertaining to a crime. The
exchange between Roberts and Heaney had become argumentative and Roberts, as chairman
of the meeting, requested that Heaney be removed from the chambers. Roberts never implied
that criminal activity was an issue. Because reasonableness for the Fourth Amendment claim
is judged solely on objective factors, the Court is persuaded that for Fourth Amendment
purposes it was permissible for Black to effect the removal per the chairman's order even in
the absence of probable cause to believe that Heaney had broken the law. The seizure was
brief, minimally intrusive, and reasonable under the totality of the circumstances.
Even if the seizure constituted a violation of Heaney's Fourth Amendment rights, the
Court is persuaded that both Black and Roberts would be entitled to qualified immunity
because even now (much less at the time of the incident) the law is not sufficiently clear that
removing a citizen from a public meeting based on the chairman's judgment that the citizen
was disrupting the meeting requires probable cause to believe that a crime has been
committed. Summary judgment is GRANTED as to both Roberts and Black on the Fourth
Amendment claim.
C.

Punitive Damages

Roberts moves for summary judgment on the issue of punitive damages arguing that
the evidence in the case cannot support such an award. The purpose of punitive damages is
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to punish the defendant for his conduct and to deter him and others like him from similar
behavior. Edmonson v. County of Van Zandt, 15 F.3d 180 (5th Cir 1994) (unpublished) (citing
Smith v. Wade, 461 U.S. 30, 54 (1994)). Punitive damages may be awarded even in the
absence of actual damages where there has been a constitutional violation.11 Id. (quoting La.
ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 303 (5th Cir. 2000)). But punitive damages
may be awarded only where the defendant's conduct is "motivated by evil intent" or
demonstrates "reckless or callous indifference" to a person's constitutional rights. Id.
(quoting Sockwell 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 criminal 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 Amendment violation, it will not permit a
reasonable jury to infer the level of "evil intent" or recklessness necessary to support a claim
for punitive damages. The motion for summary judgment is therefore GRANTED as to
punitive damages.
D.

State Law Claims: False Arrest, Battery, Negligence

False Arrest. Wrongful arrest, or the tort of false imprisonment, occurs when one
arrests and restrains another against his will and without statutory authority. Miller v.
Desoto Regional Health Sys., 128 So. 3d 649, 655-56 (la. App. 3d Cir. 2013) (citing Kyle v.

No party raised this issue but it appears that all of the compensable 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 nominal damages instruction will be appropriate vis à vis the First Amendment
claim against Roberts if this case is ultimately tried to a jury. The law is well-established in this
circuit that a plaintiff may recover nominal damages when his constitutional right have been
violated but he is unable to prove actual injury. Williams v. Kaufman County, 352 F.3d 994,
1014 (5th Cir. 2003) (citing LeBlanc, 211 F.3d at 302).
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City of New Orleans, 353 So. 2d 969 (La. 1977)). The tort has two essential elements: 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. 2006)).
In this case Heaney was not formally arrested and the only detention that occurred as
part of the removal took place after Black removed Heaney from the council chambers when
Black was conferring with his supervisor to determine whether Heaney should be placed
under arrest for a criminal 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
motion for summary judgment is GRANTED as to both Defendants on this claim.
Battery/Negligence. It is undisputed that Black made physical contact with
Heaney in order to remove him from the council chambers and the building elevators. It is
also undisputed that Heaney went to the ground as he was leaving the council
chambers—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, Comp. ¶ 11). The Court agrees with Heaney's assertion that the jury must
determine whether Black was at fault for injuring Heaney. The motion for summary
judgment is therefore DENIED as to Black and the City of Gretna (respondeat superior) on
the state law battery and negligence causes of action. The motion is GRANTED as to Roberts
and Jefferson Parish on those state law claims because Roberts was not personally involved
in the physical altercation.
III.

CONCLUSION
Summary judgment is DENIED as to the First Amendment claim against Roberts in

his individual capacity. Because the free speech claim under the state constitution remains
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pending, see note 2, supra, the Parish of Jefferson will remain in the lawsuit under the state
law theory of respondeat superior as the employer of Roberts.12
Summary judgment is DENIED as to the state law battery/negligence claims against
Black. The City of Gretna will remain in the lawsuit under the state law theory of respondeat
superior as the employer of Black.
Summary judgment is GRANTED as to Black on the First Amendment claim,
GRANTED as to Roberts on the state law battery/negligence claims, and GRANTED as to
both Black and Roberts on the Fourth Amendment and state law false arrest claims, and on
the claim for punitive damages.
Finally, the parties should not construe this ruling as suggesting that the Court
believes that Roberts acted with an improper or unconstitutional motive during the council
meeting, 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 September 18, 2013 is not
relevant to the legal issues before the Court, and that under the well established First
Amendment jurisprudence that this Court must follow, the question of motive must be left
for the jury.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 37)
filed by defendants Christopher L. Roberts and the Parish of Jefferson, and the Motion for
Summary Judgment (Rec. Doc. 36) filed by defendants Ronald Black and the City of
Gretna are GRANTED IN PART AND DENIED IN PART as explained above. If Roberts
does not seek interlocutory review of the qualified immunity determination, the Court will
Roberts mentions discretionary immunity under La. R.S. § 9:2798.1(B) but it is not
clear to the Court which claims Roberts believes that immunity would apply to. (Rec. Doc. 37-1,
Roberts' Memorandum at 23). State law immunities have no effect on the federal cause of action
and the state law tort claims have now been dismissed as to Roberts.
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schedule a status conference in January for the purpose of selecting a trial date.
December 1, 2015

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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