Hegeman v. Harrison et al

Filing 51

ORDER AND REASONS GRANTING IN PART AND DENYING IN PART 34 Motion to Dismiss. The Motion is Granted, in part, as to the plaintiffs § 1983 claims against Officer Adams and Superintendent Harrison in their official capacities, and Denied, in part, as to the claims against Officer Adams and Superintendent Harrison in their individual capacities, as well as to her Monell liability claim against the City for failure to discipline. Signed by Judge Martin L.C. Feldman on 3/20/2019. (jeg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEAH HEGEMAN

CIVIL ACTION

v.

NO. 18-613

MICHAEL HARRISON, LARRY ADAMS,
and THE CITY OF NEW ORLEANS

SECTION “F”

ORDER AND REASONS
Before the Court is the defendants’ Rule 12(c) motion to
dismiss,
judgment.

or

in

the

alternative,

Rule

56

motion

for

summary

For the reasons that follow, the motion is GRANTED, in

part, as to the plaintiff’s § 1983 claims against Officer Adams
and Superintendent Harrison in their official capacities, and
DENIED, in part, as to the plaintiff’s claims against Officer Adams
and Superintendent Harrison in their individual capacities, as
well as to her Monell liability claim against the City for failure
to discipline.
Background
This civil rights lawsuit arises from a young woman’s claims
that she sustained serious injuries at the hands of the New Orleans
Police Department while protesting President Trump’s inauguration.
On the evening of January 20, 2017, NOPD officers were ordered
to Lafayette Square in New Orleans, Louisiana to monitor the
gathering of a protest.

Upon arriving to the scene, the officers
1

observed protestors dressed in black attire with masks or bandanas
covering their faces.

As the protestors began traveling towards

Canal Street, what began as a rally turned into a riot.

Members

of the public were observed shattering windowpanes, spray painting
local

businesses

and

NOPD

firecrackers at officers.

vehicles,

and

throwing

homemade

Officer Larry Adams also witnessed

rioters attempt to knock another officer off of his scooter.

The

officers kept a close eye on the disorderly protestors and arrested
those who disturbed the peace of the demonstration.
Leah Hegeman, a 26-year-old resident of New Orleans, was one
of the many participants in the protest. Although it is undisputed
that Officer Larry Adams encountered Ms. Hegeman in the 500 block
of North Rampart Street, the two present strikingly different
accounts

of

their

exchange.

According

to

an

“Officer

Force

Statement” completed by Adams, he instructed protestors that the
area in which he was apprehending suspects was being cordoned off.
When Hegeman attempted to push past him, Officer Adams informed
her that she was under arrest for violating a police corridor.
Officer Adams further reported that, as he clasped Hegeman’s
wrists, she pulled away in an attempt to evade custody.

Refusing

to let Ms. Hegeman go, Officer Adams spun around until the pair
“gradually went to the ground.”
Ms. Hegeman presents her account of the incident in the form
of an affidavit.

Hegeman attests that, while standing in the 500
2

block of North Rampart Street, she observed an NOPD officer beating
and choking an unarmed man on the ground.

She further attests

that, up until that point, she had not been told by law enforcement
to disperse from her location, that she was impeding police work,
or that she could not film or record the scene.

As Ms. Hegeman

began to film the altercation, Officer Adams charged toward her
violently and pushed her back.

However, he did not verbally order

or command her to move back, nor did he command her to stop filming.
Accordingly, Ms. Hegeman backed away but continued to film the
altercation.

As she was backing away, Officer Adams “suddenly and

violently rushed [her], grabbed [her], and tackled [her] to the
ground.” Hegeman further attests that she felt a tremendous amount
of pressure on her back and the back of her neck and informed
Officer Adams that she could not breathe before she briefly lost
consciousness.

Upon

regaining

consciousness,

Hegeman

was

handcuffed, and her backpack was removed from her body with a
knife.
Suffering from a history of brain cancer, Ms. Hegeman becomes
symptomatic and is required to seek medical attention whenever she
experiences head trauma.

Accordingly, while sitting in the rear

of a police car, she informed officers of her condition and
requested medical attention.

Her requests were met with laughter

and delay, and she later vomited due to a concussion.

3

Ms. Hegeman was eventually transported to University Medical
Center for treatment, after which she was taken to Orleans Parish
Prison and booked with the following state law crimes: wearing
masks in public (La. R.S. § 14:313), inciting a riot (La. R.S. §
14:329.2), and criminal damage to historic buildings or landmarks
(La.

R.S.

§

14:56.5(C)(1)).

All

charges

were

subsequently

dismissed by the Orleans Parish District Attorney’s office.
After investigating the incident, Sergeant Christina Watson
of

the

Public

determined

Integrity

that

Bureau’s

Force

the

of

was

department policy.” 1

“use

force

Investigation

justified

and

Team
within

Sergeant Watson explained in her report:

Hegeman accused Officer Adams [of] throwing her to the
ground and standing on the back of her neck. There is
no conclusive video evidence to refute Hegeman’s claims,
because Officer Adams lost his BWC [body worn camera]
before he engaged Hegeman.
Therefore, it is possible
that Officer Adams may have fallen on her neck because
she complained of neck pain . . . . The momentum of
Hegeman and Officer Adams falling on the ground could
have force[d] Hegeman to hit her head on the ground and
irritate[d] her previous condition.
On January 19, 2018, Leah Hegeman filed this 42 U.S.C. § 1983
civil rights lawsuit against the City of New Orleans; former
Superintendent

of

the

New

Orleans

Police

Department,

Michael

Harrison; and NOPD officers, Larry Adams and Christopher Barbe.
Hegeman

seeks

to

recover

from

the

defendants

for

various

In an affidavit dated February 5, 2019, Sergeant Christina Watson
attests
that
she
“conducted
a
thorough
administrative
investigation relative to the incident.”
1

4

constitutional violations underlying her § 1983 claims, including
violations of her First, Fourth, and Fourteenth Amendment rights;
she also asserts Monell liability, as well as various state law
claims

including

false

arrest,

false

imprisonment,

assault,

battery, and intentional infliction of emotional distress. 2

The

defendants now move to dismiss the plaintiff’s claims under Rule
12(c), or in the alternative, for summary judgment under Rule 56. 3
I.
A.
The

standard

for

deciding

a

motion

for

judgment

on

the

pleadings under Rule 12(c) of the Federal Rules of Civil Procedure
is the same as the one for deciding a motion to dismiss for failure
to state a claim under Rule 12(b)(6).
F.3d 540, 543-44 (5th Cir. 2010).

Gentilello v. Rege, 627

A court may grant a Rule 12(c)

motion only if the pleadings evince no disputes of genuine material
fact and questions of law alone remain.

Great Plains Trust Co. v.

Her complaint alleges the following damages: (1) pain and
suffering stemming from a concussion, lacerations, bruises, and
back and neck injuries she sustained; (2) psychological injuries,
including emotional distress, mental anguish, embarrassment,
humiliation, and post-traumatic stress disorder; (3) inconvenience
and loss of income; (4) medical expenses; (5) property damage in
the form of a destroyed backpack and iPhone; and (6) legal fees.
3 Officer Christopher Barbe was dismissed from this lawsuit, with
prejudice, on March 12, 2019. Accordingly, the defendants’ pending
motion is moot insofar as it requests the dismissal of claims
asserted against Barbe.
2

5

Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)
(citations omitted).
In considering a Rule 12(b)(6), or a Rule 12(c) motion, the
Court accepts all well-pleaded facts as true and draws all factual
inferences in favor of the non-movant.

See id. at 313 n.8;

Alexander v. City of Round Rock, 854 F.3d 298, 303 (5th Cir. 2017)
(citing Thompson, 764 F.3d at 502; Stokes v. Gann, 498 F.3d 483,
484 (5th Cir. 2007)); Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th
Cir. 2008).

But, in deciding whether dismissal is warranted, the

Court will not accept conclusory allegations in the complaint as
true.

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,

Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
first

identify

pleadings

that

are

entitled to the assumption of truth.
662, 129 S. Ct. 1937, 1949 (2009).

Indeed, the Court must

conclusory

and,

thus,

not

Ashcroft v. Iqbal, 556 U.S.

A corollary: legal conclusions

“must be supported by factual allegations.” Id. at 1950. Assuming
the veracity of the well-pleaded factual allegations, the Court
must

then

determine

entitlement to relief.

“whether

they

plausibly

give

rise

to

an

Id.

To survive a Rule 12 motion to dismiss or for judgment on the
pleadings, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(quoting Iqbal, 129 S. Ct. at 1949 (2009)) (internal quotation
6

marks omitted).

“Factual allegations must be enough to raise a

right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quotation marks, citations, and footnote omitted).

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Iqbal,

129 S. Ct. at 1949 (“The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”).

This is a

“context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id.
complaint
defendant’s

pleads

facts

liability,

that
it

are

stops

merely
short

of

consistent
the

line

“Where a
with

a

between

possibility and plausibility of entitlement to relief.”

Id.

(citing Twombly, 550 U.S. at 557) (internal quotations omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings” -- that is,
any documents attached to or incorporated in the plaintiff’s
complaint that are central to the plaintiff’s claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).

Also, the Court is permitted to
7

consider matters of public records and other matters subject to
judicial notice without converting the motion into one for summary
judgment.

See United States ex rel. Willard v. Humana Health Plan

of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003).
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

at

trial
8

do

not

qualify

as

competent

opposing evidence.

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
“[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence.”

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly

probative,”

summary

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013) (internal quotation marks and citation
omitted).

9

II.
Title 42, United States Code, Section 1983 creates a damages
remedy for the violation of federal constitutional or statutory
rights under color of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any . . . person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured.
Because § 1983 merely provides a remedy for designated rights,
rather

than

creating

constitutional
liability.”

or

any

substantive

statutory

rights,

violation

is

a

“an

underlying

predicate

to

Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.

1997) (citation omitted).

To establish § 1983 liability, the

plaintiff must satisfy three elements:
(1)
(2)
(3)

deprivation of a right secured by the
Constitution or federal law,
that occurred under color of state law, and
was caused by a state actor.

U.S.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
(citation omitted).

Ms. Hegeman’s § 1983 claims are based upon

alleged deprivations of her constitutional rights to be free from
excessive force and false arrest under the Fourth Amendment, to
freedom of expression under the First Amendment, and to substantive
due process under the Fourteenth Amendment.

10

A. Claims Against Officer Larry Adams
In pursuing her § 1983 claims, Hegeman has sued Officer Larry
Adams in his official and individual capacities, alleging that he
violated her Fourth Amendment rights to be free from excessive
force and false arrest, as well as her rights to freedom of
expression and peaceable assembly secured by the First Amendment.
Because Hegeman also has asserted § 1983 claims against the City
itself, her § 1983 claims against Adams in his official capacity
are duplicative and must be dismissed.

See Romero v. Becken, 256

F.3d 349, 355 (5th Cir. 2001) (“The district court was [] correct
in dismissing the allegations against all of the municipal officers
. . . in their official capacities, as these allegations duplicate
claims against the respective governmental entities themselves.”).
Defendant Adams maintains that he is entitled to dismissal of
the

plaintiff’s

individual

capacity

immunity shields him from liability.
qualified

immunity,

Adams

contends

claims

because

qualified

To support his defense of
that

he

did

not

violate

Hegeman’s rights to be free from false arrest or excessive force
in light of Fourth Amendment principles because the arrest was
supported by probable cause, he used a reasonable amount of force,
and his conduct was objectively reasonable in light of clearlyestablished law.
“[Q]ualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not
11

violate clearly established regulatory or constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).

“Qualified immunity is designed to shield from

civil liability all but the plainly incompetent or those who
violate the law.”
Cir. 1995).

Brady v. Fort Bend Cty., 58 F.3d 173, 174 (5th

Generally, “qualified immunity represents the norm.”

Id.
In resolving government officials’ qualified immunity claims,
the Court must evaluate two factors: (1) whether the plaintiff has
shown the violation of a constitutional right; and (2) whether the
right

at

issue

defendants’

was

alleged

clearly

established

misconduct.

Pearson,

at
555

the

time

U.S.

at

of

the

232-36

(holding that a court may consider these prongs in any sequence
and need not consider both).

Once a defendant invokes the defense

of qualified immunity, the burden shifts to the plaintiff to show
that the defense is unavailable.
F.3d

214,

217-18

(5th

Cir.

See Collier v. Montgomery, 569
2009)

(“Although

nominally

an

affirmative defense, the plaintiff has the burden to negate the
assertion of qualified immunity once properly raised”); see also
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)
(en banc).

A plaintiff must establish that the defendant was

either personally involved in the deprivation or that his wrongful

12

actions were causally connected to the deprivation.

James v. Tex.

Collin Cty., 535 F.3d 365, 373 (5th Cir. 2008).
Mindful of the contours of qualified immunity, the Court turns
to the relevant constitutional rights Hegeman asserts Officer
Adams

violated

–

namely,

the

Fourth

Amendment’s

prohibitions

against false arrest and excessive force, as well as the First
Amendment right to freedom of expression.
(i)

False

Arrest

and

Violation

of

Right

to

Freedom

of

Expression
Hegeman challenges the constitutionality of her arrest under
both the First and Fourth Amendments.

“A warrantless arrest

without probable cause,” or a false arrest, “violates clearly
established law defining an individual’s rights under the Fourth
Amendment.”

Davidson v. City of Stafford, 848 F.3d 384, 391 (5th

Cir. 2017) (citing Hogan v. Cunningham, 722 F.3d 725, 731 (5th
Cir. 2013)).
the

First

officials.”

“Individuals who protest are also protected under

Amendment

from

retaliatory

actions

by

government

Id. (citing Allen v. Cisneros, 815 F.3d 239, 244 (5th

Cir. 2016)).

However, the law is clear that where an officer has

probable cause to arrest an individual, “the objectives of law
enforcement

take

retaliation.”

primacy

over

the

citizen’s

right

Id. (quoting Allen, 815 F.3d at 245).

to

avoid

Probable

cause exists where “facts and circumstances within the officer’s
knowledge [] are sufficient to warrant a prudent person, or one of
13

reasonable caution, in believing, in the circumstances shown, that
the suspect has committed, is committing, or is about to commit an
offense.”

Id. (quoting Hogan, 722 F.3d at 731).

Therefore, the only question this Court must address in
determining

whether

Adams

is

entitled

to

qualified

immunity

concerning Hegeman’s false arrest and freedom of expression claims
is whether Hegeman has shown that Adams arrested her without
probable cause, and that Adams was objectively unreasonable in
believing there was probable cause for her arrest.

Id.

Officer Adams contends that his decision to arrest Ms. Hegeman
was clearly based on probable cause because she had refused to
obey his orders to back away from a police corridor.
Adams

points

to

the

“Officer

Force

Statement”

For support,
he

completed

following the incident, in which he reported that he advised
Hegeman that she was under arrest after she attempted to push past
him in violation of a police corridor.
Ms. Hegeman successfully overcomes Officer Adams’s qualified
immunity

defense

by

pointing

to

her

own

affidavit

and

his

deposition testimony. Hegeman alleges in her complaint and attests
in her affidavit that, as she began to film an altercation between
an NOPD officer and an unarmed man on the ground, Officer Adams
charged toward her and violently pushed her back.

She further

alleges and attests that she “began to back up” while continuing
to film the altercation, and that Adams “suddenly and violently”
14

tackled her to the ground as she was backing away.

Interestingly,

Officer Adams corroborated Hegeman’s recollection of the facts
during his deposition when he testified that Hegeman was not told
to back away from the police corridor and that she did not attempt
to push past him. 4

Although Officer Adams also testified that he

proceeded to arrest Hegeman because he had “observed her commit a
crime,” he could not recall what crime that may have been. 5
During his deposition on January 4, 2019, Officer Adams testified
as follows:
4

Q: Yeah, you placed her under arrest, did she make any
effort to run passed [sic] you?
A: I don’t recall, no.
. . .
Q: All right. And clearly, Ms. Hegeman did not try –
did not assault you; is that correct?
A: Not to my knowledge; no.
Q: Not to your knowledge, not that you recall?
A: Not that I recall.
Q: And she didn’t try to run at you, right?
A: No.
. . .
Q: . . . Was Ms. Hegeman told to back away from the
police corridor?
A: Their client?
Q: Yes, correct, Ms. Hegeman.
A: No.
5 When asked why he stopped Ms. Hegeman to arrest her, Adams offered
the following testimony:
Q: -- the arrestee, Ms. Hegeman in that video, she was
not moving towards you, is that correct?
A: No. She was evading from me because I observed her
commit a crime.
Q: What crime did you observe?
A: I don’t recall offhand . . . But, obviously, I
wouldn’t have been going after her unless I observed her
commit a crime.
Q: Okay. When she asked what she’s been arrested for,
what did you tell her?
15

On this record, genuine factual disputes exist as to whether
Officer Adams had observed Ms. Hegeman disobey any police order or
commit any crime when he proceeded to arrest her.

Because a

reasonable jury could find that Officer Adams lacked probable
cause, by his own deposition testimony, to arrest Ms. Hegeman and
was objectively unreasonable in believing there was probable cause
for the arrest, summary judgment in his favor as to Ms. Hegeman’s
false arrest claim is not warranted.
Hegeman
retaliation.
Hegeman

must

bases

her

First

Amendment

claim

on

a

theory

of

To prevail on a First Amendment retaliation claim,
establish

that:

“(1)

[she

was]

engaged

in

constitutionally protected activity, (2) the defendants’ actions
caused [her] to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity, and
(3) the defendants’ adverse actions were substantially motivated
against [her] exercise of constitutionally protected conduct.”
Westfall v. Luna, 903 F.3d 534, 550 (5th Cir. 2018) (per curiam)
(quoting Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)).

A: I don’t recall.

. . .
Q: All right. And what did you specifically see her do
again?
A: I don’t recall.
Q: You don’t recall what you specifically saw her do?
A: No.
16

Generally, “the validity of a plaintiff’s First Amendment claim
hinges on probable cause for her arrest.”

Id.

Here, Ms. Hegeman alleges in her complaint and attests in her
affidavit that she was peacefully protesting the inauguration of
President Trump and filming an altercation between an NOPD officer
and an unarmed man when Officer Larry Adams charged at her, pushed
her, and tackled her to the ground. Thereafter, she was handcuffed
and arrested.

Moreover, the Court has determined that a material

disputed fact issue exists as to whether Hegeman’s arrest was
supported by probable cause.

Accordingly, dismissal of Hegeman’s

freedom of expression claim is inappropriate. See Davidson, 848
F.3d at 391 (“Individuals who protest are also protected under the
First Amendment from retaliatory actions by government officials,”
unless “an officer has probable cause to seize that individual.”).
(ii)

Use of Excessive Force

Hegeman next claims that Officer Adams violated her Fourth
Amendment right to be free from excessive force; Adams, once again,
seeks the shield of qualified immunity.
Under the first step of the qualified immunity analysis, to
establish

that

Officer

Adams

violated

the

Fourth

Amendment

prohibition against excessive force, Ms. Hegeman must show: “(1)
an injury that (2) resulted directly and only from the use of force
that was excessive to the need, and (3) that the use of force was
objectively unreasonable.”

Bush v. Strain, 513 F.3d 492, 500-01
17

(5th Cir. 2008).

“Further, the ‘injury must be more than a de

minimis injury and must be evaluated in the context in which the
force was deployed.’”

Lockett v. New Orleans City, 607 F.3d 992,

999 (5th Cir. 2010) (quoting Glenn v. City of Tyler, 242 F.3d 307,
314 (5th Cir. 2001)).

In this regard, the Fifth Circuit has

clarified, “handcuffing too tightly, without more, does not amount
to excessive force.”

Id.; Freeman v. Gore, 483 F.3d 404, 417 (5th

Cir. 2007); Glenn, 242 F.3d at 314.
When

apprehending

or

seizing

an

individual

for

law

enforcement purposes, police officers must be permitted to use
objectively

reasonable

force

in

light

of

the

facts

and

circumstances confronting them; this inquiry is made “without
regard to [the officers’] underlying intent or motivation.” Graham
v. Connor, 490 U.S. 386, 397 (1989).

“Determining whether the

force used to effect a particular seizure is ‘reasonable’ under
the Fourth Amendment requires a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at
stake.”

Id. at 396 (citations omitted).

For purposes of summary

judgment, the Fifth Circuit has instructed, “where the officer’s
conduct is less clear and an assessment of reasonableness mandates
a number of factual inferences, the case falls within the province
of the jury.”
Cir. 2009).

Lytle v. Bexar Cty., Tex., 560 F.3d 404, 411 (5th
In other words, summary judgment should be granted
18

only if

“no

rational

jury

could

violated the Fourth Amendment.”

conclude

that

[the

officer]

Id. at 412.

Here, Hegeman has satisfied the first prong of the qualified
immunity analysis as to Officer Adams.

According to Hegeman’s

account of the incident, as alleged in her complaint and presented
in the form of an affidavit, she sustained both physical and mental
injuries as a result of the force used by Officer Adams.

She

attests that Officer Adams tackled her to the ground and that she
felt a tremendous amount of pressure on the back of her neck and
her back.

After telling Officer Adams that she could not breathe,

she briefly lost consciousness.

Hegeman further declares, under

oath, that she sustained a concussion, which caused her to vomit,
and that her requests for medical attention were met with laughter
and delay.

As for her psychological injuries, Hegeman points to

a letter from a licensed clinical social worker, which indicates
that

the

incident

exacerbated

Hegeman’s

pre-existing

post-

traumatic stress disorder and rendered her unable to sustain
gainful employment.

Such evidence, at a minimum, creates an issue

of fact as to whether Hegeman suffered injuries that were “more
than . . . de minimis.”

See Lockett, 607 F.3d at 999; Glenn, 242

F.3d at 314.
As for the objective reasonableness of Officer Adams’s use of
force, the Court must consider the following factors: (1) “the
severity of the crime at issue,” (2) “whether the suspect poses an
19

immediate threat to the safety of the officers or others,” and (3)
“whether [s]he is actively resisting arrest or attempting to evade
arrest by flight.”
U.S. at 396).

Bush, 513 F.3d at 501 (quoting Graham, 490

It is undisputed that Hegeman was charged with

wearing a mask in public, inciting a riot, and criminal damage to
a historic building or landmark and that all charges were later
dismissed.

Hegeman also attests that, “[a]t no time on January

20, 2017 did [she] engage in any unlawful or disorderly behavior,”
and that she was not told she had violated any law, or ordered to
back away or stop filming before Adams attempted to arrest her.
Nonetheless, she attests that she did back away, and that Officer
Adams tackled her as she proceeded to do so.
During his deposition, Officer Adams initially testified that
he decided to arrest Hegeman because she refused to back up when
he advised that she was too close to a police corridor, and that
he saw her commit no other crime.

He later testified that he

proceeded to arrest Hegeman because he had witnessed her commit
some other criminal act, although he could not recall which crime
that may have been.

Adams went on to state, under oath, that

Hegeman never attempted to push past him and that they both fell
to the ground because he refused to let go when attempting to
effectuate the arrest.
While Adams argues in his papers that he never tackled Hegeman
or placed pressure on her body once she was on the ground, the
20

video footage is at best inconclusive on these central points.
Although the footage captured on other officers’ body cameras does
not depict Officer Adams tackle the plaintiff to the ground or
place pressure on her neck and back, the footage also does not
show how Ms. Hegeman arrived on the ground or depict her body for
the entire duration in which it remained on the ground.

Moreover,

the footage does not show Ms. Hegeman disobey Officer Adams’s
orders.

Finally, while Officer Adams claims that Hegeman was

resisting arrest, the footage does not indicate that he told
Hegeman she was under arrest before he grabbed her.

Accordingly,

the footage does not conclusively disprove the plaintiff’s account
of the incident. 6

Cf. Scott v. Harris, 550 U.S. 372, 380-81 (2007)

(holding that the plaintiff’s “version of events [wa]s so utterly
discredited by [a videotape] in the record that no reasonable jury
could have believed him”).
The record contains body worn camera footage captured by NOPD
officers Matthew Malveaux, Joseph Davis, and Russell Green, who
were present during Hegeman’s encounter with Officer Adams. With
respect to Officer Malveaux’s footage, the viewer first sees
Officer Adams and Hegeman standing and facing each other on a
sidewalk. Hegeman says, “I did nothing wrong, sir.” And Adams
responds, “Yeah you did . . .” As these words are exchanged, Adams
grabs Hegeman’s arms in an attempt to handcuff her, after which
Officer Malveaux turns away, such that Adams and Hegeman are no
longer visible.
As for Officer Davis’s footage, the viewer can see Officer
Adams kneeling next to Hegeman, who is lying face down on the
ground. Neither a person, nor object, is touching Hegeman’s neck.
Finally, with respect to Officer Green’s footage, Hegeman is
not visible; the viewer sees nothing more than several officers
gathered on a sidewalk.
6

21

Hegeman’s affidavit, coupled with inconclusive video footage
and Adams’s contradictory deposition testimony, raise unresolved
questions about what, in fact, occurred.

On this record, serious

and pivotal issues of fact exist as to whether Officer Adams
aggressively charged at Hegeman without having probable cause to
believe she had committed a crime, tackled her to the ground
without warning her that she was under arrest, and placed pressure
on the back of her neck after she was already subdued.

Because

genuine issues of material fact exist as to whether a reasonable
officer on the scene would have found Officer Adams’s use of force
excessive to the need and therefore objectively unreasonable,
summary judgment as to the reasonableness of Adams’s use of force
is wholly inappropriate.
Next, the Court must determine whether Adams’s “use of force,
though a violation of the Fourth Amendment, was nevertheless
objectively unreasonable in light of clearly established law.”
Bush, 513 F.3d at 501. “[W]hile the right to be free from excessive
force is clearly established in a general sense, the right to be
free from the degree of force employed in a particular situation
may not have been clear to a reasonable of officer at the scene.”
Id. at 502.

In this vein, “[t]he ‘reasonableness’ of a particular

use of force must be judged from the perspective of a reasonable
officer

on

hindsight.”

the

scene,

rather

than

Graham, 490 U.S. at 396.
22

with

the

20/20

vision

of

Because the law at the time of Hegeman’s arrest “clearly
established

that

it

was

objectively

unreasonable

for

several

officers to tackle an individual who was not fleeing, not violent,
not aggressive, and only resisted by pulling his arm away from an
officer’s grasp,” Traummell v. Fruge, 868 F.3d 332, 343 (5th Cir.
2017), the Court finds that Traummell gave Officer Adams “fair
warning” that it was unconstitutional for a three-hundred-pound
officer, like him, to tackle an individual to the ground simply
because she attempted to avoid his grasp.

The law also “clearly

established” that a person has a right to not be crushed by the
weight of a police officer once subdued.

See Bush, 513 F.3d at

501 (holding that officers forcefully slamming a suspect’s face
into a vehicle when the suspect was already subdued, causing
injuries to her face, teeth, and jaw and requiring significant
medical

treatment

and

expense

objectively unreasonable).

was

excessive

to

the

need

and

Accordingly, summary judgment as to

Adams’s qualified immunity defense is not warranted. 7
Ms. Hegeman also asserts claims under Louisiana law for false
arrest,
false
imprisonment,
assault,
battery,
intentional
infliction of emotional distress, and for violation of the rights
“to privacy, to liberty, to be left alone, to locomotion, to
travel, to be free from unreasonable search and seizure, to be
free from unjustifiable and excessive use of force,” as well as
the rights to free speech, association, and assembly, and the
rights to due process of law and equal protection under state law.
The defendants appear to contend that, because there is no
actionable § 1983 claim against them, the Court should decline to
exercise supplemental jurisdiction over the plaintiff’s state law
claims. Because the Court has determined that the plaintiff has
7

23

B. Claims

Against

the

City

of

New

Orleans

and

Former

Superintendent Michael Harrison in His Official Capacity
The City and Michael Harrison seek a judgment dismissing the
plaintiff’s § 1983 claims against them.

The defendants submit

that the plaintiff has failed to allege and prove that a policy,
practice, or custom of Superintendent Harrison and the City was
the moving force behind any alleged constitutional violation. 8
Municipalities are “persons” within the meaning of § 1983 and
may be liable under this law if the governmental body itself
subjects a person to, or causes a person to be subjected to, a
deprivation of rights.
658, 690 (1978).

Monell v. Dep’t of Soc. Servs., 436 U.S.

But, it has been cautioned, “[t]hey are liable

only for their own acts and not those attributed to them by
principles of respondeat superior.”

Victoria W. v. Larpenter, 369

F.3d 475, 482 (5th Cir. 2004) (citing Monell, 436 U.S. at 691-92).
“[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.

Instead, it is when

execution of a government’s policy or custom . . . inflicts the

pled, and raised genuine issues of material fact with respect to,
her federal constitutional claims, the defendants’ efforts to
dismiss her state law claims are without merit.
8 Because the plaintiff’s § 1983 claims against Harrison in his
official capacity are redundant to the Monell liability claims
asserted against the City, dismissal of her official capacity
claims against Harrison is appropriate. See Romero, 256 F.3d at
355.
24

injury that the government as an entity is responsible under §
1983.”

Monell, 436 U.S. at 694.

To determine whether municipal liability attaches, the Court
considers

whether

unconstitutional

conduct

is

directly

attributable to the municipality through some official custom or
policy; “isolated unconstitutional actions by municipal employees
will almost never trigger liability.”

See Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citations omitted).
Indeed, the rules for imposing municipal liability are wellsettled; proof of three elements is central: “(1) an official
policy (or custom), of which (2) a policymaker can be charged with
actual

or

constructive

knowledge,

and

(3)

a

constitutional

violation whose ‘moving force’ is that policy or custom.”

Valle

v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010) (quoting
Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)
(citation omitted)). 4 Official (Monell) municipal policy “includes
the

decisions

of

a

government’s

lawmakers,

the

acts

of

its

policymaking officials, and practices so persistent and widespread
as to practically have the force of law.”

See Connick v. Thompson,

Proof of these three elements is necessary “to distinguish acts
of the municipality from acts of employees of the municipality,
and thereby make clear that municipal liability is limited to
action for which the municipality is actually responsible.” Burge
v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999)
(citation omitted).
4

25

563 U.S. 51, 61 (2011) (citations omitted) (“These are ‘action[s]
for which the municipality is actually responsible.’”).
Pointing to no written municipal policy, Hegeman urges the
Court to hold the City of New Orleans liable under § 1983 on the
basis

of

several

unofficial

policies.

“In

order

to

find

a

municipality liable for a policy based on a pattern,” the Fifth
Circuit has instructed, “‘that pattern must have occurred for so
long or so frequently that the course of conduct warrants the
attribution

to

the

governing

body

of

knowledge

that

the

objectionable conduct is the expected, accepted practice of city
employees.’”

Davis v. City of Stafford, 848 F.3d 384, 396 (5th

Cir. 2017) (quoting Peterson v. City of Fort Worth, 588 F.3d 838,
850 (5th Cir. 2009)). Stated differently, such a “pattern requires
similarity,
incidents.”

specificity,

and

sufficiently

numerous

prior

Id.

The plaintiff advances three theories of liability in her
complaint:

(1)

an

unwritten

municipal

policy

of

disrupting

constitutional gatherings to chill the exercise of civil rights;
(2) a failure to adequately train and supervise officers in the
use of force; and (3) a failure to discipline, which amounts to a
municipal custom of condoning the use of excessive force. 9

The

Specifically, the plaintiff’s complaint provides that the City
of New Orleans and/or Michael Harrison, in their official
capacities: (1) “have authorized . . . and condoned a policy,
practice and custom whereby constitutionally protected gatherings
9

26

Court considers each claim in turn, emphasizing that “one act is
not itself a custom” and that “[t]here must be a ‘persistent and
widespread practice.’”

Pineda v. City of Houston, 291 F.3d 325,

329 (5th Cir. 2002) (quoting Piotrowski, 237 F.3d at 581).
First, the plaintiff fails to establish that the NOPD’s
alleged interference with constitutional gatherings in an effort
to chill the exercise of civil rights amounts to a “persistent and
widespread practice.”

Hegeman neither alleges facts nor presents

evidence to establish official disruption of any constitutional
gathering

aside

from

the

protest

in

which

she

participated.

Because it is well-settled that “one act is not itself a custom,”
the plaintiff’s “disruption” theory of § 1983 liability must fail.
See Pineda, 291 F.3d at 329. 10

and activities have been the subject of disruption, interference,
harassment and intimidation, in an effort to deter, frustrate,
intimidate and have a chilling effect upon the civil rights of New
Orleans citizens and/or residents;” (2) “have exhibited a policy,
practice, and/or custom of callousness and reckless disregard for
the civil rights of residents like the Plaintiff in their failure
to adequately screen, hire, train, supervise, and/or discipline
employees and police officers;” and (3) “have exhibited a policy,
practice and/or custom of concealing civil rights violations.”
10 Insofar as Hegeman attempts to establish the existence of a
policy or custom by alleging that Superintendent Harrison
subsequently “ratified” his subordinates’ conduct, such efforts
likewise are without merit. Fifth Circuit precedent is clear that
ratification liability exists only in the case of an “extreme
factual situation,” such as where a supervisor condones the act of
“‘pour[ing]’ gunfire onto a truck,” which kills an innocent
occupant. See Peterson v. City of Fort Worth, 588 F.3d 838, 848
(5th Cir. 2009) (citing Grandstaff v. City of Borger, 767 F.2d 161
(5th Cir. 1985)).
27

The Court next considers the plaintiff’s attempt to establish
Monell liability by alleging that the City and Superintendent
Harrison failed to properly train their officers. To recover under
a failure-to-train theory of liability, Hegeman must prove that:
“1) the [City] failed to train or supervise the officers involved;
2) there is a causal connection between the alleged failure to
supervise or train and the alleged violation of the plaintiff’s
rights; and 3) the failure to supervise or train constituted
deliberate indifference to the plaintiff’s constitutional rights.”
Peña v. City of Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018)
(quoting Thompson v. Upshur Cty., 245 F.3d 447, 459 (5th Cir.
2001)).

“[F]or

liability

to

attach

based

on

an

‘inadequate

training’ claim, a plaintiff must allege with specificity how a
particular training program is defective.”

Roberts v. City of

Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (citing Benavides v.
Cty. Of Wilson, 955 F.2d 968, 973 (5th Cir. 1992)).
Supreme

Court

has

instructed,

deliberate

Moreover, the

indifference

is

a

“stringent standard of fault” and ordinarily requires a “pattern
of

similar

constitutional

violations

by

untrained

glaringly

fails

employees.”

Connick, 563 U.S. at 62.
Hegeman’s

complaint

to

inadequacy in the City’s training program itself.

identify

any

Rather, she

alleges that Superintendent Harrison – and thus the City – “failed
to properly supervise and train the officers in this incident to
28

avoid

unreasonable

seizures,

unlawful

arrests,

unlawful

harassment, and excessive force;” she further claims that Harrison
failed

to

“adequately

investigate
added).

citizens

train
in

a

them

to

approach,

constitutional

interview

manner.”

and

(emphasis

These generalized boilerplate allegations, without more,

do not permit this Court to infer that the City maintained a
widespread practice of failing to properly train its police force
on the making of investigatory stops.
neither

a

pattern

of

similar

Because Hegeman alleges

constitutional

violations

by

untrained employees, nor a complete failure to train her arresting
officers,

her

failure-to-train

indifference prong.

claim

fails

on

the

deliberate

See Peña, 879 F.3d at 624 (“[T]here is a

difference between a complete failure to train[] . . . and a
failure to train in one limited area.”) (quoting Estate of Davis
ex rel. McCully v. City of N. Richard Hills, 406 F.3d 375, 386
(5th

Cir.

2005));

see

also

Connick,

563

U.S.

at

61

(“A

municipality’s culpability for a deprivation of rights is at its
most tenuous where a claim turns on a failure to train.”).
Finally, the Court considers Hegeman’s allegation that the
City and Superintendent Harrison failed to adequately discipline
the use of force by NOPD officers.

Stated differently, this claim

amounts to an allegation that the City maintained an unwritten
“policy that was permissive of excessive force;” it requires the
plaintiff to show a pattern of similar uses of excessive force
29

that went ignored.

See Peterson v. City of Fort Worth, 588 F.3d

838, 850 (5th Cir. 2009).
“a

City

policy

of

The Fifth Circuit has recognized that

inadequate

officer

discipline

could

be

unconstitutional if it was pursued with deliberate indifference
toward the constitutional rights of citizens.”

Piotrowski v. City

of Houston, 237 F.3d 567, 581 (5th Cir. 2001).

A plaintiff may

prove the existence of such a policy by pointing to “a purely
formalistic investigation in which little evidence was taken, the
file

was

bare,

perfunctory.”

and

the

conclusions

Id. at 582.

of

the

investigator

were

However, “it is nearly impossible to

impute lax disciplinary policy to the City without showing a
pattern of abuses that transcends the error made in a single case.”
Id. (citations omitted).

Indeed, such a “pattern could evidence

not only the existence of a policy but also official deliberate
indifference.”
With

Id.

respect

to

her

failure-to-discipline

theory

of

liability, Ms. Hegeman alleges in her complaint that “Harrison
protected and sheltered officers, including [Officers Adams and
Barbe], from accountability and/or discipline for their unlawful
arrests and use of force.”
superintendent,
investigations

“having
and

She further claims that the former

supervisory

discipline,

has

authority
repeatedly

over

internal

condoned

and

ratified the illegal and unconstitutional acts of NOPD officers,
including but not limited to those described herein.”
30

Finally,

she alleges that “Harrison failed to take appropriate action to
re-train or other wise [sic] address the misconduct of the officers
in this case.”
The City contends that Hegeman has failed to state a claim
for

failure

to

discipline

policies were not deficient.”

because

the

NOPD’s

“disciplinary

For support, the City submits that

the Public Integrity Bureau committed a “thorough administrative
investigation” following the incident and determined that Officer
Adams’s “use of force was justified and within department policy.”
If Hegeman based her failure-to-discipline claim solely upon the
City’s

failure

to

thoroughly

investigate

this

incident

and

discipline Adams on this one occasion, the Court might agree that
there is no basis to impute a policy of lax discipline to the City.
However, viewing the facts in the light most favorable to the
plaintiff,

Ms.

Hegeman

alleges

that

Superintendent

Harrison

repeatedly failed to discipline Officer Adams and others for their
use

of

force.

And,

in

opposing

the

City’s

motion,

Hegeman

tellingly points to employment records dating back to 2011, which
indicate that eleven use-of-force complaints were lodged against
Officer Adams within an eight-year period.

The plaintiff also

spotlights that, between 2013 and 2017, the NOPD received more
than 8,400 complaints, over 200 of which concerned the use of
unauthorized force.

31

In reply, the City urges that Hegeman’s reliance on prior
use-of-force
complaints
“unfounded”

complaints
lodged

does

complaints.

is
not

misplaced
account

Indeed,

the

because
for
City

the

the

number

of

percentage

of

notes,

the

Public

Integrity Bureau investigates each use-of-force complaint, and
“none of Officer Adams’s use of force investigations have resulted
in discipline or violation of a departmental policy.”
The Fifth Circuit has rejected reasoning nearly identical to
that advanced by the City.

See Peterson, 588 F.3d at 852 (“[T]hat

the department itself vaguely ruled most of its complaints ‘not
sustained’

or

‘unfounded’

is

no

investigations exonerate the City.

assurance

that

these

To the contrary, that only

four of the 27 complaints were ‘sustained’ after investigation may
tilt in Peterson's favor.”).
Moreover, another Section of this Court, in Hayward v. City
of New Orleans, determined that the City was not entitled to
summary judgment on a failure-to-discipline claim where the City
neither re-trained, nor disciplined, an officer who been the
subject
period.

of

thirteen

abuse-type

complaints

within

a

nine-year

No. 02-3532, 2004 U.S. Dist. LEXIS 2010 (E.D. La. Feb.

12, 2004) (Fallon, J.).

The Hayward court reasoned that such

evidence raised questions of fact concerning whether the city’s
policymakers had notice of the complaints against the officer,
whether the city was deliberately indifferent to those complaints,
32

and if so, whether the city’s failure to discipline the officer
was the moving force behind the plaintiff’s injuries.
21.

Id. at *20-

As in Hayward, the copious use-of-force complaints against

Officer Adams (and his colleagues), on this record, create a fact
issue that the City’s policymakers had notice of the complaints,
that the City’s investigation process is “purely formalistic” or
“perfunctory,” and that the City’s failure to discipline Officer
Adams

was

the

moving

force

behind

Ms.

Hegeman’s

injuries.

Accordingly, summary judgment in favor of the City is inappropriate
as

to

the

plaintiff’s

Monell

liability

claim

for

failure

to

discipline.
C. Claims

Against

Superintendent

Michael

Harrison

in

His

Individual Capacity
Ms. Hegeman also asserts § 1983 claims against Superintendent
Harrison in his individual capacity.

Supervisory officials are

not in law vicariously liable for a subordinate’s actions; rather,
§ 1983 liability only applies if the officials (1) “affirmatively
participate in acts that cause constitutional deprivation,” or (2)
“implement

unconstitutional

plaintiff’s injury.”

policies

that

causally

result

in

Mouille v. City of Live Oak, Tex., 977 F.2d

924, 929 (5th Cir. 1992).

To state a § 1983 claim against

Superintendent Harrison in his individual capacity, the plaintiff
“must satisfy a heightened pleading standard;” she “must allege

33

specific facts giving rise to a constitutional violation.”

Oliver

v. Scott, 276 F.3d 736, 741-42 (5th Cir. 2003).
Here, Hegeman does not allege that Superintendent Harrison
actively engaged in the conduct that violated her constitutional
rights. Rather, she claims that he promulgated an unwritten policy
that was permissive of the use of excessive force; specifically,
she alleges in her complaint that he protected and sheltered
officers from accountability and discipline for their use of force,
condoned their unconstitutional acts, and failed to address such
misconduct.

In

this

regard,

Hegeman’s

§

1983

claim

against

Harrison in his individual capacity dovetails with her Monell
liability against the City, and she relies upon the same facts in
support of both claims.

Accordingly, for the same reasons that

Hegeman’s municipal liability claim for failure to discipline
against

the

City

survives

summary

dismissal,

her

individual

capacity claim against Harrison likewise persists. 11
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendants’ motion to dismiss or for summary judgment is
GRANTED, in part, as to the plaintiff’s § 1983 claims against
Officer

Adams

and

Superintendent

Harrison

in

their

official

capacities, and DENIED, in part, as to the plaintiff’s claims
against

Officer

Adams

and

Superintendent

Harrison

in

their

To the extent that Harrison invokes qualified immunity, the
Court defers ruling on this issue because it is not briefed.
11

34

individual capacities, as well as to her Monell liability claim
against the City for failure to discipline.

New Orleans, Louisiana, March 20, 2019

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

35