Tennart et al v. Baton Rouge et al

Filing 379

ORDER : The 341 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, as described herein. Signed by Judge John W. deGravelles on 09/06/2022. (ELW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LEROY TENNART, ET AL.
VERSUS
CITY OF BATON ROUGE, ET AL.

CIVIL ACTION
NO. 17-179-JWD-EWD
ORDER

This matter comes before the Court on the Motion for Summary Judgment (Doc. 341) (the
“LSP Motion”) filed by those defendants associated with the Louisiana State Police (the “LSP
Defendants”). 1 One plaintiff, Zachary Hill, opposes the motion in part, 2 (Doc. 356), and LSP
Defendants have filed a reply, (Doc. 366). Oral argument is not necessary. The Court has carefully
considered the law, the facts in the record, and the arguments and submissions of the parties and
is prepared to rule.
By way of introduction, this case involves eight (8) remaining plaintiffs who assert
seventeen claims arising from a protest which occurred on July 9, 2016, around Airline Highway
in Baton Rouge following the killing of Alton Sterling by Baton Rouge Police Department
(“BRPD”) officers. (See Fifth Am. Compl., Doc. 310.) The City, and officials and BRPD officers

LSP Defendants include: Jacob Brown Murray Buquet, Jason Chiasson, John Clary, Mark Dennis, Joseph Dessens,
Ian Dolins, David Easley, Michael Edmonson, Aaron Guilliams, Joseph Hasselbeck, Caleb Kennedy, and Matthew
Lemmons
2
The other plaintiffs in this action include: Brachell Brown, Christopher Brown, Eddie Hughes, Godavari Hughes,
Thomas Hutcherson, Deon Tennart, and Leroy Tennart.
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associated with the City, are also defendants in this action, 3 but only the LSP Defendants bring the
instant motion.4 LSP Defendants now seek dismissal of all claims against them.
At the outset, Plaintiffs’ opposition reveals that the LSP Motion is uncontested in three
ways. First, Plaintiffs note on the first page that “Plaintiffs Brachell Brown, Christopher Brown,
Eddie Hughes, Godavari Hughes, Thomas Hutcherson, Deon Tennart, and Leroy Tennart concede
that discovery has not produced evidence of direct involvement in their injuries by the remaining
LSP Defendants.” (Doc. 356 at 1 n.2) As a result, all claims by all Plaintiffs other than Zachary
Hill against all LSP Defendants are DISMISSED WITH PREJUDICE.
Second, “Plaintiff Zachary Hill opposes the summary judgment motion of Matthew
Lemmons[.]” (Doc. 356 at 1.) He makes no opposition as to the other LSP Defendants, so any
claims against them are waived. See Payton v. Town of Maringouin, No. 18-563, 2021 WL
2544416, at *26 (M.D. La. June 21, 2021) (deGravelles, J.) (collecting authorities on waiver and
finding that claims could be dismissed for failure to meaningfully oppose (citations omitted)), aff'd,
No. 21-30440, 2022 WL 3097846 (5th Cir. Aug. 3, 2022). Accordingly, all claims by Hill against
all LSP Defendants other than Defendant Mathew Lemmons are DISMISSED WITH
PREJUDICE.
And third, Hill argues that there are genuine issues of material fact as to “Counts 3, 6, 7, 8,
12, 13, 14, 16, and 17.” (Id.) Accordingly, there is no opposition to those excluded counts, and the
following claims by Hill against Lemmons are DISMISSED WITH PREJUDICE as waived: (a)
Count 1, Civil Conspiracy under § 1983; (b) Count 2, Racially-Motivated Conspiracy under §

3
Officers and officials associated with the East Baton Rouge Sheriff’s Office and Livingston Parish Sheriff’s Office
were also defendants in this case, but they were dismissed following the granting of their renewed Rule 12(b)(6)
motions. (See Doc. 286.)
4
The City Defendants have also moved for summary judgment. (Doc. 347.) That motion will be taken up in due
course.

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1985(3); (c) Count 4, Manufacturing Evidence, etc., under § 1983; (d) Count 5, Excessive Force
under the Fourth Amendment; (e) Count 11, Civil Conspiracy under State Law; and (f) Count 15,
Abuse of Process under State Law.
Additionally, undersigned emphasizes at the start that the issues in this case are welltravelled ground for this Court. Other protests also happened in Baton Rouge after Alton Sterling’s
death, and one is the subject of other pending litigation in this Court. See Imani v. City of Baton
Rouge, No. 17-439, --- F. Supp. 3d ----, 2022 WL 2760799 (M.D. La. July 14, 2022) (deGravelles,
J.) (the “Imani Ruling”); Smith v. City of Baton Rouge, No. 17-436, 2022 WL 2789221 (M.D. La.
July 15, 2022) (deGravelles, J.) (the “Smith Ruling”).
While the Imani Ruling and Smith Ruling dealt with different defendants (i.e., the City
Defendants) and a different protest (the one occurring on July 10, 2016, downtown near the corner
of East Boulevard and France Street), those decisions are critical to this Court’s analysis of the
LSP Motion. The Imani Ruling is extremely extensive and provides a comprehensive framework
for most of the legal issues involved with the LSP Motion, and the more streamlined Smith Ruling
demonstrates the overall approach this Court will take.
With that context established, the remaining claims before the Court are: (a) False
Detention, Arrest, and Imprisonment under § 1983 (Count 3), and its equivalent state law claim
under the Louisiana Constitution (Count 13); (b) First Amendment Retaliation under § 1983
(Count 6), and its equivalent state law claim under the Louisiana Constitution (Count 12); (c)
Failure to Intervene under § 1983 (Count 7); (d) an As-Applied Challenge to La. R.S. 14:97 (Count
8); (e) certain intentional torts such as intentional infliction of emotional distress (“IIED”), assault
and battery, and false imprisonment (Count 14); (f) Abuse of Rights (Count 16); and (g)
Negligence (Count 17).

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Having carefully considered the law, evidence, and briefing, the Court will grant the
disputed portions of the LSP Motion in part and deny them in part. In short, questions of fact
preclude the granting of summary judgment for some but not all of the remaining claims.
First, the Court will grant Lemmons summary judgment on the § 1983 false arrest and
equivalent state law claims. In sum, even construing the evidence in a light most favorable to Hill
and drawing reasonable inferences in his favor, the Court finds that all reasonable jurors would
conclude that Lemmons observed Hill obstructing Airline Highway—an extremely busy U.S.
Highway—and that Lemmons thus had probable cause to arrest Hill for violating La. R.S. 14:97,
simple obstruction of a highway. The Court bases this conclusion on the following evidence
showing or reflecting that Hill was intentionally in the roadway at the time of the arrest: (1) the
videos of the arrest, (Pls.’ Ex. 6 (“More than 100 people arrested during heated protest at BRPD
head – WAFB 9 Zachary arrest at 105.mp4”), at 1:05-1:08); Pls.’ Ex. 11 (2016.07.09 USA_ Black
Lives Matter protesters picket . . . .mp4), at 0:00–0:10, Doc. 357); (2) pictures in evidence, (Pls.’
Ex. 3 (Zachary Hill Protests 2.jpg), Pls.’ Ex. 10 (RTSH3XY.jpg), Pls.’ Ex. 13 (Zachary Hill
arrest.jpg), Doc. 357); (3) some of the undisputed facts, as admitted or qualified, (see Statement of
Material Facts Not Genuinely Disputed ¶¶ 10–17, Doc. 341-4; Pls.’ Opposing Statement of
Material Facts in Response to [LSP Motion] (“POSMF”), ¶¶ 10–17, Doc. 356-1); and (4)
Lemmons’ testimony (Lemmons Dep. 49:9–19, 55:22–56:3, 65:8–20, Doc. 341-3). At the very
least, Lemmons is entitled to qualified immunity on this claim, as the Court cannot say that every
reasonable officer in Lemmons’ shoes would know that participating in Hill’s arrest under these
circumstances was a violation of clearly established law. As a result, the LSP Motion will be
granted on these claims. See Doe v. McKesson, 2021-00929 (La. 3/25/22), 339 So. 3d 524, 533
(stating, in answering questions certified by the U.S. Fifth Circuit arising from the protest on

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Airline Highway, that “the blocking of a heavily traveled highway, thereby posing a hazard to
public safety,” was “the commission of a crime”); cf. Imani, 2022 WL 2760799, at *37 (denying
defendants’ motion for summary judgment in part because, when construing the evidence in a light
most favorable to plaintiffs, the City lacked “any description of any specific Plaintiff’s illegal
activity” and “had no knowledge of which officer saw Plaintiffs commit any crime or what officer
seized Plaintiffs”).

Hill’s § 1983 false arrest claim (Count 3) and equivalent state law

constitutional claim (Count 13) and false imprisonment claim (Count 14) are DISMISSED WITH
PREJUDICE.
As to the First Amendment claims, Lemmons is entitled to qualified immunity; even
construing the evidence in a light most favorable to Hill and drawing reasonable inferences in his
favor, the Court cannot say that every reasonable officer in Lemmons’ position would know that
his conduct was unlawful under clearly established law. That is, the Court cannot conclude that
all such officers would know, beyond doubt, that Hill’s remaining on Airline Highway was
protected activity under the First Amendment and thus that Lemmons’ arresting Hill for same was
a First Amendment violation. See Doe v. Mckesson, 945 F.3d 818, 832 (5th Cir. 2019) (noting, in
holding that First Amendment was not a bar to a state law negligence claim by officer against the
organizer of this protest, that “the criminal conduct allegedly ordered by [the organizer] was not
itself protected by the First Amendment, as [the organizer] ordered the demonstrators to violate a
reasonable time, place, and manner restriction by blocking the public highway.” (citing Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (reasonable time, place, and manner
restrictions do not violate the First Amendment)), cert. granted, judgment vacated on other
grounds, 141 S. Ct. 48 (2020); see also Mckesson, 945 F.3d at 823 (“On July 9, 2016, a protest
illegally blocked a public highway in front of the Baton Rouge Police Department headquarters.”),

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827 (“The complaint alleges that [the organizer] planned to block a public highway as part of the
protest. . . . Blocking a public highway is a criminal act under Louisiana law. See La. Rev. Stat.
Ann. § 14:97.”); cf. Imani, 2022 WL 2760799, at *24 (denying summary judgment for First
Amendment claims because there was evidence (a) that protesters lacked intent to obstruct major
highway (interstate), and (b) that they acted lawfully). Consequently, the First Amendment claims
(Counts 6, 8) and comparable state law claim (Counts 12) are DISMISSED WITH PREJUDICE.
The remaining claims, however, survive. With respect to the § 1983 failure to intervene
claim (Count 7), Lemmons’ sole defense is that there is no evidence that he knew that excessive
force was being applied to Hill in violation of his rights. (Doc. 341-1 at 10–11.) But the Court
finds that, construing the evidence in a light most favorable to Hill, a reasonable juror could easily
conclude that the arresting BRPD officer applied excessive force to Hill, that Lemmons knew of
this violation, and that Lemmons had a reasonable opportunity to intervene to stop it. See Imani,
2022 WL 2760799 at *45–46 (describing these elements of failure to intervene claim); cf. Smith,
2022 WL 2789221, at *2 (dismissing failure to intervene claim because “Plaintiff has shown mere
presence at the scene of the constitutional violation, but that is insufficient.”). The Court bases
this holding on the same evidence referenced above, including (1) the videos (Pls.’ Ex. 6 (“More
than 100 people . . . .mp4”), at 1:05–1:08 (showing forceable takedown of Hill with Lemmons
assisting); Pls.’ Ex. 11 (2016.07.09 USA_ Black Lives Matter protesters picket . . . .mp4), at 0:00–
0:10, Doc. 357 (showing Hill restrained on the ground by officers for at least ten seconds)); (2)
pictures (Pls.’ Ex. 10 (RTSH3XY.jpg) (showing a shin or knee on Hill’s head), Pls.’ Ex. 13
(Zachary Hill arrest.jpg (showing same from different angle), Doc. 357); (3) undisputed additional
fact ¶ 3 in the POSMF, Doc. 356-1 at 5, which (a) states, “After Mr. Hill was taken to the ground,
Frederick Thornton appears to have his knee on Mr. Hill’s head as he is being handcuffed,” and

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(b) is “deemed admitted for purposes of this motion because of [LSP Defendants’] failure to submit
a separate reply statement,” Smith, 2022 WL 2789221, at *2 (citing M.D. La. LR 56(d), (f), & (g));
and (4) Lemmons’ testimony (Lemmons Dep. 62:3–63:2, Doc. 341-3 (testifying that it was never
“acceptable to have a knee on a subject’s head or neck” and that, if he witnessed such an act, he
would “have intervened to stop it”)). Thus, for this claim (Count 7), the motion is DENIED.
Likewise, Hill’s state law claims will largely proceed to trial. Construing the evidence in
a light most favorable to Hill (including that evidence discussed above), reasonable jurors could
find that Lemmons participated in the use of excessive force against Hill by the BRPD officer and
that Lemmons is thus liable for IIED, assault and battery, abuse of right, and negligence. In these
respects (i.e., the remaining parts of Count 14), the LSP Motion is DENIED.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment (Doc. 341) filed by the LSP
Defendants is GRANTED IN PART and DENIED IN PART, as described herein.
Signed in Baton Rouge, Louisiana, on September 6, 2022.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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