Poole v. Russell et al

Filing 48

OPINION. Signed by Judge Robert G James on 10/18/16. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
HERSHEL M. POOLE, JR.

CIVIL ACTION NO. 14-0611

VERSUS

JUDGE ROBERT G. JAMES

SHERIFF JAY RUSSELL, ET AL.

MAG. JUDGE KAREN L. HAYES

OPINION
Plaintiff Hershel M. Poole, Jr. (“Poole”), brought this lawsuit, alleging violations of 42
U.S.C. § 1983, namely that he was (1) falsely arrested, (2) subjected to excessive force, and (3)
retaliated against for exercising his First Amendment Rights against Defendants Ouachita Parish
Sheriff Jay Russell (“Russell”) and Ouachita Sheriff Deputies James Felts, Bradley Frost,
William Craig, and Seth Cox (collectively, “Defendants”). Poole also asserts a battery claim
under Louisiana state law against Defendants and a vicarious liability claim solely against
Russell.
A bench trial was held October 4-5, 2016. The parties made closing arguments, but
waived the filing of post-trial briefs. The Court then took the matter under advisement.
I.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court hereby enters the following findings of fact and conclusions of law. To the

extent that any finding of fact constitutes a conclusion of law, the Court hereby adopts it as such,
and to the extent that any conclusion of law constitutes a finding of fact, the Court hereby adopts
it as such.

A.

FINDINGS OF FACT

Poole owns property at 110 Smith Cemetery Road, West Monroe, Louisiana. He resides
in a trailer on the property. Poole had made several previous complaints and phone calls to the
Ouachita Parish Sheriff’s Office (“OPSO”) concerning trespassing and vandalism on his property.
Deputy Felts responded to several of Poole’s calls. In 2012, Poole made a call to the OPSO
complaining of people trespassing on his property. Deputy Felts responded to the call at Poole’s
property and warned Poole about excessive calls to the OPSO. Poole testified that Deputy Felts
threatened to arrest him if he made any additional calls to the OPSO.
On March, 22, 2013, a funeral was held at Smith Cemetery, which is located on Smith
Cemetery Road to the rear of Poole’s property. Before the funeral services began, some funeral
attendees parked their vehicles on property owned by Poole. A confrontation between Poole and
some of the funeral attendees, specifically Barbra Hill (“Hill”) and Jeffery Ingram, ensued over
what property belonged to the cemetery.
Poole then placed a call to the OPSO to complain about trespassers on his property.
Because of his prior working relationship with OPSO Captain Morris,1 Poole asked the
dispatcher to contact Captain Morris concerning his complaint about the funeral attendees
trespassing on his property. Captain Morris returned Poole’s call and instructed Poole to call him
back on his cell if he had any additional trouble.
After the funeral concluded, Hill testified that she drove out of the cemetery on Smith
Cemetery Road, passing Poole as he sat on the small porch attached to the front of his trailer. Hill

1

Beginning in July 2006, Poole had worked as a compensated narcotics informant for
Captain Bob Morris with the Special Crimes Apprehension Team (“S.C.A.T.”) of the OPSO.
2

called 911 in response to Poole’s disruptive behavior while he was standing on his porch as the
vehicles left the cemetery. Poole also called Captain Morris on his cell phone to report further
disturbances on his property involving the funeral attendees. Around 3:40 p.m., Deputy Cox
responded to a radio call of a disturbance at Smith Cemetery Road. Deputy Cox arrived at
Poole’s property and spoke to Poole and some of the funeral attendees. Deputy Cox, believing he
had resolved the situation, left Poole’s property within minutes.
Hill left for her home in Calhoun, Louisiana, but returned to Smith Cemetery Road when
her son, Ray Hill, called to inform her that OPSO deputies had arrived at the scene and had
requested to speak to her. However, by the time Hill returned to Smith Cemetery Road, Deputy
Cox had already left the scene, and Poole had gone back inside his trailer. Hill then proceeded
down Smith Cemetery Road with other funeral attendees to pick up flowers that were left at the
grave site. Poole stood on his porch again after he noticed a few cars had returned to Smith
Cemetery.
Hill testified that when they exited Smith Cemetery, Poole began shouting profanities at
them and trying to provoke Hiram Tripp (“Tripp”) into a fight. Poole testified that the funeral
attendees stopped on Smith Cemetery Road, by his trailer, and challenged Poole to a fight. While
Tripp and Poole were still involved in a verbal altercation, Ray Hill flagged down Deputy Felts in
his marked OPSO vehicle. Deputies Craig, Frost, and Felts had just left a training center on Trade
Street which intersects with Smith Cemetery Road at Poole’s property. Deputy Felts testified that
around 4:30 p.m. he was flagged down at the intersection by several individuals, one of whom
was later identified as Hill. They told Deputy Felts that they had been involved in a confrontation
with Poole while attending a funeral at Smith Cemetery. The funeral attendees specifically stated

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that Poole had yelled and cursed at them while they were participating in the service.
While Deputy Felts was talking with the attendees, Deputy Frost arrived at the scene.
Deputy Frost testified that he heard the funeral attendees complain to Deputy Felts that Poole had
yelled profanities at them as they were leaving the cemetery.2
After Deputy Felts spoke with the funeral attendees, he proceeded up to the porch of the
trailer to talk to Poole and get his side of the story. Deputy Felts stood on the porch facing Poole,
who stood in front of the door to the trailer. Deputy Felts testified that he listened to Poole
explain that the funeral attendees had been trespassing on his property. Deputy Felts then advised
Poole that he could not prevent people from driving down Smith Cemetery Road. Poole
responded that Deputy Felts did not know what he was talking about and, using profanity, stated
that Deputy Felts should call Captain Morris.
After the brief conversation between Poole and Deputy Felts, Poole turned away from
Deputy Felts in order to enter his trailer. Deputy Felts then grabbed Poole’s wrist and advised
him that he was not finished with his investigation. Poole attempted to jerk his arm away and was
then informed by Deputy Felts that he was under arrest. When Poole attempted to pull his arm
away and retreat inside his residence again, he was taken to the ground by Deputy Felts. Deputy
Felts and another unidentified deputy then restrained Poole while he was lying on the porch by
placing pressure on his back with their knees. Poole states that he did not know that Deputy Felts
was a peace officer and turned to avoid what was an apparent hostile and potentially violent
situation.

2

Hill testified that she did not speak with Deputy Felts and she did not believe that Tripp
did either. However Deputies Frost and Felts stated that Deputy Felts spoke with funeral
attendees, later identified as Hill and Tripp, before Deputy Felts approached Poole.
4

Poole was charged with Resisting Arrest and Disturbing the Peace. As a result of the
incident, Poole suffered an abrasion below his left eye, but was not treated by medical personnel
at the scene. Poole also claims that he suffered injuries to his shoulder, back, and knees. Poole
also suffered mental distress and was examined by Dr. Vandenberg, a psychiatrist. Poole entered
a plea of “no contest”3 to the Disturbing the Peace charge, but the remaining charge was
dismissed.
On March 21, 2014, Poole filed the instant suit against Sheriff Russell and Deputies Felts,
Frost, Craig, and Cox.
On October 4, 2016, at the commencement of trial, Poole dismissed all claims against
Deputy Cox and all federal claims against Sheriff Russell. On that day, trial proceeded on the
remaining claims.
B.

CONCLUSIONS OF LAW

Poole has asserted claims for false arrest, excessive force and retaliation under 18 U.S.C.
§ 1983 and battery and vicarious liability under Louisiana state law.
1.

False Arrest

In Heck v. Humphrey, the United States Supreme Court held, generally, that a plaintiff
who has been convicted of a crime cannot bring a Section 1983 claim challenging the
constitutionality of his or her conviction, unless that conviction has been reversed, expunged,
declared invalid, or called into question by a federal court’s issuance of a writ of habeas corpus.
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Specifically, the Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or

3

A “no contest” plea is otherwise referred to as an Alford plea.
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imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed, in
the absence of some other bar to the suit.
Id. “At the core of Heck is a proscription against allowing a civil suit to cast doubt on a criminal
conviction. However, where no conflict exists between the conviction and the claims involved in
the civil complaint, the § 1983 suit must be allowed to proceed.” Crowe v. Hoffman, No. 12-687,
2013 WL 357006, at *2 (E.D. La. Jan. 29, 2013) (citing Heck, 512 U.S. at 487).
In Walter v. Horseshoe Entertainment, the Fifth Circuit held that:
In order to support a claim for unlawful [or false] arrest, a plaintiff must show that
he was arrested without probable cause. Burge v. Parish of St. Tammany, 187 F.3d
452, 481 (5th Cir. 1999). Here, the plaintiffs were arrested for crimes of which
they were ultimately convicted. Heck therefore bars recovery for the false arrest
claim, because the conviction necessarily implies that there was probable cause for
the arrest. Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999).
Walter v. Horseshoe Entm’t, 483 Fed. App’x. 884, 887–88 (5th Cir. 2012).
Likewise, where the plaintiff’s conviction on a charge for which he was arrested is by way
of a guilty plea, or a plea of no contest, to that charge, the plea necessarily implies that there was
probable cause for the arrest and, thus, that the arrest was not unlawful or false. See, e.g.,
Buckenberger v. Reed, 342 Fed. App’x. 58, 61 (5th Cir. 2009); Wallace v. City of Slidell, No.
15-383, 2016 WL 1223065, at *2 (E.D. La. Mar. 29, 2016) (“By definition, the claim of false
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arrest, in particular, challenges to the lawfulness of an arrest. By entering no-contest pleas, each
of the arrestee-Plaintiffs has been ‘convicted’ of crimes for which he or she was arrested. A
judgment on the false arrest claims in favor of the arrestee-Plaintiffs would necessarily imply the
invalidity of those convictions, which have not been reversed, expunged, or otherwise
invalidated. As a result, the claims of false arrest are barred.”); Magee v. Reed, No. 14-1986,
2015 WL 5020252, at *3–4 (E.D. La. Aug. 19, 2015); Idel v. New Orleans Police Dep’t, No.
11-1078-DEK, 2012 WL 860380, at *2–3 (E.D. La. Mar. 13, 2012); DeLeon v. City of Corpus
Christi, No. C.A. C-05-096, 2005 WL 2045562, at *2 (S.D. Tex. Aug. 24, 2005); Barker v. Jack,
No. 3:04-CV-0596-G, 2004 WL 1144144, at *2 n.2 (N.D. Tex. May 20, 2004).
Here, Poole pled no contest to a disturbing the peace charge. Therefore, his § 1983 false
arrest claim is barred by Heck. See Gonzales v. Brazley, No. CIV A 09-137, 2009 WL 2411800,
at *5 (E.D. La. Aug. 4, 2009) (holding that the plaintiff had no § 1983 false arrest claim for an
arrest that resulted in a conviction of disturbing the peace). To this extent, Judgment will be
entered in favor of Defendants on Poole’s § 1983 claim for false arrest.
2.

Retaliation

Next, Poole asserts a § 1983 retaliation claim, contending that he was arrested for
exercising his First Amendment rights.4 Poole’s free speech retaliation claim is similarly
Heck-barred. To prevail on his free speech retaliation claim, Poole had to show that there was no

4

Poole asserted in the Pre-Trial Order that “Defendants retaliated against Plaintiff by
arresting him and using excessive force againsnt [sic] him for making calls concerning vandals
and trespassers on his property.” [Doc. No. 32, p. 5]. However, in the joint proposed verdict form
submitted to the court, Poole only alleged a claim for retaliatory arrest. [Doc. No. 37, p. 2]. The
Court advised Poole at trial to identify all claims not listed in the proposed verdict form, but he
failed to identify a claim for excessive force as a basis for his § 1983 retaliation claim. Therefore,
the Court will analyze only Poole’s arrest as retaliation under § 1983.
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probable cause to arrest him. Hartman v. Moore, 547 U.S. 250, 252 (2006) (holding that want of
probable cause to support the underlying criminal charge must be alleged and proven for a First
Amendment violation to be actionable).
Where a plaintiff was arrested for crimes of which he was ultimately convicted, Heck bars
recovery for free speech retaliation because the conviction necessarily implies that there was
probable cause for the arrest. Walter, 483 Fed. App’x at 887–88. Here, because a lack of probable
cause is a requisite for his success on his First Amendment retaliation claim, but the want of such
probable cause would invalidate his no contest plea to the charge of Disturbing the Peace,
Poole’s claim is barred by Heck. To this extent, Judgment is entered in favor of defendants and
against Poole.
3.

Excessive Force

Poole also asserted a § 1983 claim for excessive force in violation of the Fourth
Amendment. To establish this claim, Poole must demonstrate: “(1) injury, (2) which resulted
directly and only from a use of force that was clearly excessive, and (3) the excessiveness of
which was clearly unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
Excessive force claims are necessarily fact-intensive; whether the force used is “excessive” or
“unreasonable” depends on “the facts and circumstances of each particular case.” Graham v.
Connor, 490 U.S. 386, 396 (1989); see also Brosseau v. Haugen, 543 U.S. 194, 201 (2004)
(observing that this “area is one in which the result depends very much on the facts of each
case”). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396.

8

“Not every push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers,” violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.
Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). “The ‘reasonableness’
inquiry in an excessive force case is an objective one.” Id. Along those lines, Fifth Circuit
precedent also asks whether the officers, in applying the force, were responding with “measured
and ascending actions that corresponded to [the suspect’s] escalating verbal and physical
resistence.” Pratt v. Harris Cty., Tex., 2016 WL 2343032 at *5 (5th Cir. May 3, 2016) (quoting
Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).
Crucially, this analysis must be objective: To make out a Fourth Amendment violation,
let alone one that violates clearly established law, “the question is whether the officer’s actions
are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. Any “evil intentions”
motivating an officer’s objectively reasonable use of force “will not make a Fourth Amendment
violation.” Id. at 397. Factors to consider include “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.
First, Poole was arrested for a minor crime: disturbing the peace. This factor weighs in
favor of finding a constitutional violation. See Carter v. City of Carlsbad, 799 F.Supp.2d 1147,
1157 (S.D. Cal. 2011) (finding misdemeanor offense will generally weigh against reasonableness
of using taser in dart mode to apprehend suspect); see also Davis v. City of Las Vegas, 478 F.3d

9

1048, 1055 (9th Cir. 2007) (noting that trespassing and obstructing police officer were not severe
crimes); Massey v. Wharton, 477 Fed. App’x. 256, 263 (5th Cir. 2012).
Second, whether Poole posed a threat to the officers or others is less clear. Hill testified
that Poole made profanity-laced threats to some attendees of the funeral. When Deputy Felts
stated that Poole was under arrest, Poole attempted to evade arrest by making a motion towards
retreating into his trailer. Deputy Felts stated that Poole’s attempt to evade arrest constituted a
safety threat. Thus, the second factor weighs against the finding of a constitutional violation.
Finally, it is undisputed that during the interaction between Deputy Felts and Poole on the
porch, Poole turned and made a motion for the door to his trailer. At that point Deputy Felts
grabbed Poole’s right wrist and instructed Poole that he was not done with his investigation.
Deputy Felts and Hill both testified that Poole jerked his arm away from Deputy Felts and
attempted to retreat inside his trailer once again. While Deputy Felts still had control of Poole’s
wrist, he told Poole that he was under arrest and took him to the floor of the porch by twisting
Poole’s arm. Deputy Felts and another unidentified deputy restrained Poole while he was lying
on the porch by placing pressure on his back with their knees.
Under these circumstances, it was reasonable for Deputy Felts to restrain Poole from
attempting to enter his trailer. Such an action by Poole could reasonably be construed as an
attempt to evade arrest or pose a safety risk. See also Hogan v. Cunningham, 722 F.3d 725, 734
(5th Cir. 2013) (holding that “controlled takedown” breaking two ribs of defendant resisting
arrest was not excessive force). Indeed, in Hogan, the court noted that “[a] reasonable officer was
also entitled to consider that tackling a suspect was not necessarily likely to result in broken ribs
or similar injuries[,]” and that “no reasonable jury could conclude that the officers used excessive
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force to subdue Hogan [by tackling him].” Id.
In Deshotels v. Marshall, 454 F. App’x 262 (5th Cir. 2011), the Fifth Circuit considered
the use of force in subduing a burglary suspect. The court found that officers’ straddling of the
suspect, pulling on his arms, kneeling on his shoulder, and folding of his legs to stop him from
kicking were all objectively reasonable, considering the size of the suspect and his immediate
attempts to flee. Id. at 267–68.
In light of the circumstances, a reasonable officer could have decided that a takedown to
the porch was necessary to subdue Poole.
Additionally, the tactics used to restrain Poole while handcuffs were obtained were also
objectively reasonable. Deputy Felts and another unidentified deputy put their knees on Poole’s
back to restrain him until another deputy could retrieve handcuffs out of a vehicle.5 Poole claims
that his back was injured when the deputies put their knees on his back.
There is no bright-line rule forbidding police officers from using a knee to pin an arrestee
to the ground. In Castillo v. City of Round Rock, Texas, for example, the Fifth Circuit held that
officers had not used excessive force where they had restrained plaintiff “in the prone position on
the ground, eventually handcuffing his hands behind his back,” even though (1) one officer and a
bystander “remained on [plaintiff’s] back for four to six minutes;” (2) the officer “shoved his
knee in the back of [plaintiff’s] neck and kept it there for some five to ten minutes;” and (3) the
plaintiff later died of asphyxiation. Castillo v. City of Round Rock, Texas, 177 F.3d 977, at *1
(5th Cir. 1999) (unpublished). The Court explained that the plaintiff had “actively resist[ed] by

5

The only other deputies present besides Deputy Felts at the time were Deputy Frost and
Deputy Craig.
11

kicking and yelling” and had bloodied one officer’s nose “in a manner that a reasonable officer
could perceive as hostile.” Id. at *3. The officers had not acted unreasonably when they placed
the plaintiff in the prone position and “incapacitat[ed] him as quickly and professionally as
possible, by climbing on top of his back and securing his hands and legs . . . .” Id. Similarly, in
Deshotels, the court held that police officers acted reasonably when one officer kneeled on
arrestee’s right shoulder, another straddled his back and pulled on his arm, and the third folded
arrestee’s legs together to stop him from kicking—even though the arrestee died of asphyxia
shortly thereafter. Deshotels, 454 F. App’x at 268.
In this case, the facts are far less egregious than Deshotels and Castillo. As previously
described, a reasonable officer could have interpreted Poole’s actions as resistance to arrest when
he admittedly pulled his arm away and attempted to retreat into his trailer. While there is no
evidence he resisted to the extent of the plaintiffs in Deshotels and Castillo, a reasonable officer
could have believed that Poole was resisting or evading an arrest and that it was necessary to pin
him to the ground with a knee. Further, credible testimony at trial showed that Poole was on the
porch restrained by the knees of two deputies for a much shorter period of time.
Moreover, the fact that Deputy Felts and the other unidentified deputy stood up as soon as
Poole was handcuffed suggests that the deputies used their knees only insofar as it was necessary
to effect Poole’s arrest. Thus, in light of Poole’s apparent resistance to arrest, Deputy Felts’
decision to pin Poole to the floor with his knee, freeing his hands to help with handcuffing, was
neither excessive nor objectively unreasonable. Based on a totality of the circumstances, the
conduct of Deputy Felts and the unidentified deputy was reasonable under the circumstances. See
Saucier, 533 U.S. at 201.
12

Plaintiff also alleged that Deputies Craig and Frost were present and failed to protect
Poole from excessive force. An officer can be liable under Section 1983 for failing to prevent
another officer’s use of excessive force where the bystanding officer: (1) knew that a fellow
officer was violating an individual’s constitutional rights, (2) had a reasonable opportunity to
prevent the violation, and (3) chose not to act. Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir.
2013). Of logical necessity, the existence of a constitutional violation is an absolute prerequisite
to a failure to intervene claim. See id.
Here, the Court has already determined that the deputies who engaged in direct contact
with Poole did not commit any constitutional violations. Therefore, the bystander deputies did
not fail to intervene because there was no violation of Poole’s constitutional rights. See Whitley,
726 F.3d at 646.6 Judgment is entered in favor of Defendants and against Poole on his § 1983
excessive force claim.
4.

Louisiana State Law Battery

Poole also asserts a claim of battery based on the deputies’ actions restraining him. Under
Louisiana law, the tort of battery, when raised against a law enforcement officer acting in the
course of employment, requires a showing that the law enforcement officer acted with
unreasonable or excessive force. Gerard v. Parish of Jefferson, 424 So.2d 440, 444 (La. Ct. App.
1982) (citing Kyle, 353 So. 2d at 972); see also Taylor v. United States, 1991 WL 280066 (E.D.
6

Plaintiff presented evidence to suggest that he lacked knowledge that Deputy Felts was a
peace officer during Deputy Felts’ initial contact with him. Plaintiff’s argument in this regard is
not clear. However, the testimony elicited at trial makes clear that a reasonable person would
have been aware of the fact Deputy Felts was a peace officer. Deputy Felts had at least five prior
interactions with Poole while Deputy Felts was on duty and in his Sheriff’s Deputy uniform.
Additionally, a reasonable person would have known from the facts and circumstances at the time
that Deputy Felts was a peace officer, even though he was not in uniform.
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La. Dec. 19, 1991) (“Under Louisiana law, in the absence of the use of excessive force, a law
enforcement officer cannot be held liable for assault and battery if the assault and battery
occurred during a lawful arrest.”).
The use of force by law enforcement officers is scrutinized by considering the “reasonable
force” standard established by Louisiana Code of Criminal Procedure art. 220:
A person shall submit peaceably to a lawful arrest. The person making a lawful
arrest may use reasonable force to effect the arrest and detention, and also to
overcome any resistance or threatened resistance of the person being arrested or
detained.
Louisiana’s excessive force tort mirrors its federal constitutional counterpart. See Kyle v. City of
New Orleans, 353 So.2d 969, 972 (La. 1977).
Factors in determining whether the force exerted was reasonable under the circumstances
entail: the known character of the arrestee; the risks and dangers faced by the officer; the nature
of the offense or behavior involved; the chance of escape if the particular means are not
employed; the existence of alternative methods of arrest or subduing the arrestee; the physical
strength, size and weaponry of the officers as compared to that of the arrestee; and the exigencies
of the moment. Id. at 973. The Fifth Circuit has determined that these considerations are
functionally equivalent to the § 1983 Graham factors. See Deville, 567 F.3d at 173.
As set forth above, Deputy Felts acted reasonably under the circumstances. Deputy Felts
and the unidentified deputy did nothing more than restrain Poole while effecting his arrest.
Deputies Frost and Craig, as bystanders, had no liability for battery as they were merely
witnesses to Deputy Felts’ appropriate restraint of Poole. Judgment is entered in favor of
defendants and against Poole on his state law battery claim.

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5.

Vicarious Liability

Finally, Poole argues that Sheriff Russell is vicariously liable under Louisiana law for the
tortious conduct of his deputies.
Under LA. CIV. CODE ANN. art. 2320, “an employer is subject to vicarious liability for
the tortious conduct of his employee, irrespective of his title, while acting within the course and
scope of employment.” Brasseaux v. Town of Mamou, 752 So.2d 815, 821 (La. 2000).
Governmental entities “do not enjoy special protection from vicarious liability under Louisiana
law and are subject to respondeat superior like every other employer.” Deville, 567 F.3d at 173
(citing Brasseaux, 752 So.2d 815); see also Bussey v. Dillard Dep’t. Stores, Inc., 984 So.2d 781,
784 (La. App. 1st Cir. 2008) (“[V]icarious liability [under article 2320] applies to law
enforcement employers as well.”) (citations omitted).
The Louisiana Supreme Court has “stated that an employee’s conduct is generally within
the course and scope of his employment if the conduct is of the character and nature that he is
employed to perform, occurs substantially within the authorized limits of time and space, and is
activated at least in part by a purpose to serve the employer.” Id. at 820 (internal citations
omitted). Liability is
predicated on whether the tortious conduct of the employee
is “so closely connected in time, place, and causation to his
employment-related duties as to be regarded as a risk of
harm fairly attributable to the employer’s business, as
compared with conduct instituted by purely personal
considerations entirely extraneous to the employer’s
interests.”
Id. (quoting LeBrane v. Lewis, 292 So.2d 216 (La. 1974). Whether vicarious liability applies is a
mixed question of law and fact. Bates v. Caruso, 003-CA-2150 (La. App. 4 Cir. 07/28/04); 881
15

So.2d 758, 761.
However, in order to have a claim for vicarious liability against an employer under
Louisiana law, there must be a claim against a culpable employee. Here, there is no culpable
employee for liability to attach. Therefore, the claim against Sheriff Jay Russell for vicarious
liability fails. The Court will enter a Judgment in favor of Sheriff Jay Russell and against Poole
on his claim for vicarious liability.
CONCLUSION
For the foregoing reasons, the Court enters judgment in favor of Defendants Sheriff
Russell and Deputies Felts, Frost, Craig, and Cox and against Plaintiff Poole.
MONROE, LOUISIANA, this 18th day of October, 2016.

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