Hill et al v. Iberia Parish et al
REPORT AND RECOMMENDATIONS re 43 MOTION for Summary Judgment based on Qualified Immunity filed by Erin Irby, Scott Closio, Jeremy Hatley, LaTonya Perry, Matt Smith, Darren Bourque, Jeff Matthews, Jeff Schmidt, Joseph Nissen, Andrus Gonzales, Sid Hebert, Brett Broussard, Stephen Hill Objections to R&R due by 3/27/2009. Signed by Magistrate Judge C Michael Hill on 3/10/09.(crt,Roaix, G).
UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E -O P E L O U S A S DIVISION
C H E R Y L HILL, ET AL V S. SHERIFFS OFFICE IBERIA PARISH, ET AL
* C I V I L ACTION NO. 07-1607 * J U D G E WALTER * M A G I S T R A T E JUDGE HILL
R E P O R T AND RECOMMENDATION ON MOTION F O R SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY P e n d in g before the Court is the Motion for Summary Judgment filed by d e f en d a n ts , former Sheriff Sid Hebert (the "Sheriff"), and Jeff Schmidt, Bret Broussard, E r in Ashley Irby, Jeff Matthews, Darren Bourque, Matthew Smith, Andres Gonzales, S c o tt Clostio, Stephen Hill, Jeremy Hatley, Joseph Nissen, and Latonya Perry (the " D e p u tie s" ), on June 20, 2008. [rec. doc. 43]. Plaintiffs have filed opposition [rec. doc. 9 1 ]. The Deputies filed a reply to the opposition. [rec. doc. 97]. In response, plaintiffs f ile d a sur-rebuttal brief. [rec. doc. 102]. Oral argument was held on November 19, 2008, a f te r which the motion was taken under advisement. [rec. doc. 99]. Based on the f o llo w in g reasons, it is recommended that the motion be GRANTED. B a c k gro u n d On September 24, 2006, the Sugar Cane Festival was held in New Iberia, L o u is ia n a . That evening, a large group of 100 or more celebrants was listening to a disc jo c k e y set-up on the porch of Gator's Barbeque stand near the corner of Louisiana
H ig h w a y 675 (Hopkins Street) and Robertson Street. Within about a two-hour period, the Ib e ria Parish Sheriff's Department received numerous telephone calls from people c o m p la in in g about loud noise, blocked traffic and speeding motorcycles on Hopkins S tre e t. No permit had been obtained to block Hopkins Street. By approximately 8:09 p.m., seven deputies had arrived on the scene. Following th e instructions of Sgt. Jeffrey Schmidt, Deputy Bret Broussard used the public address s p e a k er on his patrol unit to warn the crowd to clear the street or tear gas would be d e p lo ye d . Deputy Broussard made this announcement three times, with one-minute in te rv a ls between each.1 After receiving no discernible response, Sgt. Schmidt and D e p u ty Broussard each tossed a canister of gas into the crowd. O n c e the gas was deployed, people within the crowd started throwing beer bottles a n d other debris at the deputies. In response, Sgt. Schmidt and Deputy Broussard each f ire d an additional canister of gas into the crowd with gas guns, then retreated to their v e h ic le s. Still, people continued throwing bottles and rocks at the deputies and continued to move towards them. From behind their squad cars, the deputies deployed three a d d itio n a l canisters of gas by hand and one by gun.
Plaintiffs dispute that a warning was given. However, in the Affidavit of Allen Mitchell submitted by plaintiffs, Mitchell admitted that "one of the deputies told several women walking up Robertson Street towards Hopkins that they were going to start using tear gas . . . ." [rec. doc. 82, Exhibits 4, 5]. For those reasons set out below, this factual dispute does not affect the qualified immunity analysis.
A f te rw a rd s , crowd members started surrounding the deputies, threatening them, ye llin g epithets, and throwing bottles. The deputies then got into their units and retreated to North Robertson Street to regroup. Eventually, the deputies returned to Hopkins and R o b e rts o n streets, and observed that several police units had been hit by bottles thrown by th e crowd. The deputies deployed a few more canisters, and the crowd finally dispersed s o that traffic could resume using the street. The deputies did not arrest anyone during th e incident. On September 24, 2007, plaintiffs filed this civil rights action for damages a lle g e d ly caused as a result of the incident. Plaintiffs' claims are asserted under 42 U .S .C . § 1983 and Louisiana state law. They seek general and special compensatory d a m a g e s , punitive/exemplary damages, reasonable attorney's fees, and costs. By the instant Motion, the Sheriff and the Deputies contend that they are entitled to q u a lif ie d immunity. S u m m a r y Judgment Standard F e d .R .C iv .P r o c . Rule 56(e) provides, in pertinent part, as follows: W h e n a motion for summary judgment is made and supported as provided in this rule, a n adverse party may not rest upon the mere allegations or denials of the adverse p a rty's pleading, but the adverse party's response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be e n te re d against the adverse party. T h is Motion is properly made and supported. Thus, plaintiffs may not rest on their a lle g a tio n s or denials in their pleadings, but rather must go beyond the pleadings and 3
d e s ig n a te specific facts demonstrating that there is a genuine issue for trial. Celotex v. C a tre tt, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986). However, metaphysical doubt a s to the material facts, conclusory allegations, unsubstantiated assertions, and those su p p o rte d by only a scintilla of evidence are insufficient. Little v. Liquid Air Corp., 37 F.3d 1 0 6 9 , 1075 (5th Cir. 1994). Moreover, summary judgment is mandated against a party who f a ils to make a showing sufficient to establish an essential element of that party's case, and o n which that party will bear the burden of proof at trial. Celotex, 106 S.Ct. at 2552. Analysis of Claims Q u a lified Immunity F irs t, defendants argue that to the extent that Sheriff Hebert and the Deputies were sued in their individual capacities, they are entitled to qualified immunity from civil damages. Government officials are entitled to qualified immunity for civil damages if their c o n d u c t does not "violate clearly established statutory or constitutional rights of which a r e a so n a b l e person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2 7 2 7 , 2738, 73 L.Ed.2d 396 (1982). In other words, qualified immunity is available when a re a so n a b le official would not have known that his actions would violate a constitutional right th a t was clearly established at the time of the incident. Id. at 2738. Qualified immunity is n o t merely a defense to liability but an immunity from suit. Swint v. Chambers County
C o m m 'n , 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995).
C la im s of qualified immunity require a two-step analysis.
First, the court must
d e t e r m i n e whether the plaintiff has alleged that "the officer's conduct violated a c o n stitu tio n a l right." Mace v. City of Palestine, 333 F.3d 621, 623 (5 th Cir. 2003). If there is no constitutional violation, the court's inquiry ends. Id. However, if "the allegations could m a k e out a constitutional violation, the court must ask whether the right was clearly e sta b lis h e d that is, whether "it would be clear to a reasonable officer that his conduct was u n la w f u l in the situation he confronted." Id. (quoting Price v. Roark, 256 F.3d 364, 369 (5th C ir. 2001)). For summary judgment purposes, the defendant official must initially plead his good f a ith and establish that he was acting within the scope of his discretionary authority. Bazan e x rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5 th Cir. 2001). Once the defendant has d o n e so, the burden shifts to the plaintiff to rebut this defense by establishing that the o f f ic ia l's allegedly wrongful conduct violated clearly established law. Id. Here, plaintiffs have alleged violations of the First and Fourth Amendments of the C o n s titu tio n . Specifically, they assert that defendants violated their First Amendment right o f free assembly and their Fourth Amendment right to be free from excessive force. [rec. d o c. 5, ¶¶ XI, XIX]. T h e First Amendment It is well established that a State or municipality has the right to regulate the use of city s tre e ts and other facilities to assure the safety and convenience of the people in their use and
th e concomitant right of the people of free speech and assembly. Cox v. State of La., 379 U .S . 536, 554, 85 S.Ct. 453, 464, 13 L.Ed. 2d 471 (1965). Louisiana law prohibits people fro m hindering traffic by blocking public streets. LA. REV. STAT. ANN. § 14:100.1 (2004). C o n c o m ita n tly, the First Amendment does not entitle a citizen to trespass, block traffic, or c re a te hazards for others. See Frye v. Police Dept. of Kansas City, Missouri, 260 F.Supp.2d 7 9 6 , 799 (W.D. Mo. 2003); Ellsworth v. City of Lansing, 205 F.3d 1340 (6 th Cir. Feb. 10, 2 0 0 0 ) (picketers were subject to state and local laws designed to prohibit picketers from b lo c k in g ingress to and egress from private property). At the hearing, no one disputed that the crowds needed to be dispersed. The Sheriff's D e p a rt m e n t had received several telephone calls on the evening September 24, 2006, re g a rd in g the bottle-necked traffic and unsafe driving along Hopkins Street. [rec. doc. 43, E x h ib it A, audio recording]. The audio recording from 911 taped that evening indicates that c itiz e n s were stuck in traffic and intimidated by the boisterous crowd. Under these
c irc u m s ta n c es , the Sheriff and the Deputies acted reasonably in trying to clear the streets for th e safety of residents. If the blockage of the street was not protected, then plaintiffs' First A m e n d m e n t rights simply could not have been infringed by a release of tear gas designed to c le a r the street. Ellsworth at *3. Thus, there was no First Amendment violation in this case. T h e Fourth Amendment A s to the Fourth Amendment claim, the record reflects that the Deputies had warned the c ro w d to disperse, or tear gas would be deployed. [rec. doc. 43, Exhibit 3, ¶¶ 6, 7]. Despite
th e se warnings, the people remained in place and continued to block the street. [rec. doc. 4 3 , Exhibit 3, ¶ 7]. Accordingly, Sgt. Schmidt and Deputy Broussard each deployed a tear g a s canister. [rec. doc. 43, Exhibit 3, ¶ 8]. In response, the crowd threw rocks and bottles at them. [rec. doc. 43, Exhibit 3, ¶¶ 8, 9 ]. Sgt. Schmidt and Deputy Broussard each fired an additional cannister of gas, but the cro w d continued throw things at them. [rec. doc. 43, Exhibit 3, ¶ 9]. Thereafter, the officers w e re forced to take cover behind their patrol units. Some members of the crowd then p ro c e ed e d towards them in an aggressive manner. Deputy Broussard ordered them to stop, b u t the crowd continued to advance. Accordingly, the deputies deployed additional tear gas. T h e deputies eventually relocated to the Corner of Hopkins St. and Babb Alley. [rec. d o c . 43, Exhibit 3, ¶ 10]. Later, they returned to the intersection of Hopkins and Robertson s tre e ts . After deploying additional tear gas canisters, the deputies were finally able to clear th e streets. In light of these facts, the undersigned finds that the deputies' actions were reasonable. T h e numerous calls from the area residents reflect that many were concerned for their safety a n d the safety of others. Given the crowd's refusal to adhere to the officers' warnings, the D e p u tie s acted within their authority to disperse the crowd with tear gas in order to unblock th e streets and remove the hazards to others.2
Although plaintiffs dispute that the deputies gave warnings first, officers do not necessarily violate the Constitution by using gas without a warning. See United Steelworkers of America v. Milstead, 705 F.Supp. 1426, 1437 (D. Ariz. 1988) (officer's failure to give warning before throwing tear gas into a liquor store did not constitute excessive force under Fourteenth Amendment).
T h e plaintiffs deny that the deputies gave warnings before employing the tear gas on the cro w d . The plaintiffs further argue that such a warning was constitutionally required before g a s could be deployed. However, the plaintiffs fail to cite this court to any authority in s u p p o rt of their argument that such a warning is constitutionally required. R a th e r, the plaintiffs rely on Headwaters Forest Defense v. County of Humboldt, 2 7 6 F.3d 1125 (9 th Cir. 2002). The facts in this case are in no way even similar to the facts p re se n t in Humboldt. In Humboldt, the police were faced with a small group of nonviolent p rotesters who were completely within the control of the police. Here, the deputies were fa ce d with a large crowd, some of whom were admittedly violent, and none of whom were u n d e r police control. T h e Fourth Amendment permits law enforcement officers to use only that force which is "objectively reasonable" under the circumstances. Graham v. Connor, 490 U.S. 386, 109 S .C t. 1865 (1989). The "reasonableness" of a particular use of force must be judged from th e perspective of a reasonable officer on the scene, rather than with 20/20 hindsight. The tes t of "reasonableness" must make allowance for the fact that the police are often forced to m a k e immediate judgments, in circumstances that are tense, uncertain and rapidly evolving a b o u t the amount of force that is necessary in a particular situation. Id . at 396-97. See also, Tatum v. City of Texarkana, 47 F.3d 427 (5th Cir. 1995).
T h e situation faced by the deputies here was clearly "tense, uncertain and rapidly e v o lv in g " . The deputies' use of the tear gas was measured, and dependent in large part on th e activities of the crowd, which was becoming increasingly more violent. From the p e r sp e c t iv e of the deputies at the scene, with due allowance made for the immediate ju d g m e n ts which the deputies were called upon to make, the use of the tear gas was " o b je c tiv e l y reasonable" under the circumstances which the police faced. Under these c irc u m s ta n c es , the police were not required to give a warning before using tear gas on the in c re a sin g ly violent crowd, although they claim that they did, in fact, do so. Thus, I find that th e Deputies are entitled to qualified immunity. Accordingly, it is recommended that the motion for summary judgment on this issue be G R A N T E D , and the claims against the Sheriff and the Deputies in their individual capacities b e DISMISSED WITH PREJUDICE. O ffic ia l Capacity Claim D e f e n d a n ts' next argument is that plaintiffs failed to show that Hebert is liable in his o f f ic ia l capacity as Sheriff. W e ll-s e ttle d Section 1983 jurisprudence establishes that supervisory officials cannot be h e ld vicariously liable for their subordinates' actions. Mouille v. City of Live Oak, Tex., 977 F .2 d 924, 929 (5 th Cir.1992) (citing Monell v. Department of Social Services, 436 U.S. 658, 6 9 1 -9 5 , 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978)). Supervisory officials may be held lia b le only if: (i) they affirmatively participate in acts that cause constitutional deprivation; 9
o r (ii) implement unconstitutional policies that causally result in plaintiff's injury. Id. (citing T h o m p k in s v. Belt, 828 F.2d 298, 303 (5th Cir.1987). Here, plaintiffs fail to show any direct personal involvement by Hebert in the incident a t issue. Further, plaintiffs fail to demonstrate any policy which was so deficient that the p o lic y itself acted as a deprivation of constitutional rights. Thus, plaintiffs do not have a v a lid claim for violation of any constitutional rights based upon these allegations. Accordingly, it is recommended that the motion for summary judgment on this issue b e GRANTED, and the claims against the Sheriff in his official capacity be DISMISSED W I T H PREJUDICE. S ta te Law Claims D e f en d a n ts assert that plaintiffs' state law claims should be dismissed with prejudice b e c a u s e they are related to the failed constitutional claims. A district court may decline to exercise supplemental jurisdiction if the court has d is m is s e d all claims over which it had pendent jurisdiction. 28 U.S.C. § 1367(c)(3). Indeed, w h e n a court dismisses all federal claims before trial, the general rule is to dismiss any p e n d e n t claims. Bass v. Parkwood Hospital, 180 F.3d 234, 246 (5th Cir. 1999) (citing Wong v . Stripling, 881 F.2d 200, 204 (5th Cir. 1989)); Darbonne v. Gaudet, No. 03-1989, 2005 WL 1 5 2 3 3 2 8 , *9 (W.D. La. June 22, 2005). However, the dismissal should be without prejudice. Id.
Thus, the undersigned recommends that the Court decline supplemental jurisdiction o v e r plaintiffs' state law claims asserted against defendants. Those claims should be d is m is s e d without prejudice. CONCLUSION B a s e d on the foregoing reasons, IT IS RECOMMENDED that the motion for s u m m a ry judgment be GRANTED, and all claims under 42 U.S.C. § 1983 against Sheriff S id Hebert (the "Sheriff"), and Jeff Schmidt, Bret Broussard, Erin Ashley Irby, Jeff M a tth e w s, Darren Bourque, Matthew Smith, Andres Gonzales, Scott Clostio, Stephen Hill, J e re m y Hatley, Joseph Nissen, and Latonya Perry be DISMISSED WITH PREJUDICE. It is further recommended that plaintiffs' state law claims be DISMISSED WITHOUT P R E J U D IC E . M a rc h 10, 2009, at Lafayette, Louisiana.
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