Cambre v. Smith

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JIM C. CAMBRE CIVIL ACTION

VERSUS NO: 18-6509

ROGER GOTTARDI AND

SECTION: “D”(3)

JASON WILSON

ORDER

Before the Court is Defendants’ Motion for Summary Judgment (R. Doc. 71).

For the reasons below, the motion is DENIED.

I. Background

This is a 42 U.S.C. § 1983 case. Both parties recount and dispute in great detail

the facts of the encounter from which this suit arises. The Court adopts the factual

discussion from its previous Order (R. Doc. 26), which accepted the facts in Plaintiff’s

Amended Complaint (R. Doc. 9) as true, and therefore minimally describes the

background herein, again accepting Plaintiff’s claims as true.

Iraqi War Veteran Plaintiff Jim C. Cambre (“Cambre”) was believed to be suicidal

because of a post he made on Facebook on January 21, 2018.1 Cambre’s post prompted

a welfare check conducted by Pearl River Police Department.2 Then, a call for service

went out to the St. Tammany Parish Sheriff’s Office (“STPSO”).3 According to

Cambre, the officers arrived carrying rifles, although they secured the rifles in a

patrol car after Cambre advised them that he did not have any weapons.4 The officers

did not request a debriefing on the situation from the Pearl River police department

patrol officer on the scene.5 Cambre contends that without any warning or verbal

commands, the STPSO officers approached and began yelling and cursing at him.6

He alleges that one STPSO officer yelled, “I’m tired of dealing with your f**king shit;

get down on your knees!”7 Allegedly, one officer tased him for a cycle of more than

five second and fired two probes at short range before all of the officer “jumped on top

of [Cambre]” and one officer continuously struck him with a baton.8 Cambre states

that his constitutional rights were violated when officers “within a few minutes after

arriving at Plaintiff’s residence, resorted to the use of a taser (for a prolonged period

of 15 seconds) and an ASP (delivering multiple blows to Plaintiff’s body and at least

once to his head).”9

1 R. Doc. 1, pp.6-7; R. Doc. 79-1.

2 R. Doc. 9, p. 6; R. Doc. 79, p. 1.

3 R. Doc. 9, p. 7; R. Doc. 79, p. 1.

4 R. Doc. 9, p. 7.

5 R. Doc. 9, p. 7; R. Doc. 71-1, p. 2.

6 R. Doc. 9, p. 8.

7 Id.

8 R. Doc. 9, p. 8; R. Doc. 71-1, p. 3.

9 R. Doc. 79. See R. Doc. 86. Defendants argue that the excessive force claim relies on Cambre’s

contention that one of the officers stuck him on the head with an ASP baton. Defendants dispute

whether this action occurred: “Plaintiff’s contention that he was struck in the head by a baton is . . .

Cambre originally sued Defendants for violations under 42 U.S.C. § 1983 for

excessive force,10 unlawful search,11 and Monell12 liability. He also alleged a state law

claim of battery and excessive force.13 On October 22, 2018, St. Tammany Parish

Sheriff Randy Smith moved to dismiss with prejudice all of Cambre’s federal claims

against him.14 The Court granted that motion.15 On July 11, 2019, Cambre moved to

dismiss with prejudice Defendant Chris Harman and any claim for the alleged

unlawful search of Cambre’s home.16 That motion was granted.17 On August 19, 2019,

Cambre moved to dismiss with prejudice Defendants Chad Melendez and Ryan

Hopkins.18 The Court also granted that motion.19 Now remaining before the Court

are Cambre’s § 1983 claim for excessive force and state law claim against Defendants

Roger Gottardi and Jason Wilson.20

II. Legal Standard

Summary judgment is proper if Defendants show there is no genuine dispute as

to any material fact and that it is entitled to judgment as a matter of law.21 If

Defendants show the absence of a disputed material fact, Cambre “must go beyond

a highly improbable inference. . . . Plaintiff’s allegation that one of the Deputies struck him on the

head with an ASP baton is pure speculation.” R. Doc. 86, pp. 3-4.

10 R. Doc. 1, pp. 10-12.

11 Id. at pp. 12-13.

12 Id. at pp. 14-16.

13 Id. at pp. 16-17.

14 See R. Doc. 15.

15 See R. Doc. 26.

16 See R. Doc. 47.

17 See R. Doc. 69.

18 See R. Doc. 90.

19 See R. Doc. 92.

20 See R. Doc. 71-1, p. 3; R. Doc. 26; R. Doc. 92.

21 FED. R. CIV. P. 56(a).

the pleadings and designate specific facts showing that there is a genuine issue for

trial.”22 The Court views facts and draws reasonable inferences in Cambre’s favor.23

The Court neither assesses credibility nor weighs evidence at the summary judgment

stage.24

III. Discussion

Defendants argue that Cambre received several warnings from Deputy Gottardi

to get on the ground or he would be tased, “yet [Cambre] refused to comply and began

to back up towards to [sic] the wood line, while remaining in a fighting stance with

balled fists.”25 Defendants argue that only after Cambre “failed to comply with several

commands did Deputy Gottardi fire his taser.”26 Cambre alleges that Deputies

Gottardi and Wilson immediately resorted to high degrees of force, without engaging

in negotiation or de-escalation when Cambre posed no immediate threat and offered,

at most, only passive resistance.27

Defendants argue that Cambre’s allegation that he was struck on the head

with a baton is a “highly improbable inference” that he deduced from the nature of

the injury to his head, specifically “[f]rom the evidence on my body . . . [t]he bruises

on my leg, ribs, and head are pretty concurrent with – with the strikes of a – of a

baton.”28 Cambre contends that he was struck with a baton on the head numerous

22 McCarty v. Hillstone Restaurant Grp., Inc., 864 F. 3d 354, 357 (5th Cir. 2017).

23 Vann v. City of Southaven, Miss., 884 F. 3d 307, 309 (5th Cir. 2018).

24 Gray v. Powers, 673 F. 3d 352, 354 (5th Cir. 2012) (internal citation omitted).

25 R. Doc. 71-1, p. 25.

26 Id.

27 R. Doc. 79, p. 2.

28 R. Doc. 86, p. 3 (quoting R. Doc. 50-6, p. 49).

times based on his alleged injuries of a concussion, dizziness, headaches, and some

short-term memory loss.29 The only use of a baton not in dispute is Corporal Wilson’s

use of a series of reverse strikes to Cambre’s left thigh as a pain compliance measure

to make him “give up his hand.”30

Considering facts and drawing reasonable inferences in Cambre’s favor31 and

without assessing credibility or weighing evidence, the Court finds there are genuine

disputes as to material facts.32 The Court does not address the various defenses

offered by Defendants in its analysis herein, reserving those questions to the trier of

fact. The Court examines whether Defendants are entitled to summary judgment,

considering their defense of qualified immunity.

Qualified Immunity

The doctrine of qualified immunity protects government officials from civil

damages liability when their actions could have been reasonably believed to be

legal.33 When qualified immunity defense is raised as part of a summary judgment

motion, the plaintiff bears the burden of proof of showing that the defendants are not

entitled to the defense.34 To overcome qualified immunity, Cambre must show that

(1) Defendants violated Cambre’s constitutional right,35 and (2) the right was clearly

29 R. Doc. 9, p. 9.

30 R. Doc. 71-1, p. 27.

31 See Vann v. City of Southaven, Miss., 884 F. 3d 307, 309 (5th Cir. 2018).

32 See Gray v. Powers, 673 F. 3d 352, 354 (5th Cir. 2012) (internal citation omitted).

33 Whitley v. Hanna, 726 F. 3d 631, 638 (5th Cir. 2013) (internal citation omitted).

34 Id.

35 The United States Supreme Court in Tolan v. Cotton, 572 U.S. 650, 655-56 (2014), states that the

first prong asks whether the facts taken in the light most favorable to the party asserting injury show

the officer’s conduct violated a federal right.

established at the time of the challenged conduct.36 The Court has discretion to decide

which prong to consider first.37

At the first step, the Court concludes that Cambre has alleged facts that, when

viewed in the manner most favorable to him, would establish a violation of Cambre’s

Fourth Amendment right to be free from excessive force.38 Turning to the second step,

the Court finds that the constitutional right at issue, the right to be free of excessive

force under the Fourth Amendment, was clearly established at the time of the

incident, and that, accepting Cambre’s allegations as true, Defendants’ conduct was

objectively unreasonable in light of then-existing clearly established law. Therefore,

Cambre has met his burden of rebutting Defendants’ qualified immunity defense.

A. Constitutional Violation

Cambre alleges that Defendants violated his Fourth Amendment rights by

using excessive force. To prevail on an excessive-force claim, Plaintiff must show (1)

an 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.39 The

reasonableness of Defendants’ conduct depends on the “facts and circumstances of

each particular case, including 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,” otherwise known as

36 Whitley, 726 F. 3d at 638.

37 Id.

38 See Hanks v. Rogers, 853 F. 3d 738, 744 (5th Cir. 2017).

39 Cooper v. Brown, 844 F. 3d 517, 522 (5th Cir. 2016).

the Graham factors.40 Officers must assess the need for force and the relationship

between the need and the amount of force used.41 The speed with which an officer

resorts to force is also relevant in determining whether that force was excessive to

the need.42 Each of these requires a factual analysis best addressed by the trier of

fact.

Cambre has shown that he sustained a “more than de minimus” injury.43

Resolving factual disputes in Cambre’s favor, the Court accepts as true, at this stage,

Cambre’s allegation that he was struck in the head by a baton.44 Defendants allege

that they were dispatched to a situation where Cambre was reasonably believed to

40 Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

41 Deville v. Marcantel, 567 F. 3d 156, 167 (5th Cir. 2009).

42 Trammell v. Fruge, 868 F. 3d 332, 342 (5th Cir. 2017). In Trammell, the Fifth Circuit states that

This Court has several times found that the speed with which an officer resorts to force

is relevant in determining whether that force was excessive to the need. See Newman

v. Guedry, 703 F. 3d 757, 763 (5th Cir. 2012) (holding that disputes of fact were

material because “a reasonable jury could find that the degree of force used was not

justified where the officer ‘engaged in very little, if any, negotiation’ with the suspect

and ‘instead quickly resorted to’ ” force); Deville, 567 F. 3d at 168 (determining that

“[a] reasonable jury could infer from [the plaintiff’s] deposition testimony that [the

defendant officer] engaged in very little, if any, negotiation with [the plaintiff]—and

find that he instead quickly resorted to breaking her driver’s side window and dragging

her out of the vehicle”).

Id.

43 See Hanks v. Rogers, 853 F. 3d 738, 744 (5th Cir. 2017) (stating that significant injuries are no longer

required for excessive force claims and finding that the injury requirement is met because the plaintiff

received medical treatment and a diagnosis noting contusions, acute strains, and bruised ribs); See R.

Doc. 9, p. 9, ¶ 22; R. Doc. 79-1.

44 R. Doc. 9, p. 9 (“Plaintiff remained at the Ochsner Medical Center until the following morning, at

approximately 8:00 a.m., at which time Plaintiff was discharged. As a result of the beating, Plaintiff

received a laceration on his left cheek, a knot above his left ear (believed to be the point of impact of

the baton), Plaintiff’s left jaw was swollen, his ribs on his left side were sore and swollen, and, from

the bottom of Plaintiff’s buttocks to slightly above his knee, his left leg was very badly bruised. With

respect to injuries he received to his head, Plaintiff sought medical treatment (CT Scans) at Ochsner

Medical Center and at the Veterans Administration. Since the incident, Plaintiff has experienced

dizziness, headaches, and some short-term memory loss. Plaintiff believes, based on his concussion

and symptoms, that he sustained a Traumatic Brain Injury as a result of his beating and, particularly,

as a result of the baton strikes to the head.”). Id.

be posing an immediate safety threat to himself and those around him.45 Defendants

contend that Cambre was highly intoxicated and considered to be a suicidal subject,

specifically one who was considered to be suicide by cop.46 Cambre contends that he

did not threaten suicide that evening,47 he complied with a command and showed he

was unarmed,48 and he was responsive. He avers that there was no crime at issue,49

he posed no immediate threat to the safety of the officers or others,50 and he did not

actively resist the STPSO officers.51

It is worth noting that a jury may ultimately conclude that Defendants’ version

of the facts is more credible.52 Under those facts, Defendants’ actions may have been

reasonable.53 However, at this stage, the Court does not weigh evidence or assess

credibility. Considering the facts in the light most favorable to Cambre, a jury could

reasonably find that the degree of force the officers are alleged to have used in this

45 R. Doc. 71-1, p. 21.

46 Id.

47 R. Doc. 79, p. 6.

48 Id. at pp. 7-8, 20.

49 Id. at p. 19 (“There were no criminal violations in the instant case. Significantly, there were no

criminal charges ever brought against Cambre, such as resisting arrest, despite the deputies’ claims

that Cambre resisted. See Deposition of Picasso, p. 40 (Exhibit “G”) Rather, this was a welfare check.

The Call For Service (possible suicide) to the STPSO made it clear, from the very start, that the

individual involved was suffering from a medical event (severe depression) as opposed to being

engaged in criminal activity. As a result, the need for force was substantially lower than if Cambre

had been suspected of a major crime. See Deville v. Marcantel, 567 F. 3d 156, 167 (5th Cir. 2009).”).

50 Id. at pp. 20-23.

51 Id. at pp. 23. “Outside of the defendant[s’] self-serving testimony, no other witness observed Mr.

Cambre act aggressively toward the Sheriff’s deputies.” Id.

52 See Darden v. City of Fort Worth, Tex., 880 F.3d 722, 731 (5th Cir. 2018) (pointing out that a jury

could conclude that the force used was not excessive under a different set of facts). The Court notes

that Defendants dispute whether Cambre was struck on the head with an ASP.

53 Darden, 880 F.3d at 731, citing Carroll v. Ellington, 800 F.3d 154, 174–75 (5th Cir. 2015) (declining

“to reach the close constitutional question” of whether “an officer's application of a Taser to an

unarmed, seated suspect who fail[ed] to comply with an order to get on the ground” was excessive

force).

case and the alleged immediate use of said force54 were not justifiable under the

circumstances.55

B. Clearly Established Law

Because the Court concludes that Cambre sufficiently alleged an excessive force

claim, it considers whether Defendants’ use of force, though a violation of the Fourth

Amendment, was nevertheless objectively reasonable in light of clearly established

law at the time the challenged conduct occurred.56 A right may be clearly established

without a case directly on point but “existing precedent must have placed the

statutory or constitutional question beyond debate.”57

In this case, the Court concludes that on the night Defendants encountered

Cambre, clearly established law demonstrates that an officer violates the Fourth

Amendment if he abruptly resorts to overwhelming physical force rather than

54 Id. at p. 23 (“Nevertheless, Deputies Gottardi and Wilson immediately used force tasing Mr. Cambre

for 15 seconds, beat him with a baton in the head, and beat him in the ribs and elsewhere on the body.

The officers made no attempt to negotiate with Mr. Cambre in an attempt to de-escalate the

confrontation prior to using force on him.”).

55 See e.g., Hanks v. Rogers, 853 F. 3d 738, 747 (5th Cir. 2017) (“[C]learly established law demonstrated

that an officer violates the Fourth Amendment if he abruptly resorts to overwhelming physical force

rather than continuing verbal negotiations with an individual who poses no immediate threat or flight

risk, who engages in, at most, passive resistance, and whom the officer stopped for a minor traffic

violation.”); Darden v. City of Fort Worth, Tex., 880 F. 3d 722, 732 (5th Cir. 2018) (holding that the

officer was not entitled to qualified immunity because there were genuine disputes of material facts

as to whether the plaintiff was actively resisting arrest and whether the force used was clearly

excessive and clearly unreasonable); Brothers v. Zoss, 837 F. 3d 513, 520 (5th Cir. 2016) (stating “In

denying qualified immunity, we have placed weight on the quickness with which law enforcement

personnel have escalated from negotiation to force.”); Newman v. Guedry, 703 F. 3d 757, 763 (5th Cir.

2012) (“If Newman's allegations are true, the officers immediately resorted to taser and nightstick

without attempting to use physical skill, negotiation, or even commands. Viewing the summary-

judgment facts in a light most favorable to Newman, we conclude that the use of force was objectively

unreasonable.”).

56 See Hanks v. Rogers, 853 F. 3d 738, 746 (5th Cir. 2017).

57 Id. (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).

continuing verbal negotiations with an individual who poses no immediate threat or

flight risk, who engages in, at most, passive resistance.58 Taking the facts as true as

alleged by Plaintiff, Defendants are not entitled to qualified immunity on Cambre’s §

1983 claim.

C. State Law Claim

Regarding Cambre’s state law claim, Defendants argue that their actions did

not violate any state law because their actions were “reasonable, done in good faith,

not excessive, and within their discretion as law enforcement officers.”59 However,

the Fifth Circuit states that the Louisiana's excessive force tort mirrors its federal

constitutional counterpart:

The use of force when necessary to make an arrest is a legitimate police

function. But if the officers use unreasonable or excessive force, they and

their employer are liable for any injuries which result. Whether the force

used is reasonable depends upon the totality of the facts and

circumstances in each case, and factors to consider are: (1) the known

character of the arrestee, (2) the risks and dangers faced by the

officers, (3) the nature of the offense involved, (4) the chance of the

58 See Hanks, 853 F. 3d at 747 (stating as support “See Deville, 567 F. 3d at 167–69 (finding qualified

immunity inappropriate where, taking the facts in the light most favorable to the plaintiff, an officer

making a minor traffic stop overpowered an individual who displayed, at most, passive resistance, and

presented no safety threat or flight risk); see also Doss v. Helpenstell, 626 Fed.Appx. 453, 459–60 (5th

Cir. 2015) (unpublished) (construing Deville as clearly establishing that an officer should receive no

qualified immunity if he ‘quickly escalate[s]’ an encounter with a non-threatening, passively-resisting

driver who posed little risk of escape by employing overwhelming force ‘rather than continu[ing] to

negotiate’); Brothers v. Zoss, 837 F. 3d 513, 520 (5th Cir. 2016) (‘In denying qualified immunity, we

have placed weight on the quickness with which law enforcement personnel have escalated from

negotiation to force.’) (citing Newman v. Guedry, 703 F. 3d 757, 763 (5th Cir. 2012) and Deville, 567 F.

3d at 167–68).”). See Pratt v. Harris Cnty., Tex., 822 F. 3d 174, 182 (5th Cir. 2016) (holding that the

deputies’ use of stun guns on the arrestee were not excessive or unreasonable and noting that although

a taser was ultimately used, the record showed that both officers responded with measure and

ascending actions that corresponded to the arrestee’s escalating verbal and physical resistance) (“It is

important that neither officer used their taser as the first method to gain [Plaintiff’s] compliance.”).

59 R. Doc. 71-1, p. 29.

arrestee's escape if the particular means are not employed, (5) the

existence of alternative methods of arrest, (6) the physical size, strength,

and weaponry of the officers compared to the arrestee, and (7) the

exigencies of the moment.

Deville v. Marcantel, 567 F.3d 156, 172-73 (5th Cir. 2009). These considerations are

sufficiently similar to the Graham factors discussed above. Therefore, the Court finds

that Defendants are not entitled to qualified immunity, accepting Cambre’s

allegations as true and resolving doubts in his favor. These will be issues to be decided

by the trier of fact.

IV. Conclusion

Viewing facts and drawing reasonable inferences in Cambre’s favor, the Court

finds that Defendants are not entitled to judgment as a matter of law.

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment

(R. Doc. 71) is DENIED.

New Orleans, Louisiana, this the 28th day of August, 2019.

(lard □ Vetha

WENDY BJ/VITTER

UNITED STATES DISTRICT JUDGE