Perkins v. Hart

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TELIAH C. PERKINS CIVIL ACTION

VERSUS NO. 21-879

KYLE HART AND RYAN MORING SECTION D (2)

ORDER AND REASONS

Before the Court is Defendants St. Tammany Parish Sheriff’s Deputies Kyle

Hart and Ryan Moring’s Motion for Summary Judgment on the Issue of Qualified

Immunity.1 Plaintiff Teliah C. Perkins has filed an Opposition.2 Defendants have

filed a Reply.3 After careful consideration of the parties’ memoranda, the record, and

the applicable law, the Court GRANTS IN PART AND DENIES IN PART the

Defendants’ Motion for Summary Judgment on the Issue of Qualified Immunity.

I. FACTUAL BACKGROUND

This is an excessive force case. The case concerns the arrest of Plaintiff, Teliah

C.Perkins, on May 5, 2020 by the Defendants.4 Plaintiff is a resident of St. Tammany

Parish and resides in Slidell, Louisiana.5 Plaintiff alleges that she was on the porch

of her home with her minor son, D.J., and nephew, J.P., when she observed

Defendants, two St. Tammany Parish Sheriff’s deputies, riding down the street on

marked police motorcycles.6 Plaintiff asserts that the Defendants turned their

1 R. Doc. 34.

2 R. Doc. 44.

3 R. Doc. 56.

4 R. Doc. 1 at ¶ 1.

5 Id.

6 Id. at ¶¶ 17-19. While the briefing does not state the time of the events leading up to and including

arrest, the videos show the events took place in broad daylight. See R. Docs. 34-15 and 34-16.

motorcycles around, drove to Plaintiff’s driveway, and shouted for Plaintiff to come to

them.7 Plaintiff contends that the Defendants advised Plaintiff that they were

investigating a complaint that a person was riding a “dirt bike” without a helmet.8

Plaintiff denied any knowledge of the incident.9 Defendants demanded Plaintiff’s

driver’s license, registration, and proof of insurance.10 Plaintiff asked whether the

inquiry was racially motivated, to which Deputy Hart responded, “Shut the f—up!

This call ain’t f—ing about race!”11 Plaintiff contends that she became frustrated and

decided to call 911 to request a supervising officer.12 Plaintiff then called for her son

and nephew to come out from the house to the driveway and start recording video

with their cell phones at which time Defendants immediately instructed Plaintiff’s

son and nephew to return to the porch.13 Plaintiff advised her son and nephew that

they did not need to go to the porch.14 Plaintiff then alleges that Deputy Hart

declared, “'that’s it, right now you’re being placed under arrest,’ and stormed up the

driveway” to handcuff Plaintiff.15 Plaintiff contends that the Defendants violently

seized her by her arms, forced her to the ground, muttering that she was “f—ing

slippery,” and then, together, “leaned on Ms. Perkins’ back and neck with their knees

and elbows, pulled her hair, and forced her face against the driveway pavement while

7 Id. at ¶¶ 20-21.

8 Id. at ¶ 21.

9 Id.

10 Id. at ¶ 25.

11 Id. at ¶¶ 28 and 29.

12 Id. at ¶ 31.

13 Id. at ¶¶ 32 and 33.

14 Id.

15 Id. at ¶ 34.

wrenching her arms behind her back.”16 Plaintiff asserts that she justifiably tried to

pull her arms away, but that she never struck either Defendant or tried to run from

them.17 During this time, D.J. and J.P. continued filming Defendants’ arrest of

Plaintiff.18 Deputy Moring then stood up and moved directly between D.J. and his

mother, blocking D.J.’s camera, and instructed D.J. and J.P. to stop filming,

eventually drawing and pointing his service taser at D.J., who stopped filming.19

Plaintiff contends that Deputy Hart continued to pin her face-first into the pavement,

pressed his forearm against her throat, then wrapped his hand around her neck and

leaned on it, causing her to gasp, “you’re choking me.”20 Deputy Hart then lifted

Plaintiff to her feet and she was placed in the patrol car.21 Plaintiff’s motorcycle was

seized, towed away, and impounded by the St. Tammany Sheriff’s Office, requiring

Plaintiff to pay $204 for the eventual release of the motorcycle.22

Plaintiff was arrested for the following violations: La.R.S. 14:108.2 (Resisting

a police officer with force or violence); La.R.S. 14:34.2 (Battery of a police officer);

La.R.S. 32:863.1 (No proof of insurance); and La.R.S. 32:190 (No safety helmet).23 On

July 26, 2021, the District Attorney’s Office for the 22nd Judicial District Court for

the Parish of St. Tammany amended Plaintiff’s bill of information to “R.S. 14:108

16 Id. at ¶ 35.

17 Id. at ¶ 37.

18 Id. at ¶ 38

19 Id. at ¶ 38.

20 Id. at ¶ 39.

21 Id. at ¶ 40.

22 Id. at ¶ 42.

23 Id. at ¶ 47.

Resisting an Officer.”24 Plaintiff was tried and found guilty of violating La. R.S.

14:108.25

Plaintiff has sued, individually and on behalf of D.J., her minor son, the

arresting officers, St. Tammany Parish Sheriff’s Deputies Kyle Hart and Ryan

Moring.26 Plaintiff asserts a number of claims, including false arrest in violation of

the Fourth and Fourteenth Amendments, excessive force in violation of the Fourth

and Fourteenth Amendments, unlawful seizure in violation of the Fourth

Amendment as well as state law claims for false arrest, excessive force/ battery, false

imprisonment, malicious prosecution, intentional infliction of emotional distress, and

negligent infliction of emotional distress.27 Plaintiff has also brought several claims

on behalf of her minor son, D.J., including excessive force in violation of the Fourth

and Fourteenth Amendments, retaliation in violation of the First Amendment, as

well as state law claims for excessive force/battery, assault, intentional infliction of

emotional distress, and negligent infliction of emotional distress.28 Plaintiff has since

withdrawn several of her claims, including her §1983 claim of false arrest, and her

state law claims for false arrest, false imprisonment, and malicious prosecution as

well as D.J.’s state law false arrest claim.29

Defendants have filed a Motion for Summary Judgment, arguing that

Plaintiff’s remaining claims must be denied and that they are entitled to qualified

24 R. Doc. 57, Summary of Material Facts, Defendants’ Statement.

25 Id.

26 R. Doc. 1.

27 Id.

28 Id.

29 R. Doc. 60.

immunity.30 Initially, Defendants argue that Plaintiff’s excessive force claims are

barred by Heck v. Humphrey.31 Defendants assert that Plaintiff’s previous guilty

adjudication to the crime of resisting an officer in state court contains an implicit

legal conclusion, specifically that the deputies had probable cause to arrest her and

thus their actions were reasonable.32 Further, Defendants assert that Plaintiff’s

claim of excessive force must be denied because the deputies utilized only the level of

lawful force necessary to overcome Plaintiff’s resistance to their attempted arrest.33

To bolster their argument, Defendants argue that the Internal Affairs Division of the

St. Tammany Parish Sheriff’s Office as well as Defendants’ expert, John Ryan,

determined that the level of force used by the Defendants was appropriate.34

Defendants also argue that Deputy Moring’s act of displaying his taser at D.J. as a

show of force was justified as part of effectuating the lawful arrest of Plaintiff.35

Finally, Defendants assert that they are entitled to qualified immunity regarding the

arrest of Plaintiff, including their use of force when executing that arrest, and Deputy

Moring’s display of the taser to D.J. because they did not violate any clearly

established rights of the Plaintiff and her minor child.36

Plaintiff has filed an opposition arguing that Plaintiff’s excessive force claim is

not barred by Heck for three reasons: (1) Plaintiff’s excessive force claim does not

require her to deny that she resisted a legal arrest; (2) Plaintiff’s conviction for

30 R. Doc. 34.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

resisting arrest is distinct from her § 1983 claim that the level of force used to

overcome her resistance was excessive; and (3) the level of force used was excessive

both before Plaintiff’s resistance as well as after any resistance had ceased.37 Further,

Plaintiff argues that qualified immunity does not apply because the facts establish

that Defendants violated Plaintiff’s constitutional rights which were clearly

established at the time.38 Plaintiff further contends there are disputed issues of

material fact regarding whether excessive force was used, thus requiring denial of

summary judgment.39 Plaintiff also contends that Defendants employed excessive

force when interacting with her minor son, D.J., and that Deputy Moring violated

D.J.’s First Amendment right by using his taser to interfere with D.J.’s recording of

the arrest.40 Plaintiff has also provided an expert report with the expert opining,

among other things, that the force used to effect the arrest was unreasonable.41

Defendants have filed a reply and reiterate their argument that Plaintiff’s

excessive force claim is barred by Heck because the force used by Defendants to

apprehend Plaintiff was proportionate and in direct response to her resistance to the

deputies.42 Defendants argue that a determination that Defendants’ use of force was

excessive would “necessarily imply” that Plaintiff was not aggressively resisting

arrest which would further imply the invalidity of her state conviction for resisting

arrest.43 Defendants also argue that D.J.’s excessive force claim must be dismissed

37 R. Doc. 44.

38 Id.

39 Id.

40 Id.

41 R. Docs. 44-7 and 44-8.

42 R. Doc. 56.

43 Id.

because his Fourth Amendment rights were never violated, specifically, he was not

seized when Deputy Moring pointed and threatened to use a non-lethal weapon at

him.44 Further, Defendants argue that D.J.’s First Amendment claim must be

dismissed because, while D.J. has a constitutional protected right to record, his

filming veered from documenting to interfering, and he did not have a

constitutionally protected right to “blatant interference” with the deputies’ arrest of

Plaintiff.45

II. LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment is appropriate under Federal Rule of Civil Procedure 56

“if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”46 When assessing whether a

dispute regarding any material fact exists, the Court considers “all of the evidence in

the record but refrain[s] from making credibility determinations or weighing the

evidence.”47 While all reasonable inferences must be drawn in favor of the nonmoving

party, a party cannot defeat summary judgment with conclusory allegations,

unsubstantiated assertions or “only a scintilla of evidence.”48 Instead, summary

44 Id.

45 Id.

46 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986).

47 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)

(citations omitted).

48 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks

omitted).

judgment is appropriate if a reasonable jury could not return a verdict for the

nonmoving party.49

If the dispositive issue is one on which the moving party will bear the burden

of proof at trial, the moving party “must come forward with evidence which would

entitle it to a directed verdict if the evidence went uncontroverted at trial.”50 The non-

moving party can then defeat summary judgment by either submitting evidence

sufficient to demonstrate the existence of a genuine dispute of material fact, or by

“showing that the moving party’s evidence is so sheer that it may not persuade the

reasonable fact-finder to return a verdict in favor of the moving party.”51 If, however,

the nonmoving party will bear the burden of proof at trial on the dispositive issue,

the moving party may satisfy its burden by merely pointing out that the evidence in

the record is insufficient with respect to an essential element of the nonmoving

party’s claim.52 The burden then shifts to the nonmoving party who must go beyond

the pleadings and, “by her own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’”53

49 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).

50 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).

51 Id. at 1265.

52 See Celotex, 477 U.S. at 322-23.

53 Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

B. 42 U.S.C. § 1983 and the Qualified Immunity Claim.

Title 42 U.S.C. § 1983 creates a damages remedy for the violation of federal

constitutional or statutory rights under color of state law. Specifically, it provides as

follows:

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.54

Because § 1983 merely provides a remedy for designated rights, rather than creating

any substantive rights, “an underlying constitutional or statutory violation is a

predicate to liability.”55 To establish § 1983 liability, the plaintiff must establish the

following three elements: (1) deprivation of a right secured by the United States

Constitution or federal law; (2) that occurred under color of state law; and (3) was

caused by a state actor.56 In this matter, Plaintiff has sued the two arresting officers

in their individual capacities.57 A state official can be sued in his individual capacity

and held personally liable under § 1983 if a plaintiff can show that the official, acting

under state law, caused the deprivation of a federal right.58 According to the Fifth

54 42 U.S.C. § 1983.

55 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).

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

57 R. Doc. 1.

58 Terry v. City of New Orleans, 523 F. Supp. 2d 486 (E.D. La. 2007) (citing Hafer v. Melo, 502 U.S. 21,

25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)).

Circuit, “This standard requires more than conclusional assertions: The plaintiff

must allege specific facts giving rise to a constitutional violation.” 59

As a defense to § 1983 claims, government officials may invoke qualified

immunity, which “shields government officials performing discretionary functions ...

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.”60 Qualified immunity balances two important interests—the need to

hold public officials accountable when they exercise power irresponsibly and the need

to shield officials from harassment, distraction, and liability when they perform their

duties reasonably.61 The Supreme Court has made clear that qualified immunity

functions as an immunity from suit, rather than a mere defense to liability.62 “[T]he

qualified immunity standard ‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”63

“This means that even law enforcement officials who reasonably but mistakenly

commit a constitutional violation are entitled to immunity.”64 Once the government

59 Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citing Baker v. Putnal, 75 F.3d 190, 194 (5th Cir.

1996); Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)) (internal citation

omitted).

60 Mabry v. Lee County, 100 F.Supp.3d 568, 572 (N.D. Miss. 2015) (quoting Luna v. Mullenix, 773 F.3d

712, 718 (5th Cir. 2014), cert. granted, decision rev’d on other grounds, 136 S.Ct. 305, 193 L.Ed.2d 255

(2015)).

61 Pearson v. Callahan, 555 U.S. 223, 231 (2009).

62 Id. at 237 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal quotation marks omitted).

63 Brumfield v. Hollins, 551 F.3d 322, 326-27 (5th Cir. 2008) (quoting Mendenhall v. Riser, 213 F.3d

226, 230 (5th Cir. 2000).

64 Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir. 2001) (quoting Glenn v. City of Tyler, 242 F.3d

307, 312 (5th Cir. 2001) (internal quotation marks omitted).

official asserts the defense of qualified immunity, the burden shifts to the plaintiff to

negate the defense.65

To overcome a claim of qualified immunity, a plaintiff must demonstrate: (1)

that the official violated a statutory or constitutional right; and (2) that the right was

“clearly established” at the time of the challenged conduct.66 It is up to the district

courts’ sound discretion to decide which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular

case.67

III. LAW AND ANALYSIS

A. Whether any Deficiency in Defendants’ Statement of Material Facts

Invalidates Their Motion for Summary Judgment.

The Court first addresses the alleged deficiency in Defendants’ Statement of

Material Facts and whether any such deficiency renders Defendants’ Motion for

Summary Judgment invalid. In its opposition to Defendants’ Motion for Summary

Judgment, Plaintiff argues that Defendants’ Motion for Summary Judgment is

materially deficient because Defendants failed to cite to the record in support of their

recitation of the Statement of Material Facts in accordance with Local Rule 56.1.68

In their reply, Defendants argue that Local Rule 56.1 does not mandate each

sentence contain a specific citation.69 Nevertheless, Defendants provided a revised

65 Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citation omitted).

66 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).

67 Pearson, 555 U.S. at 236.

68 R. Doc. 44.

69 R. Doc. 56.

Statement of Material Facts that contains additional citations to the record, without

adding any new facts.70

Local Rule 56.1 of the Eastern District of Louisiana requires that a party

moving for summary judgment submit a “separate, short and concise statement…of

the material facts.” In its Amended Scheduling Order, this Court imposed an

additional requirement, specifically stating “[c]itations to record evidence shall

indicate, whenever applicable, an exhibit reference, page reference, and record

document number reference.”71 However, nowhere does this Court require that each

sentence in the Statement of Material Facts contain a specific citation to the record.

Further, this Court’s Amended Scheduling Order and the local rules do not state that

failure to provide specific citations to each statement in a moving party’s statement

of Material Facts renders a motion for summary judgment deficient. Defendants have

subsequently amended their statement of facts and provided additional citations.72

The Court determines that there is no merit to Plaintiff’s argument that Defendants’

Motion for Summary Judgment is deficient for failure to comply with the local rules.

B. Whether Plaintiff’s Claims are Barred by Heck v. Humphrey.

The Court next must determine whether Plaintiff’s claim for excessive force is

barred by Heck v. Humphrey. Defendants argue that Plaintiff’s excessive force claims

are barred by the application of Heck.73 Defendants state that Plaintiff’s previous

guilty adjudication of the crime of resisting an officer in Louisiana state court

70 R. Doc. 56-2.

71 R. Doc. 30.

72 See R. Doc. 56-2.

73 See R. Doc. 34 and R. Doc. 56.

contains an implicit legal conclusion, specifically, that the Defendants had probable

cause to arrest Plaintiff and that they used appropriate force when doing so because

she was “aggressively resisting arrest.”74

In response, Plaintiff contends that she is not required to deny that she

resisted a legal arrest and thus her claim of excessive force is not barred.75 Plaintiff

instead asserts that Defendants used excessive force when arresting her.76

In Heck, the Supreme Court held that a plaintiff who has been convicted of a

crime cannot bring a § 1983 claim challenging the constitutionality of his conviction

unless that conviction has been reversed, expunged, declared invalid, or called into

question by federal habeas corpus.77 Heck bars claims for “unconstitutional conviction

or imprisonment” as well as claims “for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid.”78 In Heck, the Supreme

Court instructed that, “[W]hen 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.”79

The application of Heck to excessive force claims is not always straightforward.

The United States Court of Appeals for the Fifth Circuit has noted that

whether Heck bars an excessive force claim is a necessarily “fact-intensive” analysis,

and turns on “whether success on the excessive force claim requires negation of an

74 Id.

75 R. Doc. 44.

76 Id.

77 512 U.S. 477, 486-87 (1994).

78 Id. at 486

79 512 U.S. at 487; 114 S.Ct. at 2372.

element of the criminal offense or proof of a fact that is inherently inconsistent with

one underlying the criminal conviction.”80 The Fifth Circuit has explained that “[a]n

excessive-force claim is not Heck barred . . . if it is ‘temporally and conceptually

distinct’ from the conviction.”81 This Court has previously explained that a plaintiff’s

conviction for resisting arrest is “distinct” from a § 1983 claim if the level of force used

to overcome plaintiff’s resistance was excessive.82 Indeed, other courts have

held,“[t]he fact that a suspect or arrestee is resisting does not give the arresting

officers free [rein] to abuse the limits of the Fourth Amendment.”83

Plaintiff was originally charged with “resisting a police officer with force/

violence” in the 22nd Judicial District Court.84 However, this charge was amended and

Plaintiff was ultimately found guilty of “resisting a police officer” in violation of La.

R. S. 14:108.85 Defendants argue that the facts of this matter are analogous to both

Arnold v. Town of Slaughter and DeLeon v. City of Corpus Christi.86 In Arnold, the

plaintiff claimed in his excessive force lawsuit that he had not utilized any force when

resisting arrest.87 Because this directly contradicted the state court’s finding that he

had used some force when he resisted arrest, the trial court granted the defendant

80 Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008).

81 Lee v. Ard, 785 F. App’x 247, 248 (5th Cir. 2019); see also Thomas v. Pohlmann, 681 F. App’x 401,

407 (5th Cir. 2017) (claim not barred by Heck where plaintiffs alleged excessive force that occurred

after they were taken into custody).

82 Champagne v. Martin, No. 18-1785, 2019 WL 3430457, at *5 (E.D. La. 2019) (guilty plea under

L.R.S. 14:108 did not automatically bar excessive force claim based on officers throwing plaintiff to the

floor and placing a knee into her back because success on that claim “does not necessarily negate

plaintiff’s conviction for resisting arrest”).

83 Marquar v. Allen, No. 1:11CV54-LG-RHW, 2013 WL 11522048, at *3 (S.D. Miss. Apr. 2, 2013).

84 R. Doc. 34-8.

85 Id. (citing La. R. S. 14:108).

86 R. Doc. 43 (citing Arnold v. Town of Slaughter, 100 Fed. Appx. 321, 323 (5th Cir. 2004) and DeLeon

v. City of Corpus Christi, 488 F.3d 649, 657 (5th Cir. 2007)).

87 100 Fed. Appx. at 323.

officer’s motion for summary judgment.88 On review, the Fifth Circuit affirmed the

trial court’s application of Heck to bar the plaintiff’s excessive force claim.89 The Fifth

Circuit explained that, “By proving an excessive force claim, a plaintiff will not

invariably invalidate his conviction.”90 According to the Fifth Circuit, whether Heck

bars a plaintiff from bringing a § 1983 claim “depends on the nature of the offense

and of the claim.”91

Defendants also rely on DeLeon v. City of Corpus Christi. In DeLeon, the

plaintiff had previously confessed and pled guilty to a charge of aggravated assault

of a police officer and then claimed in his excessive force lawsuit that he had not used

any force at all.92 The trial court granted the defendants’ motion to dismiss on the

grounds that plaintiff’s claims were barred by Heck and plaintiff appealed93. Relying

on its reasoning in Arnold, the Fifth Circuit affirmed the trial court’s dismissal of

plaintiff’s claims as being barred by Heck.94

The case at hand is different from the facts in both Arnold and DeLeon.

Plaintiff does not dispute that she was found guilty of “resisting a police officer,” nor

does she dispute that she used resistance.95 Plaintiff does not deny that she resisted

Defendants’ attempts to arrest her, as her Complaint reflects that she “yelled that

Defendants were hurting her and, justifiably, tried to pull her arms away.”96 Instead,

88 Id.

89 Id.

90 Heck, (citing Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996).

91 Id.

92 488 F.3d at 657.

93 Id.

94 Id.

95 R. Doc. 34-8 and R. Doc. 1.

96 R. Doc. 1 at ¶ 34.

Plaintiff alleges that Defendants use of force during the arrest was excessive.97 Thus,

the facts of the present case are distinguishable from the facts in Arnold and DeLeon,

in which the plaintiffs in those cases alleged that they did not use any force at all

when resisting arrest. Further, in Bush v. Strain, the Fifth Circuit held that “a claim

that excessive force occurred after the arrestee has ceased his or her resistance would

not necessarily imply the invalidity of a conviction for the earlier resistance.”98

Plaintiff has conceded she resisted; her argument is that the Defendants’ use of force

was excessive, and, further, such use of force continued after any resistance. “A claim

that excessive force occurred after the arrestee submitted to the officer and stopped

resisting ‘would not necessarily imply the invalidity of a conviction for the earlier

resistance.’”99 Accordingly, based on the evidence before the Court, Plaintiff’s claim

of excessive force is not barred by Heck.

C. Whether Defendants are Entitled to Qualified Immunity on

Plaintiff’s Excessive Force Claim.

The Fourth Amendment provides citizens with the right to be free from

excessive force. “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.’”100 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

97 R. Doc. 1; see also R. Doc. 34.

98 513 F.3d at 498 (5th Cir. 2008).

99 Lee v. Ard, 785 F. App’x 247, 248 (5th Cir. 2019).

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

20/20 vision of hindsight.101 “The ‘reasonableness’ inquiry in an excessive force case

is an objective one: the question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.102 “Reasonableness in these circumstances

‘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.’”103 In

determining whether the amount of force used was objectively reasonable, the Fifth

Circuit has instructed to balance the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance of the government

interests alleged to justify the intrusion.104

Defendants have raised the defense of qualified immunity and argue that their

actions when arresting Plaintiff were justified due to her resistance.105 Qualified

immunity shields officers from liability unless their conduct violates a clearly

established federal right of which a reasonable person would have known.106 To

overcome the claim of qualified immunity on her claim for excessive force, 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

101 Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).

102 Graham, 490 U.S. at 397 (citing Scott v. United States, 436 U.S. 128, 137-139 (1978); Terry 392 U.S.

at 21).

103 Hathaway v. Bazany, 507 F.3d 312, 320–21 (5th Cir. 2007) (quoting Graham, 490 U.S. at 397).

104 Timpa v. Dillard, 20 F.4th 1021 (5th Cir. 2021).

105 R. Doc. 56.

106 Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam).

unreasonable.”107 In determining whether the use of force was clearly excessive and

clearly unreasonable, the Court evaluates each deputy’s actions separately, to the

extent possible.108

Regarding the first factor, Plaintiff alleges that she has suffered physical

injuries including chronic pain in her legs, back and neck, as well as depression,

anxiety, and insomnia that require her to treat with medication.109 The Defendants

do not contest that these injuries occurred. Accordingly, the first factor is satisfied.

Turning to the next two factors, the Court notes that the parties addressed the

combined actions of the Defendants during the Plaintiff’s arrest. Accordingly, the

Court does the same.

Defendants argue that the level of force employed by Deputy Moring and

Deputy Hart when arresting Plaintiff was “neither clearly excessive nor was it clearly

unreasonable.”110 Defendants further contend that the use of force by the deputies

was reviewed by the Internal Affairs Division of the St. Tammany Parish Sheriff’s

Office as well as by its own expert, John Ryan, and both determined that the level of

force was appropriate.111

Plaintiff argues that Defendants employed excessive force in comparison to the

minor nature of what Plaintiff was arrested for, that Plaintiff did not pose a threat to

107 Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).

108 Id. (citing Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007) (holding that each officer’s

individual actions should be considered in determining whether qualified immunity applies).

109 R. Doc. 1; see also R. Doc. 44.

110 R. Doc. 34.

111 Id.

the Defendants, and that her limited resistance did not justify the level of force

employed by Defendants.112

The Fifth Circuit has determined that the second and third excessive force

elements “collapse into a single objective-reasonableness inquiry,”113 guided by the

factors in Graham v. Connor: “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.”114 Courts have held

that arresting officers employed excessive force after a subject is restrained or is not

actively resisting.115

Turning to the first Graham factor, the Fifth Circuit has explained that the

objective reasonableness of an officer’s actions must be analyzed in light of the

severity of the crime.116 Defendants testified in their deposition that they were

responding to a complaint of an individual recklessly operating a dirt bike in the

street.117 Plaintiff confirms that one of the Defendants advised that they had received

a call from an undisclosed source about someone riding a ‘”dirt bike” without a

helmet.118 Upon arriving at Plaintiff’s address, Defendants contend that they

112 R. Doc. 44.

113 Pena v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018).

114 Pena, 879 F.3d at 619 (quoting Graham, 490 U.S. at 396).

115 See Bush v. Strain, 513 F.3d 492, 501–02 (5th Cir. 2008) (finding the use of certain force after an

arrestee has been restrained and handcuffed is excessive and unreasonable); Bagley v. Kolb, 2021 WL

3376830, at *8–9 (W.D. La. Aug. 3, 2021) (finding it is excessive for an officer to strike a handcuffed

person); Newman v. Guedry, 703 F.3d 757, 762–63 (5th Cir. 2018) (holding it was clearly established

that violently slamming or striking a suspect who is not actively resisting arrest constitutes excessive

use of force).

116 Tarver v. City of Edna, 410 F.3d 745, 753 (5th Cir. 2005).

117 R. Doc. 44-2 at p. 67.

118 R. Doc. 1.

observed Plaintiff backing her motorcycle into the driveway without a helmet and

subsequently approached Plaintiff in her driveway; Plaintiff contends that she was

on her porch with her nephew when she saw the officers’ ride by her house.119 The

parties agree that the initial confrontation between the deputies and Plaintiff

centered on whether the Plaintiff had been riding a motorcycle without a helmet.

Plaintiff was ultimately arrested for four violations, including two misdemeanors,

L.R.S. 14:108.2 (Resisting a police officer with force or violence); L.R.S. 14:34.2

(Battery of a police officer); L.R.S. 32:863.1 (No proof of insurance); and L.R.S. 32:190

(No safety helmet).120

The Fifth Circuit has held that when the severity of a crime is minor, such as

a misdemeanor, the amount of force used by police during an arrest should be reduced

accordingly.121 More specifically, traffic violations generally will not support the use

of a significant level of force.122 Here, the Defendants initially approached Plaintiff

because of a report that someone was driving a dirt bike without a helmet.123 In their

depositions, both Deputy Moring and Deputy Hart recognized that this crime, along

with failing to produce motor vehicle insurance information, was a misdemeanor and

119 Id.

120 R. Doc. 34.

121 Reyes v. Bridgwater, 362 F. App’x 403, 407 n.5 (5th Cir. 2010) (finding that the “severity” factor

militated against use of force where the crime at issue was a misdemeanor) (citing Fogarty v. Gallegos,

523 F.3d 1147, 1160 (10th Cir. 2008) (holding that “the amount of force should [be] reduced

accordingly” in proportion to the severity of the crime)).

122 See Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (“Deville was stopped for a minor traffic

violation ... making the need for force substantially lower than if she had been suspected of a serious

crime.”)

123 R. Doc. 44.

thus not serious.124 In a video recording of Plaintiff’s arrest, Defendants are seen

twisting Plaintiff’s arms, bringing her to the ground, placing her on her stomach, and

then Deputy Hart appears to kneel on the back of Plaintiff’s legs while attempting to

handcuff her while Deputy Moring applies elbow pressure to the back to Plaintiff’s

upper back.125 Plaintiff appears to initially resist the deputies’ actions.126 Plaintiff

can be heard shouting that she is in pain several times, particularly when Deputy

Hart appears to kneel on the back of her legs.127 The video also appears to show

Deputy Hart’s hands on Plaintiff’s neck on two separate instances.128 Plaintiff is

heard yelling “why you choking me?”129 Defendants assert that Deputy Hart’s

“removal and then reapplication of his hand to Plaintiff’s neck and chest areas was

clearly his attempt to regain his balance and get onto his feet without stepping on

Plaintiff or allowing her to roll herself back onto her stomach.”130 Plaintiff counters

that the Defendants’ explanation is “dubious, particularly considering that Deputy

Hart removed and then reapplied force to Ms. Perkins’ throat at least once.”131

Considering the minor nature of Plaintiff’s crime and Defendants’ own admittance of

that fact, the Court determines that there is sufficient evidence that a jury could

124 See R. Doc. 44-1 at 119: 21-120:05 (Deputy Moring deposition); see also R. Doc. 44-4 at 83: 19-84:03

(Deputy Hart deposition).

125 R. Doc. 34-16. The Court notes that this video recording includes several portions that are fast

forwarded. However, this video recording appears to accurately capture the arrest of Plaintiff as well

as Defendants’ actions. While the video in 34-16 lasts less than 3 minutes, it is unclear how long the

encounter and arrest actually took since the video is fast forwarded.

126 R. Doc. 34-16.

127 Id.

128 Id.

129 Id.

130 R. Doc. 56.

131 R. Doc. 44.

determine that the Defendants’ actions during the arrest were disproportionate in

comparison to the minor nature of her crimes. Accordingly, this factor weighs in favor

of determining that the government had a minimal interest in the use of force against

Plaintiff.

The Court next considers whether Plaintiff posed an immediate threat to the

safety of the officers or others.132 The Court is mindful that it “must adopt ‘the

perspective of a reasonable officer on the scene, rather than judge with the 20/20

vision of hindsight.”133 Defendants contend that Plaintiff posed an “objectively

reasonable threat” to Defendants as she was shouting loudly, cursing, and refusing

to follow the officers’ instructions.134 Defendants also argue that Plaintiff posed a

threat when she started walking back towards to the house, where she could have

obtained a weapon.135 Plaintiff contends that she did not pose a threat at all to

Defendants when she attempted to walk back into her house, especially since,

“according to Defendants, Ms. Perkins approached and/or entered the home on one or

two occasions during the interactions, without Defendants arresting her or fearing

for their safety.136 Plaintiff further argues that she did not display a weapon to the

officers and instead called 911 herself because she feared for her own safety.137

132 Graham, 490 U.S. at 397.

133 Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (brackets omitted) (quoting Graham, 490 U.S.

at 396).

134 R. Doc. 56.

135 Id.

136 R. Doc. 44, referencing the Defendants’ depositions at R. Doc. 44-2 at p. 201:2-202:7 (Deputy

Moring); see also R. Doc. 44-5 at p. 136:16-137:13 (Deputy Hart).

137 Id.

In a video recording of Plaintiff’s arrest, all of which takes place in broad

daylight, Plaintiff is seen walking in her driveway and shouting and cursing at the

deputies.138 At the start of the video, Plaintiff tells Defendants that she is waiting to

receive the proof of insurance information for her motorcycle from her insurance

agency.139 The Defendant deputies are at the foot of the driveway.140 Plaintiff is seen

slowly pacing back and forth in her driveway, both towards and away from the

deputies.141 At one point, while walking with her back to the deputies, Plaintiff yells

(apparently to either her nephew or son) that “y’all don’t have to stand on no porch.”

It is at this point that one of the deputies declares that Plaintiff is under arrest,

approaches her, and attempts to place her in handcuffs.142 Plaintiff appears to twist

her arms to avoid the deputies’ initial attempts to place her in handcuffs and falls to

the ground as the Defendants attempt to place her arms behind her back.143

Defendants eventually handcuff the Plaintiff while she is on the ground.144 The Court

recognizes that an individual’s shouting, cursing, and unwillingness to cooperate with

the officers could have posed a threat to the Defendants or others.145 However, while

Plaintiff can be heard shouting and cursing, there is no evidence whatsoever that

Plaintiff threatened the Defendants or made any reference to a weapon in her home.

Additionally, and importantly, Deputy Moring testified in his deposition that Plaintiff

138 R. Doc. 34-16.

139 Id.

140 Id.

141 Id.

142 Id.

143 Id.

144 Id.

145 Id.

“wasn’t a danger to the public” and that he “d[idn’t] believe she was” a danger to

herself.146 Deputy Moring further testified that neither of the minors posed a threat

to the officers or the public.147 Accordingly, this factor weighs in favor of determining

that the government had a minimal interest in the use of force against Plaintiff.

Third, the Court analyzes whether the Plaintiff was actively resisting arrest

or attempting to evade arrest by flight.148 As described above, Plaintiff is seen slowly

walking back and forth in her driveway on a video recording of her prior to the arrest

but during the interaction with the deputies.149 Defendants then declare that she is

“under arrest” and attempt to place her in handcuffs as she had her back turned from

the deputies and was walking towards her house.150 The video shows that Plaintiff

twisted her arms away from the Defendants and resisted the Defendants’ initial

attempts to place her in handcuffs.151 Deputy Hart described Plaintiff in his

deposition as “pulling away, turning away.”152 Plaintiff then fell to the ground as

officers attempted to place her arms behind her back and handcuff her.153 Plaintiff is

again seen pulling her arms away from the Defendants and kicking her legs.154 The

Defendants then place Plaintiff prone on her stomach and Deputy Hart kneels on the

146 R. Doc. 44-2 at p. 120: 10-18.

147 R. Doc. 44-2 at 83.

148 Graham 490 U.S. at 397. The Court notes that Plaintiff has already been convicted of resisting

arrest. As previously described, Plaintiff recognizes this resistance but still contends that Defendants

employed excessive force when arresting her. See R. Doc. 44.

149 R. Doc. 34-16.

150 Id.

151 Id.

152 R. Doc. 44-4 at 160: 9-15.

153 Id.

154 Id.

back of her legs as she is handcuffed.155 At some point Plaintiff is turned and

handcuffed with her back on the ground.156 Deputy Hart continues struggling with

Plaintiff and his hand appears to be on Plaintiff’s neck on two occasions while

Plaintiff is lying on her back.157 Deputy Hart then helps Plaintiff stand up and walks

her across the lawn where she remains handcuffed with her arms behind her back.158

Plaintiff was previous found guilty of resisting an officer in Louisiana state

court and does not deny that she resisted arrest.159 Indeed, Plaintiff acknowledges in

her Complaint that she “tried to pull her arms away” and the videos support this.160

That Plaintiff initially resisted arrest is supported by the evidence; the question

remains whether Plaintiff continued to resist arrest to warrant Defendants’

continued use of force. Accordingly, this factor is neutral in determining what interest

the government had in the use of force against Plaintiff.

Upon extensive review of all available video recordings, depositions, and

witness statements, expert reports, as well as an analysis of the Graham factors, the

Court determines that the Defendants’ actions were unreasonable at this stage.

Further, a disputed issue of material fact exists regarding the amount of force used

by Defendants while attempting to arrest Plaintiff and after she was handcuffed and

subdued. Plaintiff insists that she was choked twice and can be heard on video saying

155 Id.

156 Id.

157 R. Doc. 34-16 at 1:36-39. As noted previously, Defendants dispute that Deputy Hart choked

Plaintiff.

158 R. Doc. 34-16.

159 R. Doc. 57, Summary of Material Facts, Defendants’ Statement.

160 R. Doc. 1.

“why you choking me?”161 Defendants counter that Deputy Hart was attempting “to

regain his balance and get onto his feet without stepping on Plaintiff or allowing her

to roll herself back onto her stomach.”162 “Within the Fifth Circuit, the law has long

been clearly established that an officer’s continued use of force on a restrained and

subdued subject is objectively unreasonable.”163 Just recently, the Fifth Circuit

“catalogued” its jurisprudence on this point and “identified features of the cases that

had ‘reaffirmed’ this principle ‘again and again.’”164 Some of those features included

whare “the seized individual as ‘suspected of only a minor offense,’ ‘initially resisted,’

‘was . . . forced to line prone on [the] stomach with hands restrained and bodyweight

force applied to [the] back,’ and, ‘most importantly . . . was subdued, unable to flee,

and non-threatening during the continued use of force.’”165 The Court would be remiss

not to point out how many of those features apply to the matter before it. Plaintiff

has properly rebutted Defendants’ claim of qualified immunity. Defendants’ Motion

for Summary Judgment seeking qualified immunity for the Defendants in regard to

Plaintiff’s arrest is denied.

D. Whether Defendants are Entitled to Qualified Immunity on D.J.’s

Excessive Force Claim.

Plaintiff has also brought a claim on behalf of her minor son, D.J., and alleges

that Defendant, Deputy Ryan Moring, used excessive force, in violation of D.J.’s

161 R. Doc. 34-16.

162 R. Doc. 56.

163 Timpa v. Dillard, 20 F.4th 1021 (5th Cir. 2021).

164 Fairchild v Coryell County, Texas, 2022 WL 2733704, -- F. 4th -- (5th Cir. 2022).

165 Id.

rights under the Fourth and Fourteenth Amendments, by displaying and threatening

to deploy his departmental taser.166

Defendant Moring argues that he is entitled to qualified immunity for several

reasons. First, he contends that D.J.’s Fourth and Fourteenth Amendment rights

were not violated because the officers merely threatened to use a non-lethal weapon

at D.J.167 Defendant also argues that Deputy Moring’s actions were “objectively

reasonable” because deputies have the right to secure the scene of an arrest, because

D.J. was not complying with the deputies’ commands to back away from the scene of

the arrest, and because the display of the departmental taser was not a display of

“deadly force,” but rather a momentary display of non-lethal force.168 Defendants

state that Fourth Circuit jurisprudence as well as cases in the Second and Eleventh

Circuit all hold that officers are allowed to display their weapons when necessary to

effectuate an arrest and that it does not constitute excessive force.169

Plaintiffs contend that D.J.’s excessive force claim is supported by an

assessment of the Graham factors, specifically because he was not accused of any

crime, he posed no threat to Deputy Moring, and that he did not resist the officers in

any way beyond continuing to lawfully film the arrest of his mother.170

166 R. Doc. 1.

167 R. Doc. 56.

168 R. Doc. 34-3.

169 R. Doc. 34-3; citing Bellote v. Edwards, 629 F.3d 415, 424 (4th Cir. 2011); Dunkelberger v.

Dunkelberger, No. 14-CV-3877, 2015 WL 5730605 at *43 (S.D.N.Y. Sept. 30, 2015) (quoting Cabral v.

City of New York, No. 12 Civ. 4659, 2014 WL 4636433 at *28 (S.D.N.Y. Sept. 17, 2014); see also Courson

v. McMillian, 939 F.2d 1479, 1494-95 (11th Cir. 1991).

170 R. Doc. 44.

The Court analyzes the Defendant’s claims of Qualified Immunity under the

same standard as stated earlier in this Order. To overcome the claim of qualified

immunity on her claim for excessive force, a 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.”171

Turning to the first factor, a plaintiff must have suffered an injury that is more

than de minimis in order to overcome the defense of qualified immunity.172 The

evaluation of a plaintiff's alleged injury is context-dependent and is “directly related

to the amount of force that is constitutionally permissible under the

circumstances.”173 Consequently, “as long as a plaintiff has suffered ‘some injury,’

even relatively insignificant injuries and purely psychological injuries will prove

cognizable when resulting from an officer's unreasonably excessive force.”174 Multiple

district courts within the Fifth Circuit have held that “emotional distress”—as alleged

here—satisfies the injury requirement of an excessive force claim when it results from

a police officer's unreasonably excessive brandishing of his firearm.175

171 Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).

172 Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001).

173 Ikerd v. Blair, 101 F.3d 430, 435 (5th Cir. 1996); see Williams v. Bramer, 180 F.3d 699, 703 (5th

Cir. 1999) (“In determining whether an injury caused by excessive force is more than de minimis, we

look to the context in which that force was deployed.”).

174 Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2001) (quoting Brown v. Lynch, 524 F.

App'x 69, 79 (5th Cir. 2013)).

175 Hodge v. Layrisson, No. 97-cv-555, 1998 WL 564263, at *6 (E.D. La. Sept. 1, 1998) (stating that

“emotional distress” satisfies the injury requirement of an excessive force claim when it results from

a police officer's unreasonably excessive brandishing of his firearm); Flores v. Rivas, No. EP-18-CV-

297-KC, 2020 WL 563799, at *7-9 (W.D. Tex. Jan. 31, 2020); Mannis v. Cohen, No. 3:00-cv-1955-P,

2001 WL 1524434, at *8 (N.D. Tex. Nov. 28, 2001).

Plaintiff alleges that D.J. suffered injuries resulting from Deputy Moring’s

direct verbal and physical threats, including “severe nervous breakdowns,” diagnosed

PTSD, panic attacks, and that he generally does not “feel comfortable being around

people.”176 Defendants do not contest Plaintiff’s recitation of D.J.’s injuries.

Accordingly, the Court finds that an injury has been established.

The Court next evaluates whether the injuries were caused by Deputy Moring’s

use of excessive force that was clearly unreasonable.177 The second and third

excessive force elements “collapse into a single objective-reasonableness inquiry,”178

guided by the factors in Graham v. Connor: “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.”179

However, the officer’s actions must be “objectively reasonable” to satisfy the Fourth

Amendment.180

Defendants do not allege that D.J. committed a crime while recording

Plaintiff’s arrest, although they do allege that he was close to interfering with the

arrest of Plaintiff.181 Second, D.J. was an unarmed minor who did not threaten

Deputy Moring’s physical safety or the safety of another police officer or the general

public.182 Deputy Moring stated in his deposition that he had no reason to believe

176 R. Doc. 44-3.

177 Ontiveros, 564 F.3d at 382.

178 Pena v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018)

179 Pena, 879 F.3d at 619 (quoting Graham, 490 U.S. at 396).

180 Id.

181 See Graham, 490 U.S. at 396; see also R. Doc. 34 and R. Doc. 56.

182 Id.

that D.J. had a weapon on him.183 Further, in an interview conducted as part of the

St. Tammany Parish Sheriff Department’s internal investigation, Deputy Moring

stated that D.J. slapped his hand away after Deputy Moring raised it and he told D.J.

to stop walking towards Plaintiff.184 D.J. is not seen slapping Deputy Moring’s hand

away on any video recording.185 Lastly, there is no evidence in the record that D.J.

did anything to resist, evade, or interfere with the arrest of Plaintiff beyond filming

and standing relatively close to the arrest.186 Finally, all of the events took place in

broad daylight.187 Accordingly, the analysis of the Graham factors indicate that that

the government had a minimal interest in the use of force against D.J.

The Court next evaluates the level of force used by Defendants and whether it

was reasonable. In Flores v. Rivas, an officer brandished his weapon at a group of

compliant children, despite the absence “of any fact or circumstance which would lead

a reasonable person to believe that Plaintiffs committed or were committing any

offense, whatsoever.”188 The court, after conducting a brief analysis under Graham,

held that it was “objectively unreasonable for a police officer to forcefully brandish a

deadly weapon at citizens whom he could not reasonably have perceived to be

dangerous,” particularly when those citizens are “unarmed children who were not

alleged to have done anything to threaten [the officer’s] safety or the safety of another

183 R. Doc. 44-1 at 110: 4-6.

184 R. Doc. 34 at p. 16 (citing recorded Administrative Investigation by Capt. Michael Ripoll, Jr. June

25, 2020, 9:05 – 11:35).

185 R. Doc. 34-15 and R. Doc. 34-16.

186 See R. Doc. 34-16.

187 Id.

188 Flores, 2020 WL 563799, at *7-9.

police officer or the general public.”189 Similarly, the court in Hodge v. Layrisson held

that it was objectively unreasonable for a police officer to forcefully brandish a deadly

weapon at citizens whom he could not reasonably have perceived to be dangerous.190

Further, courts have determined that “[u]sing force against someone who is not

actively resisting arrest is in violation of clearly established law.”191

D.J. was filming Plaintiff’s (his mother’s) arrest by Deputy Hart and Deputy

Moring with his cell phone at her request.192 D.J. was standing a few feet away from

the scene of the arrest while filming.193 After Plaintiff was handcuffed and while she

was struggling with Deputy Hart on the ground, Deputy Moring approached D.J. and

ordered him to back away and to not interfere with the scene of the arrest while he

continued filming.194 D.J. responded that he was not interfering with Plaintiff’s

arrest, but refused to back away, stating “no” and “I’m not moving” several times

when told to step back.195 Deputy Moring then stood in front of D.J., blocking his view

of the arrest, and pushed D.J. in the chest, telling D.J. to back away.196 Deputy

Moring then pointed his taser at D.J. and took several steps towards him while

189 Id.

190 Hodge, 1998 WL 564263, at *6; see also Checki v. Webb, 785 F.2d 534 (5th Cir. 1986) (stating that

“a police officer who terrorizes a civilian by brandishing a cocked gun in front of that civilian's face

may not cause physical injury, but he has certainly laid the building blocks for a section 1983 claim

against him); see also McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir. 1992) (recognizing excessive

force claim based on threatening plaintiff at gunpoint).

191 Muslow v. City of Shreveport, 491 F.Supp.3d 172, 189 (W.D. La. 2020); Konrad v. Kolb, 2019 WL

3812883, at *9 (W.D. La. Aug. 13, 2019) (same).

192 R. Doc. 34-15 (video recorded by D.J.); see also R. Doc. 34-16 (video recorded by J.P. where D.J. can

be seen interacting with Deputy Hart).

193 Id.

194 Id.

195 Id.

196 R. Doc. 34-16 at 1:44. Defendants contend that Deputy Moring only pushed D.J. away because D.J.

pushed him first. This initial push by D.J. is not seen in any video recording of the arrest.

holding the taser out towards D.J.197 Deputy Moring threatened to tase D.J., to which

D.J. responded “you can’t tase a child.”198 Plaintiff alleges that Deputy Moring then

responded “watch me” and the video supports this interaction.199 D.J. continued

filming for several more seconds and then stopped.200

Under the Graham factors, Defendants had a minimal interest in the use of

force against D.J. It is clearly established in the Fifth Circuit that even the use of

relatively minor force, such as “pushing, kneeing, and slapping” is excessive when

deployed against “a suspect who is neither fleeing nor resisting arrest.”201 Further,

there is a robust consensus that pointing a gun at compliant children is objectively

unreasonable.202 Defendants attempt to differentiate the present case by pointing out

that a taser is not a deadly weapon. However, all force, deadly and non-deadly, must

be justified by the need for the specific level of force employed.203 Because Defendants

had a minimal interest in the use of force against D.J., Deputy Moring had no

justification to display and threaten to use his taser against D.J. Accordingly, the

Court finds that Deputy Moring’s pointing a taser at D.J. and threatening to use it

was unreasonable. Thus, Defendant Moring is not entitled to qualified immunity from

D.J.’s excessive force claim against him.

197 R. Doc. 34-15.

198 R. Doc. 34-15; see also R. Doc. 34-16; see also R. Doc. 44-1 at 100: 13-25.

199 R. Doc. 44. See R. Doc. 34-15; see also R. Doc. 34-16.

200 R. Doc. 34-16.

201 Sam v. Richard, 887 F.3d 710, 714 (5th Cir. 2018) (collecting cases).

202 Flores, 2020 WL 563799, at *7-9 (citing Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009)

(“[T]hese cases so often involve children because they are much less likely to present the police with a

credible threat.”); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1192–93 (10th Cir. 2001)

(“Pointing a firearm directly at a child calls for even greater sensitivity to what may be justified or

what may be excessive under all the circumstances.”)).

203 Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010) (citing Graham, 490 U.S. at 395).

E. Whether Defendants are Entitled to Qualified Immunity on D.J.’s

First Amendment Claim.

Plaintiff has also brought a First Amendment retaliation claim against

Defendant Moring on behalf of her minor son, D.J., and argues that his First

Amendment rights were violated when Deputy Moring ordered him to stop filming

the arrest of Plaintiff and threatened him with a taser.204 In their Motion for

Summary Judgment, Defendants argue that D.J. has no First Amendment claim

because the Defendants never ordered him to stop filming, because D.J. never stopped

filming, and because D.J. was interfering with the arrest of Plaintiff.205 Defendants

also assert the defense of qualified immunity and argue that they are entitled to

qualified immunity because they did not violate D.J.’s First Amendment rights.206 In

response, Plaintiff argues that Deputy Moring violated D.J.’s First Amendment right

to record the arrest of Plaintiff by blocking D.J. from recording and by physically and

verbally threatening D.J. with his taser, causing D.J. to suffer damages.207 Plaintiff

also argues that D.J. had a right to record Defendants’ arrest of Plaintiff and thus

Defendants are not entitled to qualified immunity.208

The Court evaluates Defendant’s claim of qualified immunity under the same

standard stated earlier. The Court must first determine whether D.J.’s rights under

the First Amendment were violated. The elements of a First Amendment retaliation

claim are (1) that the plaintiff was engaged in a constitutionally protected activity,

204 R. Doc. 1.

205 R. Doc. 34; see also R. Doc. 56.

206 R. Doc. 56.

207 R. Doc. 44.

208 R. Doc. 44.

(2) the defendants’ actions caused the plaintiff to suffer an injury that would chill a

person of ordinary firmness from continuing to engage in the activity, and (3) the

defendants’ actions were substantially motivated against the plaintiff’s exercise of

that activity.209

First, the Court must determine if D.J. was engaged in a constitutionally

protected activity. The Fifth Circuit has determined that “a First Amendment right

to record the police does exist.”210 Defendants do not contest that D.J. was using his

cellphone to record Plaintiff’s arrest by the Defendants.211 D.J. was filming while on

private property, specifically on his family’s driveway.212 Defendants do not contest

any of these facts. Accordingly, D.J. was engaged in a constitutionally protected

activity.

Next, the Court must evaluate whether Deputy Moring’s actions caused D.J.

to suffer an injury that would chill a person of ordinary firmness from continuing to

engage in the activity.213 A retaliation claim requires some showing that the

plaintiff's exercise of free speech has been curtailed.214 “The effect on freedom of

speech may be small, but since there is no justification for harassing people for

exercising their constitutional rights it need not be great in order to be actionable.”215

Courts have held that “[i]t would be unjust to allow a defendant to escape liability for

209 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

210 Turner v. Driver, 848 F.3d 678, 688 (5th Cir. 2017).

211 R. Doc. 1; see also R. Doc. 44.

212 Id.

213 Keenan, 290 F.3d at 258.

214 Id.

215 Keenan, 290 F.3d at 258 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).

a First Amendment violation merely because an unusually determined plaintiff

persists in his protected activity.”216

Here, Deputy Moring pointed his taser at D.J. and verbally threatened him

while he was filming the arrest of Plaintiff.217 D.J. continues filming while Deputy

Moring takes several steps closer to him while holding out his taser.218 D.J. can be

heard stating “you can’t tase a child” several times before the camera drops and the

video ends, presumably because he walked away and ceased recording.219 Courts have

held that even minimal effects on freedom of speech are sufficient to bring a First

Amendment claim.220 The fact that D.J. continued filming for several seconds while

Deputy Moring displayed his taser is not sufficient to indicate that his speech was

not chilled.221 Accordingly, a jury could determine that D.J.’s speech was chilled

because he ceased filming Plaintiff’s arrest.

Third, the Court must assess whether Deputy Moring’s actions were

substantially motivated against the plaintiff’s exercise of that activity.222 Deputy

Moring has admitted in his deposition that he intentionally stood in front of D.J. and

blocked D.J. from recording Plaintiff’s arrest by stepping in front of the camera.223

216 Keenan, 290 F.3d 258 (citing Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 2001) (“The focus ... is

upon whether a person of ordinary firmness would be chilled, rather than whether the particular

plaintiff is chilled.”).

217 R. Doc. 34-16.

218 Id.

219 Id.

220 Keenan, 290 F.3d at 258 (quoting Bart, 677 F.2d at 625).

221 See Keenan, 290 F.3d 258 (citing Smith, 258 F.3d at 1176 (“The focus ... is upon whether a person

of ordinary firmness would be chilled, rather than whether the particular plaintiff is chilled.”).

222 Keenan, 290 F.3d at 258.

223 R. Doc. 44-2 at 95:1-10 (“Q: And as he moved to the side, you moved to the side in order to block his

ability to record the incident, correct? A. Correct.”)

Deputy Moring drew his taser, held it out front of him, and repeatedly ordered D.J.

to back away, which after several seconds, caused D.J. to lower his camera and stop

recording.224 While Deputy Moring never directly ordered D.J. to stop filming, his

attempts to block D.J. from filming Plaintiff’s arrest coupled with his display of force

indicate that his actions could be substantially motivated to prevent D.J. from filming

the incident. Accordingly, there is sufficient evidence for a jury to determine Deputy

Moring’s actions were motivated against D.J.’s First Amendment-protected act of

recording an arrest.

The Court must next determine whether D.J.’s First Amendment right was

“clearly established” at the time of the challenged conduct.225 “[T]he law is settled

that as a general matter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions, including criminal prosecutions, for

speaking out.”226 “[G]overnment retaliation against a private citizen for exercise of

First Amendment rights cannot be objectively reasonable.”227 Courts distinguish

between retaliatory action that has an independent lawful basis—e.g., an officer’s

arrest of a speaker where the officer’s motivation for the arrest is retaliation for the

speaker’s defamatory statements about the officer, but where probable cause exists

justifying the arrest—and retaliatory action that has no independent lawful basis.

Where “law enforcement officers might have a motive to retaliate but there was also

a ground to charge criminal conduct against the citizen they disliked,” then “the

224 R. Doc. 34-16.

225 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).

226 Hartman v. Moore, 547 U.S. 250, 256 (2006).

227 Keenan, 290 F.3d at 261 (citing Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996)).

objectives of law enforcement take primacy over the citizen’s right to avoid

retaliation.”228 On the other hand, “[i]f no reasonable police officer could have believed

that probable cause existed for the law enforcement actions of [an officer] against the

plaintiff[ ], then their retaliation violated clearly established law in this circuit.”229

In other words, D.J. has a clearly established right to be free from retaliatory action

by government officials where “nonretaliatory grounds” are “insufficient” to justify

the action.230

Here, D.J. was engaged in lawful activity, specifically the filming of Plaintiff’s

arrest by the Defendants from his family’s driveway.231 D.J. was not committing a

crime and thus there was no retaliatory grounds, such as probable cause for arrest,

to justify Deputy Moring’s interference with his First Amendment rights. Thus, the

Court concludes that Deputy Moring’s conduct violated D.J.’s clearly established

First Amendment right and was not “objectively reasonable in light of clearly

established law.”232 Accordingly, the Court finds that Plaintiff has rebutted Deputy

Moring’s claim of qualified immunity. Thus, Deputy Moring is not entitled to the

defense of qualified immunity from D.J.’s First Amendment claim.

F. Plaintiff’s Unlawful Seizure Claim

While Defendants seek summary judgment on Plaintiff’s “unlawful seizure

claims,” Defendants only address Plaintiff’s “seizure” in relation to her arrest in their

228 Keenan, 290 F.3d at 261-62; see also Mozzochi v. Borden, 959 F.2d 1174, 1179 (5th Cir. 1992).

229 Keenan, 290 F.3d at 262.

230 Hartman, 547 U.S. at 256.

231 R. Doc 34-16; see also R. Doc. 44.

232 Thompson, 245 F.3d at 457.

motion. Plaintiff, in her opposition, asserts that her motorcycle was unlawfully seized

and impounded by the Defendants after her arrest.233 Further, Plaintiff states that

the Louisiana Supreme Court has held that towing a vehicle incident to arrest when

the vehicle is “not on a public highway and posed no danger of either obstructing

traffic or causing accidents” is an unreasonable seizure.234 In their reply brief, which

addresses this claim for the first time, Defendants contend that Louisiana law

requires all registered owners of motor vehicles to carry proof of liability insurance

and that failure to do so can result in impoundment of the vehicle.235

Louisiana law requires police officers, when stopping an owner in connection

with an alleged violation of law, to determine if the owner of a vehicle has proof of

liability insurance.236 If the owner does not have proof of liability insurance,

Louisiana law states that “the motor vehicle shall be impounded.”237 Courts have

upheld the impoundment of a vehicle following the owner’s failure to produce proof of

liability insurance.238

Plaintiff urges the Court to consider the Louisiana Supreme Court’s finding in

State v. Hernandez.239 In Hernandez, the defendant’s car was impounded after he was

arrested for reckless operation of a vehicle.240 Before the car was impounded, the

233 R. Doc. 1.

234 R. Doc. 44 (citing State v. Hernandez, 410 So.2d 1381, 1384 (La. 1982)).

235 R. Doc. 56 (citing La. R.S. 32:863.1).

236 La. R.S. 32:863.1.

237 La. R.S. 32:863.1(c)(1)(a).

238 Spann o/b/o Spann v. Bogalusa City Police Dep't, No. 20-2780, 2021 WL 4318133 (E.D. La. Sept.

23, 2021); see also Jones v. Town of Woodworth, No. 2:16-CV-00783, 2015-568, p. 11 (La. App. 3 Cir.

11/4/15), 178 So. 3d 243, 249 (finding that an officer had a legal obligation to impound a vehicle based

on his issuing a ticket for no proof of insurance pursuant to La.R.S.32:863.1(C)(1)(a)).

239 R. Doc. 44 (citing Hernandez, 410 So.2d at 1384).

240 Id.

police re-entered the defendant’s property, searched his car and found marijuana,

leading to additional charges against the defendant for drug possession.241 Defendant

argued that his vehicle was unlawfully searched and impounded by the police.242 The

Louisiana Supreme Court held that impounding the vehicle was not proper incidental

to the arrest and explained that “if a person is arrested in or at his place of residence

and his car is parked in the garage or lot or other place where that person ordinarily

leaves his car, then the police cannot justify seizure of the car on the ground that such

action is needed for the protection of the vehicle and its contents.”243

The facts in this matter are distinguishable from Hernandez. In Hernandez,

the police re-entered defendant’s property, searched his car, and then impounded it

on the grounds that it was needed for the protection of the vehicle and its contents.244

In this matter, however, Plaintiff’s motorcycle was impounded for a different,

statutorily approved reason, specifically because Plaintiff failed to provide proof of

liability insurance.245 Louisiana law states that “When a law enforcement officer

stops a vehicle…in connection with an alleged violation of the law, or for any other

reason…the law enforcement officer shall determine if the owner or lessee of each

vehicle is in compliance with the provisions of this Section [La. R.S. 32:863] which

require evidence of liability insurance or other security to be contained in the

vehicle.”246 Plaintiff concedes in her Opposition that, “for purposes of this motion, Ms.

241 Id.

242 Id.

243 Id.

244 Id.

245 See R. Doc. 56-5.

246 La. R.S. 32:863.1(B)(1).

Perkins does not contest Defendants’ claim that they saw her on the motorcycle in

the road without a helmet.”247 Further, in his deposition, Deputy Moring stated that

Plaintiff “said she had insurance but ultimately was unable to produce it.”248 Here,

the officers followed La. R.S. 32:863 and impounded Plaintiff’s motorcycle after she

failed to provide proof of liability insurance. Accordingly, Plaintiff’s motorcycle was

lawfully impounded by the Defendants and Defendants are entitled to Qualified

Immunity on that claim. Thus, Defendants’ Motion for Summary Judgment as to

unlawful seizure of her motorcycle is granted.

G. Plaintiff’s State Law Claims

Plaintiff has alleged a number of claims under Louisiana state law arising from

her arrest, including excessive force, battery, assault, intentional infliction of

emotional distress, and negligent infliction of emotional distress.249 Defendants move

for summary judgment on these claims and make several arguments.250 First,

Defendants argue that Plaintiff’s claims of excessive force, battery, and assault must

be dismissed because the evidence indicates that the Defendants did not employ

excessive force when arresting Plaintiff and because the Defendants are entitled to

the defense of qualified immunity.251 Plaintiffs contend that the evidence supports

these state law claims.252 As described above, the Court has determined that there is

a material issue of fact in dispute regarding whether Defendants employed excessive

247 R. Doc. 44 at fn. 4.

248 Id.

249 R. Doc. 1.

250 R. Doc. 56.

251 Id.

252 R. Doc. 44.

force when arresting Plaintiff, or after she was restrained in handcuffs, and when

interacting with her minor child D.J. and thus they are not entitled to qualified

immunity. Accordingly, Defendants’ Motion for Summary Judgment as to the state

law claims of excessive force, battery, and assault must be denied.

Second, Defendants argue that Plaintiff’s claims for intentional and negligent

infliction of emotional distress must be dismissed because no “shocking or egregious”

conduct occurred.253 Plaintiffs counter that there is an issue of material fact in

dispute regarding whether Defendants’ conduct was “shocking or outrageous” as

required under Louisiana state law to prove either claim.254 Based on the above

finding that there is a material issue of fact in dispute regarding whether Defendants

employed excessive force when arresting Plaintiff and engaging with her minor child

D.J., the Court finds that it is unable to determine at this stage whether Defendants’

conduct was “outrageous” or “shocking or outrageous” as required under Louisiana

law. Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiff and her

minor child’s state law claims for intentional and negligent infliction of emotional

distress must be denied.

253 R. Doc. 56.

254 R. Doc. 44.

IV. CONCLUSION

IT IS HEREBY ORDERED that Defendants’ Motion for Summary

Judgment? is GRANTED in part and DENIED in part.

IT IS GRANTED as to Plaintiffs unlawful seizure claim solely as to the

seizure of her vehicle.

IT IS DENIED as to all other claims.

New Orleans, Louisiana, July 26, 2022.

Vette

WENDY B. VITTER

UNITED STATES DISTRICT JUDGE

255 R. Doe. 34.

42