Tennart v. Baton Rouge

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LEROY TENNART, ET AL.

CIVIL ACTION

VERSUS

NO. 17-179-JWD-EWD

CITY OF BATON ROUGE, ET AL.

CONSOLIDATED WITH

NIKOLE SMITH, ET AL.

CIVIL ACTION

VERSUS

NO. 17-436-JWD-EWD

CITY OF BATON ROUGE, ET AL.

RULING AND ORDER

I. INTRODUCTION

This matter comes before the Court on the Motion for Summary Judgment filed by the City

of Baton Rouge/Parish of East Baton Rouge (the “City”), certain defendants associated with the

City named in their official capacity, and current and former Baton Rouge Police Department

(“BRPD”) officers named in their individual capacity (collectively, “City Defendants”). This

motion has been filed in two cases with the same counsel and many of the same City Defendants—

Tennart v. City of Baton Rouge, No. 17-179-JWD-EWD (“Tennart”), and Smith v. City of Baton

Rouge, No. 17-436-JWD-EWD (“Smith”). In the motion (Tennart, Doc. 347), Defendants seek

dismissal of a host of claims (seventeen in Tennart and nineteen in Smith) arising from a single

protest which took place in Baton Rouge on Saturday, July 9, 2016, on and around Airline

Highway in response to Alton Sterling’s killing by BRPD officers. (See Tennart, Fifth Am. Compl.,

Doc. 310; Smith, Third Am. Compl., Doc. 228.)

The eight Tennart plaintiffs—Eddie Hughes, Godavari Hughes, Christopher Brown,

Brachell Brown, Zachary Hill, Leon Tennart, Deon Tennart, and Tommy Hutcherson—largely

(though not completely) oppose the motion. (Doc. 364.) The two remaining Smith plaintiffs—

Nikole Smith and Sean Benjamin—do the same. (Id.) The Tennart Plaintiffs and remaining Smith

Plaintiffs are collectively referred to as “Plaintiffs.”

City Defendants have filed a reply memorandum. (Doc. 368.) They have not, however,

filed a separate reply to Plaintiffs’ . . . Statement of Additional Uncontested Material Facts (Doc.

364-1 at 14–40) (“SAUMF”) in violation of Local Civil Rule 56(d). Consequently, all of the facts

contained in that SAUMF are deemed admitted for purposes of this motion. See M.D. La. Civ. R.

56(d), (f), & (g).

Oral argument is not necessary. The Court has carefully considered the law, the facts in

the record, and the arguments and submissions of the parties and is prepared to rule.

At the outset, the Court notes that Plaintiffs do not oppose the dismissal of certain claims.

Specifically, Plaintiffs concede that they have no viable claims for (1) Civil Conspiracy under 42

U.S.C. § 1983 (Counts 1 in Tennart and Smith) and state law (Count 11 in Tennart and Count 13

in Smith); and (2) a Racially-Motivated Conspiracy under 42 U.S.C. § 1985(d) (Counts Two in

both cases). Plaintiffs also recognize that “only one official-capacity Defendant is required in this

case” and that “other official-capacity Defendants are not needed.” (Doc. 364 at 21.) All of these

claims are thus deemed waived. See Payton v. Town of Maringouin, No. 18-563, 2021 WL

2544416, at *26 (M.D. La. June 21, 2021) (deGravelles, J.) (collecting authorities on waiver and

finding that claims could be dismissed for failure to meaningfully oppose (citations omitted)), aff'd,

No. 21-30440, 2022 WL 3097846 (5th Cir. Aug. 3, 2022). Accordingly, Plaintiffs’ federal and

state law conspiracy claims and Plaintiffs’ claims against all City Defendants in their official

capacity (other than the City itself) are DISMISSED WITH PREJUDICE.

Likewise, Plaintiffs do not meaningfully oppose the dismissal of certain defendants.

Specifically, Plaintiffs admit in their Response to the Statement of Uncontested Material Facts by

the City of Baton Rouge (“PRSUF”) (Doc. 364-1) that certain defendants took no part in any arrests

and were in no position to intervene to stop constitutional violations. (Compare City Defendants’

Statement of Uncontested Facts (“SUF”), ¶¶ 22, 24, 25, Doc. 347-2 (as to Defendants Andrew

DeSalvo, Noel Salamoni, and E.J. Laperyouse), with PRSUF ¶¶ 22, 24, 25, Doc. 364-1.) Similarly,

Plaintiffs have failed to meaningfully oppose the motion as to certain defendants by only partially

denying the SUF.1 As a result, the following claims are DISMISSED WITH PREJUDICE as

waived: (1) all claims by Plaintiffs against Defendants Mark Cummings, James Cutrer, Shawn

Delaney, Scott Johnson, Theodore Smith, Shona Stokes, Willie Turner, and Josh Ellis; (2) all

claims by Plaintiffs against Defendants Eric Murphy, Brett Magee, and Hudson Tabor, other than

for failure to intervene; and (3) all claims by Plaintiffs against Defendant Doug Barron, other than

for manufacturing evidence.

Additionally, the undersigned emphasizes at the start that the issues in this case are well-

travelled ground for this Court. First, this division has dealt with cases involving another protest

that occurred on Sunday, July 10, 2016, in downtown Baton Rouge, in and around the intersection

of East Boulevard and France Street. Undersigned issued a wide-ranging 110-page ruling in one

1 Compare SUF ¶ 20, Doc. 347-2 (explaining how the following defendants took no part in any arrest and were in no

position to intervene: Doug Barron, Eric Murphy, Mark Cummings, James Cutrer, Shawn Delaney, Scott Johnson,

David Kennedy, Brett Magee, Theodore Smith, Shona Stokes, Hudson Tabor, and Willie Turner), with PRSUF ¶ 20,

Doc. 347-2 (opposing dismissal only (1) as to David Kennedy for all claims and (2) as to Eric Murphy, Brett Magee,

and Hudson Tabor only for failure to intervene); see also SAUMF ¶¶ 21, Doc. 364-1 (opposing dismissal as to Barron

for manufacturing evidence); compare also SUF ¶ 21, Doc. 347-2 (arguing that James Crisler and Josh Ellis did not

arrest anyone and were in no position to intervene), with PRSUF ¶ 21, Doc. 347-2 (opposing dismissal of failure to

intervene claims against Crisler only), and Opposition, Doc. 364 at 34–35 (“Plaintiffs concede that insufficient

evidence has been adduced to support claims against Defendant Ellis”).

such case in response to a motion for summary judgment filed by other defendants associated with

the City. See Imani v. City of Baton Rouge, No. 17-439, --- F. Supp. 3d ----, 2022 WL 2760799

(M.D. La. July 14, 2022) (deGravelles, J.). Further, the Court issued a more streamlined ruling

following another motion for summary judgment filed by the City Defendants in Smith in

connection with this downtown protest. Smith v. City of Baton Rouge, No. 17-436, 2022 WL

2789221 (M.D. La. July 15, 2022) (deGravelles, J.) (“Smith I”).

Moreover, the Court has also issued an order on another dispositive motion involving the

Airline Highway protest. Specifically, in Tennart, defendants associated with the Louisiana State

Police (“LSP”) obtained summary judgment on all claims against them except certain discrete

claims against one particular trooper. See Tennart v. City of Baton Rouge, No. 17-179, 2022 WL

4099156 (M.D. La. Sept. 7, 2022) (deGravelles, J.) (“Tennart I”).

Each of these decisions are critical to this Court’s analysis of the instant motion. Imani is

extremely extensive and provides a comprehensive framework for most of the legal issues (and

some of the factual disputes) involved with the current motion. Moreover, the more streamlined

Smith I ruling demonstrates the overall approach this Court will take. Finally, Tennart I highlights

the factual differences between the claims in the two protests generally and with respect to Plaintiff

Zachary Hill in particular.

With that context established, the remaining claims before the Court are:

(a) False Detention, Arrest, and Imprisonment under § 1983 (Count 3 in both

cases), and its equivalent state law claims under the Louisiana Constitution

(Count 13 in Tennart, Count 15 in Smith );

(b) Manufacturing Evidence and Knowing Use of Same to Obtain Prosecution of

Plaintiffs Without Probable Cause in violation of the Fourth and Fourteenth

Amendments (Counts 4 in both cases);

(c) Fourth Amendment Excessive Force under § 1983 (Count 5 in both cases);

(d) First Amendment Retaliation under § 1983 (Count 6 in both cases), and its

equivalent state law claim under the Louisiana Constitution (Count 12 in

Tennart and Count 14 in Smith);

(e) Failure to Intervene under § 1983 (Count 7 in both cases);

(f) As-Applied Challenges to La. R.S. 14:97 (Count 8 as to Tennart Plaintiffs and

Smith Plaintiff Sean Benjamin);

(g) As-Applied Challenges to La. R.S. § 14:329.2 (Count 10 in Smith as to Plaintiff

Nikole Smith);

(h) Monell claims (Count 10 in Tennart and 12 in Smith);

(i) Certain intentional torts such as Intentional Infliction of Emotional Distress

(“IIED”), Assault and Battery, and False Imprisonment (Count 14 in Tennart

and 16 in Smith);

(j) Abuse of Process (Count 15 in Tennart and 17 in Smith);

(k) Abuse of Rights (Count 16 in Tennart and 18 in Smith); and

(l) Negligence (Count 17 in Tennart and 19 in Smith).

(See SUF ¶¶ 1–2, Doc. 347-2; PRSUF ¶¶ 1–2, Doc. 364-1.)

Having carefully considered the law, the evidence (particularly the SAUMF highlighted

above and facts detailed in the other rulings), and the briefing, the Court will largely deny the

motion. Construing the evidence in a light most favorable to Plaintiffs and drawing reasonable

inferences in their favor, the Court finds that genuine issues of material fact preclude summary

judgment as to most of Plaintiffs’ claims. “This case will largely be decided by a jury drawn from

the community. And given the fundamental policies implicated by this case—liberty and order—

the Court believes this is the best possible outcome.” Imani, 2022 WL 2760799, at *2.

II. RULE 56 STANDARD

“The court shall grant summary judgment 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.” Fed. R.

Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by citing to particular parts of materials in the record,” or by “showing that the materials

cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

More specifically, “[t]he movant bears the initial burden and must identify ‘those portions

of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)). “But the movant

‘need not negate the elements of the nonmovant's case.’ ” Id. (quoting Boudreaux v. Swift Transp.

Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994) (en banc))). That is, “[a] movant for summary judgment need not set forth evidence

when the nonmovant bears the burden of persuasion at trial.” Wease v. Ocwen Loan Servicing,

L.L.C., 915 F.3d 987, 997 (5th Cir. 2019) (citing Celotex, 477 U.S. at 323 (“[W]e find no express

or implied requirement in Rule 56 that the moving party support its motion with affidavits or other

similar materials negating the opponent's claim.”) (emphasis in original)).

“The moving party may meet its burden to demonstrate the absence of a genuine issue of

material fact by pointing out that the record contains no support for the non-moving party's claim.”

Id. (citing Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir. 2002)). Further,

“[s]ummary judgment must be granted ‘against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and on which it will bear the

burden of proof at trial.” Pioneer, 767 F.3d at 511 (quoting Malacara v. Garber, 353 F.3d 393,

398 (5th Cir. 2003) (internal quotation marks omitted)). Critically, “[i]f the moving party fails to

meet this initial burden, the motion must be denied, regardless of the nonmovant's response.” Id.

(quoting Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001) (internal quotation marks

omitted)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . . .

The nonmoving party must come forward with specific facts showing that there is a genuine issue

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (cleaned

up). The non-mover's “burden is not satisfied with some metaphysical doubt as to the material

facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of

evidence.” Little, 37 F.3d at 1075 (cleaned up).

Additionally, “[w]hen evidence exists in the summary judgment record but the nonmovant

fails even to refer to it in the response to the motion for summary judgment, that evidence is not

properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)

(citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 916 (5th Cir. 1992)). “Rule 56 does not impose upon the district court

a duty to sift through the record in search of evidence to support a party's opposition to summary

judgment.” Id. (citing, inter alia, Ragas, 136 F.3d at 458). See also Nissho-Iwai Am. Corp. v.

Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary “that the entire record in the case .

. . be searched and found bereft of a genuine issue of material fact before summary judgment may

be properly entered”); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like

pigs, hunting for truffles buried in briefs.”).

Ultimately, “[w]here the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co.,

475 U.S. at 587 (citation omitted).

In resolving the motion, the court may not undertake to evaluate the

credibility of the witnesses, weigh the evidence, or resolve factual

disputes; so long as the evidence in the record is such that a

reasonable jury drawing all inferences in favor of the nonmoving

party could arrive at a verdict in that party's favor, the court must

deny the motion. Indeed, even if the moving party comes forward

with an abundance of evidence supporting its theory of the case, the

nonmoving party may nevertheless defeat the motion by countering

with evidence of its own, which, if credited by the fact-finder, would

entitle the nonmoving party to a verdict in its favor. Or, the non-

moving party can defeat the motion by demonstrating that the

evidence tendered by the moving party is itself laced with

contradictions of [material] fact.

Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (cleaned up).

III. DISPOSITION OF SPECIFIC CLAIMS

A. False Arrest Claims

City Defendants argue that there was probable cause to support each of Plaintiffs’ arrests.

(Doc. 347-1 at 11–12; see also Reply, Doc. 368 at 5–6 (emphasizing that only some probable cause

is needed to justify an arrest and that Plaintiffs were arrested near I-12 and near or on Airline

Highway, both of which are major roadways).) Further, City Defendants maintain that qualified

immunity shields them if they reasonably but mistakenly concluded that there was probable cause

and that they are entitled to this defense here. (Doc. 347-1 at 11.)

In short, the Court largely rejects these arguments and finds that the federal false arrest

claims mostly survive. More specifically, giving the evidence2 the proper construction and

2 See SAUMF ¶¶ 1–2, Doc. 364-1 (describing how Leroy Tennart was pushed by officers from the median of

Goodwood Blvd into the street); id. ¶ 9 (describing how Deon Tennart was likewise pushed from the same location);

Pls. Ex. 18 Video “7-9-16 kdh (1).avi” at 1:14–16 (showing Leroy and Deon Tennart standing in the median of

Goodwood Boulevard shortly before Leroy’s arrest); Pls. Ex. 19, Video “2016.07.09 0838PM Twitter (Bryn Stole)

drawing the appropriate inferences, a reasonable juror could easily find that City Defendants

lacked probable cause to arrest nearly all of the Plaintiffs for any crime, including obstructing a

highway or inciting a riot. See Imani, 2022 WL 2760799, at *37 (denying defendants’ motion for

summary judgment in part because, when construing the evidence in a light most favorable to

plaintiffs, the City lacked “any description of any specific Plaintiff’s illegal activity” and “had no

knowledge of which officer saw Plaintiffs commit any crime or what officer seized Plaintiffs”);

cf. Doe v. McKesson, 2021-00929 (La. 3/25/22), 339 So. 3d 524, 533 (stating, in answering

questions certified by the U.S. Fifth Circuit arising from the protest on Airline Highway, that “the

blocking of a heavily traveled highway, thereby posing a hazard to public safety,” was “the

commission of a crime”); cf. also Tennart I, 2022 WL 4099156, at *2 (finding, based on videos,

pictures, undisputed evidence, and deposition testimony, that “all reasonable jurors would

conclude that [LSP officer] Lemmons observed Plaintiff Hill obstructing Airline Highway—an

extremely busy U.S. Highway—and that Lemmons thus had probable cause to arrest Hill for

violating La. R.S. 14:97, simple obstruction of a highway”). Further, giving this evidence the

proper construction, every reasonable officer in these Defendants’ position would know, beyond

debate, that their conduct was objectively unreasonable under clearly established law.

Arrest of Leroy tennart jnp98fNBexCgCtltmp4” (showing Tennarts’ arrest and being inconclusive as to their location

at the exact moment of same); SAUMF ¶ 17, Doc. 364-1 (stating that Eddie and Godavari Hughes “ma[de] sure to stay

in the grass and out of the roadway” and that “[a]t no point, were they obstructing traffic or remaining in the roadway”);

id. ¶¶ 33–34 (describing how Thomas Hutcherson only crossed Goodwood after an officer ordered him to); Pls. Ex.

55, 2016.07.09 Hutcherson cell phone videomp4 at 1:10-41 (showing Hutcherson only crossed street after being told

to by police officers, and then was arrested by another officer as he was crossing); SAUMF ¶¶ 40–41, Doc. 364-1

(describing how Chris and Brachell Brown were not on Airline at the time of their arrest but rather crossing

Gwenadele, how Gwenadele was stopped, and thus how they were not obstructing traffic); Pl. Ex. 65, Video Bryn

Stole on Twitter . . . httpst.coFsnTcK5RHh.mp4 (showing traffic line on Airline to be green, from which the inference

can be drawn that the Gwenadele light was red when Chris and Brachell Brown crossed); SAUMF ¶¶ 51–52, Doc.

364-1 (stating how Nikole Smith was arrested for inciting a riot even though she was asked by leaders “to make sure

everyone stayed out of the roadway” and even though she “recall[ed] how peaceful the crowd was”); id. ¶¶ 58–59

(explaining how Sean Benjamin was arrested for Simple Obstruction of a Highway even though he never entered the

roadway); Pls. Ex. 75, “2016.07.09 0958PM Live Video_Scene_of #AltonSterling protest at Baton Rouge Police

HQ…mp4”, at 10:10–20:00 (showing group of protesters on side of highway getting arrested by mass of officers).

The sole exception to this is that the claims of Zachary Hill will be dismissed, as all

reasonable jurors would conclude that Hill was obstructing the highway and that there was thus

probable cause to arrest him. See id. at *2 (explaining how video, pictures, and evidence

demonstrated that Hill was obstructing Airline Highway at time of arrest); SAUMF ¶¶ 25–27, Doc.

364-1 (describing same facts).

Accordingly, the motion for summary judgment is GRANTED in that Plaintiff Zachary

Hill’s Fourth Amendment false arrest claims against City Defendants is DISMISSED WITH

PREJUDICE. In all other respects, the motion for summary judgment as to these § 1983 false

arrest claims is DENIED.

B. Manufacturing Evidence Claims

City Defendants next contend that the manufacturing evidence claims must be dismissed.

(Doc. 347-1 at 12.) These defendants maintain that they relied on their collective experience and

fellow officers to execute the affidavits. (Id.) Considering the risk posed here and the

unprecedented circumstances and number of arrests, City Defendants’ conduct was, at worst, a

reasonable mistake. (Id. at 12–13.) Lastly, these defendants make arguments only as to one

specific Plaintiff, Nikole Smith. (Id. at 13.)

The Court again disagrees and finds that the manufacturing evidence claims survive

summary judgment. Construing the evidence (particularly the facts admitted in the SAUMF)3 in

3 See SAUMF ¶ 6, Doc. 364-1 (describing how officer Crockett prepared the pre-printed Affidavit of Probable Cause

for Plaintiff Leroy Tennart, how officers Crockett and Roussell prepared the arrest report, and how neither officer was

present in videos of the arrest or testified to personally witnessing it); see id. ¶¶ 10–11 (describing same of Plaintiff

Deon Tennart and Officers Bradley Lawrence and Reab Simoneaux); id. ¶¶ 21–22 (describing substantially the same

of incident reports and affidavits as to Plaintiffs Eddie and Godavari Hughes and officers Michael Rarick, Sondra

Hall, Barron Bryant, and Gina Hedrick); id. ¶¶ 29–30 (saying likewise of Plaintiff Hill and Defendants Dorsey and

Thompson); id. ¶¶ 34–35 (describing discrepancies between officer Norman’s arrest report and video of Plaintiff

Hutcherson’s arrest); Pls. Ex. 56, Video “2016.07.09 TH arrest.mp4” (showing Hutcherson’s arrest); Pls. Ex. 57,

Video “2016.07.13 wwltv Whos being arrested in Baton Rouge and what they’re being charged with (at 1.23).mp4”

at 1:23–29 (showing Hutcherson’s arrest); SAUMF ¶¶ 41–47, Doc. 364-1 (explaining how Defendants Blaine Burns

and Sondra Hall swore to probable cause affidavits charging Chris Brown and Brachell Brown, respectively, even

a light most favorable to Plaintiffs and drawing reasonable inferences in their favor, a reasonable

juror could find that the named officers “intentionally, or with a reckless disregard for the truth,

include[d] a false statement in [the Affidavits of Probable Cause] or omit[ted] a material fact from

[them].” Imani, 2022 WL 2760799, at *37 (quoting Nerio v. Evans, 974 F.3d 571, 577 (5th Cir.

2020)). One such false statement was that there was probable cause to arrest Plaintiffs when a

reasonable jury could again find that there was not and that the officers had the personal knowledge

to attest to same. See, supra. A reasonable juror could also find, beyond debate, that these officers

all acted unreasonably under clearly established law. See Imani, 2022 WL 2760799, at *37

(denying summary judgment because evidence “reflect[ed] (1) that Defendants have no evidence

that Plaintiffs failed to comply with orders or that any Plaintiff engaged in an act of violence, and

(2) that, other than the Affidavits of Probable Cause (which many times were made without

personal knowledge), the City does not have any description of any specific Plaintiff's illegal

activity.”). As a result, on the manufacturing evidence claims, the motion is DENIED.

C. Excessive Force

Next, Plaintiffs concede at the outset that there are no claims of excessive force with respect

to Eddie Hughes and Nikole Smith. (Doc. 364 at 29.) Thus, to the extent such claims are made,

they are DISMISSED WITH PREJUDICE.

Turning to the heart of the motion, City Defendants’ position is essentially that (1) any

injury is de minimis and (2) that the “force used does not indicate an intent to cause serious harm

though Defendants Jason Arcee and Nicholas Collins effectuated the arrests, and describing falsehoods in Arcee’s

report (citing, inter alia, Pls. Ex. 65, Video Bryn Stole on Twitter . . . . httpst.coFsnTcK5RHhmp4 (showing arrests

of these plaintiffs)); id. ¶ 52 (describing how Officer Zeitler admitted that the arrest report for Smith was a generic

form); id. ¶ 59 (again stating that Plaintiff Benjamin’s affidavit, signed by Officer Frederick Thornton, was boilerplate,

and that the report against him approved by Lt. Robert McGarner, Jr. “support[ed] the baseless charge against Mr.

Benjamin”).

and would fall under the category of negligence or bad luck” rather than force “applied maliciously

and sadistically to cause harm.” (Doc. 347-1 at 13–16; see also Reply, Doc. 368 (reiterating same).)

In short, City Defendants miss the mark. As to the first, the SAUMF shows that most of

the Plaintiffs suffered at least some harm from the uses of force.4 But, even more importantly, as

to the second, and as this Court explained in Imani, “Any force found to be objectively

unreasonable necessarily exceeds the de minimis threshold . . . [A]s 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.” 2022 WL 2760799, at

*43 (quoting Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (cleaned up)).

City Defendants even quote this standard, (Doc. 347 at 16), despite arguing against it. Thus,

contrary to their contentions, “the key question is whether Plaintiffs suffered objectively

unreasonable force.” Imani, 2022 WL 2760799, at *43.

As in Imani, “[a] reasonable jury could find that they did.” Id. The court must look at the

totality of the circumstances to assess whether the force was excessive, including but not limited

to factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Id. at *42 (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)).

4 See SAUMF ¶ 5, Doc. 364-1 (explaining how Leroy Tennart “suffered cuts and bruises on his legs;” “had pain all

everywhere[] [and] was sore for days;” and “suffered long-term psychological effects”); id. ¶ 14 (describing how Deon

Tennart will no longer protest because he “can’t take another head beating to the ground like that again.”); id. ¶ 18

(describing how Godavari Hughes cried during her false arrest and repeatedly said she was only sixteen years old); id.

¶ 28 (explaining how Hill had a BRPD officer’s knee on his head and neck as he was being handcuffed); id. ¶ 34

(showing how Hutcherson was violently thrown to the ground and “hit the back of his head on the pavement when he

fell”); id. ¶¶ 41–43 (describing how Brachell and Chris Brown were thrown to the ground, how Brachell could not

breath, and how Chris Brown suffered bleeding, scars, and a loss of feeling his right hand and forehand for about six

months following his arrest); id. ¶ 59 (stating that Benjamin suffered “significant scrapes and bruising to his skin” and

was “bleeding substantially”).

Here, the Court finds that, construing the evidence in a light most favorable to Plaintiffs—

including the SAUMF,5 the videos in evidence depicting these plaintiffs’ arrests,6 and those facts

highlighted in Tennart I 7—and drawing reasonable inferences in their favor, each of these factors

weighs in favor of finding excessive force. All of the alleged crimes were minor traffic violations.

See Imani, 2022 WL 2760799, at *43 (denying summary judgment on excessive force claim in

downtown protest in part because “the crimes were all non-violent misdemeanors”). Further,

looking at the above-cited evidence, none of these particular plaintiffs posed an immediate danger

to officer safety or committed acts of violence. See id. (denying summary judgment in part because

“no Plaintiff engaged in any act of violence”). Finally, no plaintiff attempted to flee.

5 See SAUMF ¶¶ 2–5, Doc. 364-1 (as to Leroy Tennart); id. ¶ 9 (Deon Tennart); id. ¶ 34 (Hutcherson); id. ¶¶ 41–43

(Brachell and Chris Brown); id. ¶ 59 (Benjamin).

6 See Pls. Ex. 19, Video “2016.07.09 0838PM Twitter (Bryn Stole) Arrest of Leroy tennart jnp98fNBexCgCtltmp4

(showing Leroy Tennart being forcibly taken to the ground by a group of officers); Pls. Ex. 20, Video from the Vitamin

Q “13638158_208116672922359_1674195895_smp4 (showing Leroy Tennart being dragged by officers); Pls. Ex.

29, Video “2016.07.09 0837PM Twitter (Bryn Stole) Arrest of Deon Tennartmp4 (showing Deon Tennart being

forcibly taken down); Pls. Ex. 56, Video “2016.07.09 TH arrestmp4” (showing Hutcherson being slammed to

concrete); Pls. Ex. 57, Video “2016.07.13 wwltv Whos being arrested in Baton Rouge and what they’re being charged

with (at 1.23).mp4” at 1:23–29 (showing same); Pls. Ex. 65, Bryn Stole on Twitter Numerous arrests down here as

deputies force people to move fast down the road, just saw someone get tased. httpst.coFsnTcK5RHhmp4 (showing

Brachell Brown and Chris Brown being thrown to ground); Pls. Ex. 89, “2016.07.11 Protests brew…mp4” at 0:07–

0:26 (depicting Benjamin’s arrest and showing substantial bruising through torn shirt).

7 Specifically, the Court found that “a reasonable juror could easily conclude that the arresting BRPD officer applied

excessive force to Hill, that [LSP officer] Lemmons knew of this violation, and that Lemmons had a reasonable

opportunity to intervene to stop it.” Tennart I, 2022 WL 4099156, at *3. “The Court base[d] this holding on,” inter

alia:

(1) the videos (Pls.’ Ex. 6 (“More than 100 people.... mp4”), at 1:05–1:08

(showing forceable takedown of Hill with Lemmons assisting); Pls.’ Ex. 11

(2016.07.09 USA_ Black Lives Matter protesters picket.... mp4), at 0:00–0:10,

Doc. 357 (showing Hill restrained on the ground by officers for at least ten

seconds); (2) pictures (Pls.’ Ex. 10 (RTSH3XY.jpg) (showing a shin or knee on

Hill's head), Pls.’ Ex. 13 (Zachary Hill arrest.jpg (showing same from different

angle), Doc. 357); . . . . and (4) Lemmons’ testimony (Lemmons Dep. 62:3–63:2,

Doc. 341-3 (testifying that it was never “acceptable to have a knee on a subject's

head or neck” and that, if he witnessed such an act, he would “have intervened to

stop it”)).

Id.

Consequently, in all respects not expressly conceded, City Defendants’ motion for summary

judgment as to the excessive force claims is DENIED.

D. Retaliatory Arrest

City Defendants make two arguments to support dismissal of Plaintiffs’ retaliatory arrest

claims. (Doc. 347-1 at 17.) First, City Defendants assert that there was probable cause to effectuate

all the arrets. (Id.; see also Reply, Doc. 368 at 6–7 (“The content of the communication was not

the cause for arrest, it was the blockading of Airline Highway and the brazen attempt to seize the

interstate, both of which are criminal acts and threats to public safety.”).) Second:

In the alternative, the public statements of Chief Dabadie and the

full support of the City/Parish defendants for the protests at the state

capital on July 9 and 10, 2016, undercut the claim that retaliation

was a substantial or motivating factor behind the arrests of the

plaintiffs. It was not the fact of protesting perceived injustice, or the

death of Alton Sterling, that caused the arrests of these plaintiffs, for

surely, if that was the motivating force and goal of the City/Parish

defendants, the crowds gathered at the state capital would have been

far too tempting a target for mass arrest. No, the only logical

inference is that the conduct of the protesters at the state capital was

not disruptive, tumultuous, or a threat to public safety, such as would

warrant arrest.

(Doc. 347-1 at 17.)

The Court rejects both arguments and denies summary judgment on these claims. Plaintiffs

already established questions of fact on the existence of probable cause, so City Defendants’ first

argument is meritless.

The second fails for a number of reasons. First, City Defendants’ position is illogical, as

their respect for civil rights at one protest does not gainsay the possibility of their suppressing

speech at a different protest.

Second, even if City Defendants’ position was logical, this Court’s finding in Imani—that

a reasonable jury could conclude that the City and other BRPD officers violated protesters’ First

Amendment rights at the downtown protest—would tend to negate City Defendants’ position.

That is to say, if a city’s suppression of speech at one protest supports a finding that the city

suppressed speech at a different protest (or vice versa), then the Imani decision about the

downtown protest supports a finding of First Amendment violations at the Airline Highway

protest. See Imani, 2022 WL 2760799, at *23–25 (denying summary judgment on First

Amendment claim for downtown protest because “a reasonable juror could easily conclude that

Plaintiffs acted permissibly under [Cox v. Louisiana, 379 U.S. 536 (1965) (“Cox I”) and Cox v.

Louisiana, 379 U.S. 559 (1965) (“Cox II”)] through protests that were peaceful, non-violent, and

compliant with police officers” and “that the City engaged in viewpoint discrimination through its

response to the protests, that the City did not have a compelling governmental interest in making

the arrests, and that, even if it did, the City did not use the least restrictive means available to it”).

And third, in any event, Plaintiffs present evidence—much of which is described infra in

the Monell section and much of which was highlighted in Imani, 2022 WL 2760799, at *10–11,

33 (describing city policies which targeted Alton Sterling protesters based on their viewpoint)—

from which a reasonable juror could find (1) that the City engaged in content-based discrimination;

(2) that, consequently, “retaliation was ‘a substantial or motivating factor behind the arrest[s],’ ”

Imani, 2022 WL 2760799, at *33 (quoting Nieves v. Bartlett, 139 S. Ct. 1715, 1725 (2019) (cleaned

up)); (3) “that Defendants did not show that the arrest[s] would have occurred without that

retaliation,” id.; and (4) that every reasonable officer in their shoes would know, beyond doubt,

that their conduct was unlawful under the clearly established law of this circuit and Cox I and Cox

II. Accordingly, City Defendant’s motion for summary judgment as to First Amendment

retaliation claim is DENIED.

E. Failure to Intervene

City Defendants next seek dismissal of the failure to intervene claims. They contend that

there is an absence of video evidence on many of these claims but that “the evidence, in general,

shows that the force used was brief and minimal.” (Doc. 347-1 at 19.) In argument, City

Defendants focus almost entirely on Plaintiffs Zachary Hill and Hutcherson and whether Officers

Barcelona, Crisler, and Ellis observed the excessive force applied to them and had a reasonable

opportunity to intervene to stop it. (Id.) City Defendants maintain that these officers had no such

chance to stop the constitutional harm, so the claims should be dismissed. (Id.)

Additionally, in their SUF, City Defendants only urge the absence of material fact as to

certain officers. (See SUF, ¶¶ 20–25, Doc. 347-2.) More specifically, aside from those officers

dismissed above based on waiver, City Defendants’ arguments focus exclusively on the following

officers: Eric Murphy, David Kennedy, Brett Magee, Hudson Tabor, James Crisler, and Jesse

Barcelona. (See id.)

Having carefully considered the matter, the Court will deny the motion on these claims.

Preliminarily, and again, City Defendants had the “initial burden . . . [to] identify those portions

of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”

Pioneer, 767 F.3d at 511 (cleaned up). While City Defendants “need not negate the elements of

the nonmovant's case,” id. (cleaned up), they at least needed to “point[] out that the record contains

no support for the non-moving party's claim,” Wease, 915 F.3d at 997. Since, “[i]f the moving

party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's

response,” Pioneer, 767 F.3d at 511 (cleaned up), the Court will deny the motion as to all

defendants except those for whom specific arguments were made. See also Payton, 2021 WL

2544416, at *26 (citing, inter alia, United States ex rel. Wuestenhoefer v. Jefferson, 105 F. Supp.

3d 641, 672 (N.D. Miss. 2015) (“This failure to develop the relevant argument effectively

represents a waiver of the point.” (citing United States v. Dominguez–Chavez, 300 F. App'x 312,

313 (5th Cir. 2008) (“Dominguez has failed to adequately raise or develop his due process and

equal protection arguments in his appellate brief, and, thus, they are waived.”); El–Moussa v.

Holder, 569 F.3d 250, 257 (6th Cir. 2009) (“Issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient

for a party to mention a possible argument in [a] skeletal way, leaving the court to put flesh on its

bones.”))).

Turning to the heart of the matter, the Court finds that genuine issues of material fact

preclude summary judgment on the failure to intervene claims against Defendants Eric Murphy,

David Kennedy, Brett Magee, Hudson Tabor, James Crisler, and Jesse Barcelona. That is,

construing the evidence (including video, pictures, and deposition testimony)8 in a light most

favorable to Plaintiffs and drawing reasonable inferences in their favor, a reasonable jury could

concluded (a) that each of these defendants knew that another officer was violating these plaintiffs’

constitutional rights, observed the violations, and had a reasonable opportunity to intervene to stop

them, and (b) that their conduct was objectively unreasonable under clearly established law. See

Imani, 2022 WL 2760799, at *45–46 (describing elements of failure to intervene claim); see also

8 See Pls. Ex. 19 at 0:10–17 (showing Leroy Tennart being arrested forcibly, surrounded by a number of officers,

including Defendants Eric Murphy and David Kennedy); Pls. Ex. 20 at 0:24–30 (showing same); Pls. Ex. 86, Myron

Daniels Dep. 148:25–153:18 (identifying Defendants Brett Magee and Hudson Tabor in the cellphone video footage

that Plaintiff Hutcherson captured seconds before his arrest); Pls. Ex. 49 Lorenzo Coleman Dep.27:12–28:7

(describing Defendant David Kennedy as participating in Zachary Hill’s arrest); PRSUF ¶ 21, Doc. 364-1 (showing

screen captures of Defendant James Crisler being near Plaintiff Hutcherson’s arrest with an opportunity to intervene);

James Crisler Dep. 21:2–22:22 (identifying himself in videos of Hutcherson’s arrest); PRSUF ¶ 23, Doc. 364-1

(showing screen capture depicting Defendant Jesse Barcelona in close proximity to Zachary Hill’s arrest (citing Pls.

Ex. 45, “More than 100…mp4” at 1:07 (showing Barcelona in profile on the left of the frame); Pls. Ex. 46, 2016.07.09

USA_ Black Lives Matter protesters picket Baton Rouge police HQ-.mp4, at :00–:09).

Tennart I, 2022 WL 4099156, at *3 (denying summary judgment to LSP trooper on Plaintiff Hill’s

failure to intervene claim related to stop BRPD officers’ use of excessive force at Airline Highway

protest based on videos, pictures, undisputed facts, and deposition testimony). Consequently, as

to the failure to intervene claims, City Defendants’ motion for summary judgment is DENIED.

F. Monell Liability

City Defendants also dispute municipal liability. (Doc. 347-1 at 21.) Preliminarily, the

Court previously laid out the relevant law on Monell in its August 31, 2018, Notice Regarding

Oral Argument (Doc. 171 at 12–18), which was given at the motion to dismiss phase. The Court

has also set out these standards elsewhere in reported decisions. See, e.g., Imani, 2022 WL

2760799, at *37–39; Jordan v. Gautreaux, No. 21-48, --- F. Supp. 3d ----, 2022 WL 895720, at

*11–14 (M.D. La. Mar. 25, 2022) (deGravelles, J.). They need not be repeated in full here, though

they will be expanded upon below.

Returning to the motion, City Defendants make a number of arguments to justify dismissal

of Plaintiff’s Monell claim. They begin by saying there is no underlying constitutional violation

and this precludes the City’s liability. Next, these defendants assert that Plaintiffs fail to establish

moving force causation; “The situations encountered here, where law enforcement was

outnumbered, and caught by surprise, indicates that this was civil disorder, and not a planned or

noticed protest.” (Doc. 347-1 at 21.) And finally, according to City Defendants, Plaintiffs have

not established any policies, and all of their arguments are undermined by the City’s cooperation

with other protesters that weren’t on busy highways. (Id. at 21–22.)

Having carefully considered the matter, the Court rejects City Defendants’ arguments.

First, as is clear from the rest of this opinion, reasonable factfinders could easily find numerous

constitutional violations.

Second, a reasonable jury could also conclude that there were underlying policies. As this

Court explained in Imani:

As to the first two prongs [of Monell liability], “[m]unicipalities can

also be liable, in certain situations, for single episodes of conduct

that are not part of any pattern of illegality.” Milam v. City of San

Antonio, 113 F. App'x 622, 626 (5th Cir. 2004) (citing Bd. of County

Comm'rs v. Brown, 520 U.S. 397, 405–06, 117 S.Ct. 1382, 137

L.Ed.2d 626 (1997) (summarizing the Court's single-episode

cases)). “For example, plaintiffs can hold municipalities liable for

single instances of conduct perpetrated by the policymakers

themselves; such one-time conduct can represent official ‘policy’

even though it does not necessarily form part of a plan or rule

developed to govern all like occasions.” Id. (citing Pembaur v. City

of Cincinnati, 475 U.S. 469, 480–81, 484–85, 106 S.Ct. 1292, 89

L.Ed.2d 452 (1986) (finding that court of appeals erred in dismissing

petitioner's claim against a county when the prosecutor, the relevant

final policymaker, “made a considered decision based on his

understanding of the law and commanded the officers forcibly to

enter petitioner's clinic,” and “[t]hat decision directly caused the

violation of petitioner's Fourth Amendment rights.”)).

Imani, 2022 WL 2760799, at *38.

Here, as in Imani, the Court finds that “Plaintiffs have strong evidence against the City on

these claims” based on a single policy decision to arrest protesters. Id. at *40. Such evidence

includes but is not limited to (1) the systematic use of preprinted affidavits (a) which, as in Imani,

id., were often executed by officers without personal knowledge; (b) which, as explained above,

contained false information; and (c) which were used to justify arrests without probable cause, (see

SAUMF ¶¶ 6, 10, 21, 29, 34–35, 46–47, 52, 59, Doc. 364-1); and (2) reasonable inferences fairly

drawn from the City’s specific policies and content-based discrimination with respect to the

downtown protest, where the City also used as a justification for its conduct proximity to a major

highway (there, I-110; here, Airline Highway) and concerns for a riot, see Imani, 2022 WL

2760799, at *10–11 (describing policies); see also id. at *40 (finding questions of fact on Monell

claim based on these policies); supra (drawing inferences on First Amendment violations from

downtown protest).

Additionally, Plaintiffs present evidence of municipal policies through the decisions of

BRPD Incident Command on the day of the protest. By way of background, “[a] city's governing

body may delegate policymaking authority (1) by express statement or formal action or (2) it may,

by its conduct or practice, encourage or acknowledge the agent in a policymaking role.” Zarnow

v. City of Wichita Falls, 614 F.3d 161, 167 (5th Cir. 2010). Thus, for example, in Zarnow, the

Fifth Circuit agreed with the district court that the chief of police had been impliedly delegated

policymaking authority. Id. at 167–68. The appellate court based this on certain “General Orders”

issued by the chief which each began “It is the policy of this department” and then described

relevant regulations. Id. The circuit concluded:

We agree with the district court that the General Orders promulgated

by the police chief sufficed to be the “more” that is needed to prove

policymaking authority in these circumstances. On this evidence,

the chief of police is the sole official responsible for internal police

policy. Others have only marginal involvement with the internal

procedures of the police force. The alleged constitutional violation

arose from a peculiar interpretation of a “plain view” procedure,

which was employed only during police activities.

Although no General Order was ever entered regarding this policy,

it appears that the police chief would have been authorized to speak

on the City's behalf if such a policy was created. Accordingly, we

hold that the City impliedly delegated its policymaking authority to

the chief of police.

Id. at 168.

Here, Plaintiffs submitted sufficient evidence to create a question of fact that the City

delegated policymaking authority to the Incident Commanders. Specifically, Chief Dabadie

testified:

Q. Did you need to be consulted by the incident commander, either

Leach or Martin or Taylor, prior to making decisions about

deploying officers?

A. Are you asking if they needed to consult with me first?

Q. Yes.

A. No, sir. Lieutenant Leach had full authority to put people where

he felt they needed to be placed. As far as my involvement, basically

I was just updated, okay, this is what we are doing or this is what we

did last night; and those were usually done at the briefings in the

mornings.

(Pls. Ex. 1, Dabadie Dep. 108:5–18.) Moreover, Dabadie never vetoed or countermanded any

decisions made by the incident commanders during this protest. (Id. at 110:4–8; see also Pls. Ex.

2, Leach Dep. 32:20–24 (stating he reported directly to Dabadie); 96:2–17 (stating again he

reported directly to Dabadie, that Dabadie could countermand any of his orders, but that Dabadie

never changed an order or decision Leach made); Pls. Ex. 3, Martin Dep. 43:20–44:3 (saying that

no decisions had to be run by Chief Dabadie and that the Chief never countermanded any of his

orders). A reasonable factfinder could conclude from all of this that Dabadie had delegated to

these individuals his policymaking authority with respect to the City’s response to the protest.

With that established, a reasonable jury could then decide, when viewing the evidence in a

light most favorable to Plaintiffs and drawing reasonable inferences in their favor, that the moving

force of the constitutional violations suffered by Plaintiffs were the result of Incident Command’s

subsequent orders to direct officers to make arrests of protesters. (See SAUMF ¶¶ 7–8, 12–13, 19–

20, 36, 41, 43, 53, 58, Doc. 364-1 (describing orders from Incident Command to arrests protesters

and Plaintiffs’ arrest following such orders).) Moreover, all of the evidence highlighted throughout

this opinion, when given the proper construction, could lead a jury to find deliberate indifference

on the part of the City. Consequently, City Defendants’ motion for summary judgment as to the

Monell claims will be DENIED.

G. As-Applied Challenges to La. R.S § 14:97 and § 14:329.2

City Defendants next attack the as-applied challenges to the criminal statutes allegedly

violated. As to La. R.S. § 14:97 (simple obstruction of a highway), City Defendants maintain that

they did not “indiscriminately arrest every protester in the roadway” under this statute “because if

they had, plaintiffs Eddie and Godavari Hughes, and Nikole Smith, who attended the march and

protest at the state capital earlier in the day, would not have been at Airline Highway that night.”

(Doc. 347-1 at 20.) Here, say City Defendants, “[t]he answer, again, is the behavior of the

protesters, and the utilization of La. R.S. § 14:97 is not shown to be overbroad, that it fails to

provide notice as to what conduct it prohibits, or that it authorizes or encourages arbitrary and

discriminatory enforcement.” (Id.) As to Nikole Smith’s challenge to La. R.S. § 14:329.2 (inciting

a riot), City Defendants argue that the protest satisfied the definition of a riot, so the question is

one of intent; here, Smith was arrested by Officer Zeitler, who believed Smith was trying to stir

up a riot. (Id.) This is strengthened further, City Defendants argue, by the fact that there was

probable cause to arrest her and that, even if there weren’t, Zeitler would be entitled to qualified

immunity. (Id. at 20–21.)

Plaintiffs respond:

Plaintiffs[] claim[] that they were arrested because they protested

the police, not because they were guilty of a crime. Defendants

designed a system for mass arrests of protesters that

unconstitutionally applied § 14:97, under which every protester

present at the anti-police demonstrations following the police killing

of Alton Sterling was subject to arrest. The application by BRPD of

La. R.S. § 14:97 to criminalize any participation in the police

protest, as well as its use of La. R.S. § 14:329.2 to target protest

leaders who had not broken any law, is an unconstitutional use, and

constitutes retaliation against Plaintiffs for the exercise of their

speech.

(Doc. 364 at 36.) Plaintiffs incorporate their arguments on false arrest, First Amendment

retaliation, and Monell on these two issues. (Id. at 35–36.)

Having carefully considered the matter, the Court will deny City Defendants’ motion on

these claims. As Plaintiffs argue, the Court has found above that Plaintiffs have presented genuine

issues of material fact on their false arrest, freedom of speech, and Monell claims. For the same

reasons given there, a reasonable jury could find in favor of Plaintiffs on these as-applied

challenges. See Smith I, 2022 WL 2789221, at *3 (denying summary judgment on as-applied

challenge to La. R.S. 14:97 for downtown protest because, “when viewing the facts in a light most

favorable to Plaintiff and drawing reasonable inferences in her favor, Plaintiff could easily prevail

under Cox I and Cox II” (citing Imani, 2022 WL 2760799, at *17–25, 31–34)). Accordingly, as

to these constitutional challenges, the motion is DENIED.

H. Supplemental State Law Claims

City Defendants next seek dismissal of Plaintiffs’ supplemental state law claims. While

these arguments have all been reviewed, a lengthy recitation of same is not necessary. In short,

these claims are easily decided, generally for reasons identical to those given in Imani, Smith I, or

Tennart I.

More specifically, City Defendants focus first on Plaintiffs’ rights to free expression,

assembly, and petition and to privacy secured by the Louisiana Constitution, and City Defendants

make a variety of assertions. (Doc. 347-1 at 22–24.) Plaintiffs oppose dismissal, largely relying

on their arguments for their § 1983 false arrest and First Amendment retaliation claims. (Doc. 364

at 49–50.) Again, the Court agrees with Plaintiffs. See Imani, 2022 WL 2760799, at *50

(“Because the Court has denied summary judgment as to Plaintiffs’ § 1983 claims, the Court will

likewise deny summary judgment as to the corresponding claims under the Louisiana

Constitution” (citing, inter alia, Heaney v. Roberts, 846 F.3d 795, 802 n.2 (5th Cir. 2017)

(“Louisiana's constitutional protection of free speech mirrors that of the First Amendment, so

separate determinations of the state and federal claims are unnecessary.”); Bagley v. Kolb, No. 19-

10, 2021 WL 3376830, at *16 (W.D. La. Aug. 3, 2021) (“absent more precise guidance from the

Louisiana Supreme Court, the Fourth Amendment standards control the analysis of alleged

infringements on the constitutional right to privacy.” (cleaned up))). Accordingly, the motion for

summary judgment on the Louisiana constitutional claims is GRANTED IN PART and DENIED

IN PART to the same extent at the § 1983 claims discussed above.

Similarly, Plaintiffs’ assault, battery, and false imprisonment claims survive. That is to

say, because Plaintiffs have viable excessive force and false arrest claims under § 1983, so too do

these state law tort claims survive. See Imani, 2022 WL 2760799, at *54 (“the Court will deny

Defendants’ motion [as to the assault and battery claims], largely for the same reasons the federal

excessive force claims survive. In short, questions of fact preclude summary judgment.”); see id.

at *55 (“This Court's analysis to Plaintiffs’ § 1983 false imprisonment and false arrest claims

applies with equal force to the state law claims.” (citing, inter alia, Elphage v. Gautreaux, 969 F.

Supp. 2d 493, 515 (M.D. La. 2013) (citations omitted)). As a result, the motion for summary

judgment on the state law assault, battery, and false arrest claims is DENIED.

Plaintiffs also prevail on the negligence claims, for reasons similar to those given in Imani.

Again, the SAUMF demonstrates facts from which the inferences can be drawn that most of the

Plaintiffs suffered at least some harm from the BRPD officers’ conduct.9 The sole exception to

9 See SAUMF ¶ 5, Doc. 364-1 (explaining how Leroy “Tennart suffered cuts and bruises on his legs;” “had pain all

everywhere[] [and] was sore for days;” and “suffered long-term psychological effects”); id. ¶ 14 (describing how Deon

Tennart will no longer protest because he “can’t take another head beating to the ground like that again.”); id. ¶ 18

(describing how Godavari Hughes cried during her false arrest and repeatedly said she was only sixteen years old); id.

this is Eddie Hughes, who, as referenced above in the excessive force section, suffered no

discernable injury. (See SAUMF ¶¶ 15–22, Doc. 364-1). “As to the breach element, there are

simply too many questions of fact, detailed throughout this ruling, to find in favor of [City]

Defendants. A reasonable jury could easily find that these Defendants failed to act as reasonably

prudent officers under the circumstances.” Imani, 2022 WL 2760799, at *56. Accordingly, as to

Plaintiff Eddie Hughes, the motion is GRANTED, and his negligence claim is DISMISSED

WITH PREJUDICE. In all other respects on this issue, the motion is DENIED.

The IIED claims also survive. “Under Louisiana law, Plaintiff[s] must establish the

following to recover for IIED: ‘(1) that the conduct of the defendant was extreme and outrageous;

(2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant

desired to inflict severe emotional distress or knew that severe emotional distress would be certain

or substantially certain to result from his conduct.’ ” Imani, 2022 WL 2760799, at *50 (quoting

White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991)). City Defendants assert that they were

simply engaged in “ordinary police work under extraordinary circumstances” and that “even

assuming that the plaintiffs suffered severe emotional distress, there is no evidence to support an

intent by any defendant to traumatize the plaintiffs.” (Doc. 347-1 at 26.) The Court disagrees and

finds that a reasonable juror could conclude from all of the above evidence (viewed in the

appropriate summary judgment light) that each of the IIED elements are satisfied. Cf. Imani, 2022

WL 2760799, at *52 (granting summary judgment in downtown protest case on IIED claims

¶ 28 (explaining how Hill had a BRPD officer’s knee on his head and neck as he is being handcuffed); id. ¶ 34

(showing how Hutcherson was violently thrown to the ground and “hit the back of his head on the pavement when he

fell”); id. ¶¶ 41–43 (describing how Brachell and Chris Brown are thrown to the ground, how Brachell could not

breath, and how Chris Brown suffered bleeding, scars, and a loss of feeling his right hand and forehand for about six

months following his arrest); id. ¶ 54 (stating that Ms. Smith, as a licensed professional, had to notify her licensing

agencies for the pending felony charge of “Inciting a Riot” until the prescriptive period terminated); id. ¶ 59 (stating

that Benjamin suffered “significant scrapes and bruising to his skin” and was “bleeding substantially”).

because Plaintiffs presented virtually no evidence of harm, simply the allegations of the complaint

and minor injuries as to one plaintiff). Given these questions of material fact on the IIED claims,

the motion is DENIED.

The abuse of process and abuse of rights claims will be disposed of as in Smith I. That is

to say, the Court finds that Plaintiffs have no viable abuse of process claim because Plaintiffs have

failed to demonstrate that there was a “malicious use of a legal process after the process has been

instituted.” Smith I, 2022 WL 2789221, at *3 (quoting Day v. City of Baton Rouge, No. 17-328-

EWD, slip op. at 44 (M.D. La. Nov. 30, 2020), Doc. 145 (citing Duboue v. City of New Orleans,

909 F.2d 129, 132 (5th Cir. 1990))). Here, Plaintiff admits, (PRSUF ¶ 10, Doc. 364-1), as in Day,

that “the District Attorney for East Baton Rouge Parish declined to prosecute Plaintiff and other

protestors for alleged violations of La. R.S. § 14:97,” Smith I, 2022 WL 2789221, at *3 (quoting

Day, slip. op. at 46). Further, while Plaintiff asserts that “Nikole Smith was charged with inciting

to riot and had to wait until the prescriptive period ran out before she could be certain she would

not be prosecuted,” (PRSUF ¶ 10, Doc. 364-1), she provides no additional facts to show that any

process was maliciously used after process was instituted, (see id.; SAUMF ¶ 54, Doc. 364-1). As

a result, the motion is granted on this issue, and all of Plaintiffs’ abuse of process claims are

DISMISSED WITH PREJUDICE

But, the abuse of rights claims fail for the same reasons given in Smith I and Day.

Specifically, in both decisions, summary judgment was denied on these claims “because there were

questions of fact concerning whether Plaintiff was retaliated against in violation of the First

Amendment.” Smith I, 2022 WL 2789221, at *3 (citing Day, slip. op. at 48). For the same reasons,

because Plaintiffs’ retaliation claims have survived summary judgment, the motion to dismiss

Plaintiffs’ abuse of rights claim is DENIED.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for Summary Judgment (Tennart, Doc. 347) is

GRANTED IN PART and DENIED IN PART, as described herein.

Signed in Baton Rouge, Louisiana, on November 18, 2022.

S

JUD GE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA