# Cunningham v. Shreveport

> District Court, W.D. Louisiana · August 22, 2019

URL: https://www.frixlaw.com/law-library/cases/10193162

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** August 22, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

LARRY CUNNINGHAM CIVIL ACTION NO: 17-CV-01056
VERSUS JUDGE ELIZABETH FOOTE
CITY OF SHREVEPORT, MAGISTRATE JUDGE HORNSBY
ET AL.
i
MEMORANDUM RULING
Larry Cunningham (“Plaintiff”) filed the instant lawsuit against the City of Shreveport
(“the City”), Chief of Police Alan Crump, Deputy Chief of Police Bill Goodin, Assistant Chief of
Police David Kent, and Captain Timothy Beckius (collectively “Defendants”) alleging violations
of his rights secured by the United States Constitution, the Louisiana Constitution, and Louisiana
statutory law. Record Document 1, 4s 1, 35 & 38. Now before the Court are Defendants’ Motion
for Partial Summary Judgment [Record Document 17] and Plaintiff's Motion for Partial Summary
Judgment [Record Document 19], both filed pursuant to Federal Rule of Civil Procedure 56. Upon
consideration of the briefs filed by the parties and for the reasons set forth below, Defendants’
Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART and
Plaintiffs Motion for Partial Summary Judgment is DENIED.
I. Factual Background
The following paragraphs outline Plaintiff's factual allegations as contained in his
complaint. Plaintiff states that he was an employee of the Shreveport Police Department (“SPD”)
for over 32 years and had attained the rank of Captain when the events of this case took place.
Record Document 1, ¥ 4. Beginning on December 25, 2016, Plaintiff had to take sick leave from

work for several months because of a non-duty related muscle strain. Jd. at §s 5 & 8. During this
time Plaintiff grew a beard as he normally did during vacations and extended weekends. Jd. at 7.
Plaintiff states that a large part of his Christian faith includes “the strength that comes from
wearing beards as set forth throughout the Christian Bible.” Jd. at { 6. He claims that he and his
family are strong believers of the Christian faith and that beards have symbolized “strength in faith
and worship in his family.” Jd. Plaintiff states that the men in his family have worn beards to show
their faith in God. Jd.
During his extended sick leave, Plaintiff noticed that his beard “strengthened his faith in
God and his ability to express and show his religious views to others.” Jd. at { 7. Plaintiff's father
told him that “he was glad that [Plaintiff] had finally acted like the Elder in the family.” /d. Plaintiff
also believes that it was a “sign” that he started growing his beard on December 25, 2016. Jd.
Plaintiff was scheduled to report to the police academy on May 1, 2017, to qualify with his
service weapon so he could return to work. Jd. at § 8. Sometime in April of 2017, Plaintiff went to
SPD to turn in his SPD-3 form that released him to return to full effective duty and spoke to SPD’s
Assistant Chief of Police David Kent (“Kent”) about obtaining a religious exemption to SPD’s
policy against officers wearing beards. Id. at Js 8 & 11. At that time, SPD General Order 302.01
(the “no-beard policy”), along with SPD General Order 901.05, prohibited officers from wearing
beards.! Id. at ] 9; Record Document 19-4, p. 18. Exemptions from this policy were available for
officers with certain medical conditions and officers serving on certain assignments. Id. at §s 9 &
10. Kent advised Plaintiff that he needed to put his request for a religious exemption to the no-

SPD changed its grooming policy in the Fall of 2018 to allow beards less than % inch in length.
Record Document 19-4, pp. 22 & 24.

beard policy in writing. Id. at § 11. Plaintiff submitted his request for an exemption in writing on
April 25, 2017. Id.
On April 28, 2017, Sergeant Harlow, who worked in SPD’s Human Resources Bureau, told
Plaintiff that he was being sent for a fitness for duty examination and would not be returning to
work on the previously scheduled date. Jd. at { 12. Plaintiff believes that Harlow was instructed to
request this fitness for duty examination by Kent, Deputy Chief of Police Bill Goodin (“Goodin”),
or Captain Timothy Beckius (“Beckius”) in retaliation for Plaintiffs request for a religious
exemption. Jd. Plaintiff asked Kent why he was being sent for a fitness for duty exam and about
the status of his religious exemption from the no-beard policy. Jd. at § 13. Kent responded that
Plaintiff needed to undergo the exam because of his extended sick leave and back pains and that
his requested exemption had not been approved. Jd. On May 1, 2017, Plaintiff emailed Kent and
requested additional information about why he needed to undergo a fitness for duty exam. Jd. at {
14. Plaintiff told Kent that he was not experiencing any back pain and that being off work would
cost him approximately $800 a week. Jd. Kent’s only response was an email stating that SPD
needed more information regarding Plaintiff's religious exemption from the no-beard policy. Id.
at 14.
On May 4, 2017, Plaintiff submitted a memo to Kent that detailed his religious convictions
about his beard and advised that he intended to keep his beard at a “reasonable length.” Jd. at { 16.
In this memo, Plaintiff claimed that granting this exemption would not be an unreasonable hardship
because SPD allowed exceptions to the no-beard policy for medical reasons. Jd. The memo also
stated that Plaintiff was attempting to resolve the issue with SPD before he resorted to filing a
lawsuit. Jd. at § 17.

Plaintiff underwent a fitness for duty exam and was cleared to return to work by the City’s
physician. Jd. at fs 18 & 19. Plaintiff claims that Kent and Beckius interfered with his ability to
obtain a necessary form for his exam in retaliation for his request for an exemption to the no-beard
policy. Id. at { 18. Despite being cleared for duty, Plaintiff received a letter from Beckius on May
8, 2017, that placed him on departmental leave without giving a reason. Id. at § 19. Plaintiff submits
that SPD guidelines state that departmental leave is “the absence from scheduled duty following a
traumatic event, administrative or criminal investigation, approved training or other reasons
approved by the chief of police and/or designee.” Id.
On May 9, 2017, Plaintiff emailed Beckius asking for an explanation as to why he was
placed on departmental leave. Jd. at { 20. Plaintiff told Beckius that he was concerned that he was
being placed on departmental leave because of his religious exemption request. /d. Beckius never
responded to this email. Jd. Plaintiff was never told why he was placed on departmental leave and
claims that “the only possible conclusion is that these actions were taken as a result of his religious
beliefs and request for accommodation.” Jd.
On June 23, 2017, Kent sent Plaintiff a memo stating that his request for a religious
exemption from the no-beard policy had been denied. Jd. at § 21. The memo explained that the no-
beard policy was in place “for officer safety reasons and to promote a uniform appearance of all
officers of [SPD] to the general public.” Jd) The memo concluded that no reasonable
accommodation could be made for Plaintiff's request. Jd.
Plaintiff reported to SPD on June 26, 2017, to qualify with his service weapon. Id. at { 22.
Plaintiff saw Kent that day and Kent told Plaintiff that he would not be considered fit for duty if
he returned to work with a beard. Jd. After he qualified with his service weapon, Plaintiff met with
Kent and Goodin to discuss his return to work and his beard. Id. at 423. Plaintiff asked what safety

interests prevented him from having a beard that did not prevent officers from having beards for
medical reasons. Jd. Goodin responded that he would have to check with the City Attorney and
that beards were against SPD policy. Jd Goodin also stated that Chief of Police Alan Crump
(“Crump”) made the decision to deny Plaintiff's request. Id. The meeting ended with Goodin
telling Plaintiff that his request for an exemption from the no-beard policy was still denied. Jd. at

q 24. Plaintiff perceived that statement to mean that if he returned to work with his beard, he would
be subject to discipline and further harassment by SPD. I.
On June 27, 2017, Plaintiff, through his legal counsel, submitted a letter directly to Crump
regarding his religious exemption request. Jd. at { 26. The letter outlined the alleged harassment
that Plaintiff was subjected to after submitting his request for a religious exemption from the no-
beard policy, the denial of his request, and the existence of medical exemptions from the no-beard
policy. Jd. The letter stated that denying Plaintiff's request for a religious exemption would violate
the United States Constitution, the Louisiana Constitution, and Louisiana statutory law. Id. at § 26.
The letter also requested that Crump “immediately advise [Plaintiff] that he could report to work
with his beard without any disciplinary consequences.” Jd. Crump never responded to this letter.
Td.
Plaintiff reported to work on June 30, 2017, wearing “acceptable nonuniform business
attire” and his beard. Id. at § 28. Kent saw Plaintiff when he entered SPD and advised him that he

was unfit for duty because of his beard. Jd. Kent told Plaintiff to wait in his office while Kent went

to speak to Goodin. Jd. Kent returned and advised Plaintiff that he was being placed on
departmental leave by the Internal Affairs Bureau (“IAB”). Id. at § 29. Sergeant Michael Tyler
(“Tyler”) with the IAB came to Kent’s office and delivered Plaintiff a memo from Captain Gayle
McFarland, commander of IAB. Jd The memo stated that Plaintiff was being placed on

departmental leave by IAB and that he was required to report to IAB by telephone every weekday.
Id. Plaintiff claims that this is not standard procedure for departmental leave. Jd. The memo did

not state that Plaintiff had committed any rule violation. Jd. Plaintiff claims that he was placed
under IAB supervision because he was being investigated regarding his beard. Jd. Tyler proceeded
to take Plaintiffs service weapon and commission card. /d. Plaintiff states that those items are

typically only taken from an officer “if SPD and the Chief or his designee have decided that the

officer has committed an offense likely to result in termination or some other severe discipline.”
Td.
Plaintiff claims that Defendants’ actions forced him to submit his retirement papers,
resulting in a constructive discharge. Id. at 31. Plaintiff states that Crump, Goodin, Kent, Beckius,
and SPD “made it clear to [Plaintiff] that they would continue to harass him” and that being
investigated meant he would most likely be terminated. Id. Additionally, Plaintiff alleges that it is

the standard practice of SPD and Crump to notify the media when an officer is placed on
departmental leave and subject to investigation by the IAB, even though such a practice is contrary
to Louisiana civil service law. Id. at { 30. Plaintiff claims that he submitted his retirement papers
in part to avoid his placement on departmental leave from being made public, which would have

caused him to suffer public embarrassment and could have hurt his ability to find other

employment. /d. at Js 30 & 31.
Plaintiff filed the instant lawsuit on August 21, 2017. Record Document 1. Plaintiff alleges
that Crump, Kent, Goodin, and Beckius are liable to him in their individual and official capacities
for violations of his right to the free exercise of religion protected by both the Louisiana and the

United States Constitutions, as well as violations of Louisiana Revised Statutes § 23:303 and §
23:332, which prohibit religious discrimination against employees. Id. at Js 1, 35, 36, & 38. He

also claims that the City should be held liable to him because SPD’s no-beard policy was the
moving force behind the violation of his constitutional rights. Jd. at J 37. Plaintiff requests
compensatory damages including income lost while not being able to perform off-duty
employment, lost wages, benefits, retirement contributions and income due to his constructive
discharge, and general damages. Id. at J 39. Plaintiff also seeks punitive damages, attorney’s fees,
and court costs. Jd. at Js 39 & 40.
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) directs a court to “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.” Summary judgment is appropriate when the pleadings, answers to
interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving
party, the moving party need not produce evidence to negate the elements of the non-moving
party’s case; rather, it need only point out the absence of supporting evidence. See id. at 322-23.
However, “if the movant bears the burden of proof on an issue, . . . he must establish beyond
peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (Sth Cir. 1986).
If the movant satisfies its initial burden of showing that there is no genuine dispute of
material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial by
going “beyond the pleadings” and “designat[ing] specific facts” for support. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (citing Celotex, 477 US. at 325). “This burden is not
satisfied with some metaphysical doubt as to the material facts,” by conclusory or unsubstantiated

allegations, or by a mere “scintilla of evidence.” Id. (internal quotation marks and citations

omitted). However, “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). While not weighing the

evidence or evaluating the credibility of witnesses, courts should grant summary judgment where

the critical evidence in support of the nonmovant is so “weak or tenuous” that it could not support

a judgment in the nonmovant’s favor. Armstrong v. City of Dall., 997 F.2d 62, 67 (5th Cir. 1993).
Additionally, Local Rule 56.1 requires the movant to file a statement of material facts as

to which it “contends there is no genuine issue to be tried.” The opposing party must then set forth

a “short and concise statement of the material facts as to which there exists a genuine issue to be

tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will be deemed

admitted, for purposes of the motion, unless controverted as required by this rule.” Id.

Ill. Defendants’ Motion for Partial Summary Judgment
Defendants’ motion for partial summary judgment argues that Plaintiff's claims against the

individual Defendants in their official capacities must be dismissed as a matter of law. Record

Document 17-2, p. 5. The motion also asserts that Plaintiff cannot show that Goodin, Kent, or

Beckius caused any constitutional harm because Crump was the final decision-maker behind all

of the major events in this case. Jd. at 6. Defendants argue that because Crump was the only one

with authority to take any of the actions complained of by Plaintiff, the claims against Goodin,
Kent, and Beckius should be dismissed.” Id. at 7-8.

2 Although the City of Shreveport is listed as a party to this motion, nothing in the motion itself
involves Plaintiff’s claims against the City of Shreveport. See Record Documents 17 & 17-2.

A. Official Capacity Claims Against Individual Defendants
Plaintiff brings claims against the City and against Crump, Goodin, Kent, and Beckius in
their individual and official capacities. Record Document 1, § 1. An official capacity suit against
a municipal officer duplicates a suit against the officer’s municipality. Turner v. Houma Mun. Fire
& Police Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000) (citing Kentucky v. Graham, 473 U.S.
159, 165 (1985)). A district court faced with both claims may dismiss the official capacity claim.
Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (citing Flores v. Cameron Cty., 92
F.3d 258, 261 (Sth Cir. 1996)). Therefore, Defendants’ motion for partial summary judgment is
GRANTED as to the official capacity claims against Crump, Goodin, Kent, and Beckius. Those
claims are hereby DISMISSED WITH PREJUDICE as duplicative of the municipal liability
claims against the City.
B. Individual Capacity Claims Against Beckius
In his opposition, Plaintiff concedes that summary judgment is proper as to Beckius and
that the claims against him should be dismissed. Record Document 21, p. 7. Therefore,
Defendants’ motion for summary judgment is GRANTED as to the individual capacity claims
against Beckius. Plaintiffs claims against Beckius are hereby DISMISSED WITH
PREJUDICE, and he is no longer a party to this action.
C. Individual Capacity Claims Against Goodin and Kent
1. Arguments of the parties
Plaintiff alleges that Crump, Kent, and Goodin are liable to him in their individual
capacities for violations of his constitutional right to the free exercise of religion pursuant to Title
28 U.S.C. § 1983. Record Document 1, { 36. He also argues that they are liable to him for
violations of the free exercise clause of the Louisiana Constitution and Louisiana statutory law. Id.

at Js 36 & 38. In their motion, Defendants contend that Goodin and Kent cannot be held
responsible for any constitutional violations because all of the decisions that Plaintiff complains
of were made by Crump. Record Document 17-2, p. 6. Defendants quote multiple portions of
Crump’s deposition where he states that he is ultimately the one who decides when an officer
should undergo a fitness for duty exam, whether an officer should be placed on departmental leave,
and whether a request for an exemption from the no-beard policy will be granted. Id. at □□□□
Defendants argue that Plaintiff's claims against the individual defendants other than Crump should
be dismissed because Crump had the final decision-making authority in all matters relevant to this

case. Id. at 7-8.
In his opposition, Plaintiff argues that factual issues exist as to whether Goodin and/or Kent
participated in the violation of his constitutional rights. Record Document 21, p. 6. Plaintiff lists
twelve different actions or events that he claims represent personal involvement by Kent and
Goodin in the violation of his constitutional rights. Jd. at 8-14. Plaintiff asserts that because there

are factual questions as to whether Kent and Goodin were personally involved in the violation of
his rights, their motion for summary judgment should be denied. Jd. at 20.
In their reply, Defendants cite Fifth Circuit case law stating that a plaintiff must “identify
defendants who were either personally involved in the constitutional violation or whose acts are
causally connected to the constitutional violation alleged.” Record Document 28, p. 2. (quoting
Woods v. Edwards, 51 F.3d 577, 583 (Sth Cir. 1995)). Defendants assert that the only act that
caused Plaintiff's alleged constitutional violation was the denial of his request for an exemption
from the grooming policy. Jd. Defendants argue that because the decision to deny the exemption
was made by Crump, Goodin and Kent cannot be individually liable for any constitutional harm
caused by that decision. Jd.

10

2. Applicable law
Title 42, United States Code, Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States or other 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....
To assert a claim for damages under this statute, a plaintiff must demonstrate (1) a deprivation of

a right secured by federal law, (2) that occurred under color of state law, and (3) was caused by a

state actor. Victoria W. v. Larpenter, 369 F.3d 475, 482 (Sth Cir. 2004). “Because vicarious

liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the Constitution.” Floyd v.

City of Kenner, La., 351 F. App’x 890, 897 (Sth Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009)). The Fifth Circuit has held that to recover under § 1983, a plaintiff must show that a

defendant was either (1) personally involved in the constitutional violation or (2) causally
connected to the constitutional violation alleged. Pechon v. La. Dept. of Health and Hosps., 368

F. App’x 606, 610 (5th Cir. 2010) (per curiam) (citing Woods, 51 F.3d at 583).
The issue of whether or not a defendant was personally involved in the violation of a

plaintiffs constitutional rights, and therefore individually liable under § 1983, is typically raised

by a defendant when a plaintiff attempts to assert liability against a supervisor that he or she did

not interact with directly. See Thompkins v. Belt, 828 F.2d 298, 304 (Sth Cir. 1987); Woods, 51

F.3d at 583; Anderson v. Pasadena Indep. School Dist., 184 F.3d 439, 443-44 (Sth Cir. 1999).
Here, Defendants make the opposite argument: that only Crump should be liable under § 1983,

even though Plaintiff never interacted with him directly.

11

3. Analysis
The Court finds that Defendants have failed to provide legal support for their argument that
only Crump can be held responsible for Plaintiff's constitutional violation because Crump was the
only one who caused the alleged violation. The Fifth Circuit case law that Defendants themselves
cite states that an individual can be liable under § 1983 when they are either “personally involved
in” or “causally connected” to a constitutional violation. Woods, 51 F. 3d at 583. Defendants

propose a causation standard of liability under § 1983 that is much narrower than the standard
enunciated by the Fifth Circuit and do not provide the Court with any cases where their proposed
standard has been applied.
Based upon the commonly understood meaning of the phrase “personally involved,” and
construing the facts in the light most favorable to the Plaintiff, the Court finds that a genuine issue
of material fact exists as to whether Goodin and Kent were personally involved in Plaintiff's
alleged constitutional violation and are therefore subject to individual liability under § 1983.
Celotex, 477 U.S. at 322. Kent instructed Plaintiff to put his request in writing and then wrote the

memo denying that request. Record Document 28, pp. 2 & 4. After this denial, Plaintiff had a
meeting with Kent and Goodin to discuss the beard issue and his return to work, during which
Goodin informed Plaintiff that having a beard was against SPD policy. Record Document 21, p.
12. During this same meeting, Goodin verbally denied Plaintiffs request for an exemption. Record
Document 28, p. 5. Clearly, factual issues exist as to whether Kent and Goodin were personally
involved in the denial of Plaintiff's exemption request. See Woods, 51 F. 3d at 583.
Crump’s deposition testimony also indicates the involvement of Kent and Goodin. It is
uncontested that Crump was the individual with final decision-making authority on whether
Plaintiffs request would be granted or denied. Record Document 21-1, § 10. However, during his

12

deposition Crump could not remember how the decision of whether to grant or deny the request

came to his attention and could not recall actually making the decision. Record Document 19-3, p.
36. Crump could not say for sure whether he instructed Kent to deny Plaintiff's request and did

not remember signing any paperwork to that effect or giving Kent verbal instructions to do so. Jd.

at 37-38. Even if Crump made the final decision to deny Plaintiff's request for a religious
exemption from the no-beard policy, Kent and Goodin likely had some degree of personal
‘nvolvement in that denial. Therefore, Defendants’ motion for summary judgment is hereby
DENIED as to the individual capacity claims against Kent and Goodin.
IV. Plaintiff’s Motion for Partial Summary Judgment
Plaintiff has filed a motion for partial summary judgment on his federal and Louisiana law
claims against the City and against Crump in his official and individual capacity. Record

Document 19-2, pp. 28-29. Plaintiffs claims against Crump in his official capacity have already
been dismissed as duplicative of his claims against the City,? so the Court will only consider
whether genuine factual issues exist that would prevent the entry of summary judgment against
the City and Crump in his individual capacity.
Plaintiff claims that he is entitled to a finding that Crump and the City are liable for
violating his “federal and state constitutional rights, the Louisiana Anti-Discriminatory law, and

the Louisiana Preservation of Religious Freedom Act.” Record Document 19-2, p. 8. Plaintiff
argues that SPD’s no-beard policy violated the Free Exercise Clause of the First Amendment to

the United States Constitution both on its face and as applied.‘ Jd. at 11-12. Plaintiff also asserts

3 Supra, p. 9.
4 The entirety of Plaintiff's argument on this point is as follows:
B. SPD’s beard policy made exceptions for secular reasons but not religious
reasons and violated law on its face
13

the no-beard policy is subject to strict scrutiny. /d. at 29. Finally, Plaintiff alleges that the no-beard
policy violated the Louisiana Constitution and Louisiana’s anti-discrimination statutes. Id. at 25—
26.
A. First Amendment Claims
1. The Free Exercise Clause
The Free Exercise Clause of the First Amendment to the United States Constitution states
that “Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.” U.S. Const. amend. I (emphasis added). It has been applied to the States through
the Fourteenth Amendment. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 531 (1993). The First Amendment protects both the freedom to believe and the freedom to
act. Cantwell v. State of Conn., 310 U.S. 296, 303 (1940). While the freedom to believe is absolute
and can never be restricted by the government, the freedom to act must sometimes be regulated by
the government for the protection of society. Jd. at 304. The Free Exercise Clause applies when a
particular law “discriminates against some or all religious beliefs or regulates or prohibits conduct
because it is undertaken for religious reasons.” Lukumi, 508 U.S. at 532.
“The free exercise inquiry asks whether government has placed a substantial burden on the
observation of a central religious belief or practice and, if so, whether a compelling governmental

Since 1997, the SPD Grooming Policy contained in its General Orders made
exceptions for medical conditions. Since 1997, the SPD Grooming Policy
contained in its General Orders also made exceptions for special
assignments. However, none of the policies from 1997 through 2017
contained exceptions for religious purposes or accommodations.
C. SPD beard policy violated law as applied
Chief Crump admitted that accommodations are made for officers with
medical conditions and duty assignments. Chief Crump admitted he
personally had granted at least 4 medical waivers.
Record Document 19-2, pp. 11-12 (citations omitted).
14

interest justifies the burden.” Hernandez v. C.LR., 490 U.S. 680, 699 (1989). A law that targets
religious conduct for distinctive treatment will be evaluated under the lens of strict scrutiny.
Lukumi, 508 U.S. at 546. The application of strict scrutiny means that such a law is invalid unless

it is justified by a compelling government interest and is narrowly tailored to advance that interest.

Id. at 533. Only government interests of the highest order can outweigh “legitimate claims to the

free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 2015 (1972).
In Employment Division, Department of Human Resources of Oregon v. Smith, 494 USS.

872, 878-79 (1990), the Supreme Court held that the Free Exercise Clause does not exempt an

individual from complying with a law that places an incidental burden on religious exercise so

long as that law is facially neutral and generally applicable. The Court also held that such generally
applicable and facially neutral laws would not be subjected to strict scrutiny. [d. at 886-87.

However, facial neutrality in the language of the law itself is not the end of the neutrality analysis.
Lukumi, 508 U.S. at 534.
In Lukumi, the Supreme Court stated that “[o]fficial action that targets religious conduct

for distinctive treatment cannot be shielded by mere compliance with the requirement of facial

neutrality.” Id. In that case the Court struck down three city ordinances that prohibited ritual animal

sacrifice. Id at 524 & 526. The ordinances were facially neutral, but the Court found that there

was significant evidence in the record to show that the ordinances were created out of

discriminatory intent against the Santeria religion, which engages in ritual animal sacrifice as a

form of worship. Jd. at 534. The Court stated that regardless of a law’s text, it cannot be neutral if

its object is to infringe upon or restrict practices because of their religious motivation. Jd. at 533.

The Supreme Court also held that the ordinances were not neutral because they contained a series

of exemptions that were applied to certain types of animal killing, but not to animal-killing that

15

was religiously motivated. Jd. at 537. To the Court, this reflected a value judgment by the city that
non-religious animal killings were more important than religious animal killings. Jd.
2. Free Exercise Clause as applied to no-beard policies
Plaintiff argues that SPD’s no-beard policy should be subject to strict scrutiny because it

allows for medical exemptions but not religious ones.° Record Document 19-2, p. 29. The Fifth
Circuit has not specifically addressed whether a police department policy that prohibits beards
violates the Free Exercise Clause. However, in Fraternal Order of Police Newark Lodge No. 12

City of Newark, 170 F.3d 359 (3d Cir. 1999), the Third Circuit faced exactly this question.
In City of Newark, the Newark Police Department had a policy that prohibited its officers
from wearing beards. Jd. at 360. The department regularly allowed medical exemptions from the
no-beard policy, typically based on a condition known as pseudo folliculitis barbae. Jd. Two police
officers who were devout Sunni Muslims were disciplined under the policy for growing out their
beards in obedience to their religious beliefs. Jd. at 360-61. The officers sued, challenging the
police department’s enforcement of the no-beard policy under the Free Exercise Clause and
requesting permanent injunctive relief from its enforcement. Id. at 361. The district court agreed
that the policy violated the plaintiffs’ First Amendment rights and permanently enjoined the police
department from enforcing the policy. Jd.
On appeal, the Third Circuit held that the no-beard policy should be subject to heightened
scrutiny’ because the department approved “secular” exemptions from the policy for medical

5 Plaintiff alleges in his complaint that Kent told him to submit a written request for a religious
exemption to the no-beard policy. Record Document 1, 11. This written request was ultimately
denied. Id. at § 21. However, Defendants do not dispute that the no-beard policy did not contain a
religious exemption as written. In fact, in Crump’s deposition testimony he stated that SPD didn’t
have a policy governing religious exemptions at the time. Record Document 19-3, p. 31.
6 The court in City of Newark “assume[d] that an intermediate level of scrutiny applie[d],” as
opposed to strict scrutiny, because the case arose in the context of public employment and because
16

reasons but refused to approve exemptions that were requested for religious reasons. Jd. at 365.
The court cited passages from Smith and Lukumi that addressed exemptions that were made to the
policies at issue in those cases. Jd. at 364 (quoting Smith, 494 U.S. at 884) (“[W]here the State has
in place a system of individual exemptions, it may not refuse to extend that system to cases of
religious hardship without compelling reason.”); Jd. at 364—65 (quoting Lukumi, 508 U.S. 537)
(“[T]his ordinance represents a system of individualized governmental assessment of the reasons
for the relevant conduct . . . [rlespondent’s application of the test of necessity devalues religious
reasons for killing by judging them to be of lesser import than nonreligious reasons.”). Based on
those cases, the Third Circuit found that the no-beard policy was not a neutral and generally
applicable law that could avoid heightened scrutiny. /d. at 366.
For the same reasons enunciated by the Third Circuit in City of Newark, the Court finds
that SPD’s no-beard policy, as set forth in SPD General Order 302.01, should be subject to
heightened scrutiny. See Record Document 19-4, p. 18. Like the no-beard policy in the Newark
Police Department, SPD’s no-beard policy also allowed officers to wear beards for medical
reasons. /d. at 19. The policy required officers seeking a medical exemption to the grooming policy
to submit a letter from their treating physician to their supervisor, who would then forward the
letter through the chain of command to the chief for review and consideration. Jd. If the request
for a medical exemption was granted, the officer would be required to repeat this process every 90
days. Jd. In his deposition, Crump testified that he had signed medical waivers to the no-beard
policy, but did not recall how many. Record Document 19-3, p. 42. SPD General Order 302.01

it found that the police department’s actions could not survive even that level of scrutiny. 170 F.3d
at 366 n.7.
17

clearly outlines a system of individualized exemptions from the no-beard policy for secular reasons
that were not available for religious reasons. See id.
The memo that Kent sent to Plaintiff denying his request for a religious exemption stated
that the grooming policy was “in place for officer safety reasons and to promote a uniform

appearance of all officers of the Shreveport Police Department to the general public.” Record
Document 19-4, p. 49. During his deposition, Crump agreed that a beard grown for medical reasons
would present the same concerns about officer safety and uniformity of appearance as a beard

grown for religious reasons. Record Document 19-3, pp. 44-45. Like the Newark Police
Department in City of Newark, SPD has undermined the stated interests of its no-beard policy by
allowing medical exemptions. City of Newark, 170 F.3d at 366. These medical exemptions indicate
that SPD made a value judgment that “secular (i.e., medical) motivations for wearing a beard are
important enough to overcome its [stated interest] but that religious motivations are not.” Jd. SPD
has failed to provide any reasons why a religious exemption would undermine its goals of officer
safety and uniformity of appearance any more than a medical exemption would. Jd. From the
record, it appears that Crump and SPD simply viewed medical exemptions to the no-beard policy
as more important than religious exemptions. See Record Document 19-3, p. 52-53. This is
precisely the type of value judgment that renders a law discriminatory and triggers the application
of strict scrutiny to an otherwise facially neutral law. See Lukumi, 508 U.S. at 537-38. Therefore,
the Court holds that SPD’s no-beard policy should be evaluated by heightened scrutiny.’

7 The Court notes that the issue of what level of scrutiny should be applied to the no-beard policy
was not addressed in Defendants’ opposition because that opposition focused on the preliminary
issue of whether Plaintiff had a sincerely-held religious belief. At this stage, the Court’s impression
is that strict scrutiny should be applied to the no-beard policy. However, the Court will accept
pretrial briefing from Defendants arguing that some form of intermediate scrutiny is more
appropriate. This briefing will be discussed at the pretrial conference.
18

In City of Newark, the Third Circuit ultimately found that the no-beard policy could not
survive heightened scrutiny. 170 F.3d at 366-67. Although the facts of the instant case align
closely with City of Newark, the Court declines to reach the same conclusion at this stage. In that

case, the defendants did not challenge the sincerity of the plaintiffs’ belief that growing a beard

was an important part of their Sunni Muslim faith. Jd. at 361. However, Defendants in the instant

case argue that factual issues regarding the sincerity of Plaintiffs beliefs prevent the entry of

summary judgment on this issue. Record Document 27, p. 12. For the reasons discussed below,
the Court agrees that the issue of Plaintiff's sincerity should be determined by the finder of fact at
trial.
3. Sincerity under the Free Exercise Clause
“The protection of the free exercise clause extends to all sincere religious beliefs... .”
Ferguson v. Comm’r, 921 F.2d 588, 589 (Sth Cir. 1991) (per curiam). In order to plead a valid free
exercise claim, a plaintiff must allege that “the government has impermissibly burdened one of his
‘sincerely held religious beliefs.’” Watts v. Fla. Intern. Univ., 495 F.3d 1289, 1294 (1 1th Cir. 2007)
(quoting Frazee v. Ill. Dept. of Emp’t Sec., 489 U.S. 829, 834 (1989)). A sincerely held religious
belief is also anecessary element of a plaintiffs claim under statutes that provide greater protection
for First Amendment freedoms than the Constitution itself, such as the Religious Freedom
Restoration Act (“RFRA”) (Tagore v. United States, 735 F.3d 324, 328 (Sth Cir. 2013)); the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) (Moussazadeh v. Texas Dept.
of Criminal Justice, 703 F.3d 781, 790 (Sth Cir. 2012)); Title VIL (Davis v. Fort Bend Cty., 736
F.3d 480, 485 (5th Cir. 2014)); and state statutes that were passed after the Supreme Court held
that RFRA could not apply to states, such as the Texas Religious Freedom Restoration Act

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(“TRFRA”) (4.4. ex rel. Betenbaugh v. Needville Indep. School Dist., 611 F.3d 248, 260 (Sth Cir.
2010)).
It is well-established that when a court assesses the sincerity of an individual’s religious
belief, it may not weigh the truth or falsity of the belief itself. This distinction was enunciated by
the Supreme Court in United States v. Seeger, 380 U.S. 163, 184-85 (1965):
“Men may believe what they cannot prove. They may not be put to the proof of
their religious doctrines or beliefs. Religious experiences which are as real as life
to some may be incomprehensible to others.” Local boards and courts in this sense
are not free to reject beliefs because they consider them “incomprehensible.” Their
task is to decide whether the beliefs professed by a registrant are sincerely held and
whether they are, in his own scheme of things, religious.
(quoting United States v. Ballard, 322 U.S. 78, 86 (1944)). The truth or validity of a particular
religious belief may not be challenged, but “there remains the significant question whether it is
‘truly held.’” Jd. at 185.
The Fifth Circuit has stated that it has had few opportunities to conduct an inquiry into the
sincerity of a religious belief because sincerity is not often challenged. McAlister v. Livingston,
348 F. App’x 923, 935 (5th Cir. 2009) (per curiam). Moreover, “[s]incerity is generally presumed
or easily established.” Moussazadeh, 703 F.3d at 791. Claims of sincere religious beliefs have
been accepted based on “little more than the plaintiff's credible assertions.” Tagore, 735 F.3d at
328. In fact, a plaintiff's sincerity is “largely a matter of individual credibility.” Jd. As such, a
determination of sincerity is fact-specific and requires a case-by-case analysis. Moussazadeh, 703
F.3d at 791.
i, Arguments of the parties
Defendants argue that enough evidence exists to create a genuine issue of material fact as
to whether Plaintiffs beliefs about his beard are sincerely religious or mere personal preferences.
Record Document 27, p. 12. Defendants point to several facts that they argue undermine

20

Plaintiffs claim that he has a sincere religious belief in his need for a beard. Jd. at 12-19. Based
on these alleged inconsistencies, Defendants claim that a reasonable jury could find that Plaintiff s
religious belief in his need for a beard is insincere. Jd. at 19.
Plaintiff responds that Defendants offer no evidence to contradict his sincerity of belief
but offer only conclusory statements in support of their arguments. Record Document 31, pp. 2—
3. Plaintiff also claims that sincerity of belief is an issue that can be properly evaluated at the
summary judgment stage. Id. at 6.
ii. Analysis
The Court finds that Defendants have provided sufficient evidence to show that a genuine
issue of material fact exists as to whether Plaintiff's beliefs are sincerely held. Celotex, 477 U.S.
at 322. Certain statements in Plaintiff's deposition seem to indicate that he believes that his
Christian faith requires him to grow a beard. See Record Document 27-2, p. 48 (stating that it is
a religious tenet that he was taught throughout his childhood as a sign of being a “man of God”).
On the other hand, certain statements in Plaintiff's deposition seem to indicate that growing a
beard was merely his personal preference. See id. at 32 (stating that he grew a beard because he
needed a reminder of his recommitment to God and also to his family). Plaintiff's affidavit states
he generally did not shave during vacations and other extended breaks. Record Document 19-3,
p. 5. Defendants also point to portions of Plaintiffs deposition that appear to undermine the
importance of beards as a form of religious obedience to the men in Plaintiff's family. Record
Document 27, p. 15. Because factual issues exist as to Plaintiff's sincerity, it should be determined
at trial rather than on summary judgment.
Plaintiff argues that religious sincerity can be properly decided at the summary judgment
stage. Record Document 31, pp. 6-7. However, the cases he cites in support of this argument are

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easily distinguishable from the case at hand. In those cases, the defendants either did not offer
any evidence to contradict the plaintiff's sincerity or did not dispute the subjective sincerity of
the plaintiff's beliefs. Parkell v. Senato, C.A. No. 14-446-LPS, 2019 WL 1435883 at *5 (D. Del.
Mar. 31, 2019); Telfair v. Fed. Exp. Corp., 934 F. Supp. 2d 1368, 1381 (S.D. Fla. 2013). As
discussed above, Defendants have presented evidence contrary to Plaintiffs sincerity of belief
and challenged the subjective sincerity of Plaintiffs religious beliefs. Therefore, these cases are
inapplicable to the case at hand.
On summary judgment, the Court is required to view the evidence in the light most
favorable to the non-movant. Celotex, 477 U.S. at 322. Viewed in such a light, the evidence that
Defendants have provided demonstrates a factual issue regarding Plaintiff's sincerity. See Record
Document 27, p. 16. Accordingly, summary judgment is inappropriate. Plaintiffs motion for
summary judgment is DENIED as to his claims against Crump and the City of Shreveport under
the Free Exercise Clause.
B. Louisiana Constitutional Claims
Plaintiff claims that he is entitled to a partial summary judgment finding that Crump and
the City violated his state constitutional rights as well as his federal constitutional rights. Record
Document 19-2, p. 8. Louisiana’s Constitution contains a Free Exercise Clause that is nearly
identical to the Free Exercise Clause contained in the United States Constitution. See L.A. Const.
art. 1, § 8; U.S. Const. amend. I. The Louisiana Supreme Court has held, in the context of the
freedom of the press, that the Louisiana Constitution’s guarantee of liberties “was designed to
serve the same purpose and provides at least coextensive protection” as the United States
Constitution does. State v. Franzone, 384 So. 2d 409, 411 (La. 1980). Because of the common
purpose of the Louisiana and United States Constitutions regarding freedom of the press, and

22

because of the similarity between the Free Exercise Clauses in the Louisiana and the United States
Constitutions, the Court finds that its above analysis of Plaintiff's Free Exercise Clause claim
under the United States Constitution also applies to his Louisiana Constitutional claim. Therefore,
Plaintiff will need to establish his sincerity of belief to show a violation of Louisiana’s Free
Exercise Clause. Because the issue of Plaintiff's sincerity is a factual matter to be determined at
trial, summary judgment is DENIED as to Plaintiff's Louisiana Constitutional claims.
C. Louisiana Statutory Claims
Plaintiff argues that he is entitled to summary judgment against Crump and the City on the
issue of liability under Louisiana statutory law. Record Document 19-2, pp. 29-30. Plaintiff cites
the Louisiana Employment Discrimination Law (“LEDL”), Louisiana Revised Statutes §§ 23:301~
23:372, which states that it is unlawful for an employer to intentionally discriminate against an
individual because of that individual’s religion. Jd.; La. Stat. Ann. § 23:332(A)(1). As Plaintiff
points out in his motion, the LEDL is substantively similar to Title VI. Record Document 19-2,
p. 26; La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477 (Sth Cir. 2002). Because of this similarity,
Louisiana courts have routinely looked to federal Title VII jurisprudence for guidance in
evaluating LEDL claims. Plummer v. Marriott Corp., 94-2025 (La. App. 4 Cir. 4/26/95); 54 So.
2d 843, 848. Title VII requires a plaintiff to show that he held a bona fide religious belief. Davis,
765 F.3d at 485. Whether or not a plaintiff holds a bona fide religious belief is a question of
sincerity. Id. As discussed above, the Court finds that genuine issues of material fact exist as to the
sincerity of Plaintiff’s religious beliefs. Therefore, summary judgment is hereby DENIED as to
Plaintiffs claims under the LEDL.
Plaintiff's motion also references Louisiana’s Preservation of Religious Freedom Acct,
Louisiana Revised Statutes §§ 13:5231—13:5242. However, Plaintiff did not reference this statute

23

in his complaint. See Record Document 1. The Fifth Circuit has held that plaintiffs are not
permitted to raise new claims at the summary judgment stage.® U.S. ex rel. DeKort v. Integrated
Coast Guard Sys., 475 F. App’x 521, 522 (5th Cir. 2012). Accordingly, the Court will not evaluate
Plaintiff's claims under Louisiana’s Preservation of Religious Freedom Act.
D. Constructive Discharge
Plaintiff's motion for summary judgment appears to request that the Court enter summary
judgment in his favor on the issue of whether or not he was constructively discharged from his job
at SPD. Record Document 19-2, p. 28. He argues that his only choices were “to give up his
sincerely held beliefs, face investigation and termination, or retire to avoid termination.” Jd. at 29.
As discussed above, whether Plaintiff's religious beliefs were sincerely held is a factual question
to be determined at trial. Therefore, it would be premature to enter summary judgment on a claim
that is dependent upon the sincerity of those beliefs at this stage. To the extent that Plaintiffs
partial motion for summary judgment asks the Court to find that he was constructively discharged,
the motion is DENIED.

The Court acknowledges that the Fifth Circuit does have a line of cases instructing district courts
to treat a claim raised for the first time in a response to a motion for summary judgment as a motion
to amend a complaint under Federal Rule of Civil Procedure 15(a). See Riley v. School Bd. Union
Parish, 379 F App’x 335, 341 (Sth Cir. 2010) (per curiam). However, the Fifth Circuit has also
stated that treating a new claim raised in a response to a motion for summary judgment as a motion
to amend is only required in certain compelling circumstances. Harry v. Dallas Housing Auth.,
662 F. App’x 263, 270 (Sth Cir. 2016) (per curiam). Additionally, such a requirement has primarily
been applied to claims raised in response to a motion for summary judgment, not to a new claim
raised by a plaintiff in that plaintiff's own motion. Therefore, this line of cases does not preserve
Plaintiff's new claim introduced at summary judgment.
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V. Conclusion
For the reasons set forth above,
Defendants’ Motion for Partial Summary Judgment [Record Document 17] is GRANTED
IN PART and DENIED IN PART.
The motion is GRANTED as to Plaintiffs official capacity claims against Crump, Kent,
and Goodin. Those claims are hereby DISMISSED WITH PREJUDICE.
The motion is also granted as to the official and individual capacity claims against Beckius.
All claims against Beckius are DISMISSED WITH PREJUDICE.
The motion is DENIED in all other respects.
Plaintiff's Motion for Partial Summary Judgment [Record Document 19] is DENIED.
THUS DONE AND SIGNED in Shreveport, Louisiana, inis 22 day of August, 2019.

mmr —
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10193162. Public record. Not legal advice.