The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JORDAN K SANDERS CASE NO. 5:20-CV-01544
VERSUS JUDGE TERRY A. DOUGHTY
C E O C LLC ET AL MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment [Doc. No. 36] filed by Defendants
City of Shreveport (“Shreveport”), Ben Raymond (“Raymond”), and Lt. Kevin Anderson
(“Anderson”).
An Opposition [Doc. No. 52] was filed by Plaintiff Jordan K. Sanders (“Sanders”) on
January 22, 2022. A Reply [Doc. No. 55] was filed by Shreveport, Raymond, and Anderson on
January 28, 2022.
For the reasons set forth herein, the Motion for Summary Judgment filed by Shreveport,
Raymond, and Anderson is GRANTED.
I. BACKGROUND
On November 6, 2020, Sanders filed a Petition for Damages against the Defendants,
Eldorado Casino Shreveport Joint Venture (“Eldorado”), Jumaraca N. Broadway (“Broadway”),
and against Anderson, Raymond, and Shreveport in the First Judicial District Court, Parish of
Caddo, State of Louisiana. The matter was removed to this Court by Notice of Removal [Doc.
No. 1] on December 4, 2020. Sanders claims damages as a result of injuries received on the
dance floor of the Celebrity Lounge inside of Eldorado. on November 8, 2019, at approximately
12:20 a.m.
Broadway was working security for Eldorado on the night of the incident. After receiving
complaints from customers about Sanders, who was dancing on the dance floor, Broadway asked
Sanders to leave. Sanders allegedly ignored these requests and continued to dance. Thereafter,
Anderson, who had also received complaints about Sanders, approached Sanders. Anderson was
a Shreveport Police Department (“SPD”) officer who was working security at Eldorado the night
of the incident. Anderson was wearing an SPD uniform.
Anderson’s recollection of the events are as follows. Anderson went into the Celebrity
Lounge and approached Sanders on the dance floor. Anderson said he told Sanders and advised
Sanders that Eldorado management wanted him to leave the property.1 Also according to
Anderson, Sanders responded, “I’m not going anywhere.”2 Anderson then grabbed Sanders’ arm
in an effort to escort Sanders from the lounge. Anderson testified Sanders pushed him off and
Anderson saw Sanders making a fist.3 According to expert Jason Latham (“Latham”), his frame-
by-frame analysis of the videos shows Sanders’ right hand moving toward Anderson’s face and
head beginning at approximately 00:18:59 of the video.4
Anderson testified that Sanders then raised his right hand toward his head and shoulder
area, an action that Anderson perceived as an attempt by Sanders to punch him in the face.5
Sanders raising his right hand in a “striking position” was also confirmed by Broadway.6
Anderson stated that he then deflected Sanders’ punch and struck Sanders with his right fist,
which resulted in Sanders falling to the ground.7 Sanders’ struck the back of his head on the
1 Anderson depo [Doc. No. 36-8, page 27]
2 Id at page 38
3 Id at page 28
4 Latham report and frame analysis [Doc. No. 36-18, 1 and 2]
5Anderson depo [Doc. No. 36-8, pages 42, 59]
6 Broadway depo [Doc. No. 36-9, pages 31-34, 55, 39-40, 64-65]
7 Anderson depo [Doc. No. 36-8 pages 26-28, 37, 42, 49]
dance floor when he fell, causing a laceration to the back of his head. Sanders either passed out
or was knocked unconscious as he hit the floor.8
Anderson lifted Sanders under his arms and brought him into a back hallway. EMS was
called to provide medical treatment to Sanders. The EMS record9 shows that Sanders was
“highly intoxicated,” and that Sanders was transported to Ochsner LSU, where he received five
(5) staples in the back of his head. Sanders was released from Ochsner LSU a few hours later,
and he was booked into the Shreveport City Jail on charges of entering/remaining after
forbidden, public drunkenness, and resisting an officer.10
On April 30, 2021, Sanders pled no contest to the charge of entering/remaining after
forbidden. Sanders received a thirty (30) day sentence, which was suspended, and Sanders was
placed on ninety (90) days of unsupervised probation.11
Sanders does not remember the incident and cannot dispute the video evidence or the
testimony of Broadway or Anderson.12 An independent witness, Jamie Garber13, saw Sanders
dancing on the dance floor and does not recall either Broadway or Anderson coming up to
Sanders to tell him to leave. She also said she did not see Sanders ball his fist.
Although it is disputed what occurred, the incident was recorded on video from several
different angles1. This Court has reviewed all of the videos. The following details depict what
the Court observed on the videos. Anderson approached Sanders on the dance floor. It appeared
that Anderson grabbed Sander’s shirt around his right shoulder.
8 Id at page 29-30
9 [Doc. No. 36-06, SFD Patient Care Record]
10 [Doc. No. 36-5-3]
11 [Doc. No. 36-7]
12 Sanders’ depo [Doc. No. 36-10, pages 64-65]
13 Depo excerpt of Garber [Doc. No. 52-4, page 11, 16]
This Court also reviewed the Affidavit of Jason Latham, along with his report, frame
analysis, and CV.14 Latham is the co-founder and Laboratory Director for Complete Digital
Forensic Solutions, Inc. Latham was retained as an expert in the field of forensic video analysis.
Latham’s CV attached shows he is well qualified in this area. Latham sought to clarify the video
evidence of the altercation on the Celebrity Lounge dance floor between Anderson and Sanders.
Latham conducted a frame analysis of the videos just prior to and during the altercation. Latham
found the frame analysis of the videos showed Sanders’ right hand being raised in the general
direction toward Anderson’s left shoulder and head area. The movement of Anderson’s right
hand was just prior to Anderson striking Sanders and was captured on three different cameras at
different angles. The condition of Sanders’ right hand, (open, closed, or fist), could not be
determined due to the lighting conditions, camera distance, and overall quality of the videos.
Also reviewed was the Affidavit, CV, and report of Kerry J. Najolia15 (“Najolia”) who
was hired as an expert witness to review the use of force by Anderson in this incident. Najolia’s
CV and report show he is also qualified in and has been accepted as an expert witness in police
use of force. After reviewing the videos and other information, Najolia’s opinion was (1)
Anderson’s training was current based upon POST and SPD’s training requirements; and (2) the
use of non-lethal force by Anderson based upon what Anderson perceived to be a threat, was
justified and in compliance with POST and SPD policies.
Sanders makes claims of excessive force, false arrest, Monell claims against Raymond
and Shreveport based upon vicarious liability, failure to supervise, and/or insufficient policies
and customs. Additionally, a claim is made against Eldorado under vicarious liability as an
alleged employer of Anderson and Broadway, under both state and federal law.
14 [Doc. No. 36-18]
15 [Doc. No. 36-19]
II. LAW AND ANALYSIS
A. Summary Judgment, Standard of Review
Summary judgment is appropriate when the evidence before a court 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 fact is “material” if proof of its existence or nonexistence would
affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying 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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “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.” Stahl v.
Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is
unable to identify anything in the record to support its claim, summary judgment is appropriate.
Id. “The court need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
In evaluating a motion for summary judgment, courts “may not make credibility
determinations or weigh the evidence” and “must resolve all ambiguities and draw all
permissible inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr–McGee
Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts will
“resolve factual controversies in favor of the nonmoving party,” an actual controversy exists only
“when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air. Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994). To rebut a properly supported motion for summary
judgment, the opposing party must show, with “significant probative evidence,” that a genuine
issue of material fact exists. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)
(emphasis added). “‘If the evidence is merely colorable, or is not significantly probative,’
summary judgment is appropriate.” Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating
Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 248).
Relatedly, there can be no genuine dispute as to a material fact when a party fails “to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322-
23. This is true “since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.
B. False Arrest
To prevail on a false arrest claim, a plaintiff must show that he was arrested without
probable cause. Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001), cert. denied, 122 S.Ct. 46
(2001). “Probable cause” exists when there are facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has committed, is committing, or is about
to commit an offense. Club Retro, LLC v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).
Additionally, a plaintiff’s false arrest claim is barred if the claim would impugn the
validity of plaintiff’s underlying conviction. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct.
2364, 129 L. Ed. 2d 383 (1994). Sanders, by entering a no contest plea to the charge of
entering/remaining after forbidden in Shreveport City Court on April 30, 2021, has been
convicted of a crime for which he was arrested on November 9, 2019. This results in his false
arrest and/or false imprisonment claims being barred by Heck. Ballard v. Burton, 444 F.3d 391,
397 (5th Cir. 2006).
Sanders concedes his false arrest claim is barred.16 Therefore, defendants are entitled to
summary judgment on Sanders’ false arrest/false imprisonment claim.
C. Excessive Force/Qualified Immunity
Anderson maintains the doctrine of qualified immunity protects him from liability and
trial in this case as to Sanders’ excessive force claims. The doctrine of qualified immunity
insulates government officials from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73, L. Ed. 2d 396 (1982).
Qualified immunity is an immunity from suit rather than a mere defense to liability and is
effectively lost if a case is permitted to go to trial, thus qualified immunity questions should be
resolved through summary judgment when the underlying facts are not in dispute. Mitchell v.
Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86, L. Ed. 2d 411 (1985). Qualified immunity
questions should be resolved at the earliest possible stage in litigation. Hunter v. Bryant, 502
U.S. 224, 227, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991).
As indicated by Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L. Ed 2d 272
(2001), in determining whether qualified immunity applies, the first inquiry is whether a
constitutional right would have been violated on the facts alleged. Only after deciding that
question may a court turn to the question whether the right at issue was clearly established at the
16 [Doc. No. 52 page 21]
relevant time. This procedure was subsequently altered to declare that Saucier’s procedure
should not be regarded as an inflexible requirement but noted the Saucier procedure is often
beneficial. Pearson v. Callahan, 555 U.S. 223, 227, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).
In this case, following the Saucier procedure is appropriate. This Court begins with the
question of whether a constitutional right would be violated on the facts alleged. The facts of
this incident are set out in great detail in Section I of this Memorandum Ruling.
A claim that law-enforcement officers used excessive force is governed by the Fourth
Amendment’s “reasonableness” standard. A determination of the objective reasonableness of a
particular situation requires a careful balancing of the nature and quality of the intrusion of the
individual’s Fourth Amendment interests against the countervailing governmental interests at
stake. The inquiry requires analyzing the totality of the circumstances. Graham v. Connor, 490
U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
This question is analyzed from the perspective “of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Id. at 396. Police officers are often forced to
make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving –
about the amount of force that is necessary in a particular situation. Id. at 396-397.
The Court can decide one question or both under Saucier.17 The dispositive question is
whether the violative nature of the particular conduct is clearly established. Bush v. Strain, 513
F.3d 492, 502 (5th Cir. 2008). That is because qualified immunity is inappropriate only where
the officer had “fair notice” – in light of the specific context of the case, not as a broad general
proposition – that his particular conduct was unlawful. Brosseau v. Haugen, 543 U.S. 194, 198,
125 S. Ct. 596, 160 L. Ed. 2d 583 (2004).
17 Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).
Overcoming qualified immunity is especially difficult in excessive force cases. This is an
area of the law in which the result depends very much on the facts of each case, and thus police
officers are entitled to qualified immunity unless existing precedent “squarely governs” the
specific facts at issue. Kisela v. Hughes, _ U.S. _, 138 S. Ct. 1148, 1153, 200 L. Ed 2d 449
(2018). The burden of proof in a §1983 action is on the plaintiff. The burden is heavy. A right
is “clearly established” only if relevant precedent has placed the constitutional questions beyond
debate. Ashcroft v al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011).
It is beyond debate that excessive force used by a police officer violates the Fourth
Amendment. However, this Court finds Anderson did not violate the Fourth Amendment under
the facts of this case, and there was no clearly established precedent that squarely governs the
specific facts of this case.
There are several videos in this case. Sanders was intoxicated and has no idea what
occurred. Anderson’s frame-by-frame analysis clearly shows Sanders’ right hand going up
toward Anderson’s face. Anderson testified he perceived this movement as an attempt by
Sanders to punch him in the face.18 Anderson then used non-lethal force and struck Sanders in
the face. Although Sanders argues that Anderson had other options than to strike him, this is
merely second-guessing a split-second decision. This is the type of situation qualified immunity
was intended for. This Court finds Anderson is entitled to qualified immunity as to Sanders’
excessive force claims.
D. Monell/Supervisory Claims
Sanders asserts the liability of Shreveport and Raymond based upon Monell liability. In
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed.
18 Anderson depo [Doc. No. 36-8, pages 45, 59]
2d 611 (1978), municipalities can be held liable for the constitutional violations which arise from
enforcement of the municipalities policies and procedures, but the municipality cannot be held
liable for constitutional torts of their employees under the doctrine of respondeat superior. In
order to hold a municipality liable under § 1983, a plaintiff must identify (1) an official policy or
custom, of which (2) a policymaker can be charged with actual or constructive knowledge, and
(3) a constitutional violation whose “moving force” is that of policy or custom. Monell, 436 U.S.
at 694.
First, as this Court finds no constitutional violation by Anderson, then there can be no
liability against Shreveport. Windham v. Harris Cty., Texas, 875 F.3d 229, 243 (5th Cir. 2017).
Second, Sanders has not identified an official policy or custom of Shreveport that was the
moving force or cause of the alleged violation. Sanders points to SPD General Order 401.01E.,
and 401.01F, which require that any arrest where the use of force is involved be reported to that
officer’s supervisor, and that the supervisor investigate the use of force. This policy was
admittedly not followed by Anderson, but it did not “cause” Sanders’ injuries. These policies
would be something that would have occurred after the incidents. There were at least three video
cameras that filmed the incident in question; therefore, failure to investigate by a supervisor did
not cause Sanders’ injuries either.
Claims are also made against Raymond, who was Chief of SPD at the time of this
incident. A plaintiff cannot establish §1983 liability against a government official simply by
virtue of the official’s role as a supervisor. Monell, 436 U.S. at 691. Raymond is not alleged to
have been at the scene or to have taken any part in the incident. Raymond is alleged to be
Anderson’s supervisor. A supervisory official may only be held liable if he affirmatively
participates in the acts that cause the constitutional deprivation or implements unconstitutional
policies that causally result in the constitutional injury. Wernecke v. Garcia, 591 F.3d 386, 401
(5th Cir. 2009).
Because Raymond took no part in the incident, and there are no unconstitutional policies
that caused Sanders’ injury, Shreveport and Raymond are entitled to summary judgment and this
claim against them is dismissed.
E. State Law Claims
Louisiana applies the same standards to analyze claims of false arrest, excessive force,
and negligent training or supervision as the standards utilized under federal law. Colston v.
Barnhart, 130 F.3d 96, 99 (Sth Cir. 1997), rehearing denied 146 F.3d 282, cert. denied. 119 S.Ct.
618 (1998). Additionally, Louisiana applies qualified immunity principles to state constitutional
law claims based on the same factors that compelled the Supreme Court of the United States to
recognize a qualified good faith immunity for state officers under $1983. Moresi v. State, 567
So.2d 1081, 1093 (La. 1990).
For the reasons set forth regarding the federal claims, the defendant’s Motion for
Summary Judgment is also GRANTED regarding the Louisiana State law claims.
CONCLUSION
For the reasons set forth herein, the Motion for Summary Judgment [Doc. No. 36] filed
by Shreveport, Anderson and Raymond is GRANTED, and Sanders’ claims against said
Defendants are DISMISSED WITH PREJUDICE.
Monroe, Louisiana, this 2274 day of February 2022. eo .
UNITED STA TES DISTRICT JUDGE
11