The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JUANITA SMITH, ET AL CIVIL ACTION NO. 19-1261
VERSUS JUDGE ELIZABETH E. FOOTE
JC LEE, ET AL. MAG. JUDGE KAYLA D. MCCLUSKY
MEMORANDUM ORDER
Before the Court is a motion for partial summary judgment, filed by the Defendants
in the above-captioned matter. Record Document 82. The Defendants seek dismissal of
four of the Plaintiffs’ state law claims: battery, excessive force, negligence, and strict
liability. The Plaintiffs oppose the motion, and the matter is now ripe for review. For the
reasons set forth below, the Defendants’ motion is granted in part and denied in part.
I. Background.
The facts of this case have previously been set forth in this Court’s Memorandum
Ruling [Record Document 71] and in the opinion issued by the Fifth Circuit Court of
Appeals [Record Document 77]. As such, they will not be restated herein in full. However,
suffice it to say that Shreveport police officers were attempting to execute a warrant on
Christian Combs (“Combs”) for second degree murder. The officers arrived at Plaintiff
Juanita Smith’s (“Smith”) home at 1913 State Street in Shreveport to question the
occupants about Combs’s whereabouts. Smith told officers that she did not know Combs.
Nonetheless, the officers wanted to enter Smith's house to ensure Combs was not inside.
Defendant Lee and his police canine, Dice, proceeded to the front door, where Lee called
out for anyone inside to come out; he gave verbal warnings that he was releasing the dog
into the house and that the dog would bite. When no one responded, Lee released Dice
with the command “find the man.” Dice proceeded around a corner and came into contact
with Plaintiff Floyd Stewart (“Stewart”), an elderly man who had been sleeping inside a
bedroom in the residence. When Stewart heard the noise from outside, he put on his
shoes and went to the bedroom door where he encountered Dice. Dice bit Stewart.
Smith and Stewart brought suit against the Defendants under 42 U.S.C. § 1983 for
the constitutional violations of unlawful entry, excessive force, and failure to train.
Plaintiffs also brought analogous state law claims, in addition to claims of negligence and
strict liability for dog bites. In earlier motion practice, the Defendants moved for summary
judgment, contending the Defendant officers were entitled to qualified immunity. The
defense also moved for dismissal of the Monell and state law claims. The Court’s ruling
dismissed the Monell claim against the City of Shreveport, the failure to train claim, and
all claims against Defendant McConnell. The Court denied the Defendants qualified
immunity with regard to the unlawful entry of Smith’s home and the use of excessive force
against Stewart.
The Defendants appealed the ruling to the Fifth Circuit. On appeal, the court
affirmed the denial of qualified immunity for the unlawful entry claim. However, it
reversed the Court’s denial of qualified immunity for Stewart's excessive force claim. In
so doing, the appellate court concluded that
Given the apparent danger of this suspect [Combs] and situation, Lee’s
decision to deploy Dice with the command to bite and hold the first person
he found inside the house was reasonable. Therefore, Stewart has not
alleged a constitutional violation for any force used between the time Lee
entered Smith’s house and the time he realized that the person Dice was
biting was not Combs.
Record Document 77, p. 13. Furthermore, the court rejected an excessive force claim
stemming from the duration of the dog bite, which Stewart alleged lasted for at least a
minute. It determined that Lee was entitled to qualified immunity because, under the
required qualified immunity analysis, no binding precedent “establishes under analogous
circumstances how long a bite is too long. Thus, a jury could not find that every
reasonable officer would have known that a K9-trained dog had to be released more
quickly.” Id. at 19.
Now that the case has been remanded to this Court, the defense has moved for
partial summary judgment on Stewart's state law claims of negligence, battery, excessive
force, and strict liability for dog bites. The crux of the Defendants’ motion is that the Fifth
Circuit determined that Lee’s actions with Dice were reasonable, and therefore, these four
state law claims must be dismissed pursuant to the Fifth Circuit's opinion. Defendants
contend that the claims of battery, excessive force, and negligence are identical to the
federal excessive force claim and thus must be dismissed pursuant to the reasoning in the
Fifth Circuit’s opinion.
II. Law and Analysis.
The Court agrees that the Fifth Circuit's opinion forecloses Stewart's pursuit of a
state law excessive force claim. The Fifth Circuit has stated that “Louisiana’s excessive
force tort mirrors its federal constitutional counterpart.” Deville v. Marcantel, 567 F.3d
156, 172 (5th Cir. 2009). “Whether the force used is reasonable depends upon the totality
of the facts and circumstances in each case,” however, the factors are “sufficiently similar
to the Graham factors.” Id. at 172-73. In the instant case, the Fifth Circuit’s analysis of
the Graham factors led to its determination that Lee’s use of force was reasonable.
Because the analysis of a state law excessive force claim mirrors the analysis of a § 1983
excessive force claim, this Court must defer to the determination made by the Fifth Circuit
in its analysis of that claim. As the Fifth Circuit held that under the Graham factors, Lee’s
use of force was reasonable, this Court must dismiss Stewart's state law excessive force
claim.
However, the same result is not compelled with respect to Stewart's battery claim.
In Deville, the Fifth Circuit explained that an excessive force claim does not depend on the
constitutionality of the underlying arrest, but rather is judged on the reasonableness of
the actions under the totality of the circumstances. Deville, 567 F.3d at 167 n.7
(instructing that a § 1983 excessive force claim must be analyzed “without regard to
whether the arrest itself was justified.”). In contrast, however, for a state law battery
claim, the analysis takes into account whether the officer was effectuating a lawful or
unlawful arrest when the force was used. Id. at 173 n.9. Indeed, the Louisiana Code of
Criminal Procedure states that “[t]he person making a /awfu/ arrest may use reasonable
force to effect the arrest and detention, and also to overcome any resistance or threatened
resistance of the person being arrested or detained.” La. Code Crim. Proc. art. 220
(emphasis added). However, “[i]f the arrest is unlawful then all force used to effectuate
the arrest is excessive and constitutes a battery.” LaBauve v. State, 618 So. 2d 1187,
1193 (La. Ct. App. 1993). “The jurisprudence . . . establishes that the physical attack of
a private citizen by a police officer absent a valid arrest constitutes a battery.” Fisher v.
Louisiana Dep't of Pub. Safety, 555 So. 2d 626, 630 (La. Ct. App. 1989). In Deville, the
Fifth Circuit distinguished between the plaintiff's excessive force and battery claims,
declaring that because the plaintiff's arrest was not supported by probable cause and was
unlawful, “then any force used by the officers constituted a battery under state law.”
Deville, 567 F.3d at 173 n.9. Here, there has been no contention that Lee was performing
a valid arrest on Stewart; instead, taking the facts in the light most favorable to the
Plaintiffs, Stewart was an innocent bystander who happened to be in the wrong place at
the wrong time when the police were searching for Combs. Accordingly, the dismissal of
his battery claim is not required by the Fifth Circuit's opinion, and this claim remains for
trial.
Nor will the Court dismiss Stewart’s negligence claim. The Defendants argue merely
that the negligence claim must be dismissed because of the Fifth Circuit’s opinion, but the
Court is not so convinced. The Defendants’ briefing does not address Louisiana Civil Code
article 2315 or any elements of Stewart's negligence claim. The contention that the claim
should be dismissed merely because the Fifth Circuit found that Lee’s actions were
reasonable under an excessive force qualified immunity analysis is not persuasive.
Although article 2315’s analysis incorporates a component of reasonableness, this analysis
does not mirror the § 1983 excessive force analysis. Nor, for that matter, does it analyze
the Graham factors, which drove the Fifth Circuit’s ultimate decision on Stewart's excessive
force claim; further, the Court notes that the Fifth Circuit's Graham analysis focused on
Combs, not Stewart. Simply put, the Fifth Circuit's decision on excessive force does not
require the dismissal of Stewart’s negligence claim. This claim will remain for trial.
Finally, as to Stewart's strict liability claim, the Defendants argue that the law
requires the Plaintiffs to demonstrate the dog posed an unreasonable risk of harm. The
Defendants claim once again that the Fifth Circuit has resolved this issue in their favor.
That is, by holding that it was reasonable for Lee to release Dice into the Smith residence
to bite and hold whomever he encountered, the Defendants submit that the Fifth Circuit
necessarily resolved the question of whether Dice posed an unreasonable risk of harm.
To the contrary, the Court finds that the fact that the state law claim incorporates a
consideration of reasonableness is not dispositive of the issue. As the Defendants’ briefing
implicitly concedes, the elements for a strict liability dog bite claim do not mirror the §
1983 excessive force elements. The analysis for each claim is not identical. Thus, the
Fifth Circuit’s ruling does not force the dismissal of this claim, and the claim will remain
for trial.
I. Conclusion.
Based on the foregoing reasons, the Defendants’ motion for partial summary
judgment is GRANTED IN PART and DENIED IN PART. It is granted to the extent
that Stewart’s state law excessive force claim is dismissed. It is denied with respect to
the battery, negligence, and strict liability claims.
THUS DONE AND SIGNED this 7th day of March, 2024.
UNITED STATES DISTRICT JUDGE