The opinion
STATE OF LOUISIANA
COURT OF APPEAL
JZ41 FIRST CIRCUIT
P)w e,
2019 CA 1389
VERSUS
ROY HUGHES, JEFFERY JACKSON AND THE CITY OF HOUMA
JUDGMENT RENDERED:
NOV 25 2020
Appealed from the
Thirty -Second Judicial District Court
In and for the Parish of Terrebonne • State of Louisiana
Docket Number 158719 • Division " A"
The Honorable George J. Larke, Jr., Judge Presiding
George R. Tucker ATTORNEYS FOR APPELLANT
Renee S. Raborn Molland PLAINTIFF— Bobby Simmons
Greensburg, Louisiana
Brian J. Marceaux ATTORNEYS FOR APPELLEES,
Julius P. Hebert, Jr. DEFENDANTS— Roy Hughes,
Houma, Louisiana Jeffery Jackson, and
Terrebonne Parish
Consolidated Government
BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.
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WELCH, J.
In this damages suit arising from the alleged use of excessive force by
arresting officers, the plaintiff appeals a summary judgment rendered in favor of
the defendants, finding that there was no genuine issue of material fact that the
defendants' conduct did not rise to the level of excessive force; that the defendants
were entitled to discretionary immunity; and which dismissed all of the plaintiff' s
claims against the defendants. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Around 8: 13 p.m. on December 23, 2008, the Houma Police Department
HPD") dispatched a call for service relative to a hit-and- run. The dispatched call
indicated that the perpetrator, later identified as the plaintiff, Bobby Simmons, Sr.,
was fleeing in a green GMC pick-up truck.
While on patrol in the area, Patrolman Jeffery Jackson observed Mr.
Simmons' vehicle. After advising HPD dispatch that he would attempt to stop the
vehicle, Ptn. Jackson activated his overhead emergency lights and siren and
pursued Mr. Simmons' vehicle. Despite having two flat tires on the passenger
side, Mr. Simmons did not stop his vehicle. At some point, Sergeant Roy Hughes
and Officer Keith Bergeron joined the pursuit, as did agents with the Louisiana
Department of Wildlife and & Fisheries.
As the pursuit continued, Mr. Simmons accelerated to fifty-five miles per
hour and appeared to have trouble controlling his vehicle, the passenger side tires
leaving the roadway on at least two occasions. At an intersection, Mr. Simmons
drove his vehicle into oncoming traffic and forced an approaching vehicle off the
roadway. Ultimately, Mr. Simmons ran his vehicle off the right side of the
roadway into a field next to Bayou Terrebonne. Ptn. Jackson, Sgt. Hughes, and
Officer Bergeron parked their units while the Wildlife & Fisheries agents
continued the pursuit with their off-road unit. As the officers approached, Mr.
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Simmons drove his vehicle into Bayou Terrebonne. With the engine still revving,
water began to fill the cabin of Mr. Simmons' vehicle.
The officers issued verbal commands to Mr. Simmons to shut off the engine
and get out of his vehicle; however, Mr. Simmons did not respond or follow those
commands. Sgt. Hughes and Officer Bergeron jumped into the bed of Mr.
Simmons' pick-up truck, trained their duty weapons on Mr. Simmons, and
repeated orders for him to exit his vehicle. Again, Mr. Simmons did not respond.
With the water inside the cabin rising to the level of the door handles, the
officers determined that they could not remove Mr. Simmons through either of the
vehicle doors and would have to extricate him through the vehicle' s rear window.
Sgt. Hughes advised Mr. Simmons that he was going to break the rear glass
window. After Sgt. Hughes broke the rear glass window with his baton, Mr.
Simmons did not respond to the officers' verbal commands to exit his vehicle
through the rear window. Officer Bergeron transitioned to his TASER after re -
holstering his duty weapon and deployed his TASER three times in order to subdue
Mr. Simmons for his failure to comply with the officers' verbal commands to exit
his vehicle. Sgt. Hughes and Officer Bergeron grabbed Mr. Simmons by his
clothes and pulled him through the rear window, placing him on his stomach in the
rear of the truck bed. As Sgt. Hughes attempted to handcuff him, Mr. Simmons
began swinging his arms and legs around, so Officer Bergeron again deployed his
TASER. After handcuffing Mr. Simmons, the officers moved him to the Wildlife
and Fisheries unit and drove back to the roadway to await emergency medical
services (" EMS"). While Mr. Simmons was incoherent and did not realize what
had happened, he was able to identify himself and provide the date and
approximate time.
EMS arrived, and responders treated Mr. Simmons for a head laceration.
Upon discovering that his blood sugar level was low, paramedics administered Mr.
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Simmons a dose of glucose. EMS transported Mr. Simmons to the hospital. No
alcohol or illegal drugs were found in Mr. Simmons' system. The treating
physician administered two more doses of glucose because Mr. Simmons' blood
sugar level again dropped. The treating physician informed Ptn. Jackson that Mr.
Simmons' low blood sugar level had likely caused Mr. Simmons' erratic actions
that night, i.e., Mr. Simmons not knowing what he was doing, nor being able to
remember his actions. Ptn. Jackson briefed Sgt. Hughes on the information he
received from the treating physician regarding Mr. Simmons' diabetic condition.
Sgt. Hughes maintained that because Mr. Simmons was able to answer his
questions prior to treatment by EMS responders, and because of the manner in
which Mr. Simmons was able to operate his vehicle during the high-speed chase,
Sgt. Hughes believed Mr. Simmons was in full control of his vehicle.
Once Mr. Simmons became lucid, Ptn. Jackson arrested Mr. Simmons at the
instruction of Sgt. Hughes. Mr. Simmons was charged with aggravated flight from
an officer ( La. R.S. 14: 108. 1( C)); resisting an officer ( La. R.S. 14: 108( B)( 1)( b));
hit-and- run driving ( La. R.S. 14: 100); and failure to follow traffic -control signals
red light violation) ( La. R.S. 32: 232( 3)( a)).
On October 8, 2009, Mr. Simmons filed a petition for damages against Sgt.
Hughes, Ptn. Jackson, and Terrebonne Parish Consolidated Government
TPCG"). ' Mr. Simmons alleged that during the December 23, 2008 incident, he
lost consciousness because of a diabetic episode. He claimed that he awoke to find
himself facedown and handcuffed in the bed of a pick-up truck surrounded by
numerous officers, including Sgt. Hughes and Ptn. Jackson. Mr. Simmons alleged
that he informed the officers that he was a diabetic and in need of care. He
claimed that during the incident, he advised the officers to check his wallet for his
diabetes card, but that the officers refused. Mr. Simmons averred that his damages
Mr. Simmons incorrectly identified TPCG as the " City of Houma" in his petition for damages.
M
were caused by the alleged abuse of force used by Sgt. Hughes and Ptn. Jackson
during the December 23, 2008 incident, which consisted of deploying a TASER on
Mr. Simmons multiple times and throwing Mr. Simmons to the ground and into the
bed of a pick-up truck using excessive force. Mr. Simmons further alleged that
Sgt. Hughes and Ptn. Jackson were employed by TPCG and acting within the
course and scope of their employment with TPCG at all pertinent times, entitling
him to recover under the theory of respondeat superior.2
On March 18, 2019, the defendants filed a motion for summary judgment on
the issue of liability. The defendants asserted that they were entitled to
discretionary immunity pursuant to La. R.S. 9: 2798. 1. The defendants also
asserted that they were entitled to immunity from liability for injuries sustained
while committing a felony offense pursuant to La. R. S. 9: 2800. 10, and while
2 Plaintiff' s petition alleged, in pertinent part:
2.
On or about December 23, 2008, Plaintiff, Bobby Simmons, Sr., was
involved in a motor vehicle accident in which he lost consciousness. Plaintiff
awoke to find himself face -down and handcuffed in the bed of a pick-up truck
surrounded by numerous officers, including Defendants, Roy Hughes and
Jeffery Jackson.
3.
That the Plaintiff, Bobby Simmons, Sr., was tazed at least four times
during his detention and arrest. That Plaintiff, Bobby Simmons, Sr., informed
the officers that he was a diabetic and in need of medical care and to please check
his wallet for his diabetes card, to which officers refused.
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Upon information and belief, said incident was due solely to the abuse by
force of defendants, Roy Hughes and Jeffery Jackson, which consisted
particularly, but not absolutely, to the following ostensible acts, to -wit:
A.) Tazing the Plaintiff at least 4 times;
B.) Throwing the plaintiff to the ground and the bed of a pick-up truck
while using excessive force on Plaintiff,
C.) All other acts of excessive force and violence and/ or fault will be set
forth at the trial of this matter.
5.
Plaintiff alleges on information and belief, that at all pertinent times, Roy
Hughes and Jeffery Jackson were employed by defendant, [ Terrebonne Parish
Consolidated Government]. Plaintiff further alleges that the above named
defendants were acting in the course and scope of their employment with
Terrebonne Parish Consolidated Government], entitling him to recover under
the theory of [respondent superior]. [ Emphasis in original.]
5
preventing a forcible offense pursuant to La. R.S. 9: 2800. 19. The defendants
sought summary judgment in their favor, finding that they were entitled to
immunity, that they did not use excessive force in arresting Mr. Simmons, and that
they were not liable to Mr. Simmons for any injuries or damages he may have
suffered because of his December 23, 2008 arrest. Mr. Simmons opposed the
defendants' motion for summary judgment.
Following a hearing on May 10, 2019, the trial court granted the defendants'
motion for summary judgment. That same day, the trial court issued reasons for
judgment, granting summary judgment in favor of the defendants and finding that
there was no dispute of material fact that the defendants did not use excessive force
during the arrest of Mr. Simmons. Because the trial court found that the
defendants did not use excessive force, the trial court ruled that the defendants
were entitled to immunity from liability under La. R. S. 9: 2798. 1, La. R.S.
9: 2800. 10, and La. R.S. 9: 2800. 19. On June 10, 2019, the trial court signed a
judgment in accordance with its reasons for judgment. The June 10, 2019
judgment granted the defendants' motion for summary judgment; held that there
were no genuine issues of material fact concerning Mr. Simmons' claims against
the defendants; held that under the facts and circumstances of this case, the
defendants' conduct did not rise to the level of excessive force; held that the
defendants were entitled to immunity under La. R.S. 9: 2798. 1, La. R.S. 9: 2800. 10,
and La. R.S. 9: 2800. 19; and dismissed all of Mr. Simmons' claims against the
defendants.
Mr. Simmons now appeals, arguing that the trial court erred in finding that
the officers' use of a TASER on an unarmed, disoriented, and
arresting
unresponsive man did not amount to excessive force.
on
STANDARD OF REVIEW
A motion for summary judgment is a procedural device used to avoid a full-
scale trial when there is no genuine issue of material fact. Georgia- Pacific
1st
Consumer Operations, LLC v. City of Baton Rouge, 2017- 1553 ( La. App.
Cir. 7/ 18/ 18), 255 So. 3d 16, 21, writ denied, 2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d
194. After an opportunity for adequate discovery, a motion for summary judgment
shall be granted if the motion, memorandum, and supporting documents show that
there is no genuine issue as to material fact and that the mover is entitled to
judgment as a matter of law. La. C. C. P. art. 966( A)(3).
The Code of Civil Procedure places the burden of proof on the party filing a
motion for summary judgment. La. C. C. P. art. 966( D)( 1). The mover may meet
this burden by filing supporting documentary evidence consisting of pleadings,
memorandum, affidavits, depositions, answers to interrogatories, certified medical
records, stipulations, and admissions with the motion for summary judgment. La.
C. C. P. art. 966( A)(4). The mover' s supporting documentary evidence must prove
the essential facts necessary to carry the mover' s burden. Thus, in deciding a
motion for summary judgment, it must first be determined whether the supporting
documents presented by the mover are sufficient to resolve all material fact issues.
Crockerham v. Louisiana Med. Mut. Ins. Co., 2017- 1590 ( La. App. 1st Cir.
6/ 21/ 18), 255 So. 3d 604, 608.
Once the mover properly establishes the material facts by its supporting
documents, the mover does not have to negate all of the essential elements of the
adverse party' s claim, action, or defense. La. C. C. P. art. 966( D)( 1); Babin v.
Winn- Dixie Louisiana. Inc., 2000- 0078 ( La. 6/ 30/ 00), 764 So. 2d 37, 39; Hayes
v. Autin, 96- 287 ( La. App. 3rd Cir. 12/ 26/ 96), 685 So. 2d 691, 695, writ denied,
97- 0281 ( La. 3/ 14/ 97), 690 So. 2d 41. The moving party must only point out to the
court the absence of factual support for one or more elements essential to the
7
adverse party' s claim, action, or defense. La. C. C. P. art. 966( D)( 1); Celotex Corp.
v. Catrett, 477 U.S. 317, 332, 106 S. Ct. 2548, 2557, 91 L. Ed. 2d 265 ( 1986)
Brennan, J., dissenting). See also La. C. C. P. art. 966, Comments --2015,
Comment 0). The burden then shifts to the non-moving party to produce factual
support, through the use of proper documentary evidence attached to its opposition,
which establishes the existence of a genuine issue of material fact or that the mover
is not entitled to judgment as a matter of law. La. C. C. P. art. 966( D)( 1). If the
non-moving party fails to produce sufficient factual support in its opposition which
proves the existence of a genuine issue of material fact, Article 966( D)( 1)
mandates the granting of the motion for summary judgment. Babin, 764 So. 2d at
40. See also Celotex Corp., 477 U.S. at 326, 106 S. Ct. at 2554.
Material facts are those that potentially insure or preclude recovery, affect
the litigant' s success, or determine the outcome of a legal dispute. Daniels v.
USAgencies Cas. Ins. Co., 2011- 1357 ( La. App. 1St Cir. 5/ 3/ 12), 92 So. 3d 1049,
1055. Appellate courts review evidence de novo using the same criteria that
govern the trial court' s determination of whether summary judgment is
appropriate. Thus, appellate courts ask the same questions: whether there is any
genuine issue of material fact and whether the mover is entitled to judgment as a
matter of law. Because it is the applicable substantive law that determines
materiality, whether a particular fact in dispute is material can be seen only in light
of the substantive law applicable to the case. Georgia- Pacific Consumer
Operations, LLC, 255 So. 3d at 22.
EXCESSIVE FORCE
The use of force by law enforcement officers must be tested using the
reasonable force" standard established by La. C. Cr.P. art. 220, which states: " A
person shall submit peaceably to a lawful arrest. The person making a lawful
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." The " reasonable force" test precludes clearly inappropriate force. See
La. C. Cr.P. art. 220, Official Revision Comment --1966 ( b). See also Kyle v. City
of New Orleans, 353 So. 2d 969, 972 ( La. 1977)
The use of force when necessary to effect an arrest is a legitimate police
function, whether such force is directed against the person arrested or one
interfering with the arrest. Picou v. Terrebonne Par. Sheriffs Office Through
Rozands, 343 So. 2d 306, 308 ( La. App. 1st Cir. 1977). If an arresting officer uses
unreasonable or excessive force, the officer and his employer are liable for any
injuries which result. See La. C. C. art. 2320. See also Picou, 343 So. 2d at 308.
The HPD Policy and Procedure Manual, General Order Number G2- 14,
PROCEDURES, Section B provides:
2. General Guidelines
a. The decision to use force must be based on
reasonableness and necessity, not emotions.
1) The lawful use offorce in any degree must be
based on a reasonable judgment that force is
necessary under the circumstances. Therefore,
for example, an officer shall always prevent
angerfrom affecting his decision to use force.
b. Force should be used only when it is reasonable to
believe that it is immediately necessary.
1) There must be an immediate and reasonable
need for the force used. When force in any
degree ( but particularly deadly force) is used
against a person, the officer' s action will be
judged in large part by whether the force was
reasonably necessary at the moment of its use.
Force, particularly deadly force, should not be
used except as a last resort.
3. Use ofForce in Self Defense
-
a. An officer may use only the degree offorce which is
reasonably and immediately necessary to protect
himself.
5. Use ofForce to Effect an Arrest
9
a.
A person must submit peaceably to a lawful arrest,
but there is no requirement that he submit peaceably
to an unlawful arrest.
1) ... If an officer uses force to effect what he knew
or should have known was an unlawful arrest,
his action will probably constitute a battery.
2) Louisiana courts have taken the position that a
person has the right to resist an unlawful
arrest. An officer, therefore, should do
everything possible to ensure that any arrest he
plans is lawful and that he proceeds in a lawful
manner in making the arrest.
b. When making a lawful arrest, an officer may use only
reasonable force to effect the arrest and detention.
He may not use unreasonable force or subject the
arrested person to unjustifiable violence.
1) In addition to the " lawful arrest" requirement,
the officer must limit the degree of force he
employs to affect an arrest to " reasonable
force. " This simply means that the degree of
force must be limited to that which is
reasonable ( not extreme or excessive) and
necessary to accomplish the arrest.
c. One making a lawful arrest may use reasonable force
to overcome any resistance or threatened resistance
ofthe person being arrested or detained.
1) An arresting officer may meet force ( or
threatened force) with a degree of force
reasonably necessary to subdue a suspect who
resists. An arresting officer who meets
resistance or opposition is not required to
retreat or to abort his purpose.
If the dignity of
the law and of those who are charged with its
enforcement is to be maintained, an officer
must stand his ground and use all force
reasonably necessafy to arrest and detain the
suspect. However, one of the law enforcement
officer' s primary functions is to protect the
public. Therefore, if an arrest at a particular
time or place will create a foreseeable and
great risk of harm to the public, the wiser
course ofaction may be to delay the arrest.
Whether the force used is reasonable depends upon the totality of the facts
and circumstances in each case. A court must evaluate the officers' actions against
10
those of ordinary, prudent, and reasonable men placed in the same position as the
officers and with the same knowledge as the officers. The degree of force
employed is a factual issue. Kyle, 353 So. 2d at 973. Several factors to be
considered in making this determination are the known character of the arrestee,
the risks and dangers faced by the officers, the nature of the offense involved, the
chance of the arrestee' s escape if the particular means are not employed, the
existence of alternative methods of arrest, the physical size, strength, and
weaponry of the officers as compared to the arrestee, and the exigencies of the
moment. Kyle, 353 So. 2d at 973.
DISCRETIONARY IMMUNITY:
OFFICERS OR EMPLOYEES OF A PUBLIC ENTITY
Louisiana Revised Statutes 9: 2798. 1 provides, in pertinent part:
A. As used in this Section, " public entity" means and
includes the state and any of its branches, departments,
offices, agencies, boards, commissions, instrumentalities,
officers, officials, employees, and political subdivisions
and the departments, offices, agencies, boards,
commissions, instrumentalities, officers, officials, and
employees of such political subdivisions.
B. Liability shall not be imposed on public entities or
their officers or employees based upon the exercise or
performance or the failure to exercise or perform their
policymaking or discretionary acts when such acts are
within the course and scope of their lawful powers and
duties.
C. The provisions of Subsection B of this Section are not
applicable:
1) To acts or omissions which are not reasonably related
to the legitimate governmental objective for which the
policymaking or discretionary power exists; or
2) To acts or omissions which constitute criminal,
fraudulent, malicious, intentional, willful, outrageous,
reckless, or flagrant misconduct.
Louisiana Revised Statutes 9: 2800. 10 provides, in pertinent part:
A. No person shall be liable for damages for injury,
death, or loss sustained by a perpetrator of a felony
11
offense during the commission of the offense or while
fleeing the scene of the offense.
B. The provisions of this Section shall apply regardless
of whether the injury, death, or loss was caused by an
intentional or unintentional act or omission or a condition
of property or a building. However, the provisions of this
Section shall not apply if injury to or death of a
perpetrator results from an intentional act involving the
use of excessive force.
Louisiana Revised Statutes 9: 2800. 19 provides:
A. A person who uses reasonable and
apparently
necessary or deadly force or violence for the purpose of
preventing a forcible offense against the person or his
property in accordance with R. S. 14: 19 or 20 is immune
from civil action for the use of reasonable and apparently
necessary or deadly force or violence.
B. The court shall award reasonable attorney fees, court
costs, compensation for loss of income, and all expenses
to the defendant in any civil action if the court finds that
the defendant is immune from suit in accordance with
Subsection A of this Section.
The Louisiana Supreme Court has held that La. R.S. 9: 2798. 1 is " clear and
unambiguous" and applies to " policymaking or discretionary acts when such acts
are within the course and scope of ... lawful powers and duties." Gregor v.
Argenot Great Central Insurance Company, 2002- 1138 ( La. 5/ 20/ 03), 851 So.
2d 959, 967; Herrera v. First National Insurance Company of America, 2015-
1097 ( La. App. Pt Cir. 6/ 3/ 16), 194 So. 3d 807, 814, writ denied, 2016- 1278 ( La.
10/ 28/ 16), 208 So. 3d 885. The defendant, TPCG, is clearly a " public entity" as
defined by the statute, and defendants Ptn. Jackson and Sgt. Hughes are " officers
or employees" of a public entity as contemplated by the statute. However, the
immunity provided by La. R.S. 9: 2798. 1 is not applicable to the defendants if their
actions constituted " criminal, fraudulent, malicious, intentional, willful,
outrageous, reckless, or flagrant misconduct." La. R.S. 9: 2798. 1( C)( 2); Miller v.
Village of Hornbeck, 2010- 1539 ( La. App. 3" Cir. 5/ 11/ 11), 65 So. 3d 784, 788.
12
Whether a given set of conduct rises to the level of " criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant misconduct" is a
standard created by law to determine whether liability will result from that
conduct; as such, the question of whether a given set of conduct rises to the level of
criminal, willful, outrageous, reckless, or flagrant misconduct" is purely a
question of law, and is within the province of the trial court to determine at the
summary judgment stage. Marshall v. Sandifer, 2017- 1246 ( La. App. 1St Cir.
9/ 21/ 18), 2018 WL 4520245, at * 5 ( unpublished), writs denied, 2018- 1907, 2018-
1991 ( La. 2/ 11/ 19), 263 So. 3d 896, 1152 ( citing Haab v. East Bank
Consolidated Special Service Fire Protection District of Jefferson Parish,
2013- 954 ( La. App. 5"' Cir. 5/ 28/ 14), 139 So. 3d 1174, 1180- 81, writ denied, 2014-
1581 ( La. 10/ 24/ 14), 151 So. 3d 609).
Once a public official raises the defense of qualified immunity, the burden
rests on the plaintiff to rebut it. See Trantham v. City of Baker, 2010- 1695 ( La.
App. 1St Cir. 3/ 25/ 11), 2011 WL 1103628, at * 4 ( unpublished), writ denied, 2011-
1049 ( La. 6/ 24/ 11), 64 So. 3d 221. Thus, the question before the trial court on the
defendants' motion for summary judgment, and now before us, is whether the
defendants' actions constituted " criminal, willful, outrageous, reckless, or flagrant
misconduct." In order for the plaintiff to defeat the defendants' claims of
discretionary immunity, it was incumbent upon him to put forth evidence showing
that the conduct of the defendants rose to the level of misconduct required by La.
R.S. 9: 2798. 1( C)( 2). Marshall, 2018 WL 4520245 at * 5 ( citing Haab, 139 So. 3d
at 1179- 80).
DISCUSSION
In support of their motion for summary judgment, the defendants submitted
the affidavit of Ptn. Jackson. According to Ptn. Jackson, on the night of the
incident after he was alerted by dispatch of a hit-and-run driver fleeing the scene in
13
a green GMC pickup truck with two flat tires, he arrived in the area and noticed the
pickup truck. Ptn. Jackson stated that he immediately activated his lights and
siren, but that Mr. Simmons did not stop, so he gave pursuit. According to Ptn.
Jackson, at an intersection with a red light, Mr. Simmons stopped his vehicle and
waited for the light to turn green, at which point Ptn. Jackson activated his PA
system and instructed Mr. Simmons several times to shut his engine off. However,
Ptn. Jackson stated that Mr. Simmons drove off when the light turned green. Ptn.
Jackson pursued him in a high- speed chase. During the pursuit, Ptn. Jackson stated
that Mr. Simmons appeared to have trouble controlling his vehicle and that on two
occasions, his passenger side tires left the roadway. As the vehicles approached
another intersection, Ptn. Jackson stated that Mr. Simmons swerved into the
oncoming lane of traffic, forcing a vehicle off the roadway. During the pursuit,
Officer Bergeron and Sgt. Hughes joined the pursuit, as later did Wildlife &
Fisheries agents. With Mr. Simmons accelerating to approximately fifty-five miles
per hour and having trouble controlling his vehicle, Sgt. Hughes ordered the
officers to slow their units down. According to Ptn. Jackson, after passing the
Houma airport, Mr. Simmons lost control of his vehicle and ran off the roadway
into a field next to Bayou Terrebonne. Ptn. Jackson stated that he, Officer
Bergeron, and Sgt. Hughes pursued Mr. Simmons' vehicle on foot while the
Wildlife & Fisheries agents pursued in their off-road vehicle. According to Ptn.
Jackson, Mr. Simmons then drove his vehicle into Bayou Terrebonne. Ptn.
Jackson stated that the officers gave very loud verbal commands to Mr. Simmons
to shut his engine off and to get out of his vehicle, which Mr. Simmons failed to
obey. At that point, Ptn. Jackson stated that Sgt. Hughes and Officer Bergeron
jumped into the bed of Mr. Simmons' pickup truck, whereupon Sgt. Hughes busted
out the glass of the rear window and continued to give Mr. Simmons loud verbal
commands to get out of his truck, otherwise he would be TASED. According to
14
Ptn. Jackson, Mr. Simmons failed to respond to commands, so Officer Bergeron
TASED him. After the officers pulled Mr. Simmons out of the truck and laid him
in the truck bed, Ptn. Jackson stated that Mr. Simmons resisted arrest by twisting
and pulling. Officer Bergeron TASED Mr. Simmons two more times. Ptn.
Jackson believed that Mr. Simmons was on some type of drugs. After handcuffing
Mr. Simmons, Ptn. Jackson stated that the officers advised Mr. Simmons of his
Miranda rights and moved him to the bed of the Wildlife & Fisheries unit to await
EMS. While waiting for an ambulance, Ptn. Jackson stated that Mr. Simmons
identified himself and was able to give the officers the date and approximate time.
In further support of their motion for summary judgment, the defendants
relied upon the affidavit and expert report of Kerry J. Najolia, who is retired from
the Jefferson Parish Sheriff' s Office and has over twenty- eight years of academic
instructional experience as a staff instructor, assistant training director, and training
director for the Jefferson Parish Sheriff' s Office Training Academy. Mr. Najolia
has consulted on law enforcement matters since 1986. In this matter, Mr. Najolia
reviewed Mr. Simmons' petition for damages; TPCG' s answer and affirmative
defenses; HPD internal affairs investigation; HPD offense/ case report and criminal
history report; HPD' s use of force policy, training policy, arrest/booking
procedures, and prisoner transport procedures; TPCG' s answers and responses to
interrogatories and requests for production of documents; and the Peace Officers
Standards and Training Council (" POST") certificates for Sgt. Hughes, Ptn.
Jackson, and Officer Bergeron.'
Mr. Najolia concluded that all of the officers were current in their training,
within the course and scope of their employment during the incident, and easily
identified as peace officers because the men were clad in official uniforms and
Mr. Najolia stated that all of the officers
driving marked police units.
3 As noted in his affidavit, these documents were attached to Mr. Najolia' s expert report.
15
appropriately responded to dispatch' s call regarding the hit-and-run by attempting
an investigatory stop of the suspected vehicle, alerting other officers of their
positions, giving loud verbal commands to Mr. Simmons to stop his vehicle,
pursing the vehicle, and then slowing down once Mr. Simmons began driving
without due regard for the safety of others. Mr. Najolia concluded that the plan
developed and deployed by Sgt. Hughes and Officer Bergeron for extricating Mr.
Simmons from his submerged cabin while the engine was racing and the vehicle' s
tires were spinning was consistent with the officers' training protocols. Mr.
Najolia further stated that it was appropriate for Sgt. Hughes and Officer Bergeron
to have their duty weapons trained on Mr. Simmons for safety reasons, and that it
was appropriate for Officer Bergeron to de- escalate his response to include TASER
since there were other officers who had lethal cover. Mr. Najolia stated that
o] fficers are trained that they can use less -lethal force to control resistant and/ or
aggressive behavior." Mr. Najolia opined:
Mrs. Simmons' actions of fleeing from [ o] fficers upon
their approach based on the totality of all of the other
circumstances known to them at that time surrounding
this incident provided officers the lawful justification to
pursue Mr. Simmons in an effort to conduct an arrest for
his criminal law violations.
Mr. Simmons' actions including but not limited to
crashing into a vehicle and fleeing the scene, refusing to
stop for [ Ptn.] Jackson and the other [ o] fficers, refusing
to obey verbal commands from the officers while they
were attempting to effect a lawful arrest[,] and resisting
arrest are criminal violations....
It is authorized and in accordance with [ HPD] policy,
procedures, protocols[,] and POST Use of Force Training
for officers to use less lethal force to control resistant and
or aggressive behavior during detentions and/ or arrest
situations.
Although the credibility of this case will be judged and
determined by the trier of fact, in my opinion, based on
the totality of the circumstances, the officers' use of force
was justified, reasonable[,] and in accordance with
16
policy, procedures, protocols[,] and training. These
officers responded as they were trained based on POST
and the [ HPD' s] training principles.
Officer Bergeron' s use of Non -Lethal Force ( activating
the TASER[)] ( 3) three times -in a probe mode was not
excessive and was reasonable based on Officer
Bergeron' s perception of an imminent, non -deadly threat.
Based on Officer Bergeron' s observations, he stated that
Mr. Simmons refused to obey verbal commands, made a
hissing sound[,] and moved in a manner that placed
Officer Bergeron in fear of being injured. Training
allows officers to use less lethal force options such as a
TASER to control resistant or aggressive behavior....
At that point, Officer Bergeron de- escalated his response
and with the assistance of Sergeant Hughes, physically
extricated Mr. Simmons through the rear truck window.
Officer Bergeron covered Mr. Simmons as Sergeant
Hughes began to handcuff the perpetrator.
Officer Bergeron stated that he did not activate his
TASER with the second cartridge until Mr. Simmons
began to actively resist Sergeant Hughes['] efforts to
handcuff him.
Based on contemporary Officer Survival Training, it was
appropriate for Officer Bergeron to escalate his response
and activate his TASER the [ third] time during this
incident based on Mr. Simmons['] active resistance.
It was according to protocol to contact Acadian
Ambulance EMS to examine Mr.
Simmons for any
injuries that he may have sustained during the traffic
crashes or this arrest.
It was according to protocol to transport Mr. Simmons to
Chabert Hospital for additional medical evaluations or
treatment.
Our review of the record indicates that the defendants properly established
the material facts through their supporting documentary evidence and pointed out
the absence of factual support for the contention that the defendants' actions
constituted " criminal, fraudulent, malicious, intentional, willful, outrageous,
reckless, or flagrant misconduct" based on the totality of the facts and
circumstances of this case. See La. C. C. P. art. 966( D)( 1). See also La. R.S.
9: 2798. 1( C)( 2) and Miller, 65 So. 3d at 788. Accordingly, the burden shifted to
17
Mr. Simmons as the non-moving party to produce factual support, through the use
of proper documentary evidence attached to his opposition, which establishes the
existence of a genuine issue of material fact or that the defendants are not entitled
to judgment as a matter of law. See La. C. C. P. art. 966( D)( 1).
In opposition to the motion for summary judgment, Mr. Simmons relied
upon the HPD Internal Affairs Investigation report into Sgt. Hughes' performance
relative to the December 23, 2008 incident, as well as Mr. Najolia' s affidavit.
Both documents were also submitted by the defendants in support of their motion
for summary judgment. Mr. Simmons argued that on the night of the incident, he
was traveling from church when he experienced an episode due to his diabetic
diagnosis; his blood sugar level dropped unknown to him, and as a result, he was
involved in a motor vehicle collision. Mr. Simmons could not recall any events
that happened from the time he left church to the time of his arrest. Despite being
informed by the EMS responders and the treating physician at the hospital that Mr.
Simmons' behavior was normal for a person experiencing a diabetic episode, the
HPD officers still arrested him. He argued that all charges against him were later
dropped by the district attorney. The HPD Internal Affairs Investigation report
into Sgt. Hughes' performance relative to the incident concluded that Sgt. Hughes
used poor judgment with instructing [ Ptn.] Jackson to arrest Mr. Simmons" after
he was treated at the hospital. The report concluded that Sgt. Hughes " ignored the
medics and physician' s evaluation of Mr. Simmons' condition. He could have had
Ptn.] Jackson' s report forwarded to the District Attorney' s Office for review to
determine whether or not charges should [ have] been filed against him."
After a thorough review of the evidence admitted in connection with the
motion for summary judgment, we do not find that a genuine issue of material fact
criminal,
was created regarding whether the defendants' actions constituted "
fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct." The defendants did gain knowledge after -the -fact of Mr. Simmons'
diabetic condition and that a diabetic episode was the likely explanation of his
erratic actions. During the incident, however, the defendants had no knowledge of
the diabetic character of Mr. Simmons. Furthermore, Mr. Simmons committed
what appeared to be a hit-and- run— a felony pursuant to La. R.S. 14: 100— and
apparent flight from officers— also a felony under La. R. S. 14: 108. 1( C).
Ptn. Jackson was the officer who activated his overhead emergency lights
and siren and began the pursuit of Mr. Simmons' vehicle after HPD dispatch
indicated that Mr. Simmons had engaged in a hit- and- run. Sgt. Hughes was the
officer who broke Mr. Simmons' rear window and physically extricated him from
his nearly submerged cabin and handcuffed him after Mr. Simmons ran his vehicle
4
into Bayou Terrebonne. As noted by Mr. Najolia in his expert report, the
defendants' use of force in these instances " was justified, reasonable[,] and in
accordance with policy, procedures, protocols[,] and training."' HPD Officer
4 Sgt. Hughes is the supervising officer who instructed Ptn. Jackson to later arrest Mr. Simmons
at the hospital.Unrelated to Sgt. Hughes' alleged use of "excessive force" during the incident,
Lieutenant Milton M. Wolfe, Jr., an investigating officer with the HPD Public Integrity Division,
investigated the question of whether Sgt. Hughes made a competent decision to have Mr.
Simmons arrested, or whether it was more logical for Sgt. Hughes to have Ptn. Jackson complete
his report, forward the matter to the district attorney' s office for review, and allow that office to
make the decision whether Mr. Simmons should have been charged, due to his diabetic
condition. Lt. Wolfe' s HPD internal report concluded that Sgt. Hughes failed to perform the
duties of his position in a " satisfactory manner." Following a hearing, the HPD disciplinary
board voted 6- 1 in favor that Sgt. Hughes failed to perform the duties of his position in a
satisfactory manner," in violation of Article 61 of the HPD Rules of Conduct. As a result of
Sgt. Hughes' conduct after the incident, along with previous poor evaluations and job
performance, the interim HPD police chief, Todd. M. Duplantis, demoted Sgt. Hughes from the
rank of Permanent Police Sergeant to the position of lower class Probational Patrolman First
Class.
5 As noted, Officer Bergeron— not a named defendant in this case— is the only responding
officer who employed TASER on Mr. Simmons during the incident. While the defendants'
expert Mr. Najolia opined that TASER is non -lethal and its use is reasonable based on an
officer' s perception of an imminent, non -deadly threat, the HPD internal report prepared by Lt.
Wolfe ( see n.4, supra.) indicated that he viewed the TASER audio and video footage of the
incident downloaded from Officer Bergeron' s TASER. Lt. Wolfe opined, " from what I
observed, it is my professional opinion that it was ` excessive."' HPD Training Officer Karl
Beattie and HPD Captain Greg Hood, the Uniform Car Patrol Watch Commander, viewed the
videotape with Lt. Wolfe. They concurred with Lt. Wolfe' s assessment that Officer Bergeron
appeared to be, extreme with deploying the [ TASER] on Mr. Simmons."
The record on appeal shows that Plaintiff/Appellant Mr. Simmons did not name Officer
Bergeron as a defendant in this case. Any inadequacy of the record is imputed to the appellant.
19
Keith Bergeron— not a named defendant in this case— is the only responding
officer who employed TASER on Mr. Simmons during the incident.
Based on the totality of the facts and circumstances of this case, including
the known character of Mr. Simmons and nature of the offenses involved, the
defendants' use of force in this instance was reasonable when evaluated against
that of ordinary, prudent and reasonable men placed in the same position as the
officers and with the same knowledge as the officers. Mr. Simmons pointed out no
facts that elevated the defendants' actions to the level of misconduct required by
La. R.S. 9: 2798. 1( C)( 2). Therefore, the defendants are entitled to statutory
immunity pursuant to La. R.S. 9: 2798. 1, La. R.S. 9: 2800. 10, and La. R. S.
9: 2800. 19. Having determined that the defendants are immune from liability, they
are entitled to summary judgment dismissing Mr. Simmons' petition and all of his
claims.
DECREE
The trial court' s June 10, 2019 judgment is affirmed. All costs of this appeal
are assessed to the plaintiff, Bobby Simmons, Sr.
AFFIRMED.
See La. C. C. P. art. 2128. See also Rover Grp., Inc. v. Clark, 2018- 1576 ( La. App. Pt Cir.
12/ 12/ 19), 291 So. 3d 699, 707, writ denied, 2020- 00101 ( La. 3/ 9/ 20), 294 So. 3d 481.
20