# Donaldsonville Glass and Body Works, Inc. v. Gonzales Municipal Police Department

> District Court, M.D. Louisiana · September 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10648762

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** September 27, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DONALDSONVILLE GLASS AND CIVIL ACTION
BODY WORKS, INC.
VERSUS 22-817-SDD-RLB
CITY OF GONZALES, ET AL.
consolidated with

SOUTHERN TOWING & TRANSPORT, CIVIL ACTION
LLC, ET AL
VERSUS 23-473-SDD-RLB
CITY OF GONZALES

RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by
Defendant, City of Gonzales (“Defendant”). Plaintiffs, Southern Towing & Transport, LLC
(“Southern Towing”) and Gonzales Towing and Repair, Inc. (Gonzales Towing”)(or
collectively “Plaintiffs”) filed an Opposition2 to this motion, to which the Defendant filed a
Reply.3 For the reasons below, the Court will grant in part and deny in part Defendant’s
Motion for Summary Judgment.

1 Rec. Doc. 39.
2 Rec. Doc. 42.
3 Rec. Doc. 43.
I. FACTUAL BACKGROUND
This lawsuit arises out of Plaintiffs’ claim that the City of Gonzales violated their
First Amendment rights of political speech and association and created an illegal
monopoly by adopting a five-company towing rotation list for the City.4 The Plaintiffs were
not selected to the Defendant’s towing rotation list, allegedly because they did not support

City of Gonzales Chief of Police Sherman Jackson’s (“Chief Jackson”) latest re-election
bid.
The Defendant submits the following background and facts in support of its Motion
for Summary Judgment
Louisiana Revised Statute 32:1735 sets forth the actions law enforcement must
take when they determine a vehicle must be towed and the procedure for operating a
towing rotation list. Section A provides that an officer must first allow the owner or
operator to choose a licensed towing company to tow their vehicle; however, if the owner
or operator does not or cannot make this choice, the towing rotation list for the jurisdiction

is utilized to select a towing company.
The towing rotation list consists of licensed towing companies within the
jurisdiction. Once a company is selected to perform a tow, that company moves to the
end of the rotation, and the next company on the list is contacted for the next required
tow. Again, utilization of the towing rotation list only occurs when the owner or operator
of the vehicle does not select their own towing company.5
Before creating its own rotation list in 2022, the City of Gonzales’s towing was
managed by the Ascension Parish Sheriff’s Office, and Chief Jackson had no control or

4 Rec. Doc. 18, ¶¶ 6, 13, 15, 16, 19, 22.
5 La. R.S. 32:1735(D).
authority over any aspects of the rotation list.6 However, due to some leadership changes
in the Ascension Parish Sheriff’s Office, which resulted in policy changes, Chief Jackson
began exploring the possibility of creating his own towing rotation list for the City of
Gonzales, and he tasked Officer Tyson Dennis (“Officer Dennis”) to seek guidance from
the State Police on how to accomplish this.7

Officer Dennis spoke regularly with the Louisiana State Police on how the City of
Gonzales could properly create its own list pursuant to the applicable statutes and
regulations.8 Officer Dennis was advised that the City of Gonzales could create its own
list, and Chief Jackson would have the sole discretion of who to place on the list.9 Based
on the State Police assurances and guidance, Chief Jackson instructed Officer Dennis to
create the platform for the new towing rotation list.10
Officer Dennis created an application for the towing list, which Chief Jackson
approved; they then discussed what companies could serve the city best and decided,
for simplicity, they wanted only five companies on the list.11 Chief Jackson and Officer

Dennis established the application process. In theory, applications are initially reviewed
by Officer Dennis and then brought to Chief Jackson for consideration.12 Further, again
for the sake of simplicity, Chief Jackson and Officer Dennis determined that management
of the towing rotation list would “piggyback” off the State Police procedures, i.e., if a towing
company was accepted as compliant with the law by the State Police, the City of Gonzales
could likewise consider that company for its list without Defendant independently vetting

6 Rec. Doc. 39-5, pp. 13-14.
7 Id. at pp. 15-16.
8 Rec. Doc. 39-7, pp. 28-31.
9 Rec. Doc. 39-5, p. 24.
10 Id. at p. 31.
11 Id. at pp. 32-33.
12 Id. at p. 108.
that company. Conversely, if a towing company was found non-compliant, State Police
would notify Officer Dennis of the violation, and the City of Gonzales would suspend or
not consider that company.13 Because Louisiana law allows a municipality enforcing its
own towing rotation list to adopt “minimum standards” consistent with the Office of State
Police, or to comply with the standards established by State Police, Defendant was

utilizing the exact systems of the State Police in following the law.14
Yancy Ball (“Ball”) founded Gonzales Towing in 1997 and owns this company with
his mother; there are no other employees of Gonzales Towing.15 Ball’s mother handles
the bookkeeping, and Ball alone drives the wrecker.16 The only services Gonzales
Towing provides are towing and vehicle storage.17 Currently, Gonzales Towing is on four
rotations lists – Ascension Parish, the State Police of Ascension Parish, the State Police
of Baton Rouge, and the City of St. Gabriel18 – and, although it is not on Defendant’s
towing rotation list, Gonzales Towing still receives towing requests within the City of
Gonzales.19

Chief Jackson has served as Chief of Police for the City of Gonzales for fifteen
years and is currently in his fourth term.20 Ball donated $2,500 to Chief Jackson during
his first political campaign for Chief of Police21 because he believed Chief Jackson would
be good for the towing community.22 Ball testified that he has never supported any of

13 Id. at pp. 44-47, 97; Rec. Doc. 39-7, pp. 58-59, 62, 73.
14 La. 32:1735(C).
15 Rec. Doc. 39-4, pp. 15, 26-28.
16 Id. at p. 114.
17 Id. at p. 35.
18 Id.
19 Id. at p. 107.
20 Rec. Doc. 39-5, p. 9.
21 Rec. Doc. 39-4, pp. 75-76.
22 Id. at pp. 82-83.
Chief Jackson’s political opponents.23 During his deposition, Chief Jackson could not
recall either Plaintiff ever contributing to his political campaigns.24
Colby Palmer (“Palmer”) founded Southern Towing in 2021, and he is the sole
driver for the company.25 The only services Southern Towing provides are towing and
vehicle storage.26 Southern Towing is currently on only one rotation list for the Ascension

Parish Sheriff’s Office, and this is the only towing rotation his company has been on since
its inception.27 Palmer testified that he has tried to get his company on additional towing
rotation lists but has failed because “there’s only so many spots.”28 Although not on
Defendant’s list, Palmer acknowledged that he still receives special towing requests from
the City of Gonzales.29
Palmer testified that Chief Jackson never asked him for a political donation, he has
never made a donation to the Chief, and he has never supported any of the Chief’s
opponents.30 Palmer believes Southern Towing was originally on Defendant’s rotation
list but was removed because his “spot was bought by somebody else.”31

Palmer and Ball testified that Ascension Parish Sheriff Bobby Webre (“Sheriff
Webre”) told them that if they wanted their companies on the City of Gonzales rotation
list, they needed to give more political support to Chief Jackson.32 Plaintiffs testified that
they believed Sheriff Webre was speaking on behalf of Chief Jackson, or in other words,

23 Id. at p. 79.
24 Rec. Doc. 39-5, p. 133.
25 Rec. Doc. 39-6, pp. 15, 17.
26 Id. at p. 17.
27 Id. at p. 20.
28 Id.
29 Id. at pp. 55-56.
30 Id. at pp. 39-40.
31 Id. at p. 46
32 Id. at pp. 38-39; Rec. Doc. 39-4, p. 71.
delivering this message for Chief Jackson because he refused to meet with Palmer and
Ball.33 Defendant contends that the Ascension Parish Sheriff’s Office is an entirely
separate entity, and Sheriff Webre was not speaking on behalf of Chief Jackson. Chief
Jackson testified that “[a]nybody that offers me money to be on my list will not be on my
list.”34

Defendant maintains that neither Plaintiff ever submitted an application to be on
Defendant’s towing rotation list;35 Defendant contends “nothing is preventing these
plaintiffs from submitting an application to be placed” on its towing rotation list.36
Moreover, Chief Jackson testified that he was not aware of Southern Towing’s existence
when Defendant’s list was created.37 Five companies that applied for Defendant’s 2022
towing list were accepted: American Towing, Ascension Towing, Carter’s Towing,
Fisher’s Towing, and Tullier’s Towing.38
Defendant maintains the evidence does not support Plaintiffs’ theory that Chief
Jackson only selected political contributors to the City of Gonzales towing list. Although

Plaintiffs allege that Daryl Tullier (“Tullier”), owner of Tullier’s Towing, donated to Chief
Jackson’s campaign, Tullier testified under oath that he has never donated to Chief
Jackson’s campaigns.39 Ball testified that Karek’s Wrecker Service donated to Chief
Jackson,40 but Karek’s Wrecker Service was not selected to the towing list. Further, if
political donations were a requirement for selection, Plaintiff Gonzales Towing would have

33 Rec. Doc. 39-4, p. 71; Rec. Doc. 39-6, pp. 38-39.
34 Rec. Doc. 39-5, p. 80.
35 Rec. Doc. 39-4, pp. 65-66; Rec. Doc. 39-5, p. 72; Rec. Doc. 39-6, p. 34.
36 Rec. Doc. 39-5, pp. 75-76.
37 Id. at pp. 54, 123, 141.
38 Rec. Docs. 39-8, 39-9, 39-10, 39-11, 39—12.
39 Rec. Doc. 39-13, pp.
40 Rec. Doc. 39-4, p. 74.
made the list because Ball testified that he donated to Chief Jackson’s first campaign.41
Defendant maintains that, although Plaintiffs allege that towing list selections were made
based on political support for Chief Jackson, this suggestion came from Sheriff Webre
and not anyone associated with Defendant.42
After Gonzales Towing was not selected to Defendant’s list, Ball contacted his

friend, St. Gabriel Chief of Police Kevin Ambeau (“Chief Ambeau”), and asked him if Chief
Ambeau would speak to Chief Jackson on behalf of Gonzales Towing.43 Although Ball
testified he did not ask Chief Ambeau to inquire about a dontation,44 Chief Jackson
testified that Chief Ambeau asked him if a political donation could result in a company
being included on the towing list.45 Chief Jackson testified:
He called me on the phone. He said, Yancy is trying to get on your wrecker
list, or something to that nature, and I said, Chief, the decision is already
made; Yancy is not on the list. Then he went on to say, well, is it possible
he can give you some campaign money so he can get on the list? I said, I
would think that would be unethical, probably against the law, at least
coniving, right. I said, tell Yancy he can keep his money. I do not need
money. So, that was the end of that conversation.46

Chief Jackson further testified that Gonzales Towing was free to apply to the rotation list,
but “anybody that offers [him] money to be on [his] list will not be on [his] list.”47
Defendant notes that Plaintiff Southern Towing applied to be on Troop A of the
Office of State Police’s towing rotation list (covering Ascension Parish), but it was not
selected because all ten spots were full.48 Defendant contends this demonstrates that it

41 Id. at p. 76.
42 See Rec. Doc. 39-4, pp. 69-71; Rec. Doc. 39-6, p. 39.
43 Rec. Doc. 39-4, p. 101.
44 Id.
45 Rec. Doc. 39-5, p. 79.
46 Id.
47 Id. at p. 80.
48 Rec. Doc. 39-6, p. 25.
is lawful to have a limited number of spots and reject new applicants when all spots are
filled. Additionally, Defendant notes that Plaintiffs are not the only companies that were
not selected to its towing rotation list; Chief Jackson estimated that nine other towing
companies that likely wanted to be on the list were not selected.49
Finally, Defendant contends Plaintiffs cannot show that they have suffered

damages as a result of not being selected to Defendant’s towing list. Ball testified that
Gonzales Towing made the same profits over the past four years,50 and Palmer testified
that his tax returns would not show any loss in revenues.51 Plaintiffs have produced no
documents that would demonstrate any revenue loss because they are not on
Defendant’s towing rotation list. Accordingly, Defendant maintains it is entitled to
summary judgment.
Plaintiffs’ version of events is remarkably different than Defendant’s. Plaintiffs are
both duly licensed and certified companies operating towing and recovery services in
Gonzales, Louisiana; they are both fully compliant with all applicable laws and regulations
for the state of Louisiana.52 Plaintiffs claim that, historically, a significant portion of their

business came from callouts by the Defendant City of Gonzales to tow vehicles.53
However, in 2022, when Defendant decided to create its own list independent from the
Ascension Parish Sheriff’s Office list, their income significantly decreased.54
While Plaintiffs acknowledge that Chief Jackson directed Officer Dennis to
coordinate with Louisiana State Police in creating and implementing Defendant’s own

49 Rec. Doc. 39-5, p. 69.
50 Rec. Doc. 39-4, p. 114.
51 Rec. Doc. 39-6, p. 48.
52 Rec. Doc. 42-1, pp. 14-15; Rec. Doc. 42-2, pp. 15-16.
53 Rec. Doc. 42-1, pp. 103-111 (these pages are not attached to Plaintiffs’ exhibit; however, the Court
accessed them via Defendant’s exhibit, Rec. Doc. 39-4); Rec. Doc. 42-2, pp. 47, 57-58.
54 Id.
towing rotation list, Plaintiffs contend Officer Dennis did not advise State Police that
Defendant intended to “pre-select” companies “not [] based on any legally permissible
criteria.”55 Plaintiffs cite the deposition testimony of Officer Dennis, who testified that
Chief Jackson gave him names of tow companies he wanted on Defendant’s list prior to
the initiation of any application process.56 Officer Dennis affirmed that the five companies

Chief Jackson selected for Defendant’s list were selected without completing applications
beforehand.57
Plaintiffs claim the five towing companies were selected because they are
politically affiliated with Chief Jackson or have done personal favors for him. Plaintiffs
cite the Declaration of Frank Credidio (“Credidio”), manager of Ascension Towing and
Recovery, LLC, a company that is on Defendant’s list.58 Credidio attests that he was told
by Chief Jackson that his company would be added to Defendant’s towing rotation list
“because [he] assisted towing [Chief Jackson’s] personal equipment out of a ditch” free
of charge.59 Credidio also attested that, each year, his company is “preselected to

participate on the towing rotation list by Chief Jackson” before he completes and submits
reapplications for the new year.60
Ball was told by Chief Ambeau, who heard from his cousin, Floyd Russo, Jr., owner
of American Towing, that Chief Jackson said “whoever supports me is going to be on my

55 Rec. Doc. 42, p. 3.
56 Rec. Doc. 42-3, pp. 25-27, 33-37.
57 Id.
58 Rec. Doc. 42-17.
59 Id. at ¶¶ 3-5.
60 Id. at ¶ 6.
list.”61 Based on this information, Ball initially donated to Chief Jackson’s first campaign;62
however, he stopped supporting Chief Jackson financially after Chief Jackson allegedly
sent Ball’s girlfriend a sexually inappropriate message in 2013 prompting Ball to confront
Chief Jackson publicly in a restaurant.63 After this confrontation, Ball was told by Chief
Ambeau that Chief Jackson was embarrassed by Ball in public.”64 Ball also testified that

he was told by Officer Dennis that he “was never getting on the list” because of this
confrontation.65 Ball spoke to his uncle about the situation, and Ball’s uncle asked Chief
Jackson why Ball’s company was not on the list; Ball’s uncle advised Ball that Chief
Jackson stated that it was because did not “get to be with [Ball’s] woman,” and because
Ball embarrassed him in public.66
Plaintiffs cite Chief Jackson’s Campaign Finance Disclosures which show that
Corey Fisher (“Fisher”), initially the owner of Fisher’s Towing, contributed to Chief
Jackson in 2012, 2013, 2015, and 2016.67 Ball testified that Fisher told him he would
perform various services for Chief Jackson and the police department, including hauling

Chief Jackson’s personal equipment, outfitting police units, and writing higher estimates
for police unit repairs so Chief Jackson and the police department would receive
better/newer vehicles.68 The new owners of Fisher’s Towing, Melissa and Jessie James,
are politically affiliated with the City of Gonzales Police Department. Lieutenant Lance

61 Rec. Doc. 39-4, pp. 74-75. Plaintiffs’ counsel makes the disingenuous statement that Chief Jackson
“admitted” this to Ball; however, this statement was delivered by a third-party who still lacked direct
knowledge, and it is hearsay.
62 Rec. Doc. 39-4, p. 76.
63 Id. at pp. 82-88.
64 Id. at p. 88.
65 Id. at p. 91.
66 Id. at pp. 91-92.
67 Rec. Doc. 42-6.
68 Rec. Doc. 39-4, pp. 72-73.
Bourgeois (“Lt. Bourgeois”) testified that he and his wife are personal friends of the
Jameses, and they have often socialized together.69 Additionally, Palmer testified that he
was told that Fisher Towing funded a party for graduates of the City of Gonzales Police
Department.70
Plaintiffs claim the preselection of companies for Defendant’s towing rotation list

violates Louisiana law, specifically LAC 55, Chapter 19, Subchapter A, Section 1947(D),
which requires that any entity seeking to be on a municipality’s towing rotation list must
be afforded the opportunity to submit an application. Plaintiffs refer back to Officer
Dennis’ testimony wherein he admitted that the five companies on Defendant’s list were
selected before they applied, and their applications were only completed after they had
already been chosen.71 Further, Section 1947(D)(2) requires the Defendant to “review”
and “determine” whether the towing company applicants are eligible to be on the list,
which could not have happened since Chief Jackson chose these companies without
reviewing any applications. Officer Dennis testified that Action Towing was placed on the

list at Chief Jackson’s direction and without submitting an application; Dennis himself
hand-delivers or emails the applications to the five companies every renewal year, and
they are then returned to or picked up by Officer Dennis.72
Plaintiffs contend Chief Jackson has admitted that he does not follow the legal
process in making the towing rotation list selections because he could not confirm if he
had reviewed the 2022 or 2023 applications;73 Chief Jackson stated:

69 Rec. Doc. 42-7, pp. 21-23.
70 Rec. Doc. 42-2, pp. 87-88.
71 Rec. Doc. 42-3, pp. 27, 33-34.
72 Id. at pp. 47-48.
73 Rec. Doc. 42-4, pp. 68, 110.
Like I said before, it was all under my discretion. I told Tyson, you know,
the wreckers that I wanted. He said that Ascension Towing had the
eighteen-wheeler wrecker, and he would like to see them on there … I think
I was the one to call the wreckers, and the ones that I chose, and told them
what was going on and when it was going to start. Nobody knew anything
except for me and Tyson. The Police Department did not know. The Sheriff
knew, but that was about it.”74

Chief Jackson was asked: “So nobody knew, including my clients, that the City of
Gonzales was creating a separate towing rotation list other than, as you said, the Sheriff,
yourself, Mr. Dennis, and then the five entitles that you had selected?” to which he
responded, “Correct.”75
The Defendant issued Gonzales Police Department Procedure 501 “Vehicle
Towing” and Procedure 503 “Vehicle Towing Procedures” purporting to establish policy
and procedures relating to towing vehicles.76 Captain Stephen Nethken (“Cpt. Nethken”)
of the Gonzales Police Department assisted with the drafting of the policy; he testified
that he heavily plagiarized the State Police policy, and he also included certain items that
Chief Jackson wanted in the policy.77 Cpt. Nethken acknowledged, as the writer of the
policy, that the State Police application process was incorporated into Defendant’s policy
by referencing Title 37.78 Cpt. Nethken agreed that, if the five companies were
preselected without ever submitting an application, that would be a violation of state law
and Gonzlaes Police Department policy.79
When Ball learned of this pre-selected towing rotation list in late 2021, and that his
company Gonzales Towing was not on the list,80 he asked Officer Dennis about getting

74 Id.at p. 115:10-116:2.
75 Id. at p. 117:3-8.
76 See Rec. Doc. 42-3, Exhibit 5 (CM/ECF pp. 31-35).
77 Rec. Doc. 42-8, pp. 20-21.
78 Id. at pp. 22-24.
79 Id. at p. 24.
80 Rec. Doc. 39-4, pp. 23-24.
on the list, and Officer Dennis told Ball that he would never get on Chief Jackson’s list.81
Ball admitted that Officer Dennis did not tell him he could not apply, but Ball interpreted
Officer Dennis’ response to say that it would make no difference if Ball applied because
Chief Jackson “specifically blackballed [his] business.”82 Additionally, Officer Dennis
confirmed that the application process involved Officer Dennis delivering the applications

to the companies Chief Jackson wanted; thus, because Ball was never provided an
application, he believes he was excluded from applying.83
Initially, Palmer heard from the owners of Tullier’s Towing and Fisher’s Towing that
his company would be on Defendant’s towing rotation list.84 Despite this, weeks passed,
and Southern Towing was not on the list.85 Palmer attempted to contact Chief Jackson
and others in the Gonzales Police Department, but no one returned his calls.86 Palmer
testified that he was later told by Foster that Southern Towing’s spot on the list had been
“bought by somebody else,” and Foster believed this was Ascension Towing.87
On February 8, 2022, Palmer and Ball participated in a meeting with other area

towing companies that was led by Officer Dennis. During this meeting, Officer Dennis
advised those in attendance that the City of Gonzales was unilaterally implementing a
towing rotation list, limited to five towing companies, and Plaintiffs were excluded from
participating in the towing rotation list.88 Following this meeting, Plaintiffs inquired how
they could get on Defendant’s list; Officer Dennis purportedly advised Palmer that there

81 Id. at p. 65.
82 Id.
83 Id. at pp. 80-81.
84 Rec. Doc. 42-2, pp. 41-42, 46.
85 Id. at pp. 42-43.
86 Id. at p. 43.
87 Id. at p. 46.
88 Defendant admits this fact. Rec. Doc. 39-4, pp. 147-148; Rec. Doc. 39-6, pp. 31-34.
was no point in applying because Southern Towing would never get on the list.89 When
Ball had an attorney contact Officer Dennis to apply for Defendant’s list, Officer Dennis
purportedly refused Ball’s application and advised that Ball needed to “advertise more”
because he was “never getting on the list.”90 Chief Jackson purportedly advised Palmer
that Southern Towing was left off the list because he was unaware of its existence;91 Chief

Jackson purportedly later told Ball that he [the Chief] could do whatever he wanted and
could not be “touched.”92
Ball and Palmer subsequently met with Sheriff Webre to discuss Defendant’s
towing rotation list; both Ball and Palmer claim Sheriff Webre advised them that neither
of their companies would ever be on Defendant’s list so long as Chief Jackson was the
chief, and Sheriff Webre purportedly told them Chief Jackson’s actions were illegal and
they should sue.93
Plaintiffs maintain that this process is illegal and continues to be carried out, year
after year, without providing Plaintiffs an opportunity to apply for the Defendant’s list.

During the summer of 2023, the owner of Carter’s Towing passed away, and the business
ceased operations. Despite this, Plaintiffs were never given an opportunity to apply for
the vacancy; rather, Chief Jackson preselected Action Towing to replace Carter’s without
first receiving an application from Action Towing or determining whether Action was
qualified under the law.94

89 Rec. Doc. 39-6, p. 34.
90 Rec. Doc. 39-4, p. 91.
91 Rec. Doc. 39-6, pp. 83-84.
92 Rec. Doc. 39-4, pp. 78, 136-137.
93 Rec. Doc. 39-6, pp. 38-89; Rec. Doc. 39-4, pp. 69-71.
94 Rec. Doc. 39-6, pp. 78-80; Rec. Doc. 39-6, pp. 60-61, 133-135; Rec. Doc. 42-3, pp. 46-47, 103-104.
Further, citing to the deposition testimony of Tyson Dennis and Sheriff Jackson,
Plaintiffs claim the Defendant continues to simply “piggyback” off the State Police list
without undertaking its own efforts to review and determine that the companies selected
comply with all applicable laws and regulations.95 Plaintiffs contend that all towing
companies on the current list are non-compliant with applicable law and regulations in

various ways; yet, Defendant refuses to enforce the law and remove them from the list.96
For example, Tullier’s Towing stores over 100 towed vehicles outside a fence or
other physical barrier in violation of LAC 55, Chapter 19, Subchapter A.97 Although this
violation can be easily observed by passing the business, Chief Jackson claimed he was
unaware of this violation until his deposition;98 Chief Jackson nevertheless believes he
has the discretion to determine whether a violating company mut be removed from the
list.99 Plaintiffs also claim that, pursuant to City Ordinance 22-3, Fisher’s Towing yard is
located in a residential zone, rendering it ineligible to be on Defendant’s list.100 Like
Tullier’s Towing, American Towing also stores towed vehicles outside of a fence or other
barrier, in violation of applicable laws and regulations.101 In fact, in November 2022,

American Towing was suspended for a brief time from the State Police towing rotation list
(and thus, also from Defendant’s towing rotation list) for this violation; yet, Plaintiffs were
never given an opportunity to apply for this vacancy during American Towing’s
suspension.102 Chief Jackson testified that, while he did not know why American Towing

95 Rec. Doc. 42-3, pp. 58, 62-63, 73-74; Rec. Doc. 42-4, pp. 44-46.
96 Rec. Doc. 42, pp. 11-15.
97 Defendant admits this fact. Rec. Doc. 42-5, pp. 8-14, 42-43, 47-48, 59-75 & Exhibit 2 (CM/ECF pp. 32-
36).
98 Rec. Doc. 42-4, p. 91-92.
99 Id. at pp. 148-149.
100 Defendant admits this fact.
101 Defendant admits this fact.
102 Rec. Doc. 42-4, p. 50, 73, 75.
was suspended, he would normally “be fair and give people time to get into
compliance.”103 Ball claims that Ascension Towing sells dismantled vehicle parts to non-
licensed dismantlers, but this claim in not supported by any evidence other than Ball’s
belief.104 Finally, Action Towing’s storage yard is located within a commercial zone rather
than an industrial zone in violation of City Ordinance 22-3, yet Ascension Towing remains

on the list and is routinely preselected each year.105
Plaintiffs contend Defendant monopolized the towing industry in the City of
Gonzales, and this caused Plaintiffs significant financial loss. Palmer testified that, after
Defendant implemented its list, he lost approximately seven to ten tows per week within
the City of Gonzales.106 Ball testified that his business went from “a couple of calls a day
from the sheriff’s office, then we went to one call a week.”107 Plaintiffs argue their loss
amount can be calculated using Defendant’s accident reports showing the number of
callouts and that “[m]ultiplying the potential income for each tow times the number of tows
they lost demonstrates their financial loss.”108 Plaintiffs claim these accident reports were

sought in discovery but not produced by Defendant.
Plaintiffs filed this lawsuit seeking declaratory and injunctive relief; they ask the
Court to declare Defendant’s Vehicle Towing Procedure unlawful based on the “practice
of excluding qualified tow companies from participation on the rotational list on account
of political affiliation.”109 Plaintiffs also assert a claim of First Amendment retaliation for

103 Id. at p. 73.
104 Rec. Doc. 39-4, pp. 138-140
105 Defendant admits this fact. Rec. Doc. 42-15, pp. 41-43.
106 Rec. Doc. 42-2, pp. 47, 57-58.
107 Rec. Doc. 39-4, p. 103.
108 Rec. Doc. 42, p. 15.
109 Civil Action No. 23-473-SDD-RLB, Rec. Doc. 1-2, p. 6.
political speech/association and violations of Louisiana antitrust statutes. Defendant
moves for summary judgment on all claims.
II. LAW AND ANALYSIS
A. Summary Judgment Standard

A court should grant a motion for summary judgment when 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.”110 The party moving for summary judgment is initially responsible for
identifying portions of pleadings and discovery that show the lack of a genuine issue of
material fact.111 A court must deny the motion for summary judgment if the movant fails
to meet this burden.112
If the movant makes this showing, however, the burden then shifts to the non-
moving party to “set forth specific facts showing that there is a genuine issue for trial.”113
This requires more than mere allegations or denials of the adverse party's pleadings.
Instead, the nonmovant must submit “significant probative evidence” in support of his
claim.114 “If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.”115
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment.116 The court is also required to view all evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in that

110 Fed. R. Civ. P. 56.
111 Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
112 Id.
113 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted).
114 State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990) (citing In re Mun. Bond Rep.
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)).
115 Anderson, 477 U.S. at 249 (citations omitted).
116 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
party's favor.117 Under this standard, a genuine issue of material fact exists if a reasonable
trier of fact could render a verdict for the nonmoving party.118
B. Declaratory Relief – Gonzales Police Department Procedure 503
The Louisiana Towing and Storage Act (“the Act”), La. R.S. 32:1711 et seq.,
outlines the procedure for the creation and maintenance of a tow rotation list that is used

when a vehicle must be towed from a roadway.119 It provides:
A. When a law enforcement officer determines that a motor vehicle must
be towed, the law enforcement officer shall give the owner or operator
of the motor vehicle the option to select a licensed towing company to
tow his vehicle. If the owner or operator of the motor vehicle is unable to
select a licensed towing company, chooses not to select a particular
licensed towing company, or an emergency situation requires the
immediate removal of the vehicle, the next available licensed towing
company on the approved law enforcement rotation list shall be called
by the law enforcement officer to tow the vehicle.

B. The towing company selected by the owner or operator of a motor
vehicle or the law enforcement officer shall be allowed to respond to the
call within forty-five minutes. If the towing company fails to respond
within forty-five minutes, the law enforcement officer may select the next
available towing company from the approved rotation list.120

The Act also provides that “[l]aw enforcement agencies may establish a rotation
list of towing companies with tow trucks licensed in accordance with the provisions of R.S.
32:1716.”121 To be eligible, a tow truck company must be properly certified, possess the
requisite permits, and operate within the regulatory structure outlined by the Louisiana
Public Service Commission.122 The tow company must also comply with the standards,
rules, and procedures outlined by the Department of Public Safety and Corrections, Office

117 Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
118 Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
119 See La. R.S. § 32:1735.
120 La. R.S. § 32:1735.
121 La. R.S. § 32:1735(C).
122 Id. (citing La. R.S. 45:164 and 180.1).
of State Police to be accepted as a viable participant on the rotation list.123 Finally, the Act
prohibits law enforcement from recommending a specific tow company to conduct a
tow.124 Rather, unless the vehicle owner exercises their option to select a towing company,
all tows must be referred to the rotation list.
Defendant painstakingly demonstrates how its policy was formulated pursuant to

the appliable statutes and regulations. Citing LAC 55, Chapter 19, Section 1947(A)(2),
Defendant emphasizes the discretion afforded law enforcement in selecting towing
companies for its list and argues “[t]his affirmative granting of discretion cannot co-exist
with a holding that the City of Gonzales did not have the discretion to choose the towing
companies it thought would best serve the City, and further, that the City is required to
include these plaintiffs on its towing rotation list.”125 Defendant cites case law holding that
“the establishment of a rotation list is discretionary and not mandatory and that the
participation in the rotation list is at the discretion of the law enforcement agency.”126
Defendant maintains Plaintiffs’ “interest in being included on the towing rotation list is

nothing more than a unilateral expectation.”127 Defendant claims that, because it
“exercised validly granted discretion,” it is entitled to summary judgment on Plaintiffs’
request to declare its Vehicle Towing policy invalid.
Plaintiffs argue Procedure 503.10 fails to comply with the statutes and regulations
because:

123 Id.
124 La. R.S. § 32:1735(D).
125 Rec. 39-2, pp. 20-21 (pp. 15-16 of brief).
126 Id. at p. 21 (p. 16 of brief)(quoting Arnaud v. Dies, 2016 La. Dist. LEXIS 10536, *1); see also Rec. Docs.
39-16, 39-17.
127 Id.
(1) each towing company seeking to participate on defendant City’s towing
rotation list must submit an application “on the approved departmental
forms”;
(2) defendant City must “review” the application and determine if the
application and towing company “complies” with La. R.S. 32:1711, et seq.,
and LAC 55;
(3) defendant City cannot “authorize[]” participation on the towing rotation
list if the applying towing company does not “meet the operational
requirements” of La. R.S. 32:1711, et seq., and LAC 55; and
(4) defendant City and the approved towing company execute a “contract”
approved and provided by the department.128

Plaintiffs maintain that, although Procedure 503.10 appears to adopt LA. R.S.
32:1711 and LAC 55, none of the requirements of Section 1947(D) were met when
Defendant’s list was created. Plaintiffs claim the companies who made the list were
arbitrarily preselected, without proceeding through an application (or reapplication)
vetting process, based purely on “political loyalty, affiliation, and favors.”129 Further, the
companies selected were allowed to be on the list despite their noncompliance with the
applicable statutes and regulations. Simply put, Plaintiffs do not dispute Defendant’s legal
authority to create a towing rotation list, but they contend Defendant does not have the
authority or discretion to ignore the legal requirements when implementing procedures.
The Court finds summary judgment improper on the current record. The applicable
laws and regulations make clear that a municipality may form its own towing rotation list
in a manner that complies with said laws and regulations. It is also understood that law
enforcement has broad discretion in managing said list. Defendant contends that,
because it has “piggybacked” off the State Police policy and procedure for implementing
and managing its towing rotation list, and State Police sets the minimum standards to be
followed, Defendant’s policy must be lawful since it essentially mirrors that of the State

128 Rec. Doc. 42, pp. 18-19.
129 Id. at p. 19.
Police. Nevertheless, there are genuine issues of material fact about whether the
Defendant has in fact complied with its own policy.
First, the Court is unpersuaded that Defendant bears no legal obligation to
determine that its selected towing companies are in compliance with Louisiana laws and
regulations. Defendant’s position is that the statute allows them to do whatever State

Police has done; thus, if State Police suspends, Defendant suspends, and if State Police
has a company on the list, Defendant can select that company without any independent
investigation. Defendant admits that certain companies on its towing list are in technical
violation of the applicable laws and regulations; however, there is nothing before the Court
that explains why Defendant or State Police have allowed violators to remain on their
lists.
Second, both Officer Dennis and Chief Jackson testified that the towing companies
on the list were selected before Procedure 503.10 was promulgated and without any
application submission or vetting process.130 Cpt. Nethken, who largely assisted in

drafting Defendant’s policy, testified that he heavily plagiarized the State Police policy and
added details specifically requested by Chief Jackson. Although Cpt. Nethken is not a
lawyer or competent to give legal opinions, he agreed that, if the five companies were
preselected without ever submitting an application, that would be a violation of state law
and Gonzales Police Department policy.131
Third, the Court does not quibble with the considerable discretion that Louisiana
laws and regulations afford law enforcement in creating towing rotations lists, but even
Defendant agrees that the Government may not “punish protected speech” or political

130 Rec. Doc. 42-3, pp. 25-27, 33-37; Rec. Doc. 42-4, pp. 68, 110, 115-117.
131 Id. at p. 24.
association.132 Because there are genuine disputes of material fact as to whether
Plaintiffs’ political speech/association played a role in their exclusion from Defendant’s
list, discussed in greater detail below, the Court finds that summary judgment is improper
on Plaintiffs’ claim for declaratory relief.
C. First Amendment Retaliation – Political Speech/Affiliation

The Civil Rights Act of 1964, 42 U.S.C. § 1983, creates a private right of action for
redressing the violation of federal law by those acting under color of state law.133 It
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....134

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights elsewhere conferred.’”135 To prevail on a § 1983 claim, a
plaintiff must prove that a person acting under the color of state law deprived him of a
right secured by the Constitution or laws of the United States.136
A municipality may be subject to liability under § 1983 when the municipality
maintains an unconstitutional policy or custom.137 To state a claim against a municipal

132 McHugh v. St. Tammany Parish, No. 24-1300, 2024 WL 3509561, at *11 (E.D. La. July 23, 2024)(citing
Kinney v. Weaver, 367 F.3d 337, 357 (5th Cir. 2004)).
133 See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984); Middlesex County Sewerage
Auth. v. Nat’l Sea Clammers Ass'n, 453 U.S. 1, 19 (1981).
134 42 U.S.C. § 1983.
135 Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, (1979));
accord Graham v. Connor, 490 U.S. 386, 393–94 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985); Jackson v. City of Atlanta, 73 F.3d 60, 63 (5th Cir. 1996); Young v. City of Killeen, 775 F.2d
1349, 1352 (5th Cir. 1985).
136 See Blessing v. Freestone, 520 U.S. 329, 340 (1997); Daniels v. Williams, 474 U.S. 327, 330 (1986);
Augustine v. Doe, 740 F.2d 322, 324–25 (5th Cir. 1984).
137 Valle v. City of Houston, 613 F.3d 536, 541-542 (5th Cir. 2010) (citing Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691 (1978)).
defendant for an alleged unconstitutional policy or practice, the plaintiff must allege that
(1) an official policy (2) promulgated by a policymaker (3) was the moving force behind
the violation of a constitutional right.138 It is undisputed that Procedure 503.10 is an official
policy promulgated by Chief Jackson, the policymaker for the City of Gonzales. Whether
Plaintiffs suffered a constitutional violation, and whether this policy was the moving force

behind the alleged violation, are disputed issues of fact.
An independent contractor can state a First Amendment claim for having a public
contract terminated or not renewed because of political speech/association. The seminal
cases from the Supreme Court are O'Hare and Umbehr, decided by the United States
Supreme Court on the same day.139 In Delahoussaye v. Livingston Parish, La.,140 this
Court previously summarized the Supreme Court’s holding in O'Hare:
In O’Hare Truck Service, Inc., et al. v. City of Northlake, the owner and
operator of a tow truck service sued the City of Northlake for retaliation
under the First Amendment when his company was removed from the
rotation list of available towing companies for failure to support the
incumbent mayor’s re-election campaign.141 In O’Hare, the Supreme Court
recognized the deep-rooted distinction between employees and
independent contractors in our legal tradition. Nevertheless, the Court
found no reason why First Amendment protections “should turn on the
distinction, which is, in the main, a creature of the common law of agency
and torts.”142 The O’Hare Court, relying on another Supreme Court decision
rendered the same day addressing First Amendment rights and
independent contractors, stated: “A rigid rule ‘giv[ing] the government carte
blanche to terminate independent contractors for exercising First
Amendment rights … would leave [those] rights unduly dependent on

138 Hicks–Fields v. Harris Cnty., 860 F.3d 803, 808 (5th Cir. 2017) (citations omitted).
139 See Bd. of Cnty. Comm'rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668 (1996) (First Amendment
protects independent contractors from termination or prevention of automatic renewal of at-will government
contracts in retaliation for their exercise of freedom of speech.); O'Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712 (1996) (Private towing service that alleged that it was removed from city's rotation list of
available towing service contractors, contrary to longstanding practice of removing contractors from list only
for cause, because its owner refused to contribute to mayor's reelection campaign, and instead supported
his opponent, stated claim against city under First Amendment.)
140 No. 12-00481-SDD-SCR, 2014 WL 4538074, *5 (M.D. La. Sep. 11, 2014).
141 O’Hare Truck Service, Inc. at 722.
142 Id.
whether state law labels a government service provider’s contract as a
contract of employment or a contractor for services, a distinction which is at
best a very poor proxy for the interests at stake.”143 It was the Court’s
concern that reliance on such a distinction in assessing such constitutional
claims “would invite manipulation by government, which could avoid
constitutional liability simply by attaching different labels to particular
jobs.”144 Ultimately, the Court “decline[d] to draw a line excluding
independent contractors from the First Amendment safeguards of political
association afforded to employees.”145

As the Supreme Court has explained, “even though a person has no ‘right’ to a
valuable governmental benefit and even though the government may deny him the benefit
for any number of reasons, there are some reasons upon which the government may not
rely. It may not deny a benefit to a person on a basis that infringes his constitutionally
protected interest—especially, his interest in freedom of speech.”146 The Supreme Court
has “extended” that principle outside the employment context, “to government retaliation
against a contractor or a regular provider of services for the exercise of rights of political
association and the expression of political allegiance.”147
In Garzes v. S. San Antonio Indep. Sch. Dist.,148 the court noted that, if the issue
is whether a government actor infringed on someone’s freedom of speech, the court uses
the tests established in Pickering v. Board of Education and Connick v. Myers.149 If the
case arises outside of the public employment context, the court uses the standard
enunciated in Perry v. Sinderman.150 Under the Perry standard, a plaintiff must establish

143 Id. at 721 (quoting Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S., at 679).
144 Id. at 722.
145 Id. at 726.
146 Perry v. Sindermann, 408 U.S. 593, 597 (1972).
147 Colson v. Grohman, 174 F.3d 498, 509 (5th Cir. 1999).
148 No. SA-02-CA-1131-FB, 2004 WL 7337262 (W.D. Tex. Aug. 13, 2004), report and recommendation
adopted, 2004 WL 7337265 (W.D. Tex. Sept. 14, 2004).
149 Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) and Connick v. Myers, 461 U.S. 138
(1983)).
150 Id. (citing Blackburn v. City of Marshall, 42 F.3d 925, 932 (5th Cir. 1995)).
that: “(1) he engaged in constitutionally protected activity; (2) the defendants’ adverse
actions were substantially motivated against the plaintiffs’ exercise of constitutionally
protected conduct; and (3) the defendants’ actions caused him to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that activity.”151 The
court explained that, “[u]nder the first prong, constitutionally protected activity or speech

is that related to any matter of ‘political, social, or other concern to the community.’”152 As
to political association, “[t]he First Amendment broadly protects two types of association:
(1) the choice to enter and maintain certain intimate familial relationships and (2)
association for engaging in other activities protected by the First Amendment, such as
speech, religion, or redress of grievances.”153
The failure to support a political candidate is also protected by the Constitution. It
is well established in the Fifth Circuit that “the Elrod-Branti doctrine applies when an
employment decision is based upon support of and loyalty to a particular candidate as
distinguished from a political party.”154 In establishing a constitutional violation, a plaintiff

must demonstrate that the termination was politically motivated.155 “Cases finding
impermissible patronage terminations involve either an employee's allegiance to a
political party, a political candidate, or a political belief.”156

151 Id. (citing Keenan, 290 F.3d at 258).
152 Id.
153 Garcia v. San Benito Consol. Indep. Sch. Dist., No. 1:21-cv-20, 2022 WL 19830659 (S.D. Tex. Nov. 14,
2022), report and recommendation adopted, 2023 WL 2987563 (S.D. Tex. Apr. 18, 2023), reconsideration
denied, 2023 WL 4494396 (S.D. Tex. June 12, 2023), and appeal dismissed, 2024 WL 3385179 (5th Cir.
Feb. 15, 2024).
154 McBee v. Jim Hogg Cnty., 703 F.2d 834, 838 n.1 (1983) (emphasis added), vacated on other grounds,
730 F.2d 1009 (1984) (en banc); see Jordan v. Ector Cnty., 516 F.3d 290, 295-96 & n.17 (5th Cir. 2008)
(discussing and collecting Fifth Circuit cases); Matherne v. Wilson, 851 F.2d 752 (5th Cir. 1988). But see
Correa v. Fischer, 982 F.2d 931, 935 (5th Cir. 1993) (distinguishing McBee, Matherne, and other similar
cases because they all involved “terminations of employees who supported a particular candidate in an
electoral battle” from the Correa fact pattern, which involved a personal rather than political rivalry).
155 Correa, 982 F.2d at 933.
156 Id. at 934.
Long-standing First Amendment jurisprudence demonstrates that speech “extends
to many activities that are by their very nature non-verbal: an artist's canvas, a musician's
instrumental composition, and a protestor's silent picket of an offending entity are all
examples of protected, non-verbal ‘speech.’”157 Nevertheless, not all silence is entitled to
First Amendment protection. The Fifth Circuit requires that “there must be some outward

manifestations of the allegedly protected First Amendment activity.”158
The First Amendment also protects against compelled speech. There “is certainly
some difference between compelled speech and compelled silence, but in the context of
protected speech, the difference is without constitutional significance, for the First
Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision
of both what to say and what not to say.”159
However, the Fifth Circuit has expressly held that “[t]he First Amendment protects
an employee's loyalty towards a political party, a candidate, or a belief, but not a
personal rival.”160 Indeed, “a personal enmity does not necessarily involve a political

rivalry. To violate the First Amendment, the termination must involve a political, motivation.
A termination arising from a personal feud or from no cause at all may be baleful, but it is
not a patronage dismissal in violation of the First Amendment.”161 The Fifth Circuit
acknowledged that “[d]istinguishing between the casualties of political and personal
battles may be a difficult undertaking in particular cases.”162

157 Steadman v. Tex. Rangers, 179 F.3d 360, 367 (5th Cir. 1999) (citing various U.S. Supreme Court First
Amendment cases).
158 Jordan, 516 F.3d at 298.
159 Riley v. Nat'l Federation of the Blind of N.C., 487 U.S. 781, 796–97 (1988)(emphasis in original).
160 Correa, 982 F.2d at 935 (emphasis added).
161 Id. (emphasis in original).
162 Id. at 935-936.
Under the foregoing legal backdrop, the Court turns to the Parties’ arguments.
Defendant maintains Plaintiffs’ First Amendment claims fail because the summary
judgment evidence undermines Plaintiffs’ claims. First, as to Gonzales Towing, Ball did
donate to Chief Jackson’s first campaign, and Gonzales Towing was still not selected to
the list. As to Southern Towing, while Palmer believes his “spot” was “bought” by another

towing company, Chief Jackson testified that he was unaware of the company’s existence
at the time the list selections were made. Further, Defendant argues Plaintiffs have failed
to point to any constitutionally protected speech that caused them to be left off the list.
Plaintiffs contend they have submitted sufficient summary judgment evidence to
demonstrate genuinely disputed material facts regarding their First Amendment retaliation
claims. Plaintiffs point to their own testimony, Officer Dennis’ testimony, and Credidio’s
attestations. Plaintiffs claim that the evidence of preselected towing companies without
abiding the legally required application process is a pretext for First Amendment
retaliation. Further, Plaintiffs contend the evidence shows that the selected towing

companies were chosen because their owners supported Chief Jackson’s campaign(s)
and/or performed personal favors for him.
Considering the relevant laws and jurisprudence that govern this claim and the
summary judgment evidence submitted by the parties, the Court finds that there are
genuine issues of material fact that preclude summary judgment on this claim. Defendant
is correct that, if Chief Jackson made his selections based on permissible grounds, such
as the performance capacities of each company, geographic location, etc., Plaintiffs
cannot recover under the First Amendment. It is also true that, even if Chief Jackson bore
some personal dislike towards Plaintiffs’ owners, Plaintiffs cannot recover under the First
Amendment. “To violate the First Amendment, the termination must involve a political
motivation.”163 For example, the altercation between Chief Jackson and Ball about
inappropriate comments to Ball’s girlfriend is not evidence that supports a First
Amendment retaliation claim; rather, it is only evidence of “personal enmity” that appears
unrelated to politics. But Plaintiffs have submitted summary judgment evidence that

suggests political motivations may have played a role in Chief Jackson’s selections. It is
for the jury to make these credibility determinations, not the Court at the summary
judgment stage.
The Court finds the following genuinely disputed material facts on this claim:
1) Whether Chief Jackson properly exercised his discretion in implementing the
City’s Procedure 503.10, considering both he and Officer Dennis admit that the
towing companies were preselected,164 and the application process was not
enforced, or whether this process was circumvented to award spots on the list
to Chief Jackson’s political supporters and friends.
2) Whether the suggestions purportedly made by Ascension Parish Sheriff Bobby
Webre were delivered on behalf of Chief Jackson or based on personal
knowledge that Webre possessed about Chief Jackson’s motivations.
3) Whether Credidio credibly attested that he was selected by Chief Jackson
based on personal favors Credidio’s company performed for him;165
4) Whether Chief Jackson said that his list would be comprised of only those that
supported him politically, a message delivered to Ball by Chief Ambeau, who
allegedly obtained this information from his cousin who owns American
Towing.166
5) Whether all companies selected for the list contributed to Chief Jackson
politically or personally.167
6) Whether Southern Towing’s “spot” on Defendant’s list was “bought by
somebody else.”168

163 Reyes v. Salazar, No. SA:18-CV-470-JKP, 2020 WL 4018597, *8 (W.D. Tex. July 15, 2020) (citing
Correa, 982 F.2d at 933).
164 Rec. Doc. 42-3, pp. 25-27, 33-37, 47-48; Rec. Doc. 42-4, pp. 68, 110115-116
165 Rec. Doc. 42-17.
166 Rec. Doc. 39-4, pp. 74-75.
167 Ball testified that Darryl Tullier, owner of Tullier’s Towing, donated to Chief Jackson; Darryl Tullier
testified that he has never donated to Chief Jackson.
168 Rec. Doc. 42-2, pp. 41-43, 46.
7) Whether Officer Dennis advised Plaintiffs that their companies “would never
get on the list,”169 and if so, whether the sentiment was politically motivated.
8) Whether Plaintiffs suffered damages as a result of being excluded from the
towing rotation list; if so, whether those damages were caused by Defendant’s
conduct.

The Court must note that the bulk of summary judgment evidence offered by
Plaintiffs is hearsay. But the Court can consider hearsay statements at the summary
judgment stage “if the statement[s] can be reduced to admissible evidence at trial or
reduced to admissible form.”170 “The most obvious way that hearsay testimony can be
reduced to admissible form is to have the hearsay declarant testify directly to the matter
at trial.”171 Accordingly, Defendant’s motion for summary judgment on Plaintiffs’ First
Amendment retaliation claims is DENIED.
D. Louisiana Antitrust Statutes
Despite Plaintiffs’ desperation to be on Defendant’s towing rotation list, and the
fact that they are or have been on other towing rotation lists, they shift course and allege
Defendant’s list and process violates Louisiana’s antitrust statutes by unlawfully
restricting the market and creating a monopoly. Specifically, Plaintiffs contend
Defendant’s towing rotation policy creates an illegal combination in restraint of trade or
commerce in violation of La. R.S. 51:122 and an illegal monopoly of trade in violation of
R.S. 51:123.
As noted by the district court for the Western District of Louisiana:
The number of reported decisions interpreting Louisiana's antitrust statutes
is relatively limited compared to federal antitrust jurisprudence. In
determining whether the conduct at issue violates the state antitrust laws,
the Court will rely in part on legal standards developed under federal

169 Rec. Doc. 39-4, pp. 147-148; Rec. Doc. 39-6, pp. 31-34.
170 Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017), as revised (July 5, 2017).
171 Ali v. Dist. Dir., 209 F. Supp. 3d 1268, 1276 (S.D. Fla. 2016).
jurisprudence. Louisiana's antitrust statutes closely resemble the provisions
of the Sherman Act, 15 U.S.C. § 1, et al., and “the concerns which spurred
the enactment of the federal Sherman Antitrust Act are the same as those
which influenced Louisiana's adoption of virtually identical legislation.”
Reppond, 572 So.2d, at 228. Federal jurisprudence interpreting the
Sherman Act may be used as persuasive interpretation of the state statute.
Louisiana Power & Light v. United Gas Pipe Line, 493 So.2d 1149
(La.1986).172

1. La. R.S. 51:122 Unreasonable Restraint of Trade
The purpose of § 1 of the Sherman Act is to prohibit only unreasonable restraints
of trade.173 Whether concerted action violates § 1 of the Sherman Act is ordinarily
determined “through case-by-case application of the so-called rule of reason—that is, ‘the
factfinder weighs all of the circumstances of a case in deciding whether a restrictive
practice should be prohibited as imposing an unreasonable restraint on competition.’”174
This rule of reason is applied in all cases except those where the challenged conduct “is
so manifestly anticompetitive that it constitutes a per se violation of the Act.”175 Plaintiffs
do not appear to allege a per se violation.
In rule of reason cases with a private defendant, the relevant question is whether
“the anticompetitive consequences” of the challenged action “outweigh their legitimate
business justifications.”176 Where the case involves a municipal defendant acting in the
public interest, as here, “the rule of reason inquiry is whether any anticompetitive
consequences outweigh public benefits.”177 Here, “anticompetitive” refers “not to actions
that merely injure individual competitors, but rather to actions that harm the competitive

172 Giddens v. City of Shreveport, 901 F.Supp.1170, 1179 (W.D. La. 1995).
173 Business Electronics v. Sharp Electronics, 485 U.S. 717, 723 (1988).
174 Id. (citing Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977)).
175 Giddens, 901 F.Supp. at 1179-1180 (citing Business Electronics, 485 U.S. at 723).
176 Clamp–All Corp. v. Cast Iron Soil Pipe Institute, 851 F.2d 478 (1st Cir.1988).
177 Giddens, 901 F.Supp. at 1180.
process.”178 “[T]he rule of reason requires plaintiffs to show that the defendants' actions
amounted to a conspiracy against the market—a concerted attempt to ... reduce
consumer welfare.”179 “Accordingly, a showing that the defendants harmed the plaintiffs
is not enough to prove a violation of section 1 under the rule of reason.”180
Defendant contends Plaintiffs’ restraint of trade claim fails for several reasons.

First, La. R.S. 51: 122 requires a plaintiff to allege that a defendant is a party to a contract
that results in an unreasonable restraint of trade.181 There is no contract between
Defendant and any towing companies. Participation in a towing rotation list does not
create any obligation of performance because, when a dispatcher connects with a towing
company, the towing company is free to accept or refuse the tow.182 Second, Plaintiffs’
claims fail because Defendant had the legal authority to implement a towing rotation list,
it had State Police approval of its list, and towing vehicles in the City is a legitimate public
policy consideration. Defendant has not violated this statute “[s]ince the towing rotation
list is not a restraint of trade (but merely a referral list) and is not unreasonable.”183 Finally,

Defendant is not a private entity and has no authority over private companies to dictate
what rates they charge their customers.
In opposition, Plaintiffs ignore several of Defendant’s arguments on the restraint of
trade claim. Plaintiffs do, however, point out that the existence of a contract is not required
by the statute; rather, the existence of a conspiracy will suffice.184 Plaintiffs focus almost

178 Clamp–All Corp, 851 F.2d at 486.
179 Consolidated Metal Products v. American Petroleum Institute, 846 F.2d 284, 293 (5th Cir.1988).
180 Id.
181 Reppond v. City of Denham Springs, 572 So.2d 224, 230 (La. App. 1 Cir. 1990).
182 Rec. Doc. 39-6, pp. 29-30.
183 Rec. Doc. 39-2, p. 31 (p. 26 of brief).
184 See John River Cartage, Inc. v. Louisiana Generating, LLC, 2020-0162 (La. App. 1 Cir. 3/4/20, 300
So.3d 437, 448-449.
entirely on the same arguments made in support of their First Amendment claim and
argue in conclusory fashion that Defendant’s list “unlawful[ly] restrains towing in the City
of Gonzales in favor of only those towing companies that defendant favors.”185
2. La. R.S. 51:123 Monopoly
Louisiana Revised Statute 51:123 prohibits monopolization of trade or commerce

through language which tracks § 2 of the Sherman Act. This statute provides, in part, that
“[n]o person shall monopolize, or attempt to monopolize, or combine, or conspire with any
other person to monopolize any part of the trade or commerce within this state.”
“Monopoly power exists where prices can be raised above the levels that would be
charged in a competitive market. To establish a claim for monopoly, a plaintiff must
establish that: (1) the defendant possessed monopoly power in a clearly defined
economic and geographic region (the relevant market); and (2) the defendant had the
specific purpose or intent to exercise or maintain that power, as distinguished from growth
or development as a consequence of a superior product, business acumen, or historic
accident.”186 Importantly,

Monopoly power is defined as the ability to control prices or to exclude
competition from the market, and the relevant market is the area of effective
competition within which the defendant operates. Id. It includes a
geographic market, which is the section of the country in which sellers of a
particular product operate, as well as a product market, which encompasses
the differences among various commodities and the willingness of buyers
to substitute one product for another. Failure to define the market in which
the monopoly is allegedly exercised is fatal to a monopolization claim. Id. at
120.187

185 Rec. Doc. 42, p. 26.
186 John River Cartage, 300 So.3d at 450 (citing Plaquemine Marine, Inc. v. Mercury Marine, 2003-1036
(La. App. 1st Cir. 7/25/03), 859 So. 2d 110, 119-20).
187 Id. (citing Plaquemine Marine, 859 So.2d at 120).
Defendant moves for summary judgment on this claim, arguing Plaintiffs cannot
satisfy the elements of a monopoly. First, Defendant presents evidence that it lacks the
ability to control prices. Choosing the five towing companies did not give Defendant any
ability to control the prices of towing services, which is regulated by the Louisiana Public
Service Commission.188 Second, Defendant has not excluded competition from the

market. Because La. R.S. 32:1735(A) mandates that law enforcement first allow the
owner or operator of a vehicle the option to select their preferred towing company before
resorting to the towing rotation list, Defendant has not excluded Plaintiffs, or any other
non-list towing companies, from the relevant market. Accordingly, Plaintiffs are not
excluded from participating in the towing market for the City of Gonzales simply because
they are not on Defendant’s towing rotation list. Defendant submits as evidence the
testimony of both Plaintiffs that they still receive towing requests within the City of
Gonzales.189
Plaintiffs fail to effectively counter these arguments. Plaintiffs argue in conclusory

fashion that the Defendant “possessed the power to monopolize the towing industry within
the City of Gonzales and did so when it restricted tows to only towing companies politically
affiliated with defendant and Chief Jackson.”190 This does not suffice to overcome
summary judgment. Plaintiffs offer no summary judgment evidence to counter the
evidence that Defendant does not control prices, that vehicle owners/operators maintain
the choice to select their preferred towing company, and that Plaintiffs do not continue to
receive callouts (albeit less) within the City of Gonzales.

188 See La. R.S. 32:1734, 45:163 & Rec. Doc. 39-19.
189 Rec. Doc. 39-4, p. 107; Rec. Doc. 39-6, pp. 55-56.
190 Rec. Doc. 42, p. 27.
As for identifying the relevant market, Plaintiffs state only that the relevant market
“is the towing market within the City of Gonzales requested by dispatch/called from the
police department.”191 But a relevant market cannot be defined so narrowly. The relevant
market is not only the tows subject to callout by law enforcement; rather, the relevant
market is the towing industry in the City of Gonzales.192 Plaintiffs offer evidence about

Chief Jackson’s ability to influence the towing rotation list, but the list represents only a
portion of the relevant market, and there is no summary judgment evidence before the
Court to demonstrate the size of that market. There is also no record evidence to suggest
that Defendant’s towing rotation list represents a significant portion of the overall tow
market in the City of Gonzales.
The Court finds the reasoning and analysis by the Western District of Louisiana in
Giddens v. City of Shreveport applicable here. In Giddens, vehicle towing and storage
companies filed suit against the city challenging an ordinance that provided for the central
storage location of towed vehicles and the city’s contract with one company to provide
these services.193 The plaintiffs in Giddens asserted claims under La.R.S. 51:122 and

R.S. 51:123. The court rejected the plaintiffs’ claims for the following reasons:
In this case, plaintiffs fail to establish an anticompetitive practice within the
meaning of antitrust law. The only types of towing and storage transactions
at issue in this case are those in which the vehicle owner, for whatever
reason, is unable or unwilling to participate in the decision of where his
vehicle will be stored. Both before and after the amendment to the
ordinance, the consumer simply did not participate in the storage decision.
Thus, it is not possible to conclude that the change to a central storage
facility, even if injurious to the business interests of some of the plaintiffs,
reduced consumer welfare or bargaining power. Any instance where the
consumer is involved in the decision of where his vehicle is to be

191 Id. at p. 26.
192 See A-Pro Towing and Recovery, LLC v. City of Port Isabel, No. 1:19-CV-00016, 2020 WL 4794657, at
*10 (S.D. Tex. Aug. 18, 2020).
193 901 F.Supp. at 1170.
stored is beyond the purview of this case (and there is of course no
city ordinance which prohibits an owner from storing his vehicle at the
location of his choice).

The absence of an anticompetitive injury to the market is enough to
terminate the antitrust injury. Even assuming that an anticompetitive
practice were present, however, its consequences are outweighed by the
legitimate public interests served by a central storage facility, as discussed
above in connection with the substantive due process issue.

In summary, rule of reason analysis leads to the conclusion that the City's
contract with Twin City and its use of a central storage facility is not an
unreasonable restraint of trade or commerce.194

The Court finds that Plaintiffs have failed to submit summary judgment evidence
to demonstrate genuine fact disputes regarding their antitrust claims. Plaintiffs fail to point
the Court to a single decision that supports their arguments. The undisputed summary
judgment evidence demonstrates that (1) towing rotation lists with a limited number of
companies is lawful and they are utilized by most municipalities; (2) any anticompetitive
consequences of Defendant’s towing rotation list are outweighed by the public benefits
the policy provides; (3) Defendant does not have monopoly power, i.e. the power to
control prices; (4) Defendant’s towing rotation list does not unreasonably restrict trade
and commerce because the vehicle owner/operator has the option to select their
preferred towing company; (5) Plaintiffs have not identified the “relevant market”; and (6)
Plaintiffs still receive callouts in the City of Gonzales.
Accordingly, summary judgment is GRANTED in favor of Defendant on Plaintiffs’
antitrust claims.

194 Id. at 1180-1181 (emphasis added).
III. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment195 is
GRANTED as to Plaintiffs’ Louisiana antitrust claims, and these claims are dismissed with
prejudice. Defendant’s motion is DENIED as to all other claims.
IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on September 27, 2024.

S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

195 Rec. Doc. 39.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10648762. Public record. Not legal advice.