Petition for Writ of Certiorari — Broussard v. Louisiana

6

shoplifter” being further interrogated by the remaining

deputy. The “suspected shoplifter” was never arrested or

even detained for shoplifting or any other reason; only

Capt. Broussard was detained and arrested. The deputies

claim that a dangerous situation had developed, as a

crowd was gathering in the store as a result of their

interactions with Capt. Broussard. That was not true. An

independent witness testified at Capt. Broussard’s trial

that shoppers were merely turning and looking, and that

no crowd gathered. More importantly, the video surveil-

lance tape fails to corroborate this claim, as no crowd is

seen anywhere near Capi. Broussard or the deputies.

B. Petitioners Arrests, Convictions, and Requests

for Review

Based on the incidents set forth above, Capt. Shawn

Broussard was charged with violations of Louisiana

Revised Statute 14:108, Resisting an Officer, Louisiana

Revised Statute 14:34.2, Battery of a Police Officer, and

Jefferson Parish Ordinance § 20-24, Interfering With Law

Enforcement Officers. On November 13, 2003, Petitioner

was tried before a judge, not a jury, where she pled not

guilty to all of the charges brought against her. Petitioner

was acquitted of the charges under La. R.S. 14:108,

Resisting an Officer,’ as the trial court found that the

* According to Louisiana Code of Criminal Procedure Article 779, a

defendant charged with a misdemeanor does not receive a trial by jury

unless the sentence for his alleged acts may be a fine in excess of one

thousand dollars or imprisonment for more than six months.

* “It is a long-established principle in Louisiana law that a citizen

has the right to resist an unlawful arrest.” White v. Morris, 345 So.2d

461 (La. 1977).

7

video did not substantiate the assertion that Capt. Brous-

sard resisted being arrested, but rather that she was

cooperative with the arrest. Despite their damaged credi-

bility, relying solely on the deputies’ unsubstantiated

testimony, and contrary to independant eye witness

testimony as to the other charges, the trial court found

Capt. Broussard guilty of violating both J.P. 20-24, Inter-

fering With Law Enforcement Officers and La. RS.

14:34.2, Battery of a Police Officer. It is from this judg-

nent that applicant seeks review.”*

Capt. Broussard’s timely application for supervisory

writs to the Louisiana Fifth Circuit Court of Appeal was

denied on the basis that the transcript of the trial court

proceedings were omitted from the application. This

however was not the case. The portion of the transcript

containing the judges rationale and ruling were in fact

attached, as well as the entire lower court record and

minute entry. Petitioner’s brief made numerous references

to the transcript and the testimony therein, giving page

and line references. Generally, as a professional courtesy,

the appellate Court notifies counsel when a referenced

exhibit has been omitted by an obviously inadvertent

error, especially when one’s civil liberty is at stake, as is

the case here.

On May 7, 2004, Petitioner timely filed an application for

writs of review, certiorari and mandamus to the Louisiana

” The trial court made clear that “if the interfering with a police

officer charge is invalid or unlawful in the first placed [sic], the

remaining charges should fall.” App. 2.

* For each of her convictions Petitioner was ordered to serve fifteen

days of a suspended sixty day sentence, pay four hundred and fifty

dollars in fines plus court costs and was placed on six months active

probation. App. 8-9.

8

Supreme Court.” On February 18, 2005, that application

was denied, without written opinion, with two justices”

willing to grant that writ. Prior to the court’s denial, on

January 26, 2005, the court requested a written opposition

from the State of Louisiana. The State filed a brief opposi-

tion on February 9, 2005. Capt. Broussard prepared and

timely filed a reply to the State’s brief in opposition,

however, Petitioner’s writ was denied before her reply

could be considered.”

Petitioner subsequently filed a timely application for

‘rehearing or reconsideration of her application for writs of

review, certiorari and mandamus to the Louisiana Su-

preme Court. Within that application, Petitioner reiter-

ated the erroneous contentions asserted by the State in its

written opposition to Capt. Broussard’s first request for

review. Unfortunately, on April 8, 2005, Petitioner’s

request was again denied, with the same two justices

willing to grant that writ.

Execution of Petitioner’s sentence was initially stayed

by the trial court pending her applications for writs of

review. After the Louisiana Supreme Court denied Capt.

Broussard’s applications, the trial court again stayed

execution of the sentence due to Capt. Broussard’s pending

deployment to Iraq.

* The Louisiana Supreme Court is the highest court in the State of

Louisiana.

” Chief Justice Pascal Calogero Jr. and Justice Bernette Johnson

would grant the writ.

” Capt. Broussard’s reply was filed within ten days of the opposi-

tion as per Louisiana Uniform Courts of Appeal Rule 2-12.7.

9

Capt. Broussard prays that this court grant the

petition and afford her the right to have her case reheard,

or in the alternative, remand her case back to the Louisi-

ana Supreme Court so that the language forming the

enforceable portion of J.P. 20-24 can be constitutionally

construed.

ee

vv

REASONS FOR GRANTING THE WRIT

Through its arbitrary application, J.P. 20-24 has made

Petitioner Capt. Shawn Broussard a convicted criminal due

to its conferring upon police the virtually unfettered author-

ity to arrest and charge persons with an infraction.” At the

discretion of two officers working a private detail,” Capt.

Broussard was arrested for interference, for her actions,

which consisted only of speaking, and took up a mere

minute and a half of the officers time. As the facts of this

case illustrate, through the application of the ordinance, a

" According to Code of Ordinances, Jefferson Parish Louisiana § 1-

10, “the violation of any provision of this code shall be punished by a

fine not exceeding five hundred dollars ($500.00) or imprisonment for a

term not exceeding six (6) months or by both such fine and imprison-

ment, within the discretion of the court.”

* See, Duplantis v. Dillard’s, 849 So.2d 675 (La. App. 1 Cir. 2003)

(Terrebonne Parish Sheriff’s Office deputy who was performing_

precisely this activity, detaining a suspected shoplifter while working

an off-duty paid detail for a department store, was not acting as a law

enforcement officer, but was rather acting as an employee of Dillard’s,

performing functions that a non-law enforcement Dillard’s employee

could perform). See also, Wright v. Skate Country, Inc., 734 So.2d 874

(La. App. 4 Cir. 1999) and Duryea v. Handy, 700 So.2d 1123 (La. App. 4

Cir. 1997) (holding that law enforcement officers working paid details

are not acting as employees of their respective law enforcement

agencies, but rather as employees of the private entity who were paying

the officers to work while off-duty).

10

citizen may be criminally prosecuted for lawfully exercis-

ing his right to free speech. In a local municipality whose

citizens are currently plagued by the fear of police brutal-

ity, * the vague language of the ordinance further provides

occasion for the abuse of police powers. By denying Capt.

Broussard the opportunity to have her case reviewed, the

Louisiana Fifth Circuit Court Of Appeals and the Louisi-

ana Supreme Court essentially confirmed the constitu-

tionality of the ordinance. This Court should grant review

because that tacit affirmation of the ordinance’s constitu-

tionality sharply conflicts with the decisions of this Court

in City of Houston v. Hill, 482 U.S. 451 (1987), and Lewis

v. City of New Orleans, 415 U.S. 130, 135 (1974).

While Petitioner appreciates that it should not be

necessary for this court to reiterate the principles of Lewis

or Hill, she submits that the pro tanto abrogation of Lewis

and Hill effected in Louisiana by the decisions below

require this Court’s attention to this matter.

“ The problems currently associated with the Jefferson Parish

Police are numerous. See, e.g., Michelle Hunter, Lee backs lethal

response to chase More than 100 shots left teen driver dead, New

Orleans Times Picayune, June 1, 2005 (2005 WLNR 8752433) (Sheriff’s

deputies firing over one hundred shots at three suspected teenage car

thieves, to which Jefferson Parish Sheriff Harry Lee responded “[ilf it

took 300 bullets and they told me they shot 300 times, [it] would have

been OK [sic] with me.”). Further, see, also, Katy Reckdahl, Target

Practices, Gambit Weekly, Apr. 12, 2005, at cover story (Jefferson

Parish Sheriff’s accused of using racially inappropriate firing range

targets). See, also, Bruce Alpert, Area Police Rank High in U.S.

Brutality Report N.O. Leads List; Jefferson Is Third, New Orleans

Times Picayune, May 20, 1992 (1992 WLNR 818768) (in 1991 the

Jefferson Parish Sheriff’s Office was third in a national survey of police

brutality complaints investigated by the Justice Department). Westlaw

electronic citations have been substituted in place of pinpoint newspa-

per pages and are subject to change.

11

The Jefferson Parish ordinance making it illegal to

interfere with law enforcement officers has direct and

indirect consequences which are contrary to this Courts

previous decisions on virtually the same issue. A careful

reading of the trial court opinion reveals it to be nothing

more than an attempt to justify the ordinance on its face.

Capt. Broussard was arrested and convicted for partaking

in constitutionally protected speech — a humiliating and

potentially damaging experience for a “mustang”” in the

United States Army. Moreover, if the mere speaking to an

off duty police officer working a private detail in the

furtherance of not the state, but a private entity consti-

tutes a crime, such an application of the law will cause

material injustices and significantly affect the public

interest.

Petitioner submits that the Jefferson Parish ordi-

mance as currently written is not narrowly limited to

constitutionally unprotected speech, that the ordinance

has not been confined by judicial construction to such

speech, and that the ordinance always was and still

remains susceptible to unconstitutional applications. It is

important to note that no Louisiana appellate court has

taken the opportunity to clarify, narrow, limit or in any

way interpret J.P. 20-24.

On its face, it is apparent that the Jefferson Parish

ordinance fails to meet the standards for validity enunci-

ated by previous decisions of this Court. Defiantly ignoring

superior court jurisprudence,” the trial court’s opinion

* The title of “mustang” is given to those who become an officer

after having risen from the lowest of enlisted ranks.

* It is well settled in Louisiana that municipalities are without

authority to enact ordinances which are inconsistent with or in

(Continued on following page)

12

displays the potential for J.P. 20-24’s application to violate

one’s right to free speech. The trial court refused to apply

the definition of “interference” in conformity with state

law. In doing so, the trial court determined that “interfer-

-ence” was broader than the jurisprudentially accepted

definition. The trial court’s interpretation of the statute to

mean any communication with the officers is the sole issue

before this Court, as that interpretation allows for the

future abuse of one’s right to free speech.

In consideration of whether a statute is overbroad, the

threshold issue to consider is whether the statute reaches

a substantial amount of constitutionally protected conduct.

Hoffman Estates v. Flipside, 455 U.S. 489 (1982). “Crimi-

nal statutes must be scrutinized with particular care,

those that make unlawful a substantial amount of consti-

tutionally protected conduct may be held facially invalid

even if they also have a legitimate application.” City of

Houston v. Hill, 482 U.S. 451 (1987) (internal citations

omitted). J.P. 20-24 impinges upon a substantial amount of

constitutionally protected conduct, as it violates the right

to free speech guaranteed by the First Amendment. Based

on the ordinance as it was applied in the present case,

merely speaking to officers during their investigation of a

potential shoplifter was sufficient to satisfy the finding

that the officer’s duties were “obstructed” or “interfered

with.” This Court has expressly denounced the application

contravention with state law. Restivo v. City of Shreveport, 566 So.2d

669 (La. App. 2 Cir. 1990); State ex rel. Corbello v. Bond, 441 So.2d 742

(La. 1983); City of Lake Charles v. Broussard, 475 So.2d 411 (La. App. 3

Cir. 1985). A municipal ordinance cannot be valid if it forbids what the

state legislature has expressly or implicitly authorized. City of Shreve-

port v. Curry, 357 So.2d 1078 (La. 1978).

13

of laws similar to J.P. 20-24. 482 U.S. 451 (1987), 415 U.S.

130, 135 (1974).

In City of Houston v. Hill, this Court held an ordi-

nance virtually identical to J.P. 20-24 be substantially

overbroad and invalid. 482 U.S. 451 (1987). Code of Ordi-

nances, City of Houston, Texas, 43-11(a) (1984), read:

“Sec. 34-11. Assaulting or interfering with po-

licemen. '

“(a) It shall be unlawful for any person to as-

sault, strike or in any manner oppose, molest,

abuse or interrupt any policeman in the execu-

tion of his duty, or any person summoned to aid

in making an arrest.”

This Court held that the enforceable portion of that

ordinance dealt “not with core criminal conduct, but with

speech.” Hill at 411. In further delivering this Court's

finding that the Houston ordinance was facially overbroad,

Justice Brennan stated verbatim:

“[Clontrary to the city’s contention, the First

Amendment protects a significant amount of

verbal criticism and challenge directed at police

officers. ‘Speech is often provocative and chal-

lenging.... [But it] is nevertheless protected

against censorship or punishment, unless shown

likely to produce a clear and present danger of

serious substantive evil that rises far above pub-

lic inconvenience, annoyance, or unrest.’ Ter-

miniello v. Chicago, 337 U.S. 1, 4 (1949).” Id. at

461.

Capt. Broussard’s alleged actions are_ strikingly

analogous to those of Mr. Hill’s, who shouted at police

while they were questioning his friend on a Houston

14

street. As in the present case, the Houston police arrested

only Mr. Hill, not the person whom they had stopped, just

as the Jefferson Parish deputies arrested Capt. Broussard,

and not the “suspected shoplifter” who they had stopped.

The Jefferson Parish deputies allege that Capt. Broussard

was speaking to their suspect, although Capt. Broussard

asserts that she, like Mr. Hill, spoke only to the police,”

who were questioning a third person.

The Jefferson Parish ordinance shows the same

symptoms of overbreadth as the Houston statute. If the

“enforceable portion” interpretation supplied by this Court

in Hill is followed, the Jefferson Parish ordinance must

fail, as it too deals with constitutionally protected speech

and not with “core criminal conduct.” Jd. at 411.

There are also strong similarities between J.P. 20-24

and the ordinance this Court struck down in Lewis v. City

of New Orleans, 415 U.S. 130, 135 (1974). That ordinance

provided, “[i]t shall be unlawful and a breach of the peace

for any person wantonly to curse or revile or to use ob-

scene or opprobrious language toward or with reference to-

any member of the city police while in the actual perform-

ance of his duty.” New Orleans Ordinance 828 M.C.S. s 49-

7 (1972). Although J.P. 20-24 does not directly make it

illegal to use “obscene or opprobrious language,” s 49-7,

directed to a police officer “while in the actual performance

of his duty,” it does however make it unlawful for someone

to “obstruct or interfere with any law enforcement officer

in the performance or discharge of his duties.” Code of

Ordinances, Jefferson Parish Louisiana § 20-24.

” This portion of Capt. Broussard’s testimony was corroborated by

an independent witness during her trial.

15

Similar to the terms at issue in Lewis, the terms

“obstruct or interfere” enunciated in the Jefferson Parish

ordinance lack sufficient specificity to “give persons of

reasonable intelligence adequate notice that certain

conduct is proscribed and punishable by law, [further,] it

does not provide sufficient standards by which guilt or

innocence may be determined.” Kolender v. Lawson, 461

U.S. 352 (1983); State v. Pierre, 500 So.2d 382 (La. 1987).

The definition of “obstruct” is that of La. R.S. 14:108,

which is the clearest part of the statute, prohibiting

specific acts, mostly on the part of arrested persons.”

“Interfere” is defined by J.P. 20-23,” in pertinent part as

“in addition to its common meaning” ... mean (a) [t]he

intentional hindering, infringing, intermeddling, obstruct-

ing, delaying, hampering or impeding the progress of.”

_ None of these terms are defined by any Jefferson Parish

Ordinance whatsoever. For instance, how much of a

“delay” constitutes “delaying?” Exactly what speech

* The definition of “obstruct” found in La. R.S. 14:108 does not

apply in the present matter, as it defines “obstruct” to include, in

addition to its common meaning, flight from officers attempting to

arrest, violence toward officers while arresting, refusal to give identity

when arrested, or congregation with others and refusal to move on

when directed. There was no evidence presented that Capt. Broussard

was engaging in any of these activities, and while she may have failed

to move on, she was alone and was by no means “congregating with

others.” La. R. S. 14:108 is reproduced in its entirety on page 14 of the

Appendix.

* J.P. 20-23 is reproduced in its entirety on pages 15-16 of the

Appendix.

® Webster’s Collegiate Dictionary provides two pertinent definition

of “interfere.” 1.) “to interpose in a way that hinders or impedes: come

into collusion or be in opposition.” 2.) “to enter into or take part in the

concerns of others.” Merriam-Webster’s Collegiate Dictionary, Eleventh

ed., 652 (Merriam-Webster Inc. 2004).

16

“hinders, impedes or obstructs” an officer? One would like

to believe that a Captain in the United States Army

qualifies as a person “of reasonable intelligence” capable of

determining whether or not her conduct is interfering with

a police investigation, however, the adverse seems to be

the case. The open-ended wording of J.P. 20-24 allowing

such a myriad of interpretations truly shows the Achilles

Heel of the ordinance; no matter which version of the story

one chooses to accept, Capt. Broussard’s speech was, and

still remains constitutionally protected under the First

Amendment.

The definition of “interfere” as provided by J.P. 20-23

and Louisiana jurisprudence was apparently not sufficient

for the trail court.” Noting that the content of Capt.

Broussard’s speech was irrelevant, the trial court stated

“(rjegardless of what Ms. Broussard was in fact informing

the suspect of or what she was in fact discussing with the

officers, she apparently was not complying with the

officers instructions and as such I believe that can consti-

tute an interference or obstruction of the officer’s perform-

ance or discharge of their duties ... ” App. 4-5. The trial

courts creation of a per se standard of “interference” leaves

the field wide open for arbitrary and discriminatory

™ See, Melancon v. Trahan, 645 So.2d 722 (La. App. 3 Cir. 1994)

(held ~ an arrest for refusing a police order to move on was not lawful

under statute prohibiting conduct which obstructs officers acting in

their official capacity while attempting to seize property, serve lawful

process, or make lawful arrest). See also, Brumfield v. Jones, 849 F.2d

152 (La. 5 Cir. 1988) (holding that interference with investigation alone

does not constitute interference with an officer in course of arrest). See

also, State v. Green, 706 So.2d 536, 538 (La. App. 5 Cir. 1997) and, State

v. Lindsay, 388 So.2d 781, 783 (La. 1980) (held — interference with an

officer's investigation is not sufficient to constitute interference with a

law enforcement officer under La. R.S. 14:108).

17

enforcement, as it “confers on police a virtually unre-

strained power to arrest and charge persons with a viola-

tion.” Lewis at 466-467.

The definition of “interfere” as construed by the trial

court further conflicts with Hill and Lewis in that it does

not proscribe only “fighting words.” 482 U.S. 451 (1987),

415 U.S. 130, 135 (1974). The parties testimony is further

in conflict as to the nature and content of the remarks

which led to Capt. Broussard’s arrest. According to Capt.

Broussard, she was attempting to speak to the deputies

relevant to what she had observed, while the deputies

claim she was attempting to advise the suspect of his

rights. Further, the deputies claim that Capt. Broussard

was speaking in a loud tone, a position disputed by Capt.

Broussard and an independent witness during her triai

Although not all speech is constitutionally protected,

words which are not “fighting words,” are constitutionally

protected free speech. City of New Orleans v. Lyons, 342

So.2d 196 (La. 1977), State v. Miller, 703 So.2d 125 (La.

App. 4 Cir. 1997). Additionally, words “which by their very

utterance may cause alarm, public disruption, or consti-

tute a signal to prompt unlawful action” are not protected

speech. State ex rel. R.T., 781 So.2d 1239 (La. 2001). As

several courts have held that using profanity in a loud

tone of voice is protected speech, merely speaking in a loud

tone, without the use of profanity or alarming words, must

also be free speech. Lewis v. City of New Orleans, 415 US.

130 (1974); State v. Miller, 703 So.2d 125 (La. App. 4 Cir.

1997); State v. McCoy, 546 Sa2d 240 (La. App. 2 Cir.

1989).

The one substantive issue not contested by either

party is that at no point did Capt. Broussard use any

18

language that could be construed as “fighting words” or

intended to cause alarm or incite an immediate breach of

the peace. Moreover, there was no testimony that she used

any language that could be construed as intended to

provoke or incite lawless activities on the part of the

public. In Justice Powell’s concurring opinions in Lewis, he

stated that “a properly trained officer may reasonably be

expected to ‘exercise a higher degree of restraint’ than the

average citizen ... ” 415 U.S. 130, 135 (1974), 408 US.

913, 92 S.Ct. 2499. Similarly, it is not unreasonable to

expect that a properly trained deputy withhold from

arresting someone for speaking to him without the use of

“fighting words” while he is “investigating” a suspected

shoplifter.

One major crux of both the Houston and New Orleans

ordinances was that they were not specifically narrow

enough to prohibit “fighting words.” As it is currently

interpreted, the Jefferson Parish ordinance suffers from

the same quandary, as “[i]t is not limited to fighting words

nor even to obscene or opprobrious language, but prohibits

speech that ‘in any manner ... interrupt(s}’ an officer.”

City of Houston v. Hill, 482 U.S. 451, 462 (1987). Although

there is no testimony that Capt. Broussard violated this

portion of the statute by uttering any statement that could

be construed as “cursing, reviling or ... opprobrious

language,” others could and have faced charges under this

statute for uttering speech which is constitutionally

protected in the presence of law enforcement.

As it is currently interpreted and applied, the Jeffer-

son Parish ordinance severely encumbers upon a persons

right to free speech as provided by the First Amendment.

There is a grave need for this Court to intervene; if the

ordinance is allowed to remain in force as it is presently

19

interpreted, law abiding citizens stand the chance of being

prosecuted for exercising their constitutional right to free

speech. In the words of Justice Brennan, “The Constitu-

tion does not allow such speech to be made a crime. The

freedom of individuals verbally to oppose or challenge

police action without thereby risking arrest is one of the

principal characteristics by which we distinguish a free

nation from a police state.” Id. at 462-463.

&

bf

CONCLUSION

For the reasons set forth above, the petition for writ of

certiorari should be granted. Alternatively, Petitioner

requests that this Court remand this matter to the Louisi- _

ana Supreme Court so that the ordinance may be authori-

tatively construed so that it is not susceptible of

application to speech that is protected by the First and

Fourteenth Amendments.

Respectfully submitted,

D. DOUGLAS HOWARD, JR.

Counsel of Record

SHAWN C. REED

DANYELLE M. TAYLOR

HOWARD REED & TAYLOR

839 St. Charles Avenue

Suite 306 ,

New Orleans, LA 7013

(504) 581-3610

Counsel for Petitioner

App. 1

SECOND PARISH COURT

PARISH OF JEFFERSON

STATE OF LOUISIANA

STATE OF LOUISIANA NUMBER S876426

VERSUS

SHAWN BROUSSARD DIVISION “Bb”

- Proceedings taken in the above numbered and entitled

cause in open court on November 13, 2003 before the

Honorable Stephen C. Grefer, Judge presiding.

* * *

APPEARANCES:

Assistant District Attorney

LOREN C. MCGHEE

ROGER W. JORDAN

Attorney For Defendant

D. DOUGLAS HOWARD, JR.

DANYELLE M. TAYLOR

* * *

[267] THE COURT: Back on the record on case

No. 876426, “State of Louisiana vs Shawn Broussard.”

At this time, the Court having heard the evidence

submitted at trial including the testimony of the witnesses

and reviewed the videotape, which was submitted into

evidence in this matter. Submitted as both State’s Exhibit

1 as well as Defense Exhibit 1, the Court makes the

following findings.

App. 2

First of all with respect to the interfering charge,

which in some respects hold the key to the remaining

charges in this matter, if defense counsel’s argument is

correct in that if the interfering with a police officer charge

is invalid or unlawful in the first placed [sic], the remain-

ing charges should fall. The Court considers that a thresh-

old charge in this matter. If that is not the case, of course,

that is just one of three charges on the bill of information

and as such, it should be treated as the others. However,

getting to that may be of some substantive issue on ap-

peal, should there be one.

[268] The Court finds as follows with regard to the

interfering with an officer charge. First of all, we are

dealing with Jefferson Parish Ordinance 20:24 as opposed

to Revised Statute 14:108. Jefferson Parish Statute 20:24

specifically states in paragraph A that, “it shall be unlaw-

ful for any person to obstruct or interfere with any law

enforcement officer in the performance or discharge of his

duties.” That is a broader statute than that contair.ed in

14:108 and as such those words in that statute are to be

given their normal and habitual use absent some specific

definition to the contrary.

The word obstruct is further defined in paragraph B

to include for the purposes of this section, “obstruct shall

also include any acts or actions which constitute an

obstruction of an officer’s duties as defined in 14:108.” As

previously discussed in the defendant’s motion to dismiss

or a motion for judgment of acquittal, 14:108 specifically

includes that the officer must be involved in an arrest or

seizure in order for the issue of obstruction to be a valid

one.

App. 3

In that regard, the Court was cited several cases

which it read or was familiar with at the time of making

its ruling with regard to the motion to dismiss or the

motion for judgment of acquittal and has subsequently

reread those cases to confirm the Court’s opinion that the

obstruction [269] charge as defined in 108 is in fact, an

additional definition as stated in the paragraph B it says,

“shall also include any acts under 14:108.” It is not limited

to those acts under 14:108. In addition, paragraph A under

subsection 20:24 includes “obstruct or interfere with any

law enforcement officer in the performance or discharge of

his duties.”

That being the case, the question is whether these two

officers, Officer Kowalski and Officer Picou were in fact

involved in the performance and discharge of their duties

at the time. Defense counsel has argued that they were

not. In fact, that they were employees of Dillard’s. How-

ever, whether they were on a private detail or whether

they were in fact on duty, they were still performing and

discharging the duties of a police officer in the investiga-

tion of a shoplifting charge as reported to them by the loss

-prevention officer of Dillard’s at the time this incident took

place.

The Court does find that these two officers in uniform

on the night in question were in the performance and

discharge of their duties in the investigation of a shoplift-

ing charge.

The question then becomes is whether or not the

defendant in this matter, Ms. Broussard, actually inter-

fered or obstructed that investigation or the performance

of [270] those duties. The Court has the great benefit in

this matter of the video, which has been reviewed on a

App. 4

number of occasions throughout this trial and does not

have to rely solely on the testimony on the parties in this

case.

Having viewed the video and the testimony of the

witnesses, the Court finds that the video is more consis-

tent with the testimony of the officers in this matter in

that Ms. Broussard did in fact, interject or interpose

herself into the investigation being conducted by officers.

According to the video, it was in fact, Ms. Broussard who

approached Officer Kowalski initially, subsequently

retreating from the situation and then again, returning to

interpose or interject herself into that investigation again.

It appears from the video that Officer Kowalski on a

number of occasions instructed Ms. Broussard to leave the

area or to vacate the premises by the direction he was

pointing over Ms. Broussard’s shoulder. The Court noted

on three different occasions that Officer Kowalski ap-

peared to be instructing Ms. Broussard to leave. Ms.

Broussard did not withdraw or retreat from the situation

after her initial time in doing so. In fact did not leave the

premises after the initial instruction apparently by the

officer to do so.

Officer Kowalski did testify that he [271] instructed

Ms. Broussard to remove herself from the situation on a

number of occasions. Ms. Broussard, I believe continued to

interject herself into that situation. The testimony from the

officers is that Ms. Broussard was informing the defendant

of his right not to be arrested by the officers or his right not

to cooperate with the officers. Regardless of what Ms.

Broussard was in fact informing the suspect of or what she

was in fact discussing with the officers, she apparently was

not complying with the officers instructions and as such I

believe that can constitute an interference or obstruction of

App. 5

the officer’s performance and discharge of their duties in

the investigation of that shoplifting charge.

Accordingly, the Court would find Ms. Broussard

guilty of the interfering with the police officer charge as

charged under Jefferson Parish Ordinance 20:24.

With respect to the battery on police officer charge,

Ms. Broussard testified that she did in fact, knee Officer

Kowalski and in fact, did kick Officer Kowalski. Whether

that be one consistent motion or two separate motions, she

did strike Officer Kowalski on two different occasions. She

however testified that that was in response to Officer

Kowalski placing her up against the wall with his forearm

in her throat and she was simply defending herself in that

she was [272] finding it difficult to breathe at the time.

It would seem inconsistent with Ms. Broussard’s

testimony that Officer Kowalski suddenly and apparently

for no reason, according to her was able to or had reason to

put her up against the wall with his arm in her throat

short of her resisting in some fashion or causing some sort

of problem. Mr. Jacobs did testify that as they approached

or as they entered into the holding room, as it were, that

he did hear Ms. Broussard speaking loudly and screaming

and causing an obstruction and it was at that time that he

heard Officer Kowalski or saw Officer Kowalski doubled

over in pain from what apparently was a kick or knee to

‘the groin. He then did testify affirmatively that he saw

Ms. Broussard kick Officer Kowalski for a second time or

the first time that he saw, but a second time apparently

according to Officer Kowalski and as such those acts would

constitute a battery on a police officer. In fact that she did

strike Officer Kowalski in violation of Section 34 — Title

14, Section 34.2, which defines a battery on a police officer

App. 6

as, “a battery on a police officer is a battery committed

without the consent of the victim when the offender has

reasonable grounds to believe the victim is a police officer

acting in the performance of his duty.”

I don’t believe there’s any question [273] that at the

point Ms. Broussard struck Officer Kowalski she knew he

was in fact, a police officer. He was in uniform and cer-

tainly he was-in the performance of his duty at that time

as he had previously arrested Ms. Broussard.

Which leaves us only with the resisting accordingly

and the Court would find that the State has proved its

case beyond reasonable doubt with respect to the battery

charge and finds Ms. Broussard guilty of that charge as

well.

With respect to the resisting an officer charge, the

Court is of the opinion that it cannot use the basis of the

kicking and the kneeing of Officer Kowalski as a basis for

finding that Ms. Broussard did, in fact, resist arrest. The

Court is not of the opinion that the same sets of facts and

circumstances can give rise to two separate convictions. As

such, the Court would have to find a separate incident

which would constitute a resisting an officer charge.

According to the video, it seems that Ms. Broussard was

fairly cooperative at the time she was arrested. There is a

slight jerking of her arms initially, but I don’t think that

can be constituted a separate offense for resisting an

officer.

Officer Kowalski and Officer Picou tend to point to a

separate part of the video as Ms. Broussard is being led

away as being a [274] separate incident of resisting in

which she is jerking away from the officer. The Court

cannot verify or say that it actually saw that on the video.

\

App. 7

Either the video was too dark or it is not apparent from

the video.

Officer Kowalski did testify that Ms. Broussard

subsequently did resist into the holding room, that testi-

mony is unsupported either by Mr. Jacobs and is certainly

contradicted by Ms. Broussard. On that particular issue of |

resisting an officer, I don’t think the testimony is sup-

ported by the video evidence and there is a direct contra-

diction between Ms. Broussard and the officer on that

particular issue. The Court is just not convinced beyond

reasonable doubt that there was a separate incident of

resisting an officer. Certainly if the defendant was not

charged with battery on a police officer, the kneeing and

kicking would constitute a resisting charge, but again, I

don’t believe I can find her guilty on both of those charges

for the same sets of facts and circumstances. So, as such,

the Court finds the defendant not guilty with respect to

the resisting an officer charge.

As such, Ms. Broussard, if you would, please stand up,

ma’am. The Court having found you previously guilty of

battery on a police officer and obstruction or interference

with a police — interfering with a law enforcement officer

under [275] Jefferson Parish Ordinance 20:24, the most

serious of those two charges, ma’am is battery on a police

officer and under subsection B, which gives the sentencing

provisions it states, “that whoever commits the crime of

’ battery on a police officer shall be fined not more than

$500 and imprisoned for not less than 15 days nor more

than six months without the benefit of parole, probation or

suspension of sentence.”

The Court being aware that whatever sentence it

gives you in this matter must be imposed without the

App. 8

benefit of parole, probation or suspension of sentence. The

Court also being aware that there is a civil litigation

pending in this case and Court being convinced that Mr.

Howard and co-counsel certainly will intend to seek an

appeal in this matter, I'm going to impose sentence at this

time, but defer execution of that sentence until such time

as the appeal of this matter has been resolved.

MR. HOWARD: Thank you, Your Honor, for your

verdict. Let me suggest to you — thank you for not impos-

ing the sentence until after, but I don’t have an appeal

from you I have — I take a writ.

THE COURT: Avwrit or review, correct.

MR. HOWARD: So, I will have all of that for you

[276] tomorrow if you don’t mind?

THE COURT: That is not a problem. Ms. Brous-

sard, at this time, again, as I said I’m going to impose, but

not — but defer execution.

Okay. At this time with respect to the battery on the

police officer charge, ma’am, I’m going to sentence you to

60 days parish prison. I’m going to suspend all but 15 days

of that sentence and sentence you to pay a $350 fine plus

court costs.

With respect to the interfering with a police officer

charge, I’m going to again sentence you to 60 days parish

prison, defer all but 15 days of that sentence to run con-

current with the time on the battery on a police officer and

impose a sentence of $100 fine plus court costs.

So your sentence is 15 days in parish — 60 days in

parish prison. I’m going to defer all but 15 days, place you

on one year, I’m going to make that six months active

App. 9

probation. Again, however, I’m going to depose the execu-

tion of that sentence until such time as you resolve any

issues with regard to the appeal, assuming that you are

going to take a writ of review, not appeal.

MR. HOWARD: Thank you, Your Honor.

THE COURT: If you don’t file a timely writ of

review, then the sentence will become [277] executory

immediately.

MR. HOWARD: Right. Thank you.

THE COURT: Thank you. Thank you, Counsel-

ors, for your trying of this matter and your cooperation

and patience with the Court.

Place the proffers into evidence. The Court will accept

those as proffers in this particular matter, those being

previously excluded from evidence.

(WHEREUPON THE PROCEEDINGS CONCLUDED)

App. 10

Application For Writs

No. ’04-KH-174

COURT OF APPEAL, FIFTH CIRCUIT

STATE OF LOUISIANA

FEB. 18, 2004

Glyn Rae Waguespack

Deputy Clerk

STATE OF LOUISIANA

VERSUS

SHAWN BROUSSARD

IN RE SHAWN BROUSSARD

APPLYING FOR SUPERVISORY WRIT OF REVIEW FROM

SECOND PARISH COURT, PARISH OF JEFFERSON, |

STATE OF LOUISIANA, NUMBER 876-426, DIRECTED TO

THE HONORABLE STEPHEN C. GREFER, JUDGE DIVI-

SION “B”.

Attorneys for Relator:

D. Douglas Howard, Jr.

Danyelle M. Taylor

Attorneys at Law

839 Saint Charles Ave

Suite 306

New Orleans, LA 70130

(504) 581-3610

Attorneys for Respondent:

Terry M. Boudreaux

Assistant District Attorney

100 Derbigny Street

Gretna, LA 70053

(504) 368-1020

App. 11

WRIT REFUSED

The writ application is not in compliance with our

uniform rules. Uniform Rules — Courts of Appeal 4-5

requires relator to include a copy of the ruling complained

of in the writ application. Rule 4-5(h) requires her to

provide a copy of each pleading on which the judgment,

order or ruling was founded. There is no showing that the

constitutional issue was ever presented in the trial court.

In addition, relator challenges the sufficiency of the

evidence to support the convictions, but presents nothing

for this court to review, as she does not include the trial

transcript.

Rule 4-1 provides that an application shall not be

considered unless it is properly filed with the clerk. On the

showing made, we decline to exercise our supervisory

jurisdiction.

GRETNA, LOUISIANA,

this 7th day of April, 2004.

/s/ (legible)

JUDGE MARION F. EDWARDS

/s/ T.D.

JUDGE THOMAS F. DALEY

/s/ SMC

JUDGE SUSAN M. CHEHARDY

App. 12

The Supreme Court of the State of Louisiana

STATE OF LOUISIANA

VS. NO. 2004-K-1143

SHAWN BROUSSARD

IN RE: Broussard, Shawn; — Defendant; Applying for

Supervisory and/or Remedial Writs, Parish of Jefferson,

Second Parish Court for the Parish of Jefferson, No. 876-

426; to the Court of Appeal, Fifth Circuit, No. 04-KH-174

February 18, 2005

Denied. <

: JLW

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.

Supreme Court of Louisiana

February 18, 2005

/s/ Katherine A. Fontana

Deputy Clerk of Court

For the Court

App. 13

The Supreme Court of the State of Louisiana

STATE OF LOUISIANA

VS. NO. 2004-K-1143

SHAWN BROUSSARD

IN RE: Broussard, Shawn; — Defendant; Applying for

Reconsideration of this Court’s Order dated February 18,

2005; Parish of Jefferson, 2nd Parish Court Div. B, Nos. 876-

426; to the Court of Appeal, Fifth Circuit, No. 04-KH-174

April 8, 2005

Application for reconsideration denied.

CDK

CDT

JPV

JTK

JLW

CALOGERO, Chief Justice, would grant.

JOHNSON, J., would grant.

Supreme Court of Louisiana

/s/ Katherine K. Fontana

Deputy Clerk of Court

For the Court

App. 14

La. R.S. 14:108. Resisting an officer

A. Resisting an officer is the intentional interference

with, opposition or resistance to, or obstruction of an

individual acting in his official capacity and authorized by

law to make a lawful arrest or seizure of property or to

serve any lawful process or court order when the offender

knows or has reason to know that the person arresting,

seizing property, or serving process is acting in his official -

capacity.

B. (1) The phrase “obstruction of” as used herein shall,

in addition to its common meaning, signification, and

connotation mean the following:

(a) Flight by one sought to be arrested before the arrest-

ing officer can restrain him and after notice is given that

he is under arrest.

(b) Any violence toward or any resistance or opposition to

the arresting officer after the arrested party is actually

placed under arrest and before he is incarcerated in jail.

(c) Refusal by the arrested party to give his name and

make his identity known to the arresting officer or provid-

ing false information regarding the identity of the arrested

party to the arresting officer.

(d) Congregation with others on a public street and

refusal to move on when ordered by the officer.

(2) The word “officer” as used herein means any peace

officer, as defined in R.S. 40:2402, and includes deputy

sheriffs, municipal police officers, probation and parole

officers, city marshals and deputies, and wildlife enforce-

ment agents.

App. 15

C. Whoever commits the crime of resisting an officer

shall be fined not more than five hundred dollars or be

imprisoned for not more than six months, or both.

Jefferson Parish Ordinances

Sec. 20-23. Definitions.

For the purposes of this article, the following terms,

phrases, words and derivations shall have the meaning

given herein, unless it shall be apparent from the context

that a different meaning is intended:

(1) Code enforcement officer shall mean any

employee of the Parish of Jefferson or any of its

districts, agencies and/or departments who is au-

thorized to make inspections, issue violation no-

tices or summons and/or otherwise authorized to

enforce the ordinances of Jefferson Parish. The

term “code enforcement officer” shall include, but

not be limited to: inspectors of the department of

inspection and code enforcement, animal control

officers of the Jefferson Parish Animal Shelter,

inspectors of the department of environmental ©

affairs, inspectors of the department of fire and

emergency services and any empowered officer or

deputy of the Jefferson Parish Sheriff’s Office.

(2) Fire fighter shall include fire fighters em-

ployed by the department of fire and emergency

services or any authorized member of a volunteer

fire company. i

(3) Interfere with. The phrase “interfere with,”

as used herein, shall, in addition to its common

meaning, signification and connotation, mean:

App. 16

a. The intentional hindering, infringing,

intermeddling, obstructing, delaying, ham-

pering or impeding the progress of.

b. The intentional cursing, reviling or us-

ing of any opprobrious language.

(4) Law enforcement officer shall include: The

sheriff of the Parish of Jefferson or any deputy

sheriff; any federal, state or municipal law en-

forcement officer duly empowered with police au-

thority; and any other law enforcement officer

authorized to perform official duties in the unin-

corporated areas of the Parish of Jefferson.

. 20-24. Interfering with law exforcement officers.

(a) It shall be unlawful for any person to ob-

struct or interfere with any law enforcement offi-

cer in the performance or discharge of his duties.

(b) “Obstruct,” for the purposes of this section,

shall also include any acts or actions which con-

stitute an “obstruction of” an officer’s duties as

defined in R.S. 14:108.