03/17/2017 PRI 12:48 FAX Bo03/029 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT ‘THERESA RICHARD and MITCHEL RICHARD PLAINTIFFS VERSUS ACADIA PARISH CLERK OF COURT, DEPUTY SMITH, individually and in his Official Capacity as an Acadia Parish Sheriff's Deputy, and the ACADIA PARISH SHERIFF'S OFFICE, DEFENDANTS é ON FOR EMERGENCY SUPERVISORY WRIT AND STAY ORDER i5* JUDICIAL DIST! COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, DOCKET NO. 2016-10111G THE HONORABLE LAURIE HULIN, Presiding Judge OPPOSITION TO WRIT APPLICATION OF PLAINTIFFS, THERESA RICAHRD and MITCHEL RICHARD H. Edward Barousse, Hf, 28310 BORNE, WILKES & RABALAIS, L.L.C P.O, BOX 4305 200 WEST CONGRESS STI LAFAYETTE, LA 70501 Phone: (337) 232-1604 Fax: (337) 232-1837 barousse@bornewilkes.com = 100003/17/2017 PRI 12:48 FAX Boosso29 TABLE OF CONTE TABLE OF CONTENTS. TABLE OF AUTHORITIES LAW AND ARGUMENT. I. ‘THE APPLICATION DOES NOT WARRANT THE COURT'S EXERCISE OF SUPERVISORY JURISDICTION... 1. JUDGE HULIN PROP! TO RECUSE HERSEL ERLY DECLINED IL, REMAINING ISSUE TO BE ADDRESSED THAT ARISE FROM THE WRIT APPLICATION CONCLUSION VERIFICATION ..03/17/2017 PRI 12:49 PAX Boos/o29 Cases Borrel’s, Ine. v. City of Mark ille, 05-48, p. 1 (La. App. 3 Cir. 6/1/05); ions omitted) (emphasis added)... Coliseum Square Association v, City of New Orleans 544 So.2d 351, 360 (La.1989) Disaster Restoration, 927 So.2d at 1097 .... Fontana y. Fontana, 13-0916, p. V7 (La. App. 4 Cit. 2/12/14); 136 So.3d 173, 184 (quoting Dejoie v. Guidry, 10-1542, p. 19 (La. App. 4 Cir. 7/13/11), 71 $0.30 1111, 1122) Herlitz Construction Co., Inc. v. Hotet Investors of New Iberia, Ine. 396 So. 2d 878 (La. 1981}... Leslie Williams, Counselman v. Pragre. 2001-2335 (La. 8/13/01)... State v. Calderon, 630 So. 2d 305, 306 (La. App. 5 Cir. 1993) writ denied, 94-1862 (La. 12/9/94), 647 So. 2d 1106 . State ex rel. Tuscano v. Donneily, 491 $0.24 1341 (La.1986)...00.00 Wi . Bossier Parish Sch. Bd., 02-1525, p. 6 (La. 6/27/03); B51 So.2d 1090, 1094 (citing Burst v. Bd. of Com'rs Port of New Orieans, 93-2069 (La.10/7/94), 646 S0.2d 955, writ not considered, 95-265 (La.3/24/95), 631 So.2d 284) su. » ‘pe Statutes La. C.CP. article 1S1(A M14) ssc Fe ea eee EE Reales: La. U R, Dist. Ct, 9.8(a), (c), and (@) if03/17/2017 PRI 12:49 PAX oos/o29 First, contrary to Applicants’ assertions, supervisory jurisdiction is not warranted here. Applicants have not and cannot demonstrate that they have no other remedy or that irreparable injury will result if their Application is denied. For the reasons set forth in this opposition memorandum, there is no irreparable injury. Secondly, Judge Hutin properly exercised her discretion in declining to recuse herself. Judge Hulin's decision was not an abuse of discretion, and Applicants have failed to demonstrate any justification for its reversal. ‘Accordingly, Applicants’ Application is without merit and should be denied. Applicants also moved, ex parte, for a stay of all proceedings in the trial court pending supervisory review. Applicants never sought Respondents’ consent to the imposition of a stay. Applicants also did not ask that their request for a stay be set for a contradictory hearing, in violation of La. Unif. R. Dist. Ct. 9.8(@), (e), and (e). LAW.AND ARGUMENT lL THE APPLICATION DOES NOT WARRANT THIS COURT'S EXERCISE OF SUPERVISORY JURISDICTION. The present Application does not warrant this Court’s exercise of {ts “extraordinary powers of supervisory jurisdiction.” State v, Calderon, 630 So. 24 305, 306 (La. App. 5 Cir. 1993) writ denied, 94-1862 (La. 12/9/94), 647 So. 2d 1106. However, “supervisory writs will not issue when relator has available another adequate remedy.” State ex rel, Tuscano v. Donnelly, 491 $o.2d 1341 (La, 1986). As stated by this Court: The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La, Const. art. 5, § 10. Appellate courts generally will not exercise such jurisdiction unless an error in the trial court's ruling will cause the petitioner irreparable injury or an ordinary appeal does not afford an adequate remedy. ne03/17/2017 PRI 12:49 PAX o07/029 904 $0.24 Borrel's, Ine. v. City of Marksvitle, 05-48, p. 1 (La. App. 3 Cir, 6/14 938, 939 (citations omitted) (emphasis added); see also Herlitz Construction Co., Ine. v. Hotel Investors of New Iberia, Inc., 396 So. 24 878 (La. 1981}. Thus, only “in extraordinary cases in which justice is being denied and irreparable damage would result before an appeal could be taken” will a supervisory writ be considered, Tuscano, 491 So.2d 1341. i. JUDGE HULIN PROPERLY DECLINED TO RECUSE HERSELF Judge Hulin's decision to not recuse herself, or refer the motion for recusation to another judge, was not an abuse discretion standard is highly deferential to the trial judge's determination” under consideration. Fontana v. Fontana, 13-0916, p. 17 (La. App. 4 Cir. 2/12/14); 136 $o.3d 173, 184 (quoting Dejoie v. Guidry, 10-1542, p. 19 (La, App. 4 Cir. WA3/i1), 71 So.3d 1111, 1122). “Generally, an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner.” Wise v. Bossier Parish Sch, Bd., 02-1525, p. 6 (La. 6/27/03); 851 So.2d 1090, 1094 (citing Burst v. Bd. of Com'rs Port of New Orleans, 93-2069 (1a.10/7/94), 646 So.2d 955, writ not considered, 95-265 (La.3/24/95), 651 So.2d 284). “The word ‘arbitrary’ implies a disregard of evidence or of the proper weight thereof.” Id. “A conclusion is ‘capricious’ when there is no substantial evidence to support it or the conclasion is evidence.” Id. (citing Co contrary to substantiated competent eum Square Association v. City of New Orleans, 544 S0.2d 351, 360 (La.1989)). Applicants have not, and cannot, show that Judge Hulin abused her disoretion by declining to recuse herself. Applicants, within their original Motion for Recusation and Incorporated Memorandum, attached as Exhibit D to their Writ Application, allege that Judge03/17/2017 PRI 12:50 FAX oosso29 Hulin’s recusal was appropriate pursuant to Louisiana Code of Civil Procedure article 151(A\(1) and (4), which states that a Judge shall be recused when (1) he or she is a witness in the case (2) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attomeys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings. La, Code Civ. Proc, att, 151(A)(4). ‘The law is well-settled that “[o]ace confronted with valid grounds of reeusal, the judge is obligated to either order recusal or refer the case to another judge for 2 hearing on the motion to recuse.” Disaster Restoration, 927 So.2d at 1097 (emphasis added). Indeed, as Judge Hulin cited in her Reasons for Ruling, attached as Exhibit H to the Writ Application, chat “if'a valid Louisiana Code of Civil Procedure article 154 specificially staes ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoe, as provided in Articles 155 and 156 for a hearing.” La. C.C.P. art 154, Therefore, as a necessary predicate to recusal or referral, a valid ground for recusation must exist. In Judge Hulin's Reasons for Ruling, she affirmatively declares that a valid ground does not exist, No further action set forth in article 154 is necessary or appropriate Applicants clearly have not shown an abuse of discretion. Judge Hulin is certainly in the best position to determine whether or not a valid ground for recusal exists. Applicants oaly make reference to vague allegations and histrionic statements regarding our nation's constitutional framework rather of ring substantive evidence of the need for recusal. Notably, Applicants do not allege that Judge Hulin’s decsision was made in bad faith or that her decision was arbitrary or capricious and made in “disregard03/17/2017 PRI 12:50 FAX oos/o29 of? or “contrary to” the evidence. Fontana, 136 So.3d at 184; Wise, 851 So.2d at 1094. Rather, Applicants simply complain that Judge Hutin did not take either action desoribed in Code of Civil Procedure article 154. This is not a sufficient basis to find that Judge Hulin abused her discretion, Accordingly, Judge Hulin's decision was not an abuse of discretion, but rather is specifically allowed by Articles 151 and 152 and the above authorities. HI REMAINING ISSUES TO BE ADDRESSED THAT ARISE FROM THE WRIT APPLICATION In addition to the ability of Judge Hulin to continue to take action in this snatter after the Motion to Recusal has been filed, which is listed as the second Issues and Questions of Law inthe Writ Application, and the sole assignment of error, undersigned counsel wishes to address the two other Issues and Questions of Law, which concern whether the judges of the 15th Judicial District would be able to conduct a fir hearing on the constitutionality of the en bane Order attached to the writ application as Bxhibit A, as weil as the ability of any party to recuse all of the 15th Judical District Court judges en bane. With respeot to the constitusionality of the en banc Order, applicants have conveniently omitted any subsantive discussion of the underlying Motion for Summary Judgment. Given that the defendants are the Acadia Parish Sheriff's Office and a deputy of that office, it will not surprise the Court to leam that the motion is based upon the doctrine of qualified immunity and seeks dismissal of alt claims on that basis. As this Honorable Court knows, once qualified immunity has been properly pleaded (and there has been no allegation in the underlying litigation that it was not), the issue of qualified immunity can and must be decided before any constitutuional question. Applicants obfuscate the real issue in the underlying Titigation, The issue to be addressed by the Court is the applicability of the aa03/17/2017 PRI 12:51 FAX Boroso29 doctrine of qualified immunity-not the consititionality of the en banc Order. The issue of constitutionality need not be reached for Judge Hiulin to issue a ruling on the Motion for Summary Judgment. A copy of the Motion for Summary Judgment is attached as Exhibit A for Coutt's ease of reference, though the exhibits to that motion and memomadum are not attached as they are already made part of the record in the Writ Application’ Additionally, the Applicants discuss whether there ts any viable procedural mechanism for an en Barc recusal of all Judges of the Fifteenth Judicial District Court. In support of Applicants allegation that such a recusal ean be made, applicants cite to the decision of Leslie Williams, Counsetman v. Progressive Insurance Company, 2001-2335 (La, 8/13/01). Respondants have attached as Exhibit "B" the memorandum decision associated with that citation, As can plainly be seen, the memorandum decision provides absolutely no context for the underyling litigation. Without any factual recitation or underlying legal discussion, Respondents are unable to address the Applicants’ citation of that decision. However, turning again to Louisiana Code of Civil Procedure Article 154, a recusal of any type-whether it be an individual judge or an en bane recusal- is only appropriate if a valid ground for recusal exists. Respondents respectfully suggest that no such reason exists, and Judge Hulin agreed within her Reasons for Ruling No valid ground for recusal exists. As such, Judge Hulin is allowed to continue to act in the underlying litigation. Applicants‘ assertions to the contrary are completely false and without legal underpinning. ‘The only reason for the professed need for recusal is a determination of the constitutionality of the en banc © Andersigned eounse! sould also note thatthe Motion for Soramary Jadgroent was orginally set for hearing fn November of 2016, and was thin coset for January, 2027. On bot occasions, applicants counsel professed the need 70 contitn the Kearing de 1 procedural complaints. The bearing alse did not go forward ou March 15th, eae tothe applicant’ filing their Motion for Recusation in the Fifleent Judicial Distiet Cour,03/17/2017 PRI 12:51 FAX o11/029 Order. As indicated within this Opposition Memorandum, the constitutionality of the Order need not be addressed because only the issue of qualified immunity needs to be decided by Judge Hulin. Finally, as also indicated within this Opposition Memoranum, Applicants’ counsel did not properly posture this motion for consideration of the request to stay all underlying proceedings while the Writ Application is being considered. Respectfully Submitted, BORNE, WILKES & RABALAIS, L.L.C. BY: JOY C. RABALAIS (26476) KYLE N. CHOATE (33524) TAYLOR R. STOVER (LA 35975) (7x 24090350) ALLISON M, ACKAL (31590) 3 i (LA 28310) (VAAGITTD Post Office Box 4305 Lafayette, Louisiana 70502-4305 Telephone: (337) 232-1604 Ext. 232 ATTORNE FOR ACADIA PARISI SHERIFF'S OFFICE and DEPUTY BARRY SMITH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A DEPUTY SHERIFF FOR THE ACADIA PARISH SHERIPP’S OFFICE03/17/2017 PRI 12:52 FAX o12/029 VERIFICATION BEFORE ME, the undersigned notary, personally came and appeared: H. EDWARD BAROUSSE, IT who, in accordance with Uniform Rules Rule 4-5, did depose and state that: 1. He is the attomey for the Respondents, ACADIA PARISH SHERIFF’S OFFICE and DEPUTY BARRY SMITH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A DEPUTY SHERIFF FOR THE ACADIA PARISH SHERIFF'S OFFICE; aa He has read the contents of this opposition and states that they are trac and correct; and 3, A copy of the above and foregoing has been served on the following parties by depositing same in the United States Mail, postage prepaid and by * fay of March, 2017. SWORN,TO AND SUBSCRIBED BEFORE ME THIS (pay OF MARCH, 2017, nate Hon. Laurie Hulin, Judge Sth Judicial District Court 100 N. State Sireet, Suite 210 Abbeville, LA 70510 Office Phone: (337) 893-4315 Fax: (337) 893-9609 hulinlawclerk@icloud.com Mr. Stephen A. Stefanski L. Clayton Burgess, A-P.L.C. L. Clayton Burgess (22979) 605 West Congress Street Lafayette, LA 70501 ‘Telephone: 337-234-7573 Fax: 337-233-3890 il: Icburgess@clayburgess.com Edwards, Stefanski and Zaunbrecher, 1..L.P. P.O. Drawer 730 Crowley, LA 70527-0730 ‘Telephone: 337-783-7000 Fax: 337-783-316503/17/2017 PRI 12:52 FAX [ao13/029 15™ JUDICIAL DISTRICT COURT FOR THE PARISH OF ACADIA STATE OF LOUISIANA NO. 201610181 DIVISION SG” THERESA AND MITCHEL RIC! VERSUS ACADIA PARISH CLERK OF COURT, ET AL, FILED: DEPUTY CLERK MOTION FOR SUMMARY JUDGMENT NOW INTO COU T, through undersigned counsel, come the defendants, Deputy Barmy Smith, individually and in his official capacity as an Acadia Parish Sherif?’s Depu Acadia Parish Sheriff's Of ind respectfully request this Honorable Court to grant the present motion for summary judgment because the actions of the Acadia Parish SherifI"s Office and their employees are protected by the affirmative defense of qualified imamunity, and therefore the present de! lants may not be held liable for any the plaintiffs’ alleged damages. in support of this motion, the present defendants submit their Memorandum i Support along with Exhibits 4 and B. attached hereto and made a part hereot WHEREFORE, premises considered, the present defendants, Deputy Barry Smith, individually and in his official capacity as an Acadia Parish Sheriff’ s Deputy, and the Acadia Parish SherifP’s Office, pray that summary judgment be rendered by this Honorable Count in their favor ancl against the plaintifis, Theresa and Mitchel Richard, dismissing all claims of the plaintiffs, with prejudice, at plaints" costs RESPECTFULLY SUBMITTED, BAROUSSE CRATON, LLC. BY, P.O. Box 1305 Crowley. LA 70: 337 785-1000 337 785-2000 Fax No. g03/17/2017 PRI 12:52 FAX Boreso29 THEREBY CERTIFY that a copy of the above and foregoing Motion for Summary Judgment was this day mailed to all counsel of record by placing same in the U.S. Mail, postage prepaid and properly addressed, by commercial courier, by electronic service per agreement, or by acceptance of hand delivery. Crowley, Louisiana, this "day of November, 2016 Hd H. EDWARD BAROUSSE, HL03/17/2017 PRI 12:53 FAX o1s/o29 15"? JUDICIAL DISTRICY COURT FOR THE PARISH OF ACADIA STATE OF LOUISIANA NO. 201610111 DIVISION “G” THERESA AND MITCHEL RICHARD VERSUS ACADIA PARISH CLERK OF COURT, ET AL FILED: DEPUTY CLERK RULE TO SHOW CAUSE ‘Considering the foregoing Motion for Summary Fudgment, Memorandum in Support of Motion for Summary Judgment, and Statement of Uncontested Facts filed on behalf of the defendants, Deputy Barry Smith, individually and in his official capacity as an Acadia Parist Sheriff's Depaty, and the Acadia P: Sherif?"s Office; IT IS ORDERED that the plaintiffs, Theresa and Mitchel Richard, appear in Court onthe ___ day ofNovember,2016,at_a.m,, to show cause why the Motion for Summary Judgment filed on behalf of the present defendants should not be granted ORDER Sit BD in Chambers at Crowley, Acadia Parish, Louisiana, this day of November, 2016. DISTRICT UDG) Service will be pertected pursuant to La. C.C.P. 1313(C)03/17/2017 PRI 12:53 FAX 15" JUDICIAL DISTRICT COURT FOR THE PARISH OF ACADIA STATE OF LOUISIANA NO. 201610111 DIVISION “G” THERESA AND MITCHEL RICHARD VERSUS ACADIA PARISH CLERK OF COURT, ET AL FILED: DEPUTY CLERK UNC STED MATERIAL FACTS NOW INTO COURT, through undersigned counsel, comes defendants, Deputy Barry Smith, individually and in his official capacity as an Acadia Parish Sheriffs Deputy, and the Acadia Parish Sheriff's Office, who submit this Statement of Uncontested Material Facts in connection with their Motion for Summary Sudgr 1 » in this action, On or about February 10, 2015, Theresa Richard traveled to the Acadia Parish Courthouse to review a lawsuit in the Clerk of Court's Office, (See Exhibit “A”, plaintifis’ petition for damages, paragraph 3) When Ms. Richard entered through security at the front entrance of the Acadia Parish courthouse, a written notice stated that cameras and cell phones would be banned after March 1. Gee Exhibit “A”, paragraph 4) On January 15, 2015, former Chief Justice of the Fifteenth Judicial Disict Court Mariiyn C. Castle signed aa en bane order of the Judges of the Fiftecath Judiciai District titled urity Guidelines.” Within the Court Order, itis stated that “This Order supersedes any existing security procedures and is effective November 1, 2014." (See Exbibit B, Court Order of Judge Marilyn C. Castle signed Jenuary 15, 2015) The Security Guidelines document, the initial section titled “General Guidelines”, states in part as follows: 4, Anyobject deemed notto be appropriate, and/or in the guards opinion could be used as a weapon, may be confiscated and held. The holderowner may be directed to return such item(s) to bis/her vehicle, Inappropriate objects include sharp items (knives, scissors, razors, etc.), cameras, cellphones with recording capability, and mace, (See Exhibit “B”, "General Guidelines paragraph 4) In the section titied “Exemptions, the Secutity Guidelines document provides that courthouse employees and attorneys “may bring celiphones with photo/video capability into the building, as long as they abide by prohibition against recording audio or video in the courthouse.” (See Exhibit “B, “Exemptions” section) ad Bors/o2903/17/2017 PRI 12:53 FAX o17/029 6 10. 14, Ms, Richard traveled to the Clerk of Court's office and began to photograph pages in a particular courtrecord. She was advised that she was not allowed to photograph court records by Acadia Parish Clerk of Court personnel, (See Exhibit “A”, paragraphs 5-8) Acadia Parish Sherift"s Office Deputy Barry Smith approached Ms. Richard and requested identification. (See Exhibit “A”, paragraph 14) ‘Upon questioning by Ms. Richard, Deputy Smith confirmed that she was being detained. (See Exhibit A, paragraph 15) Ms, Richard asked what crime had beea con being detained for taking photographs of fi paragraph 16) ited and Deputy Smith advised that she was with her cell phone. (See Exhibit “A” Ms. Richard was escorted to a separate wing of the courthouse by Deputy Smith. She was asked to identify herself and was advised that she was not free to leave (See Exhibit “A”, paragraph 17) Ms. Richard was detained for over one hour by Deputy Smith. (See Exhibit “ i) ", paragraph Mr. Richard was advised that he could not see his wife while she was being detained. (See Bxhibir“A”, paragraphs 20-21) Deputy Smith obtained a copy of Louisiana Revised Statute 44:32, the subsection of the Louisiana Public Records Law titled “Duty to permit examination; prevention of alteration; payment for overtime; copies provided; fees. Ms. Richard was advised that this subsection, ‘was the law that she had broken, (See Exhibit “A”, paragraph 22) Ms. Richard alleges that she was wrongfully detained for an unnecessary amount of time and ‘was frightened and emotionally distressed by her detention, (See Exhibit “A”, paragraph 27) RESPECTFULLY SUBMITTED, BAROUSSE & CRATON, L.L.C. BY: Hb TL EDWARD BAROU P.O. Box 1305 LA 70527-1305 337 785-1060 337 785-2000 Fax No Attorney for Defendants aL03/17/2017 PRI 12:54 PAX o1s/o29 CERTIFICATE, I HEREBY CERTIFY that a copy of the above and foregoing Staternent of Uncontested Material Facts was this day mailed to all counsel of record by placing same in the U.S. Mail, postage prepaid and properly addressed, by commercial courier, by electronic service per agreement, or by acceptance of hand delivery Crowley, Lousiana, this 1! gay of November, 201603/17/2017 PRI 12:54 PAX o1s/029 18™ JUDICIAL DISTRICT COURT FOR THE PARISH OF ACADIA STATE OF LOUISIANA NO, 201610811 DIVISION “G” THERESA AND MITCBEL RICHARD VERSUS ACADIA PARISH CLERK OF COURT, EF AL, FILED: DEPUTY CLERK MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ff THE COURT: INTROD! BACKGROUND Theresa and Mitchel Richard filed a Petition for Damages on February 8, 2016 allegi the plaintiffs incurred damages as a result of Theresa Richard's errand to the Acadia Parish courthouse on February 10, 2015. The petition alloges that a sign posted at the courthouse entrance indicated that after March 1, 2015 cell phones and cameras would ne longer be allowed in the courthouse, Undersigned counsel assumes that this Honorable Cow is aware of the Fifteenth Judicial District Court Order issued by former Chief Judge Marilyn C. Castle pursuant to an en bane order, and with an effective date of November 1, 2014, banning cell phones and cameras from 15th JDC courthouses. Therefore, on the date of the incident there was already & court order in place expressly forbidding the entry of cell phones or cameras uni by a court employee or an attorney. Mars, Richard alleges in her petition that she wished to inspect and copy a suit record. She attempted to photograph the court record with her phone end was admonished by Clerk of Court personnel to stop. Acadia Parish Sheriff's Office Deputy Barry Smith, who is daily stationed by the courthouse entrance, eventually traveled to the second floor and asked Rickard to come with bis. ‘When asked why, Smith said Richard had broken a law but needed to determine the specific law. He advised Richard that she was being detained. Richard was brought downstairs to a separate,03/17/2017 PRI 12:54 PAX [o20/029 {n the courthouse building and was detained for approximately an hour while Smith 1) attempted to determine what law may have broken and 2) waited to speak with Robby Barousse, the Clerk of Court for Acadia Parish and the "victim of the complaint who was not in the courthouse when the incident first transpired, Deputy Smith had been previously told by Robby Barousse that individuals are not allowed to photograph court records. Thats accurate, Smith was attempting determine which "law" stated as much and bad a good faith belief that Richard had committed a crime. ‘The public records law does indeed have « prohibition against 1g independent means to photogeapl: records from the clerk of court's office. This is in addition another statute directly on point as well as the 15th JDC ban on cameras and cell phones. During the hour of detention, Mitchel Richard attempied 0 see his wife but was allegedly escorted back outside, The petition alleg that both Richards were told they were based from the courthouse, but such an allegation is completely inaccurate. Ms. Richard has retuned to the courthouse since the date of the incident, and has been recognized and allowed to retum the courthouse. In short, the Richards have leveled a public records request claim against the clerk of court's office and a false imprisonment/unlawful detention and emotionel distress ciaim against Deputy Sntith and the Acadia Parish Sheriffs Office. The plaintiffs have not asserted valid claims inst the present defendants, The Sheriff Department defendants enjoy the defense of qualified immunity for any actions taken concern’ their investigation of the ineident which forms the basis of thi by law so police investigations can be conducted without fear of incurring legal licbility. Be the Sheriff's Department defend: nts enjoy qualified immunity, thi s Motion for Summary Judgment should be granted. A.court must grant a motion for sunamary judgment “[i ifthe pleadings, depositions, answers to interrogatories, and admissions oa file, together with the affidavits, if any, show that there is no gemuine issue as to ‘ial fect, and that mover is entitled to judyment as a matter of law.03/17/2017 PRI 12:55 FAX [oz1/029 Catahoula Parish School Board. et al v. Louisiana Machinery Rentais, 2012-2504 (La. 10/1 124 So.3d 1065, 1071; La. C.C.P. Ant. 956(B) Initially, the movant bears the burden of proof. La. Code Civ. Proc. art. 966(C ‘However, ifthe movant will not bear the burden of proof at trial, the movant is not required to negate all essential elements of the adverse pusty’s claim, but merely point to an absence of factual support for one ot more of the elements essential to the adverse party’s claim, action, or defense, If the ‘movant successfully meets this burden, then the burden shifis to the other perty to present factual support adequate #0 establish that he/she will be able to satisfy the evidentiary burden at trial. If the other party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law, Quannun Resources Management, 1.L.C., et al v. Pirate Lake Oil Corp, et al, 2012-1472 (La. 03/19/13), 112 So.3d 209, 214. Additionally, and importantly, the actions of Deputy Smith are protected by the doctrine of qualified immunity. The doctrine of qualified immunity shields government officials from liability for claims brought against therm in their individual capacity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v, Fitzgerald, 457 U.S. 800, 818, 102 $.C1, 2727, 73 LEd.2d 396 (1982). The doctrine is designed to shield government officials from harassment, distraction, and liability when ‘they perform their duties reasonably, and it applies regardless of whether the official's error i mistake of law, a mistake of fact, ora mistake based on mixed questions of law and fact.” Pearson v, Callahan, 335 US. 223, 229, 129 S.Ct. 808, 172 L.Ed, 2d 565 (2009) (quoting Gro’ v. Ramirez, 540 US. 551, 567, 124 8.Ct, 1284, 187 L.Ed. 2d 1068 (2004) (Kennedy, J., dissenting) (emphasis original). Because qualified immunity is "an immunity from suit rather than a mere defense to Hability, . itis effectively lost ifa case is erroneously permitted to go to tial.” Mitchell v. Forsyth, 472 US. 511, $26, 105 8. Ct 2806, 86 L.Ed. 2d 411 (1985) Consequently, qualified immunity questions should be resolved at the earliest possible stage in litigation, Hunter v. Brywnt, 302 U.S 225 227, 112 $.Ct, 534, 116 L.Ed. 2d $89 (1991) (per curiam). ‘Once a defendant has invoked the defense of qualified immunity, the burden shifts ta the plaintiff to show that the defense is unavailable. Collier v. Montgomery, 569 F.3d 214, 217-218 (503/17/2017 PRI 12:55 FAX [o22/029 Cir, 2009); McClendon v. City of Columbia, 305 F.3d 314, (S* Cir, 2002) en banc). “Although ‘qualified immunity is ‘nominally an affirmative defense,” the plaintiff bears a heightened pleading burden ‘to negate the defense once properly raised.” Newman v. Guedry, 703 F.3d 787. 961 (3 Cir. 2012) Because "[tJhe basic thrust of the qualified-immunity doctrine is to tree officials from the concerns of litigation, including avoidance of disruptive discovery." the offivers! immunity claim ‘warrantsa ruling on their motion for summary judgment without further discovery, Asheraft. Igbal. $56 US, 662, 685, 129 S.Cl. 1937, 173 L.Fd.2d. 868 (2009) LAWAND ARGUMENT a. ‘The plaintiff's initial burden in the context of qualified immunity Asmentioned previeusly, once the defense of qualified immunity has been invoked, as ithas in this lawsuit, the burden shifts tot he plaintiffto show that the defense is unavailable, To discharge this burden, the plaintiff must satisfy « bwo-prong test: (1) claim that the defendants committed a constitutional violation under current law; and, (2) claim that defendants’ actions were objectively unreasonable in fight of the law that was clearly established at the time of the actions about which he complains, Areberry v. Nocona Gen. Hosp., 430 F 3d 245, 251-52 (Sth Cir. 2008}. While itwill often be appropriate to conduct the qualified immunity analysis by first deiermining whether a constitutional violation occurred and then determining whether the constitutional right was clearly established, that ordering of the analytical steps is no longer mandatory. Pearson ». Callahan, 555 US. 223, 226, 1298. Cr 808, 172 L. Bad 2d 565 (2009)(overruling in part Souctor v. Kate, $33 US. 194, 121 8 Ct. 2181, 280 L. Ed. 2d 272 (2001). The burden of negating the defense lies with plaintiff. Bazan ex rel, Bazan v, Hidalgo County,246P 34 481 (S* Cir. 2001), The plaintiffs simply cannot carry this burden, b. The statutory regime in place at the time of Ms. Richard's detention informed Deputy Smith’s reasonable belief that Ms, Richard had broken a law Deputy Smith identified Louisiana Revised Statute 44:32, a substantive section of the Louisiana public records law, as the law broken by Ms. Richard. The initial statutory section of the public cecords law, 44:31, is entitled “Right to Examine Records”. ‘The statute is clear that “Providing, access fo public records is a responsibility and duty of the appointive or elective office ‘ofa custodian and his employees.” The term “custodian” is used throughout the public records law, and, to the extent that the plaintifi have argued that various parties may have restricted their access 403/17/2017 PRI 12:56 FAX [023/029 to public records, it fs clear that the Clerk of Court and his or her employees are the custodians obligated to make available public records. Deputy Smith, and any other member of the Acadia Parish Sheriff's Office, are not public record custodians. Notably, Revised Stame 44:32 provides in relevant part that “The use or placement of mechanical reproduction, microphotographic reproduction, or any other such imaging, reproduction, ‘or photocopying equipment within the offices of the clerk of court by any persoa deseribed in RS, 4:31 is prohibited unless ordered by a court of competent jurisdiction”. La, RS. 44:32(CV(1)¢ ©) Assuch, the Louisiana Public Records Law itself provides a statutory basis for denying Ms. Richard the ability to photograph court records without paying for them, Additionally, Louisiana law provides yet another basis for Deputy Smith to detain Ms. Richard. Louisiana Code of Civil Procedurearticle 251 istitled “Custodian of court records; certified copies; records public” and provides in relevant part as follows: A. The clerk of court is the legal custodian of all of its records and is responsible for their safekeeping and preservation. He may issue a copy of any of these records, certified by him under the seal of the court to be a comrect copy of the original. Except as otherwise provided by law. he shall permit any person to examine, copy, photograph, or make a memorandum of any of these records at any time curing which the clerk's office is required by law to be open However, notwithstanding the provisions of this Paragraph or RS. 44:31 et seq., the use, placement, or installation of privately owned copying, reproducing, scanning. or any other such imaging equipment, whether hand-held, portable, fixed, or otherwise, within the offices of the clerk of court is prohibited unless ordered by a court of competent jurisdiction. La. C.C.P. art, 251(A). Louisiana Code of Civil Procedure 251 js clear thatno handheld device such as a cell phone may be used to take photographs of court records, A similar admonition is contained within the Louisiana public records law itself. These stanstory prohibitions are in addition to the specific en bane 15" SDC court order expressly prohibiting Ms. Richand from bringing a cell phone into the courthouse, whether or not it was used to photograph court records or anything else. Deputy Smith was operating within a clearly established legal framework when he detained Ms. Richard, and therefore his actions in detaining Ms. Richard were objectively reasonable. 1€03/17/2017 PRI 12:56 FAX [oz4/029 & Louisiana jurisprudence is instructive in this matter The Louisiana Supreme Court decision in Morest v. State. No. 90-C-0205, 567 So.2d 1081 (La. 916/90} is dispositive, given the facts of the present lawsuit. In_Moresi, Louisiana Wildlife and Fisheries Commission agents detained two haters whom they believed to be in possession of illegally taken ducks in violation of a migratory bird hnunt eral regulation, The hunters were detained between forty-five minutes and an hour to conduct their investigation. At the conclusion of tho investigation, the hunters were issued citations for violations of federal game laws and regulations. The United States Atiorney subsequently declined to prosecute the ch Like the present lawsuit, the plaintiffs in Moresé alleged that they were improperly detained ‘because the investigating agents did not have probable cause due to a misunderstanding of applicable jaw, The Louisiana Supreme Court disagreed, affirming both that the act of length of detention was reasonable. The Court stated as follows: The state and the agents are not foreclosed. from proving probable cause simply because the officers were mistaken as to the legal principles supporting their action or were unable to precisely articulate them. The probable cause test is an objective, not 4 subjective, one. LaFave, Search 5 Seizure § 3.2(b) at p.567. Probable cause inay not be established simply by showing that the officer who made the challenged arrest or search subjectively believed that he had grounds for his action, Beck ». Ohio, 379 US. 89. 85 8.Ct. 223, 13 L.Bd.2d. 142 (1964); The facts must be such as would warrant a belief by a "prudent man", "a man of reasonable caution”, or "a reasonably discrete prudent man", Beck v. Ohio, supra. in evaluating the reasonableness of a particular search or seizure in light of the particular circumstsnces "it is imperative that the facts available to the officer at the moment of the seizure or search ‘warrant a man of reasonable caution in the belief that the action was appropriate”. Testy v. Onio, 329 US. at 21-22. Even though the violations appear to have been relatively imocnous, and the United States Attomey did not accept the changes for prosecut cannot say that the agents violated clearly established statutory or constitutional rights, in view of the federal jurisprudence and the trial judge's Binding that the agents conscientiously followed the law as they understood it. Nevertheless, plaintiffs argue that, even if the arrests were valid initially the agents violated the youths' civil rights by unreasonably detaining them and unlawfully seizing their mudboat. The record developed at tial shows that Patrick Moresi and Kem Alleman were detained for some 45 minutes to one hour while the officers continued their investigation at the hunting camp. The Fourth amendment requires a judicial determination 1G03/17/2017 PRI 12:57 FAX of probable cause as a prerequisite to an extended restraint of liberty foilowing artost, Gerstein v. Pugh, 420 US. 103, 95 8.Ct, 854, 43 LEd. 2d 54 (1975). But the relatively short period of detention here was not such a "significant pretrial restraint of liberty” that a judicial determination of probable cause was required. Gerstein v. Pugh, 420 TS. at 125; see, ¢.8,, Chalfy v. Turoff, 804 F.2d 20 Qd, Cit, 1986) (detention of 45 minutes while issuing summonses did not vioiate the Fourth Amendment); Hilson ». Walden, 586 F Supp. 1235 (W.D. Mo. 1984) (2 hour detention after arrest for killing deer out of season did not violate Fourth Amendment). In fact, the jurisprudence indicates that « significantly longer detention is required to violate “clearly established" Fourth Amendment rights, Warren v. City of Lincoln, 864 F.2d 1436 (8° Cir. 1989) (2 hour 20 min, detention after warrantless arrest for attempted burglary “falls weil short of the extended restraint of liberty prohibited by Gerstien.*) See also MeConney v. City of Houston, 863 F.2d 1130 (5* Cir, 1989) (6 or S hr. detention after a warrant- less arrest for public imoxieation would not violate constination}; Brown v. City of Chicago, 713 F.Supp. 250 (N.D, Ill, 1989) (17 hour delay between ‘warrantless felony arrest and probable cause hearing did not violate Constitution.) Mores? at 26, 28-29. Deputy Smith had 2 good faith, objectively reasonable betief when he detained Ms. Richard, And, as the indicated by the facts in Moresi and the citstions referenced therein, Ms. Richard’s detention of approximately an hour does not give rise to legal claim. To the extent that the Moresi decision relied on federal citations, itis well settled that Louisiana employs the same standards in analyzing state law claims of unlawful detention and excessive use of force as federal law, namely, whether the officer's actions were "reasonable" under the cireumstances, Kyle v. City of New Orleans, 353 So.24 969, 973 (La. 1977) Finally, the plaintiffs’ claim for emotional distress is equally without merit. A claim for emotional distress was asserted by the plaintiffS in forest, but the Supreme Court rejected those claims as well. The Court stated “the piaintifis have not alleged or proved that they suffered any bodily harm or property damage... Consequently, they are seeking to recover on the basis that defendants’ ordinary negligence caused them only mental disturbance. Under the yeneral rule followed by the great majority of jurisdictions, if the defendant's conduct is merely negligent and causes only mental disturbance, without accompanying physic iltness or other physical consequences, the defendant is not Hable for such emotional disturbance". Moresi at 46-47. There are no allegations of property or bodily injury in the present lowsuit, and as such the plaintiffs claims for emotional distress should be dismissed. a. The plaintiffs have not articulated a claim against the Acadia Parish Sheriff's Office ‘The plaintiffs have not named the sheriff of Acadia Parish or any individual in a supervisory 49 Bo25/02903/17/2017 PRI 12:57 FAX [o26/029 capacity as a defendant in this lawsuit. Instead, they instead named as a defendant the “Acadia Parish Sheriff's Office.” ven if the plaintiffs amended their petition (o properly name as a defendant a govemmental officer in his official capacity besides Deputy Smith, such a claim “is the same asa suit against the entity of which the officer is an agent. McMillian v, Monroe County, Ala, $20 US. 781, 785, 117 S.Ct. 1734, 138 L. Ed. 2d 1, 1737, 117 S.Ct. 1734 (1997), Well setited Section 2983 Jurisprudence establishes that supervisory officials cannot be held vicariously Hable for their subordinates’ actions. Mouille ¥. City of Live Ook. Tex. 977 F.2d 924, 929 (Sth Cir.1992) Supervisory officials may be held liable only if: () they affirmatively participate in acts that cause constitutional deprivation: or (ii) implement unconstitutional policies that causally vesult in plaintiffs injury. Thompkins v. Belt, 828 F.2d 298, 303 (Sth Cir. 1987) Though a municipality cannot be held Liable under a theory of respondeat superior, Viability can be based only upon a municipality's official or unofiicial policy, custom or procedure which causes a deprivation of plaintiff's constitutional rights. Monell v. Department of Social Services, 436 US, 658, 98S.Ct. 2088, 561 Ed. 24611 (1978); Mouilie v. City of Live Oak, 977 F 24924, 929 (Sth Cir, 1992), vert. denied, 508 US. 931, 113 8. Ct. 2443, 124 L. Ed. 2d 660 (1993), Furthermore, lability can only be predicated on a policy established by an official whose acts or edicts may fairly bbe said to represent official policy of the municipality, Bennett v. City of Slidell, 728 F.2d 762 (Sth Cir, 1984), and on rehearing, 735 F.2d 861 (Sth Cir. 1984). Colomb at *17-18. The municipality may be held liable on aecount of the unconstitutional conduct by the official only ifthe entity's policy or custom played a part in the violation of the plaintiff's rights. Hafer v. Melo, 502 US, 21, 1125. Ct. 358, 1161, Bed 2d 307 (1991). The cursor legations of the plaintiff's petition are completely devoid of evidence supporting a claim against the Acadia Parish Sheriff's Office. Lonisiana law is clear that all actions taken by the present defendants are specifically protected by the qualified imnnunity doctrine, Police officers are allowed to exercise judgment and discretion in conducting investigations. Additionally, in keeping with the Lonigiana Supreme Court Moresi decision, the approximately one hour detention of Ms. Richard was not unreasonable. She and her husband additionally do not have valid claims for emotional distress under the facts of this lawouit, ii03/17/2017 PRI 12:58 FAX [27/029 For ail the reasons contained within the present Motion for Sunumary Judgment, the Motion for Summary Judgment filed by Deputy Barry Smith, individually and in his official eapacity as an Acadia Parish Sheriff's Deputy, and the Acadia Parish SherifI's Office, should be granted, with srejudice, and at the plaints’ costs RE eCTFULLY SUBMITTED, BAROUSSE & CRATON, L.L.C, BY; HL EDWARD BAROUSSE, il #2 P.O. Box 1305 Crowley, LA 20527-1305 337 785-1000 337 785-2000 Fax No. Attomey for Defendants Hat03/17/2017 PRI 12:58 FAX [o28/029 FICAT THEREBY CERTIFY that a copy of the above and foregoing Memorandum in Support of Motion for Summary Judgment was this day mailed to all counsel of record by placing same inthe U.S. Mail, postage prepaid and properly addressed, by commercial couries, by electronic service per agreement, or by acceptance of hand delivery. Crowley, Louisiana, this 1 gay of November QA03/17/2017 PRI 12:58 FAX MEMORANDUM PRCISIONS La. 837 ‘chew 798 Sod Ga 3000 2001-2335 (La, 8/13/03) ‘Lestie Williams COUNSELMAN PROGRESSIVE INSURANCE COMPANY. ‘No. 2001-CD-2535. Suprome Coart of Lowtsiana, Aug. 28, 2001, ‘hs ne Williams, Levlle;—Plsintitt Ap- piying for Smpervibory and/or Remedial Writs, Parish of Lefeyetto, £0th Judiciat Distr: Court Dix, D. Na, 2000-55540; ts the Qourt of Appeal, hind Giresit, No. ‘cay o1- 00837. ‘Writ granted in part, ‘The triai couts ex parte onder of June 19, 2003, denying ‘plaintiffs motion to recuse is vacated. Ail proceodings axe stayed, This Court sil appoint an ad hoc judge to conduet am evidentiary hearing 0% plaintif’s motion.” 2095-2351 (ha. 8/1590) Darrel PARKER, ELPA WELL SURVEYORS, INC. No, 2001-CC-2351. Supreme Court of Lousiana “Ang 15, 2001 In re Parker, Darrel; Delia Well Sur- ‘weyers, Enc.j~Plaintitle;, Parish of Plagues ines, 5th udicial Distelet Court Div. B $ No, 42,24 ip the Court of Appeal, Fourth Gira, No. 2005-C-1526. Stay denied: wit denied. VICTORY, J, would grant the writ, ’ 2001-2349 (La. 8/15/01) Henry D, HOSFORD Kathtees Lanier L. HOSFORB. No. 201-006-2843, Saprese Court of Aug. 15, 2001, Ya re Hlosiord, Kathleen Lanier feadanty daplying fo Supessioory a Remedial Wei District Gocrt Court of Appedt, Fowth Cire SEB. Stay recalled weit Loic, 200 STATE of Louisiana Vetta PRICE, No. 2001-KK-2256, Supreme Court of fouisians. Aug, 16, 2001 Ji re State of Lovislana—Plaintisls Ay: viving for Snporssory andor Remadial i ot