Crier v. City of New Orleans

Decision Date08 November 1978
Docket NumberNo. 9552,9552
Citation365 So.2d 35
PartiesGeorge CRIER v. CITY OF NEW ORLEANS, New Orleans Police Department and Harry Connick, District Attorney For the Parish of Orleans.
CourtCourt of Appeal of Louisiana — District of US

Pitard, Pitard & Porobil, Robert F. Pitard, New Orleans, for plaintiff-appellant.

Robert F. Barnard, Asst. Dist. Atty., for defendant-appellee, Harry F. Connick, Dist. Atty.

Before LEMMON, STOULIG and SCHOTT, JJ.

SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit against Harry Connick, District Attorney for the Parish of Orleans on his exception of no cause of action. In his original petition filed on June 9, 1966, plaintiff alleged that he was arrested on May 7 by New Orleans Police Officers who "acted with malice and executed the arrest without an arrest warrant and without probable cause to make an arrest." The petition further alleges that he was incarcerated and was subjected to a police lineup on May 12, with the result that he was exonerated, but the charges were not dropped until May 14. His suit was brought against the City of New Orleans and New Orleans Police Department. On November 30, 1977, plaintiff amended his petition to make Harry Connick, as District Attorney for the Parish of Orleans, and the Parish itself, a defendant, by alleging that Connick and the Police Department made the arrest and acted with malice against him. Connick's exception was based on his immunity from liability and the trial judge in maintaining the exception did so because Connick "is immune in these proceedings."

In reviewing a judgment on an exception of no cause of action, an appellate court must take the allegations of the plaintiff as true. Haskins v. Clary, 346 So.2d 193 (La.1977). Applying this test to the instant case, we have the allegation that Harry Connick arrested and incarcerated the plaintiff and was motivated by malice against him. While such an allegation tends to tax one's credulity, we are dealing with an exception of no cause of action and must overrule the exception and remand the case for further proceedings.

The trial judge took the position that the District Attorney is absolutely immune to a civil lawsuit, but this approach is not supported by the jurisprudence of Louisiana. In Berry v. Bass, 157 La. 81, 102 So. 76 (1924), the court indicated that a plaintiff has a cause of action against an inferior magistrate where he exercises his functions with malice. In Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir. 1976), the court indicated that a plaintiff had a cause of action against a justice of the peace where malice was alleged and proved.

In Cerna v. Rhodes, 341 So.2d 1157 (La.App. 1st Cir. 1977), plaintiff brought suit against a district attorney and his suit was dismissed after a trial on the merits. The court there noted that an element of proof in a malicious prosecu...

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10 cases
  • Knapper v. Connick
    • United States
    • Louisiana Supreme Court
    • October 15, 1996
    ...to only a qualified immunity. However, we note that in the first Fourth Circuit case to reach that holding, Crier v. New Orleans, 365 So.2d 35 (La.App. 4th Cir.1978), the Fourth Circuit took notice of Imbler and concluded that the reasoning in Imbler supported a grant of absolute immunity t......
  • 95-1377 La.App. 4 Cir. 1/19/96, Knapper v. Connick
    • United States
    • Court of Appeal of Louisiana — District of US
    • January 19, 1996
    ...536 So.2d 1203 (La.1989), on remand, 541 So.2d 260 (La.App. 4th Cir.1989), writ denied, 541 So.2d 1386 (La.1989); Crier v. New Orleans, 365 So.2d 35, 36 (La.App. 4th Cir.1978). While prosecutors are protected against claims for mere negligence, such as the "sloppy record keeping" seen in We......
  • Dean v. Nunez
    • United States
    • Court of Appeal of Louisiana — District of US
    • July 12, 1988
    ...against district attorneys have been permitted. Cerna v. Rhodes, 341 So.2d 1157, 1159 (La.App. 1st Cir.1977); Crier v. City of New Orleans, 365 So.2d 35 (La.App. 4th Cir.1978); Hall v. City of New Orleans, 385 So.2d 1253 (La.App. 4th Cir.1980). In Foster v. B.B. Powdrill, 463 So.2d 891 (La.......
  • Moore v. Taylor
    • United States
    • Court of Appeal of Louisiana — District of US
    • March 29, 1989
    ...allegations of fact by the plaintiff must be accepted as true. Haskins v. Clary, 346 So.2d 193 (La.1977); Crier v. City of New Orleans, 365 So.2d 35 (La.App. 4th Cir.1978). IV. Under Louisiana law, a judge is protected from liability by the doctrine of judicial immunity which holds that a j......
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