Ross v. Sheriff of Lafourche Parish

• Decision Date: 19 November 1985
• Docket Number: No. 84,84
• Citation: 479 So.2d 506
• Parties: Donnie ROSS v. SHERIFF OF LAFOURCHE PARISH, et al. CA 1024. 479 So.2d 506
• Court: Court of Appeal of Louisiana — District of US

Page 506

479 So.2d 506

Donnie ROSS v. SHERIFF OF LAFOURCHE PARISH, et al.

No. 84 CA 1024.

479 So.2d 506

Court of Appeal of Louisiana,

First Circuit.

Nov. 19, 1985.

Ralph D. Hillman, Thibodaux, for plaintiff-appellee Donnie Ross.

Huntington B. Downer, Jr., Houma, for defendants-appellants Allen Wall, Michael Martin, John Molyneaux, and Sheriff Duffy Breaux.

Delbert Talley, Gretna, for defendants-appellants City of Thibodaux, Officer Larry Bland, and Officer Patrick Branighan.

Jerald P. Block, Thibodaux, for defendants and plaintiffs in reconvention-appellants Allen Wall, Michael Martin, and John Molyneaux.

Before CARTER, SAVOIE and ALFORD, JJ.

CARTER, Judge.

Plaintiff, Donnie Ross, filed suit for false arrest and battery. Named as defendants were: three Lafourche Parish deputies, Allen "Hap" Wall, Michael Martin and John Molyneaux; their employer, Lafourche Parish Sheriff Duffy Breaux; two city policemen, Patrick Branighan and Larry Bland; and, their employer, the City of Thibodaux. Plaintiff later amended his petition seeking recovery under 42 U.S.C.A. Sec. 1983 and Sec. 1988 (Civil Rights Act).

Defendants Wall, Martin, and Molyneaux filed a reconventional demand seeking damages for malicious prosecution and for injuries resulting from the incident which gave rise to plaintiff's suit.

The trial court ruled that plaintiff had not proven his Sec. 1983 claim, but did prove false arrest and battery. Accordingly, judgment was rendered against all defendants and in favor of plaintiff in the amount of $5,000.00 for the tort claims and the claims under Sec. 1983 and Sec. 1988 were dismissed. Judgment was also rendered against defendant Branighan and the City of Thibodaux for $1,370.50 in medical expenses and $2,500.00 in general damages for an additional battery committed by Branighan.

From this adverse judgment, defendants appeal. ¹ Plaintiff answered the appeal maintaining that the trial judge improperly dismissed his Sec. 1983 claim and that the award of damages is insufficient.

ISSUES

The defendants contend that the trial judge's findings of fact are not supported by the evidence.

Plaintiff answered the appeal, contending the dismissal of his claim under 42 U.S.C.A. Sec. 1983 and Sec. 1988 was error and requests that this court increase his damage award.

FACTS

The incident which forms the basis of this lawsuit occurred during the early morning hours of April 10, 1981, in the parking lot of the Pitt Grill Restaurant in Thibodaux, Louisiana. Plaintiff had stopped at the restaurant for breakfast after working a 4:00 p.m. to midnight shift. While seated in the restaurant, he looked out of the window and observed a small car with two young women inside, which had stopped in the middle of the restaurant parking lot. Directly behind the car was a station wagon. From the station wagon, a large male had emerged. He approached the small car on its driver's side and opened his wallet in a manner which suggested to plaintiff that the man was identifying himself to the driver.

The station wagon held two other male occupants who exited the vehicle and approached the small car. None of the men were wearing police uniforms, and there were no markings on the station wagon. Sensing something irregular about the situation, plaintiff walked outside to make a personal investigation. He proceeded past the men, stopped to peer into the station wagon, then went to the rear of the vehicle to determine whether it was registered as a public or private vehicle. The station wagon had a private license plate.

Plaintiff then went to his own car, which was parked nearby, got a pencil and paper, and approached the station wagon where he jotted down the license plate number. As he was returning to his car, plaintiff was confronted by defendants, Molyneaux and Martin.

Testimony conflicts as to whether Molyneaux identified himself as a police officer. Martin asked if he could help plaintiff, to which plaintiff responded that he could not. Plaintiff returned to his car, deposited his pencil and paper, then turned to go back to the restaurant. At this point, Detective Wall stepped in his path.

Wall identified himself as a police officer and asked plaintiff what he was doing. Plaintiff replied that he was not obligated to provide any information to Wall. Wall then asked plaintiff for identification, which plaintiff refused to supply. As Wall persisted, plaintiff became belligerent, injecting foul language into his protestations. He then tried to return to the restaurant.

As plaintiff attempted to pass Wall, the officer grabbed his arm and advised plaintiff that he was under arrest for "interfering with the duties of a police officer." Plaintiff pulled his arm from Wall's grasp, questioning the officer's authority to place him under arrest and attempted to return to the restaurant. At this point, Wall tried to grab plaintiff, and a scuffle took place. Plaintiff was eventually thrown onto the trunk of a nearby car by Wall. He continued to resist the officer's restraint. Defendant Martin came to Wall's aid. Both tried to place handcuffs on plaintiff. During this time, apparently Molyneaux was watching the small car which had been pulled over for the traffic violation.

While the struggle was going on, the restaurant manager called the Thibodaux Police Department for assistance. Defendants Branighan and Bland responded to the call. Plaintiff, a former auxiliary police officer for the City of Thibodaux, claims he recognized Branighan and Bland, and upon their arrival, submitted to being handcuffed by Martin and Wall. Branighan approached plaintiff and applied a "choke" hold on plaintiff's neck, blocking the wind passage in his throat. It is at that point the handcuffs were actually secured on plaintiff with the assistance of Bland.

Plaintiff admits that he began cursing after the choking incident because he was injured and confused as to why the officers he knew had hurt him. He denies cursing and using foul language prior to this. Plaintiff testified that as he was being taken to the police car, he was again grabbed by the throat by Branighan.

Plaintiff was taken to police headquarters and charged with resisting an officer. He was convicted in the 17th Judicial District Court, but this conviction was overturned by the Louisiana Supreme Court for insufficient evidence. ²

After being released on bond from police headquarters several hours after the incident, plaintiff went to the hospital to have his throat and wrists examined. He claims personal injuries as part of his damage. This suit followed.

DEFENDANTS' ASSIGNMENTS OF ERROR

The first issue is whether the trial judge was manifestly erroneous in his findings of fact.

The elements of the tort of false arrest (imprisonment) are set forth in O'Conner v. Hammond Police Dept., 439 So.2d 558, 560 (La.App. 1st Cir.1983) as follows:

The tort of false imprisonment has two essential elements: (1) detention of a person; and (2) the unlawfulness of such detention. Fontenot v. Lavergne, 365 So.2d 1168 (La.App. 3rd Cir.1978). Unlawful detention is restraint without color of legal authority. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977); Moss v. Maryland Casualty Company, 392 So.2d 772 (La.App. 3rd Cir.1980). Thus, if an arrest is made either without any legal process or warrant or under a warrant void and null upon its face, a false imprisonment has occurred. De Bouchel v. Koss Const. Co., 177 La. 841, 149 So. 496 (1933); Cox v. Cashio, 96 So.2d 872 (La.App. 1st Cir.1957). However, if a person is arrested pursuant to statutory authority, there is no liability for damages for false imprisonment. Kyle, 353 So.2d at 971; Gerard v. Parish of Jefferson, 424 So.2d 440 (La.App. 5th Cir.1982), writs denied 430 So.2d 75, 78 (La.1983). The burden is on a plaintiff to prove that the arrest was made without color of legal authority. Cerna v. Rhodes, 341 So.2d 1157 (La.App. 1st Cir.1976), writ denied 343 So.2d 1067 (La.1977).

The jurisprudence further establishes that the physical attack of a private citizen by a police officer absent a valid arrest constitutes a battery. Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2nd Cir.1979); Malone v. Fields, 335 So.2d 538 (La.App. 2nd Cir.1976).

In the case sub judice, defendants contend that plaintiff's arrest was lawful and that the force used to arrest plaintiff was justified. Defendants reason that plaintiff's arrest was lawful because plaintiff impeded their investigation of a traffic violation committed by the driver of the small car which they had stopped in the parking lot of the Pitt Grill. The record supports the trial judge's finding that plaintiff did not impede the officers' investigation. He did not confront them verbally or physically, nor did he question their authority. He merely walked past them, looked into their car, and wrote down a license plate number. Although plaintiff says he only looked in the door of the car, the officers said he stuck his upper torso inside. They said the car had a gun on the front seat and in the glove box, and they were concerned that plaintiff had taken a weapon from the car. No one, however, checked to see whether one of the guns was missing to confirm this suspicion. Clearly, plaintiff had not impeded their investigation.

Defendants further reason that plaintiff's arrest was justified because plaintiff refused to identify himself when requested to do so by a police officer. However, refusal to supply a name and address on demand does not, without more, provide a basis for arrest. Norrell v. City of Monroe, supra; White v. Morris, 345 So.2d 461 (La.1977).

The trial judge concluded that the facts did not show plaintiff had done any act to arouse a suspicion that he had committed, was committing, or was about to commit an offense. The trial judge determined that plaintiff was arrested because of his disrespectful remarks to the police officers. While such actions may have justifiably angered the...