Paul Zerbe v. Town of Carenco, Louisiana

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-422

PAUL ZERBE

VERSUS

TOWN OF CARENCRO
CARENCRO POLICE DEPARTMENT
CHIEF TIMOTHY DUHON
ASSISTANT CHIEF BRENT BREAUX
TOBY LANDRY, OFF DUTY DEPUTY
JOHN DOE, UNKNOWN OFFICERS

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NUMBER 2002-1000 “D”
HONORABLE EDWARD D. RUBIN, PRESIDING

**************
SYLVIA R. COOKS
JUDGE
**************

Court composed of Sylvia R. Cooks, Marc T. Amy, and John B. Scofield,* Judges.

REVERSED.

S. Stephen Spring, II., ESQ.
8939 Jefferson Highway, Suite E
Baton Rouge, Louisiana 70809
(225) 932-9671
COUNSEL FOR APPELLANT:
Paul Zerbe

Ann Garcia Dafford
405 West Main Street, Suite 101
Lafayette, Louisiana 70501
(337) 289-1051
COUNSEL FOR APPELLANT:
Paul Zerbe

*
John B. Scofield participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

John F. Wilkes
Lisa E. Mayer
Borne & Wilkes, LLP
200 West Congress Street, Suite 1000
P.O. Box 4305
Lafayette, Louisiana 70502-4305
(337) 232-1604
COUNSEL FOR APPELLEE:
Timothy Duhon
Brent Breaux
City of Carencro

Joy C. Rabalais
G. Edward Williams, Jr.
Edwin G. Preis, Jr.
Preis, Kraft & Roy
102 Versailles Boulevard, Suite 400
P.O. Drawer 94-C
Lafayette, Louisiana 70509
(337) 237-6062
COUNSEL FOR APPELLEE:
Toby Landry

Dawn L. Morrison
L. Lane Roy
102 Versailles Boulevard, Suite 400
P.O. Drawer 94-C
Lafayette, Louisiana 70509
(337) 237-6062
COUNSEL FOR APPELLEE:
Toby Landry

COOKS, Judge.

STATEMENT OF THE CASE

This lawsuit arises from an incident which occurred on Mardi Gras Day,

February 25, 2001, in Carencro, Louisiana. The Plaintiff, Paul Zerbe, was maced,

beaten, arrested and charged with two counts of battery upon a police officer and

resisting arrest. The charges were later dismissed. Mr. Zerbe sued the City of

Carencro, Chief of Police Timothy Duhon, Assistant Chief of Police, Brent Breaux,

Deputy Toby Landry from the Lafayette Parish Sheriff’s Office and Unknown

Officers, John Doe. Mr. Zerbe sued under Louisiana law for false arrest, malicious

prosecution, false imprisonment and defamation and under federal law for violation

of his civil rights under 42 U.S.C. §1983 and 1985. The Defendants filed a Motion

for Summary Judgment alleging there are no material facts in dispute. Mr. Zerbe

submitted his deposition, along with affidavits from several eyewitnesses to the

incident. The trial court, without written reasons, granted Defendants’ Motion for

Summary Judgment dismissing all of Mr. Zerbe’s claims. We reverse.

STATEMENT OF THE FACTS

The Plaintiff, Paul Zerbe, and several others, were gathered at the home of

Charles Arceneaux to watch the parade and to partake in the Mardi Gras festivities

in Carencro. This is a fact not in dispute. All other relevant facts, including who was

at the scene of the incident and the sequence of events, are hotly contested. There

is a video tape which, along with all other submitted evidence, is subject to several

interpretations. Moreover, the record indicates the presence of police officers from

all over the area, which further adds to the confusion of identifying exactly who was

present at the scene. The Carencro police department sent a letter to all area law

enforcement agencies asking for assistance on Mardi Gras Day. This practice is

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customary for small towns when faced with a major event. The officers answering

the call to service are not compensated. They report to the Carencro police

department, sign in and receive their assignment. On Mardi Gras Day there were

officers from Carencro, Broussard, Scott, Cankton and Lafayette Parish on duty in

Carencro. Some were in uniform and some were plain clothed wearing a badge.

From Mr. Zerbe’s deposition testimony and the affidavits of individuals on the scene

at the time, we are able to obtain an account of what may have happened in Carencro

on that day.

On February 25, 2001, Mr. Zerbe arrived at the home of Mr. Arceneaux about

10:30 a.m. to barbeque and watch the Mardi Gras parade. Mr. Zerbe’s wife, Lisa, and

his four children were with him. His brother and sister-in-law from Michigan were

also there, along with Fred Chaisson, his father-in-law. Mr. Arceneaux had invited

several other guests. The parade started about 12:30 p.m. Shortly after the parade

ended, a group of young men in a maroon pick-up truck stopped at the end of the

driveway in front of Mr. Arceneaux’s home. There was a disturbance of some kind.

It is not entirely clear what caused the disturbance or what prompted Mr. Arceneaux

to approach the young men. In any case, Mr. Arceneaux and the young men in the

truck exchanged words. Mr. Zerbe testified he was standing about forty to fifty feet

away at the time and heard the heated exchange. He walked over to the young men

and asked them to move along. Lisa Zerbe stated she saw one of the men pull out a

knife. Mr. Zerbe did not see the knife at this point. The young men drove off and

Mr. Zerbe walked back down toward the house. The young men returned and Mr.

Arceneaux went back towards the truck. At this point, Mr. Zerbe heard his wife say,

“He has a knife. The guy in the truck has a knife.” According to Mr. Zerbe’s

deposition testimony he, and his father-in-law, Fred Chaisson, and several others

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attempted to coax Mr. Arceneaux away from the truck to avoid any further trouble.

Officer Mark Brasseaux was nearby in plain clothes with a badge. When Officer

Brasseaux observed the disturbance he began to yell “riot, riot” on the police radio.

Officer Brasseaux ordered Mr. Arceneaux and Mr. Zerbe to move back, away from

the truck. Several officers converged on the scene immediately. There were at least

five or six officers around the truck. Mr. Zerbe observed his father-in-law, Fred

Chaisson, trying to explain to Officer Elmo Begnaud, from the Cankton police

department, what was going on. Mr. Zerbe testified the officer was not listening to

his father-in-law and just kept screaming “get back, get back.” At about the same

time, Mr. Zerbe observed an officer in a Lafayette Parish Sheriff’s Department

uniform mace and strike Mr. Arceneaux. Then, Mr. Zerbe testified, Officer Begnaud

picked up his baton to strike his father-in-law. Mr. Zerbe intervened to block the

blow. He was then sprayed in the face with mace. He stumbled and knocked the

eyeglasses from Officer Begnaud’s face. At that point someone maced him again.

He did not know who sprayed him and he was temporarily blinded by the chemical

spray. He was then struck several times with police batons and fell to the ground

clutching Officer Begnaud. He was hauled away in a police vehicle, booked and

charged with two counts of battery upon a police officer and resisting arrest.

LAW AND DISCUSSION

Mr. Zerbe has asserted state law claims for false arrest, malicious prosecution,

false imprisonment and defamation and federal law claims under 42 U.S.C. §1983.

Defendants contend Mr. Zerbe’s suit must fail because the police had probable cause

for his arrest and the force used to subdue him was reasonable under the

circumstances. Additionally, Defendants contend Deputy Toby Landry of the

Lafayette Parish Sheriff’s Department was not involved in the altercation with Mr.

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Zerbe. While the Defendants admit Deputy Landry was involved in the arrest of Mr.

Arceneaux, they contend Deputy Landry was nowhere near Mr. Zerbe. In support of

this assertion, counsel for Defendants relies on the video tape of the incident.

Defendants contend the video tape shows Deputy Landry some distance from Mr.

Zerbe. Defendants also contend the video tape shows Mr. Zerbe had Officer Begnaud

in a “choke-hold” which, they contend, proves Mr. Zerbe acted belligerently and

interfered with the officers’ attempts to control a rowdy crowd. We have viewed the

video tape and do not find it conclusive regarding the facts of the case. First, the

video tape is incomplete and contains “gaps” when the user apparently turned off the

recorder. Consequently, the video tape itself is the subject of legitimate dispute.

Second, Mr. Zerbe disputes the characterization as a “choke-hold.” He contends the

officer “ran up into me, and I just – I didn’t see anything. He ended up there in my

arm, and I just held on to him” as he fell to the ground blinded by the mace. This

version of the story is consistent with Officer Begnaud’s affidavit testimony. Officer

Begnaud stated: “Mr. Zerbe was apparently blinded and ran into me knocking my

glasses off. When that happened, other police officers attempted to subdue Mr. Zerbe

who was tangled up with me. . . . I do firmly believe that Mr. Zerbe did not intend to

do any harm to me and bumped into me because he was temporarily blinded from the

mace that was sprayed in his face by the Lafayette Parish Sheriffs Deputies.” Third,

it is undisputed the so-called “choke-hold” occurred after Mr. Zerbe was maced the

first time. The officers must first establish probable cause for the initial assault upon

Mr. Zerbe. Mr. Zerbe’s resistance, after he was wrongfully seized, maced and beaten,

cannot thereafter be used by the police to justify the arrest.

Mr. Zerbe has asserted a claim for false arrest. In order to recover on a false

arrest claim, Mr. Zerbe must prove he was unlawfully detained by the police. Tabora

v. City of Kenner, 94-613 (La.App. 5 Cir. 1/18/95), 650 So.2d 319, writ denied, 95-

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0402 (La. 3/30/95), 651 So.2d 843. Stated differently, he must prove the police

lacked probable cause for the arrest. If the police are not able to establish probable

cause for their initial assault, Mr. Zerbe was justified in resisting the wrongful

seizure. McDaniel v. Green, 99-1087 (La.App. 3 Cir. 12/22/99), 755 So.2d 942,

review denied, 00-0200 (La. 3/24/00), 758 So.2d 151. Moreover, even if an officer

has probable cause, the use of excessive force in effecting the arrest becomes an

actionable claim for damages. Penn v. St. Tammany Parish Sheriff’s Office, 02-0893

(La.App. 1 Cir. 4/2/03), 843 So.2d 1157; Kyle v. City of New Orleans, 353 So.2d 969

(La.1977). “Excessive force transforms ordinarily protected use of force into an

actionable battery, rendering the defendant officer and his employer liable for

damages.” Penn v. St. Tammany Parish Sheriff’s Office, 2002-0893 (La.App. 1 Cir.

4/2/03), 843 So.2d 1157, 1161. The video tape reveals the officers continued to beat

Mr. Zerbe after he was maced and on the ground. Moreover, the affidavits of several

individuals who were present at Mr. Arceneaux’s home raise genuine issues of fact

as to whether the police had probable cause to arrest Mr. Zerbe, in the first place,

whether the force used to subdue him was excessive and whether Mr. Zerbe was

justified in resisting the assault. Lisa Zerbe stated:

As we were standing in the yard after the parade, I saw my cousin,
Charles Arceneaux, exchanging words with someone in the back of a
truck who I saw pull a knife (the person in the truck) on Charles. The
police were called to investigate.
An older officer approached my father, Fred Chaisson, yelling at
him and raised his billy club telling him to move.
Paul Zerbe then walked up and put his arm up to prevent injury to
my father. At that time I heard Mark Brasso yelling into his police radio
“Riot, riot, riot.” Suddenly there were police officers coming from every
direction on foot, in cars, and four wheelers like roaches coming out of
the woodwork.
There did not appear that anyone was in charge and it was like a
free for all.
Paul was then struck from behind and maced by several officers.
Immediately there were several officers beating Paul and macing him.
I witnessed an officer from the Lafayette Parish Sheriff’s Officer
mace Paul in the face and strike him with his billy stick.

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Russella Arceneaux stated in her affidavit:

As we were standing in my yard after the parade, I saw my son,
Charles Arceneaux, exchanging words with someone in the back of a
truck who I saw pull a knife (the person in the truck) on Charles. All of
a sudden, the yard was filled with police. My daughter had pulled
Charles away from the road and back into my yard. At that time, a
police officer walked up and maced him in the face.
In the next instant there were police hitting Paul Zerbe and
spraying mace in his face. Paul Zerbe was struck from behind and
knocked to the ground.
I saw 2 or 3 officers holding Paul down on the ground and several
others beating him. I never witnessed any conduct by Paul Zerbe at
anytime that day to provoke such an attack. I never saw Paul Zerbe
resist at any time that day.

Angelo Corceone stated:

I was present during the deposition of Deputy Toby Landry in the
offices of Attorney John F. Wilkes, III on May 13, 2003.
I have carefully reviewed the Affidavits of Kimberly C. Prunty
and Elmo Begnaud and the photographs attached.
The officer in the photographs wearing the tan top, dark bottom
uniform of the Lafayette Parish Sheriff’s Department is the same person
who identified himself as Toby Landry at the deposition on May 13,
2003. This is the same officer in the photographs who has a billy club
in one photography and a can of mace in his hand in another.

Kimberly C. Prunty stated in her affidavit:

The parade had ended and we were waiting for the traffic to clear
to leave when an altercation over music happened with some occupants
in a car who flashed a knife at Charles Arceneaux, who I know. The
occupants jumped out of the truck and there was an exchange of words.
One officer I observed speaking with Pops who is Fred Chaisson
about being too close to the traffic as well as speaking with the
occupants of the car.
I was an eyewitness to an incident that happened on February 25,
2001, involving an individual by the name of PAUL ZERBE.
At that point there were officers involved with Charles
Arceneaux. I observed one officer dressed in a uniform the same as the
officer whose photograph is attached hereto come up from behind Paul
Zerbe and struck Paul Zerbe with what appeared to be either a baton or
asp without warning. Immediately after striking Paul Zerbe from behind
and grabbing Paul, I immediately smelled mace or pepper spray in the
air.
While beating Paul Zerbe the officers continued to spray Paul
with mace or pepper spray between the initial spot next to the road all
the way to the driveway where Paul was brought to the ground and
beaten and sprayed again by additional officers who joined in with other
officers while Paul was on the ground.

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There was so much mace or pepper spray in the air from these
officers that I had to put water in the eyes of our youngest child who was
approximately two years old. Also, my other two children there were
also crying from the spray in the air. I was crying from the spray in the
air.
I wanted to leave the area to get medical assistance for my
children and I was informed by one officer that if I moved I would be
arrested.
This same officer who is in the attached photograph I heard use
his radio and say that things were out of control even though things were
not out of control while this same officer was arresting Charles
Arceneaux.
I am positive that the police officer in the photograph attached to
my affidavit is the same police man who went from Charles Arceneaux
while he was on the ground and ran up behind Paul Zerbe and struck
Paul for no reason.

John Zerbe, brother of Paul Zerbe, stated in his affidavit:

On February 25, 2001, I was at the Mardi Gras parades being held
on North University Avenue in Carencro, Louisiana. The parade had
finished and I was in the process of packing things up when I notice a
disturbance in the back of a pick up truck with a group of white males.
The police were only a few vehicles in front of this group. When the
disturbance started the police showed up very quickly. Apparently there
was an individual involved in the disturbance with the people in the
truck who had pulled a knife.
The police started frisking the people in the truck for knives.
Charles Arceneaux was upset at person with the knife and he ran
towards the truck. The police seemed to have spooked by this and they
sprayed him with some sort of tear gas or pepper spray. He turned his
back to them in a stunned stated and I heard the police tell him to stop.
He stopped and the police came up and doused him with pepper spray.
This inflamed the crowd because a lot of people were trying to get the
police to understand what had happened; however, the police weren’t
listening.
My brother’s father in law was one of these people trying to tell
the police that the man they were spraying with spray wasn’t involved
in the disturbance with the knife. As he tried to explain to one of the
police, the policeman raised his billy club acting in a manner that
indicated the policeman was about to strike my brother’s father in law
who is an elderly individual.
At this point, my brother, Paul Zerbe, came up to the police man
and put his arm in between the policeman and my father in law and said
“No” in an effort to fend off any blows the policeman looked like he was
going to give my brother’s father in law.
Another policeman came up behind Paul Zerbe and began striking
him from behind in the legs with some sort of club. At that point the
other policeman lunged at my brother with a club and my brother
attempted to protect himself from being beaten further.

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Additionally, the Defendants’ assertion that Deputy Landry was not involved

in Mr. Zerbe’s beating is called into question by Officer Elmo Begnaud, a participant

and eyewitness to the events. Officer Begnaud stated in his affidavit:

I was an eyewitness to an incident that happened on February 25,
2001, involving an individual by the name of PAUL ZERBE.
Mr. Zerbe was initially sprayed in the face with mace and grabbed
by members of the Lafayette Parish Sheriff’s Office, one of whom I can
positively identify appearing in the attached photograph. This deputy
appearing with a tan top and dark pants I understand is named, Toby
Landry. I do not know him personally, but can positively testify herein
that he was one of the Lafayette Parish Sheriff’s deputies who first
accosted Mr. Paul Zerbe by macing and/or grabbing him initially while
also using police batons as well.
After this deputy and others sprayed Mr. Zerbe in the face with mace and /or
pepper spray, Mr. Zerbe was apparently blinded and ran into me knocking my glasses
off.
When that happened, other police officers attempted to subdue
Mr. Zerbe who was tangled up with me. These additional officers who
appear in the other attached photographs struck Mr. Zerbe with asps as
depicted in the photographs.

We find, at the very least, Mr. Zerbe has raised genuine issues of fact regarding

whether the police misread the situation and acted without probable cause and with

excessive force in detaining Mr. Zerbe.

Mr. Zerbe has filed a claim for malicious prosecution. In order to support such

a claim, Mr. Zerbe must show a bona fide termination of the charges against him, the

absence of probable cause and malice on the part of the department. Miller v. East

Baton Rouge Sheriff’s Department, 551 So.2d 446 (La. 1987). When charges against

and individual are dismissed “prior to trial, lack of probable cause and malice are

presumed and the burden is on the defendant to prove he acted with probable cause

and without malice.” Watson v. Church’s Fried Chicken, Inc., 527 So.2d 979, 981

(La.App. 4 Cir. 1988), writ denied, 532 So.2d 135 (La. 1988). In this case, the facts

indicate the officers failed to properly investigate the legitimacy of the charges even

after Mr. Zerbe was brought to the station. Had a statement been obtained from

Officer Begnaud and other townspeople at the scene, prior to booking, formal charges

10

may never have been filed and the police may have reached a different conclusion

regarding the truth of the situation. The record also does not indicate the police

obtained any statements from eyewitnesses other than police officers. We find Mr.

Zerbe has presented enough facts to support a claim for malicious prosecution.

Mr. Zerbe has filed a claim for defamation. In Watson v. Church’s Fried

Chicken, Inc., 527 So.2d 979, 981 (La.App. 4 Cir. 1988), the court allowed a plaintiff

to recover damages for defamation when an employee of Church’s Fried Chicken

made a complaint which caused the plaintiff to be wrongly arrested for armed

robbery. Mr. Zerbe contends Deputy Toby Landry, and other officers, made false

statements at the time of his arrest or shortly thereafter which caused the prosecution

to proceed against him. The prosecution was ultimately dropped when Officer

Begnaud, and others, came forward with evidence which disputed Deputy Landry’s

and other officers’ versions of the facts. We find Mr. Zerbe has presented enough

facts to support a claim of defamation. Accordingly, we reverse the decision of the

trial court granting summary judgment on the state law claims of false arrest,

malicious prosecution, false imprisonment and defamation against the police officers.

The Defendants contend Mr. Zerbe cannot establish negligence on the part of

the Town of Carencro under principles of vicarious liability. The Town argues

neither Chief of Police, Timothy Duhon, nor Assistant Chief Brent Breaux were

present during the incident. Chief of Police Timothy Duhon confirms he was riding

in the parade on Mardi Gras Day. The Town of Carencro takes comfort in the fact the

volunteer officers were in no way under Chief Duhon or Assistant Chief Breaux’s

supervision and control. However, it is this fact which may render the Town liable.

It is undisputed Chief Duhon solicited armed police officers from other areas into

service to assist the local department keep order. These officers were not trained in

crowd control, supervised or placed under the direction and control of a Carencro

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police officer. Each officer, as Chief Duhon testified, was operating under the

policies of their individual department. Chief Duhon was not aware exactly how

many officers reported for duty and “[t]hey left when they felt they could. . . .The

only thing we told them was that they were having lunch served at eleven, if they

wanted to come and eat.” This type of lax, unstructured, unaccountable, police force,

in which each officer was operating on his own, may have contributed to the mayhem

which resulted on Mardi Gras Day. Several witnesses described the scene with the

police as a “free for all.” It appears from the submissions in the record the police may

have overreacted to a small disturbance. There is little to suggest that a riot was

occurring in Carencro. At the very least, these facts raise an actionable claim under

Louisiana law against the Town of Carencro for negligent supervision.

Mr. Zerbe has asserted claims against the Town of Carencro under 42 U.S.C.

§1983. He contends the Town of Carencro instituted a policy or custom which

caused a deprivation of a constitutional right. See Monell v. Department of Social

Services, 436 U.S. 658, 98 S.Ct. 2018 (1978). Mr. Zerbe argues the custom or policy

by the Town of Carencro to invite armed officers into the town but fail to properly

supervise their behavior rises to the level of an actionable claim under 42 U.S.C.

§1983. Without deciding whether the plaintiff may prevail on this theory of recovery,

we find, given the totality of the facts, he must be given the opportunity to fully

develop this claim.

Mr. Zerbe has asserted a claim for damages under 42 U.S.C. §1983 arguing the

police used excessive force when executing his arrest. Penn v. St. Tammany Parish

Sheriff’s Office, 2002-0893 (La.App. 1 Cir. 4/2/03), 843 So.2d 1157), addressed

recovery of damages under 42 U.S.C. §1983 for use of excessive force. The Penn

court stated:

An excessive force assertion based on section 1983 is a federal

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constitutional claim that is analyzed via Fourth Amendment
constitutional standards. [citations omited]. The relationship of the
amount of force used to the need presented, the extent of injury, and the
motives of the officer determines whether the Parish exceeded the
constitutional limits such that there was also an actionable physical
abuse under 42 U.S.C. §1983. [citations omitted]. If the officer’s actions
were grossly disproportionate to the need for action under the
circumstances, rather than merely careless or unwise excess of zeal so
that it amounted to an abuse of official power that shocks the
conscience, it should be redressed under section 1983. Id. The plaintiff
is thus required to show a significant injury that resulted from the use of
objectively unreasonable force that was clearly excessive of the need.
[citations omitted].

Id. at 1159-60.

We find Mr. Zerbe has presented enough facts to assert a claim for damages for

use of excessive force under 42 U.S.C. §1983. Accordingly, we reverse the decision

of the trial court dismissing Mr. Zerbe’s claims under this provision. Mr. Zerbe has

also filed a claim under 42 U.S.C. §1985 for conspiracy to deprive him of his

constitutional rights. We do not find it necessary, at this time, to discuss the merits

of the conspiracy claim because of our disposition of Mr. Zerbe’s other claims.

Defendants contend Mr. Zerbe’s appeal is frivolous and ask for an award of

attorney fees to cover the costs of appeal. We find this assignment of error without

merit.

DECREE

Based on the foregoing review of the record, we reverse the decision of the trial

court dismissing the plaintiff’s claims under state and federal law. All costs of this

appeal are assessed to the Defendants.

REVERSED.

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