Malcolm Brasseaux v. Town of Church Point

NOT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1390

MALCOLM BRASSEAUX

VERSUS

TOWN OF CHURCH POINT, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 78,160
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Glenn B. Gremillion, and J. David Painter,
Judges.

AFFIRMED.

SAUNDERS, J., concurs and assigns reasons.

Homer Ed Barousse, Jr.
Barousse & Craton
P.O. Box 1305
Crowley, LA 70527-0730
Counsel for Defendants-Appellees:
Kenneth Goss, Individually and in his Official
Capacity as Sheriff of Acadia Parish;
Dale Thibodeaux, Individually and in his
Official Capacity as a Deputy Sheriff of the Acadia
Parish Sheriff’s Department; and
the Acadia Parish Sheriff’s Department

Jeff R. Rytlewski
Skylar J. Comeaux
Law Offices of Jeff R. Rytlewski
345 Doucet Road, Suite 104A
Lafayette, LA 70503
Counsel for Defendants-Appellees:
Town of Church Point, Scott Vige, Carl Thibodeaux,
Michael Malbrough, Alexis Jagneaux, Jr.,
Gary Duplechin, Carl Daigle, Errol Comeaux,
Roger Boudreaux, and Charles Randolph Keller

Malcolm Brasseaux
Attorney at Law
202 West Plaquemine Street
Church Point, LA 70525
Counsel for Plaintiff-Appellant:
Malcolm Brasseaux (In Proper Person)

PAINTER, Judge.

Plaintiff, Malcolm Brasseaux, appeals the trial court’s ruling in favor of

Defendants, Town of Church Point, Scott Vige, Carl Thibodeaux, Michael

Malbrough, Alexis Jagneaux, Jr., Gary Duplechin, Carl Daigle, Errol Comeaux,

Roger Boudreaux, Charles Randolph Keller, Kenneth Goss, Individually and in his

Official Capacity as Sheriff of Acadia Parish, Dale Thibodeaux, Individually and in

his Official Capacity as a Deputy Sheriff of the Acadia Parish Sheriff’s Department,

and the Acadia Parish Sheriff’s Department. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is an attorney licensed to practice in the State of Louisiana. He filed

suit against numerous defendants, alleging false arrest, wrongful imprisonment,

negligent arrest, malicious prosecution, and intentional infliction of emotional

distress. The suit arose out of an incident occurring on December 24, 2000. On the

afternoon of December 24, 2000, Plaintiff lit what he terms a “recreational fire” in the

yard of his home1, which is within the corporate limits of the Town of Church Point.

About an hour after the fire was started, Officer Scott Vige of the Church Point Police

Department, who was on routine patrol, noticed that Plaintiff was burning debris in

a large, open fire which, in Officer Vige’s opinion, might pose a threat to property or

life in Church Point. Officer Vige parked his patrol vehicle and approached Plaintiff.

He informed Plaintiff that there was an ordinance which prohibited the burning of the

fire within the municipal limits of the Town of Church Point and instructed him to

extinguish the fire. Officer Vige testified that he had reviewed the ordinance in

question a few hours prior to the incident in question because he had received a

complaint relative to a fire on another street across town from Plaintiff’s property.

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Plaintiff’s property consists of approximately six acres and contains his office, two mobile
homes, and another large building.

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Plaintiff told Officer Vige that he was familiar with the ordinance but did not

believe that he was in violation thereof, and he refused to put out the fire. By

Plaintiff’s own admission, he told Officer Vige that if the fire was put out, he would

probably light it again. Officer Vige left the scene, and sometime later, Officer Lisa

Richard arrived and asked Plaintiff to extinguish the fire. Plaintiff again refused and

told the officer to get off his property or he would “kick her butt.” In Plaintiff’s own

words: “I don’t remember the exact words but it probably got a little rough.” After

that, according to Plaintiff, “there were surely fifteen people besides myself around

that fire” because several firemen and other police officers arrived on the scene.

Around 4:30 p.m., approximately three hours after the fire was lit, a fireman

extinguished the fire, and Officer Vige placed Plaintiff under arrest and handcuffed

him. Plaintiff testified that he was asked “probably 25 times” to put out the fire

before he was arrested. According to Plaintiff, he made some remark to Officer Vige

to the effect that “he was going to pay for that, for what he was doing to me.”

Plaintiff contends that at that point, Deputy Dale Thibodeaux grabbed his arm and

threw him into a patrol car with a police dog and took him to the police station, which

was about three to four blocks away. When they arrived at the police station, Plaintiff

alleges that Deputy Thibodeaux yanked him out of the patrol car and shoved him into

a chair. Plaintiff also alleges that Deputy Thibodeaux threatened him.

Plaintiff was charged with various offenses2 related to the December 24, 2000

incident. He was convicted in magistrate court and took an appeal to the district court

where he was acquitted on all charges. Plaintiff then filed the instant suit.

Defendants specifically pled the affirmative defense of qualified immunity from suit.

2
Plaintiff was charged with the following: (1) having an open uncontained fire within the
corporate limits of Church Point (Ordinance Section 10-1), (2) resisting an officer (La.R.S. 14:108),
(3) threatening a public official (La.R.S. 14:122.2), (4) interfering with the duties of an officer
(La.$.S. 14:108), (5) interfering with the duties of a fire official (La.R.S. 14:324(A)), (6)
misrepresentation during booking (La.R.S. 14:133.2).

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Following a bench trial, the trial court found in favor of all Defendants. Specifically,

the trial court found that there was no evidence presented that the Church Point Police

Department acted outside of an ordinance and that the Sheriff’s Department had

nothing to do with the initial arrest. The trial court further found that Plaintiff could

not carry his burden of proof relative to the excessive force claim. As a result, all of

Plaintiff’s claims were dismissed with prejudice. Plaintiff now appeals, alleging that

the trial court erred in finding that no actionable wrong was committed by any

Defendant, in finding that Plaintiff suffered no damages, and in dismissing all of

Plaintiff’s claims. For the following reasons, we affirm.

DISCUSSION

We first consider Plaintiff’s claims for false arrest, false imprisonment, and

negligent arrest. The Louisiana Supreme Court, in Kennedy v. Sheriff of East Baton

Rouge, 05-1418, p. 32 (La. 7/10/06), 935 So.2d 669, 690, stated:

Wrongful arrest, or the tort of false imprisonment, occurs when one
arrests and restrains another against his will and without statutory
authority. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). The
tort of false imprisonment consists of the following two essential
elements: (1) detention of the person; and (2) the unlawfulness of the
detention. Tabora v. City of Kenner, 94-613, p. 8 (La.App. 5 Cir.
1/8/95), 650 So.2d 319, 322, writ denied, 95-0402 (La.3/30/95), 651
So.2d 843.

However,

if police officers act pursuant to statutory authority in arresting and
incarcerating a citizen, they are not liable for damages for false arrest
and imprisonment. The law exempts the officers from liability even if
the statute upon which they rely is later declared unconstitutional as
long as the officers reasonably believed it valid at the time they acted.

Kyle v. City of New Orleans, 353 So.2d 969, 971 (La.1977) (citations omitted).

In this case, we note, as did the trial court, that Plaintiff did not introduce a

copy of the ordinance in question into evidence. Whether or not we take judicial

notice of the contents of the ordinance is of no consequence, because we find that this

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arrest was lawful under La.Code Crim.P. art. 213(A), which provides that a police

officer may immediately arrest a person without a warrant when an misdemeanor

offense has been committed in the officer’s presence by that person. The fact that

Plaintiff was ultimately acquitted of all criminal charges does not make the arrest

illegal or without probable cause, and Plaintiff cannot rest solely on his acquittal of

criminal charges to support the assertion that there was no probable cause for the

arrest. See Wilson v. City of Shreveport, 40,383 (La.App. 2 Cir. 2/10/06), 921 So.2d

254, writ denied, 06-509 (La. 5/5/06), 927 So.2d 321, and Merritt v. City of Oakdale,

01-1533 (La.App. 3 Cir. 5/15/02), 817 So.2d 487. Thus, we hold that Plaintiff is

barred from recovering damages for false arrest and imprisonment and find no error

in the trial court’s finding that no Defendant committed an actionable wrong or in the

dismissal of all Plaintiff’s claims in this respect.

Next, we consider Plaintiff’s claim for malicious prosecution. The law in this

respect has been succinctly stated by the first circuit in Ferrant v. Parish of

Tangipahoa ex rel. Coroner’s Office, 01-2278, pp. 4-5 (La.App. 1 Cir. 6/21/02), 822

So.2d 118, 120, as follows:

Although the tort of malicious prosecution has been recognized in
Louisiana, “[a]ctions of this sort have never been favored, and, in order
to sustain them, a clear case must be established, ...” Johnson v. Pearce,
313 So.2d 812, 816 (La.1975). In an action for malicious prosecution,
plaintiff must prove the following elements:

(1) The commencement or continuance of an original criminal or
civil judicial proceeding.

(2) Its legal causation by the present defendant against plaintiff
who was defendant in the original proceeding.

(3) Its bona fide termination in favor of the present plaintiff.

(4) The absence of probable cause for such proceeding.

(5) The presence of malice therein.

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(6) Damage conforming to legal standards resulting to plaintiff.

Johnson v. Pearce, 313 So.2d at 816.

Plaintiff must prove not only malice but show there was no
probable cause. “Probable cause does not depend upon the actual state
of the case in point of fact, but on the honest and reasonable belief of the
party prosecuting.” (Emphasis added. Citations omitted.) Eusant v.
Unity Industrial Life Ins. and Sick Benefit Ass'n of New Orleans, Inc.,
195 La. 347, 353, 196 So. 554, 556 (La.1940). Also see Craig v. Carter,
30,625, pp. 6-7 (La.App. 2 Cir. 9/23/98), 718 So.2d 1068, 1072-1073,
writ denied, 98-2698 (La.12/19/98), 734 So.2d 636. If an accusation is
based on probable cause there is no liability even if there was malicious
motive. Kenner v. Milner, 187 So. 309, 311 (La.App. 1 Cir.1939).

As stated above, Plaintiff failed to bear his burden of proving that his arrest

was unlawful. Therefore, his claim for malicious prosecution also falls. We thus find

no error in the trial court’s dismissal of this claim.

With regard to Plaintiff’s claim that excessive force was used by the police

officers, we note that: “Whether the force used is reasonable depends on the totality

of the facts and circumstances in each case. The degree of force employed is a factual

issue, and the trial court's factual findings are entitled to great weight.” Wilson, 921

So.2d at 258. One factor to be considered in the totality of the circumstances is the

behavior of the arrestee; i.e., whether he was intoxicated, belligerent, offensive, or

uncooperative. See Wilson, 921 So.2d 254.

Officers Vige and Richard and Chief of Police Albert Venable testified at trial.

Officer Vige testified that he recalled a “little resistance” on the part of Plaintiff in

being escorted to the police car after the arrest. Officer Vige stated that his response

to the resistance was to “pull [Plaintiff] a little farther so I could get [Plaintiff] to go

in the direction I wanted. . ., which was towards the car.” Officer Vige further

testified that after Deputy Thibodeaux took over, he noticed that Deputy Thibodeaux

was holding Plaintiff by the arm but that he never saw Deputy Thibodeaux touch any

other parts of Plaintiff’s body or jerk Plaintiff’s arms up. It was Officer Vige’s

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testimony that he never saw Deputy Thibodeaux do anything to cause injury or pain

to Plaintiff. Officer Vige did testify that he heard Deputy Thibodeaux use “angry

words” but that he did not know what was said and that he did not see Deputy

Thibodeaux point his finger in Plaintiff’s face as Plaintiff claimed.

Officer Richard gave no testimony concerning the handling of Plaintiff after

his arrest. She testified only that the fire was big, that she was attempting to enforce

an ordinance against burning in the city limits, and that she believed the fire was big

enough to present a potential danger to other property.

Chief of Police Venable testified that he was not present during the arrest,

transport, or booking of Plaintiff. He further testified that he did not find anything

Officer Vige did in connection with the handling of the incident in question to be

inappropriate.

Only Plaintiff’s self-serving testimony was presented in his attempt to establish

his claim of excessive force. The trial court decided to accept Officer Vige’s account

of the incident. We find no manifest error in this decision; therefore, we affirm the

trial court’s dismissal of Plaintiff’s claim of excessive force.

Finally, we consider Plaintiff’s claim for intentional infliction of emotional

distress. In White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991), the court stated:

[I]n order to recover for intentional infliction of emotional distress, a
plaintiff must establish (1) that the conduct of the defendant was
extreme and outrageous; (2) that the emotional distress suffered by the
plaintiff was severe; and (3) that the defendant desired to inflict severe
emotional distress or knew that severe emotional distress would be
certain or substantially certain to result from his conduct.

Plaintiff presented no evidence to support this claim. We agree with the trial court’s

finding that Plaintiff failed to carry his burden of proving any harm caused by the

alleged excessive force. Therefore, we find no error in the trial court’s dismissal of

Plaintiff’s claim for intentional infliction of emotional distress.

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DECREE

For all of the foregoing reasons, we find that Plaintiff failed to meet his burden

of proving his claims of false arrest, wrongful imprisonment, negligent arrest,

malicious prosecution, and intentional infliction of emotional distress. Thus, the

judgment of the trial court dismissing all of Plaintiff’s claims is affirmed in its

entirety. Costs of this appeal are assessed to Plaintiff-Appellant, Malcolm Brasseaux.

AFFIRMED.

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NUMBER CA 06-1390

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

MALCOLM BRASSEAUX

VERSUS

TOWN OF CHURCH POINT, ET AL.

SAUNDERS, J., concurs.

I agree with the result reached by the majority. However, I feel that it would

be prudent to take judicial notice, pursuant to La.Code Evid. art 202B(1)(c), of the

city ordinance provided to us, both physically, and by citation, at oral argument by

Mr. Brasseaux. I suggest this because La.Code Evid. art. 202(B)(1) states, in

pertinent part:

B. Other legal matters. (1) A court shall take
judicial notice of the following if a party requests it and
provides the court with the information needed by it to
comply with the request, and may take judicial notice
without request of a party of:
...
(c) Ordinances enacted by any political subdivision of the
State of Louisiana.

(Emphasis added)

It would appear that this article suggests that taking judicial notice of the

ordinance is mandatory in that a party has requested us to do so, and has also

provided us with a copy of the ordinance as well as a citation to the ordinance, which

is located in Chapter 10, Article I, Section 10-1 of the Town of Church Point City

Ordinances, thereby providing the court with the information needed to comply with

the request. This being said, the ordinance restricting trash fires, which has been

provided to us, reads as follows:

Sec. 10-1. Trash fires restricted.
(a) It shall be unlawful for any person to start or set
any trash fire or to burn paper, grass, trash or debris where
such fire is not protected by an approved incinerator,
similar to that of the American Insurance Association,
marked P-1, within the municipality limits.
(b) Whoever starts or sets a trash fire within the
municipal limits without protection by a proper incinerator
shall be punished as provided in section 1-8 of this Code.

While Plaintiff argues that the ordinance, as written, is not applicable to the

type of fire that he was burning, it seems clear that his fire was not protected by an

approved incinerator and contained at least a minimal amount of paper, as well as

fallen tree limbs, which could, at least, arguably be considered debris. Therefore, the

decision of the trial court seems to fall squarely within the ruling set forth in Wells

v. Gaspard,, 61-236 (La.App. 3 Cir. 1961),129 So.2d 245, 245-246. The Wells court

stated:

As to the applicable law, it is conceded that a citizen may
be arrested without a warrant by a police officer for the
alleged commission of a misdemeanor only when it has
been committed in the officer’s presence (LSA-R.S. 15:59,
15:60(1)); and that in an action for damages by reason of
the false arrest since the sole question is whether the
detention is under color of legal authority ... It has also
been held that a police officer cannot be held liable for
damages, even though subsequently the person arrested be
found innocent, if the arrest for a misdemeanor be made
when the police officer in good faith has probable cause to
believe it is being committed in his presence.
(Citations Omitted.)

It seems clear that the officers in this case were acting under the color of legal

authority, as they had good faith and probable cause to believe that the ordinance was

being violated. Accordingly, there is no error in the trial court’s ruling, and I concur

with the majority opinion.