The court said in its ruling this month that Dist. Judge Donald Hebert ruled correctly in the matter of Henry and Lisa Harvey, but denied the city’s motion for damages, attorney’s fees and sanctions based on frivolous appeal.
The Harveys sought damages they alleged they were due as a result of officers’ allegedly unlawful actions in arresting Henry Harvey for disturbing the peace and resisting an officer.
According to the ruling:
On October 2, 2006, Sergeant Sandra Castille responded to an anonymous phone call that someone was smoking marijuana on the front porch of the plaintiffs’ residence.
According to testimony, when Castille knocked on the Harveys’ front door, Mrs. Harvey was in the living room watching television and Mr. Harvey was in the back of the house.
Mrs. Harvey invited Sergeant Castille into the residence and denied that anyone was in the residence smoking marijuana.
At some point, Mr. Harvey came out into the living room and spoke to Sergeant Castille.
Officer Miller arrived shortly thereafter. At this point, the testimony diverges into substantially different versions of the events leading to Mr. Harvey’s arrest and alleged injuries.
The Harveys contend that, while Mr. Harvey was obtaining the police officers’ names so he could make a complaint, Officer Miller arrested Mr. Harvey.
According to their testimony, Officer Miller refused to accommodate Mr. Harvey’s back injury by handcuffing him in the front.
They also alleged that, even though Mr. Harvey was not aggressive, Officer Miller “kneed” him, causing him to fall to the ground.
In contrast, the police officers both testified that Mr. Harvey was angry and shouting obscenities at his neighbors.
Their testimony reflected that, when Officer Miller attempted to arrest Mr. Harvey for disturbing the peace, he refused to comply.
Both officers testified that Mr. Harvey fell to the ground and that Officer Miller did not use any kind of police “takedown” technique on him.
Whatever the case, after Mr. Harvey fell and began to complain, Sergeant Castille called an ambulance and Mr. Harvey was taken to the hospital for treatment.
Mr. Harvey contends that the fall injured, or re-injured, his knee and aggravated a prior back injury.
The plaintiffs filed suit seeking damages for assault and battery, police brutality, false imprisonment, negligent infliction of emotional distress, intentional infliction of emotional distress, filing false charges, negligence, police brutality and loss of consortium against Officer Miller, the City of Eunice Police Department and the chief of police.
Judge Hebert subsequently granted in part the defendants’ motion for summary judgment, dismissing all claims except for the negligent injury, excessive force, and loss of consortium claims.
After a bench trial, he found in favor of the defendants and dismissed the case.
The plaintiffs appeal, asserting as their sole assignment of error that the trial court erred in determining that the force used in the arrest of Mr. Harvey was reasonable.
The defendants filed an answer, alleging that the plaintiffs’ appeal is frivolous because it does not present a substantial legal question and asked damages, attorney’s fees and costs.
In their ruling, the appeals judges wrote
“The trial court specifically found that Officer Miller did not knee Mr. Harvey or jump on his back.
“Both officers testified that Officer Miller was not attempting to use any kind of tactical technique on Mr. Harvey. Their testimony reflected that Officer Miller was struggling with Mr. Harvey’s hands and that Mr. Harvey kept pulling his hands away.
“Mr. Harvey himself testified that he refused to comply with Officer Miller’s attempts to handcuff him and raised his hands over his head to keep Officer Miller from handcuffing him behind his back.
“Our review of the record indicates that there were two conflicting versions of the events and that the trial court necessarily had to make a determination regarding the credibility of witnesses.
“When the findings are based on determinations regarding the credibility of witnesses, great deference must be given to the trial court’s findings of fact, as the trial court is “cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.”
“There is ample support in the record for the trial court’s determination that Officer Miller was not negligent in the manner of arresting Mr. Harvey.
“In addition to the testimony of the officers, we note particularly that, in a criminal trial, Mr. Harvey was found guilty of disturbing the peace and not guilty of resisting an officer.
“The transcript from that trial as well as the criminal court’s minutes were entered into the record and were available for the trial court to consider.
“Therefore, giving proper deference to the trial court’s findings of fact, we find no error in the trial court’s determination that Officer Miller’s actions were not negligent.
“This assignment of error is without merit.”
Regarding the city seeking damages, the court said “damages for frivolous appeal may be awarded ‘when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellants’ counsel does not seriously believe in the position he advocates.’
“While we have found that there is no merit to this appeal, we do not find the issue presented is not a serious one, that the appeal was taken solely for delay, or that there is indication that the appellants’ counsel does not believe in the position advanced. Thus, we decline to award damages, attorney fees or costs.”
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