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Arshad v. Congemi

Court of Appeals of Louisiana, Fifth Circuit

October 29, 2014

DR. KALEEM ARSHAD AND NADEEM S. ARSHAD, INDIVIDUALLY AND ON BEHALF OF DECEDENT, DR. JAMEELA ARSHAD
v.
NICK CONGEMI IN HIS CAPACITY AS CHIEF OF POLICE FOR THE CITY OF KENNER, THE CITY OF KENNER, KENNER POLICE DEPARTMENT, OFFICER GERALD MILLER, OFFICER RYAN KRUMMEL, OFFICER KIMBERLYN BRIGHT, SERGEANT EMILE SANCHEZ, GEMINI INSURANCE COMPANY AND CLARENDON AMERICA INSURANCE COMPANY

Page 194

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT. PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 654-917, DIVISION " A" . HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING.

PATRICK H. HUFFT, J. THOMAS BEASLEY, ATTORNEYS AT LAW, New Orleans, Louisiana; AUB A. WARD, ATTORNEY AT LAW, Baton Rouge, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

JAMES H. BROWN, JR., ATTORNEY AT LAW, New Orleans, Louisiana; EDWARD F. KOHNKE, IV, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: (NICK CONGEMI IN HIS CAPACITY AS CHIEF OF POLICE FOR THE CITY OF KENNER, THE CITY OF KENNER, KENNER POLICE DEPARTMENT, OFFICER GERALD MILLER, OFFICER RYAN KRUMMEL, OFFICER KIMBERLYN BRIGHT, SERGEANT EMILE SANCHEZ, GEMINI INSURANCE COMPANY).

MICHAEL J. REMONDET, JR., ATTORNEY AT LAW, Lafayette, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: (CLARENDON INSURANCE COMPANY).

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst.

OPINION

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G. GRAVOIS, Judge.

[14-87 La.App. 5 Cir. 3] Appellant, Dr. Kaleem Arshad, the husband of decedent, Dr. Jameela Arshad, appeals a judgment dismissing all of his claims against defendants, the Kenner Police Department, certain named officers, and their insurers,[1] which judgment found that defendants were not liable for the in-custody death of decedent.[2]

On appeal, appellant raises the following assignments of error:

1. The trial court erred in finding that the officers didn't breach their duty to Dr. Arshad, and that their actions were reasonable under the circumstances;
2. The trial court erred in finding that F.S.O.P. 7-2.2[3] does not apply in this case because the court erroneously believed that Dr. Arshad's arrest did not rise to the level of " maximum control" as contemplated by the rule; and
3. The trial court erred in finding that the manner in which Dr. Arshad was arrested, coupled with the failure of police officers to [14-87 La.App. 5 Cir. 4] monitor her, were not a cause or contributing factor to Dr. Arshad's death.

For the following reasons, we affirm the judgment of the trial court under review.

FACTS AND PROCEDURAL HISTORY

On January 10, 2005, Dr. Jameela Arshad died approximately nine minutes after being placed sitting and handcuffed in the back of a Kenner Police cruiser, after being arrested for failing to comply with police officer commands to step away from the victim of a traffic accident. At around 10:00 p.m. that evening, Dr. Arshad had witnessed the accident which involved a bicyclist and a car at the intersection of Williams Boulevard and West Esplanade Avenue in Kenner, Louisiana. Robert Evans, Jr., a Jefferson Parish firefighter/emergency medical technician (" EMT" ), who was off duty at the time, also witnessed the accident and stopped to render aid to the cyclist.

Mr. Evans testified at trial that he was stopped in traffic at the intersection, saw the accident, exited his vehicle, and went to check on the victim. He got down on the ground in order to immobilize the victim in case he had injured his neck. As he was doing this, Dr. Arshad ran up between him and the victim and started shaking the victim violently, screaming and cursing at the victim in the process. She was described by various trial witnesses as large or obese,[4] and very irate at the time. When Mr. Evans asked Dr. Arshad to step back so she wouldn't hurt the victim, she began screaming and yelling at him, grabbing him and screaming that she was a doctor, this was " her scene" , and she was in charge. When he asked her what kind of doctor she was, she continued to scream that it was " her scene" ; she did not identify

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herself, or provide any medical credentials.

[14-87 La.App. 5 Cir. 5] According to Mr. Evans, at this point two Kenner police officers came up and asked what was going on. He told them that the other person on the scene besides the victim claimed to be a doctor (later identified as Dr. Arshad) and had assaulted him and the victim. He described Dr. Arshad's behavior as extremely angry and upset. Mr. Evans remembered that the two officers were talking to Dr. Arshad when an ambulance pulled up between him and her. He saw, under the ambulance, Dr. Arshad " go to the ground" and be handcuffed as he looked up. After that, he left the victim's side because other EMTs had arrived. He gave his credentials to one of the officers and was released.

The first Kenner police officer to arrive at the scene of the accident was Officer Ryan Krummel, who arrived at 22:01 hours (10:01 p.m.). As he approached the scene, he saw the victim on the ground and two individuals near him, later identified as Mr. Evans and Dr. Arshad. Both were squatting near the victim, and the female, Dr. Arshad, was screaming at Mr. Evans. Mr. Evans told Officer Krummel that the female claimed to be a doctor, but would not produce any credentials. Officer Krummel testified that the female also started screaming at him, telling him that " this is my scene, I'm a doctor, I'm in charge" over and over again. Officer Krummel never saw the female calm down. He instructed both of the individuals not to touch the victim, and tried to talk to the female to diffuse the situation. At this point, Officer Gerald Miller of the Kenner Police Department approached the female. Officer Krummel heard Officer Miller tell the female that she would have to step away if she could not produce credentials. At that point, Officer Krummel saw the female grab " very aggressively" for the victim and Officer Miller grab her hand to prevent her from touching the victim. The female " swatted" at Officer Miller, shoving him. At this point, Officer Krummel turned to focus his attention to the accident scene.

[14-87 La.App. 5 Cir. 6] Because the victim was bleeding, Officer Krummel went to his police unit to retrieve some rubber gloves. As he was leaning into his car window to get the gloves, he saw the female and Officer Miller struggling against a minivan nearby. He testified that although neither party was throwing punches, there was definitely an altercation going on between the female and Officer Miller. He heard Officer Miller send out a " Code 108" over his police radio, which meant that he needed assistance. When it appeared that Officer Miller had gained control of the female, Officer Krummel sent out a " Code 4" over his police radio, which effectively cancelled Officer Miller's " Code 108" call.

Officer Krummel described the scene as very chaotic, in a very busy intersection, with at least ten civilians, many officers, two or three ambulances, and two or three police units present. The traffic was backing up, and the victim was being combative towards the EMTs.

As Officer Krummel was leaving his unit to go to Officer Miller's unit to obtain more rubber gloves, he observed a renewed struggle between Officer Miller and the female, prompting Officer Krummel to call for more assistance. He then got the gloves he needed and headed to the victim, never seeing the female and Officer Miller again as far as the altercation between them was concerned. The next thing he remembered hearing was another officer asking if the female had been pepper-sprayed. Because he was not sure where the female was at this point, he asked the other officer who he was referring to. The other officer, John Louis, then showed him

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the female in the back of a police cruiser belonging to Officer Kimberlyn Bright, where Officer Miller had placed her following her arrest. Officer Krummel shined his light into the car and saw the female with foam and fluids coming from her mouth. Because the car was locked, Officer Bright was summoned to unlock the door with her key. The officers then immediately began [14-87 La.App. 5 Cir. 7] rendering aid to the female. Officer Krummel immediately radioed for another ambulance to come to the scene. One arrived a few minutes later. A paramedic on the scene took over care of the female at this point.

Officer Miller testified that he was the officer who arrested Dr. Arshad. Prior to becoming a police officer, he had been an EMT. He had been an officer with the Kenner Police Department for about a year when the incident in question occurred. He responded to the call and parked his police unit somewhere in the intersection when he arrived at around 22:02 hours. He saw Officer Krummel kneeling down around something, and also saw Mr. Evans and Dr. Arshad kneeling as well. His initial impression was that Dr. Arshad ...


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