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Turner v. St. John Parish Sheriff

Court of Appeals of Louisiana, Fifth Circuit

October 29, 2014

LIONEL E. TURNER, SR.
v.
ST. JOHN PARISH SHERIFF

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 53705, DIVISION "A" HONORABLE MADELINE JASMINE, JUDGE PRESIDING

MICHAEL S. ZERLIN ATTORNEY AT LAW ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLEE

FRED SCHROEDER, II CRAIG E. FROSCH ATTORNEYS AT LAW COUNSEL FOR DEFENDANT/APPELLANT

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson JJ.

ROBERT A. CHAISSON JUDGE

Mike Tregre, the sheriff of St. John the Baptist Parish, appeals from a $35, 000 judgment rendered in favor of Lionel Turner in Mr. Turner's lawsuit arising from use of allegedly excessive force by a sheriffs deputy while conducting an investigative stop. For the following reasons, we reduce the award to $10, 000, and affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

Late in the evening of May 7, 2006, Sergeant Keith Brooks of the St. John the Baptist Parish Sheriffs Office received a complaint of a domestic abuse situation. The victim gave Sergeant Brooks a name and description of the suspect, and a description of his vehicle. Sgt. Brooks put out a radio bulletin about the situation, and Deputy Kory Borcherding heard it while on patrol. Shortly after midnight, Deputy Borcherding saw a van which seemed to match the color of the vehicle mentioned in the bulletin, and he ran the license plate number to ascertain the address of the owner. When the van passed up the address of record and turned into a driveway at a different address, the officer put on his flashing police lights, stopped his cruiser, got out, and approached the driver. Shortly thereafter, Sergeant Brooks also arrived at the scene, but remained on the sidewalk.

Mr. Turner was the driver of the vehicle that Deputy Borcherding stopped. He was returning home from a trip to the drug store and had turned into what was in fact his own driveway. It is not disputed that as Mr. Turner was getting out of his vehicle, Deputy Borcherding approached him and demanded to see his identification. It is also not disputed that after a brief interaction between the two, Deputy Borcherding used a "take down" maneuver to bring Mr. Turner to the ground. Mr. Turner alleges that his pre-existing back injury was aggravated during this incident.

There was conflicting testimony, however, about the details of the encounter. Deputy Borcherding's version was that Mr. Turner was belligerent and at first resisted requests to produce his driver's license. He testified that he tried to explain the situation to Mr. Turner, but that when Mr. Turner continued to resist his request, he decided that another level of force was required. At that point, he grabbed Mr. Turner by the wrist and arm and forced him onto the ground. He explained that the maneuver did not involve any abrupt throwing to the ground, but rather was a slow and steady process which resulted in Mr. Turner lying on his stomach with the deputy kneeling on the ground beside him. He said that Mr. Turner was never arrested, handcuffed or otherwise struck during the incident. Sergeant Brooks did not participate in the incident, but simply watched it from a distance. Sergeant Brooks did not testify at trial.

Mr. Turner testified to the contrary that Deputy Borcherding rushed up to him as he was getting out of his vehicle and demanded his identification. Although he tried to explain that he was in his own driveway, Deputy Borcherding continued to badger him. He further indicated that he tried to get out his identification, but Deputy Borcherding nonetheless grabbed him and forced him to the ground before he could comply. He did confirm that once Deputy Borcherding satisfied himself that Mr. Turner was not the suspect, both officers left the scene without further incident. He estimated that the entire incident may have lasted five to six minutes. Mr. Turner further testified that at the time, he was recovering from a work-place back injury, and as a result of this incident, his back condition was aggravated. He also claimed mental anguish and suffering.

On the basis of the above evidence, the trial judge found that Deputy Borcherding had indeed used excessive force. She further found that as a result, Mr. Turner had suffered an aggravation of his back problem, as well as mental injuries, and she awarded him $35, 000 in total damages. This appeal followed.

DISCUSSION

Sheriff Tregre first argues that it was manifest error to find that the officer used excessive force. He also asserts that it was similar error not to find that Mr. Turner was comparatively at fault for resisting the officer. In regard to damages, he argues that Mr. Turner failed to present sufficient evidence to prove that his back injury was aggravated so as to ...


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