United States District Court, E.D. Louisiana
ORDER AND REASONS
HELEN G. BERRIGAN, District Judge.
Before the Court is the Motion for Summary Judgment filed by Defendant Jason Giroir. Rec. Doc. 57. Plaintiffs have submitted an opposition. Rec. Doc. 59. Having reviewed the record, the law, and the memorandums submitted from all parties, the Court hereby GRANTS the motion for the reasons that follow.
This suit was instituted by Earl Sipp, III and his father Earl Sipp, Jr., ("Plaintiffs") both individually and on behalf of the deceased, Justin Sipp, their son and brother, respectively. Specifically, Plaintiffs' claims are as follows:
(1) "Count I - § 1983 Causes of Action": Plaintiffs claim Defendants Giroir, the New Orleans Police Department ("NOPD") and its officers violated Plaintiffs' rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution for "falsely stopp[ing], detain[ing], assault[ing], batter[ing] and kill[ing] Justin Sipp, and injur[ing] Early Sipp, III, " and using "unlawful force against Justin and Earl Sipp, III, " thereby violating their "federal constitutional and federal civil rights." Rec. Doc. 1 at 16.
(2) "Count II - Enumerated § 1983 Violations": Plaintiffs' second claim alleges all Defendants denied Justin Sipp and Earl Sipp, III the "rights, privileges, and immunities secured by the United States Constitution and by Federal Law." Id. at 17. The complaint specifies that the Plantiffs' claim "unlawful use of deadly force, assault and battery by defendant NOPD officers under the NOPD's control, " that resulted in Justin Sipp and Earl Sipp, III being deprived "of both their liberty without due process of law and [their] right to equal protection of the laws." Id.
(3) "Count III - § 1983 Conspiracy Cause of Action": Plaintiffs' allege all defendants "acted in combination and in concert" in a "conspiracy to commit illegal acts against Justin and Earl Sipp, III." Rec. Doc. 1 at 18. This claim alleges that the New Orleans Police Department, its officers and Superintendent Ronal Serpas exercised "deliberate indifference in not preventing these acts" and were acting in concert and conspiracy by allowing and failing to prevent the "unlawful acts." Id.
(4) "Count IV - § 1983 Liability of NOPD, Officers and His Office": In Plaintiffs' fourth claim they allege that Superintendent Serpas and NOPD violated Plaintiffs' rights by "fail[ing] to adopt sufficient policies to deter or prevent" civil rights violations and failing to "develop and/or maintain a custom or policy to identify, discipline, rehabilitate and/or retrain its police officers" who violated individuals civil rights. Rec. Doc. 1 at 19. In addition, Plaintiffs' allege Defendants negligently hire and retained police officers who had previously violated criminal suspects' civil rights. Id.
(5) "Count VI - Due Process and Equal Protection Violations": Plaintiffs allege in their fifth claim that Earl Sipp, III and Justin Sipp's rights to due process and equal protection were violated by the NOPD and NOPD officers' illegal stop and arrest. Rec. Doc. 1 at 21. In addition, Plaintiffs allege Earl Sipp, III was falsely charged and denied a good faith prosecution and his right to a fair trial. Id.
(6) "Count VIII - State Law Claims": Plaintiffs' sixth claim entails their state law claims. Specifically, Plaintiffs allege Defendants "knowingly and intentionally, or in the alternative negligently" violated Justin Sipp and Earl Sipp, III's rights under the Louisiana Constitution to due process of law, right to individual dignity, right to privacy, right to judicial review, right to human treatment and access to courts. Id. Additionally, Plaintiffs' allege violations of state laws for battery, assault, intimidation by officers, kidnaping, false imprisonment, extortion, liability for acts causing damages, negligence, respondeat superior liability, solidary liability for conspiracy, abuse of process and negligent misinformation. Id.
Defendants Ronal Serpas and City of New Orleans previously filed a Motion for Summary Judgment which was unopposed and granted on June 12, 2014, resulting in the dismissal of the claims against those defendants and claim (4) in its entirety. (Rec. Docs. 24, 46). Consequently, the only remaining claims are (1), (2), (3), (5) and (6). Jason Giroir is the only defendant remaining in the case and has filed a Motion for Summary Judgment which is currently before the Court. (Rec. Doc. 57). Giroir has incorporated arguments from the previously-granted Motion for Summary Judgment by way of reference in is own Motion. Rec. Doc. 57-1 at 6. At this time, adequate time has been provided for discovery, however there has been no indication that any depositions have been taken.
The undisputed facts establish that this suit arises out of a traffic stop by Defendant Jason Giroir, formerly of the New Orleans Police Department, of a vehicle driven by Plaintiff Earl Sipp III and containing as a passenger, his brother Justin Sipp. On the morning of March 1, 2012, at approximately 5:35 a.m., Earl Sipp III and Justin Sipp were stopped by Defendant Giroir. Rec. Doc. 57-4. While working a paid detail for the Mid-City Security District, Giroir was traveling riverbound on Canal Street in a marked police vehicle when he observed the Sipps' vehicle traveling northbound on Canal Street. Rec. Doc. 57-4 at 4. Giroir was able to see the vehicle had a broken license plate light, which is a violation of La. R.S. 32:304(c). Id. New Orleans Police Officer Nicholas L. Gernon's affidavit verifies that the license plate was not illuminated at the time of the incident. Rec. Doc. 24-4 at 1. Giroir made a u-turn with his vehicle so as to begin following the Sipps' vehicle and make a traffic stop. Id. at 5.
Earl Sipp, III and Justin Sipp were traveling to early morning shifts at local fast food restaurants. Rec. Doc. 1 at 7-8. Earl Sipp, III was driving the vehicle to drop Justin Sipp off at his place of employment on City Park Avenue. Id. Giroir, in his marked police vehicle, followed plaintiffs northbound on Canal to St. Patrick Street. Rec. Doc. 57-4 at 4 and Rec. Doc. 1 at 7. Once on St. Patrick Street, Giroir continued to follow the Sipps as they turned on to St. Louis Street and then N. Bernadotte Street, which has access to the back of the restaurant where Justin worked. Rec. Doc. 1 at 7-8 and Rec. Doc. 57-4 at 6. Once on N. Bernadotte Street, the Sipps' vehicle had pulled over to park and Giroir activated his vehicle's emergency lights as he came up behind the parked vehicle. Rec. Doc. 57-4 at 6 and Rec. Doc. 1 at 33.
Giroir approached the Sipps' vehicle and asked for Earl Sipp, III's license, registration and insurance. Rec. Doc. 57-4 at 7 and Rec. Doc. 1 at 8. Giroir returned to his vehicle to check the driver's information and the vehicle's license. Rec. Doc. 57-4 at 7. Earl Sipp, III's license had been suspended and there was an outstanding traffic attachment. Rec. Doc. 24-4 at 2. Giroir alleges that Justin Sipp had claimed to not have any identification on his person and then proceeded to give him a fake name and date of birth. Rec. Doc. 57-4 at 7. Officer Gernon's investigation of the incident revealed that at the time of the incident, there was an outstanding warrant for Justin Sipp's arrest. Rec. Doc. 24-4 at 3.
At some point during the traffic stop, Giroir radioed for the assistance of Officers Mayfield and Asevedo to assist with the traffic stop. Rec. Doc. 57-4 at 8. Once Officers Mayfield and Asevedo arrived at the scene, Defendant Giroir placed Earl Sipp, III under arrest and handcuffed him. Id. at 9. Officer Mayfield was attempting to remove Justin Sipp from the vehicle and was facing resistance. Id. at 8 As Defendant Giroir was attempting to handcuff Justin Sipp, Justin Sipp began to physically resist and caused Giroir to fall to the ground. Id. As he was on the ground, rapid gunfire began and Giroir could see Justin Sipp with a gun. Id. Officers Mayfield and Asevedo, were shot, but conscious and lying on the ground as Giroir radioed for assistance. Id. Earl Sipp, III had been shot in the leg and was still conscious. Id. Justin Sipp had been shot and killed. Id. Giroir had been shot as well, but his TASER weapon stopped the bullet. Rec. Doc. 24-4
The ballistics report submitted by Defendant Giroir as an exhibit to his motion shows that Justin Sipp fired fourteen.380 caliber rounds, Officer Mayfield fired six.40 caliber rounds and Officer Giroir filed one.40 caliber round. Rec. Doc. 57-5. However, the ...