United States District Court, Western District of Louisiana
HORNSBY MAGISTRATE JUDGE
ELIZABETH ERNY FOOTE JUDGE
Before the Court are cross-Motions for Summary Judgment, filed by the Plaintiff, Pat Hensley (“Hensley”) and the Defendants, City of Shreveport and Police Chief Willie Shaw (“Chief Shaw”). [Record Documents 22 and 23]. Both parties oppose the other’s motion for summary judgment and have filed opposition and reply briefs accordingly. [Record Documents 27, 28, 29, and 30]. For the reasons that follow, Hensley’s motion for summary judgment is DENIED, while the Defendants’ motion is GRANTED.
The facts of this case are largely undisputed. On the afternoon of February 24, 2011, the Shreveport Police Department received a complaint that a Shreveport police officer was operating a marked unit while intoxicated. The complainant explained that he observed Hensley, a Shreveport police officer, banging on the door of a house; when the banging went unanswered, he sat down on the porch. The complainant asked Hensley what he was doing and did not believe Hensley’s explanation made sense. The complainant suspected Hensley was intoxicated. According to the complainant, Hensley then entered his marked unit and drove away, eventually stopping on the street where he ultimately was approached by fellow Shreveport police officers.
Officers responding to the complainant’s call found Hensley standing near his marked unit. Sergeant Sorrells was the first officer to approach Hensley, and she advised him of his Miranda rights. When questioned, Hensley, who was off duty, denied having consumed alcohol. Hensley told Sergeant Sorrells and other officers that he had been trying to warn the resident of the house-- evidently a friend or acquaintance-- that the person had outstanding warrants for his arrest. He also stated that he was on his way to the gym. In talking with him, Sergeant Sorrells did not smell alcohol on Hensley’s breath, but she remarked that he was slurring badly and his eyes were “pinging.” Through the audio presented to the Court, Sergeant Sorrells can be heard commenting several times that the wind was blowing so briskly that she could not smell any alcohol.
Lieutenants Devries and Vishnefski also responded to the scene, and each performed a Field Sobriety Test on Hensley. Lieutenant Devries could smell alcohol on Hensley’s breath, although Hensley persisted in claiming he had not consumed any alcohol. He stated that he had taken Nyquil earlier that afternoon. During the Field Sobriety Test conducted by Lieutenant Devries, Lieutenant Devries noticed “extremely constricted” pupils, which indicated the use of pain medicine. Lieutenant Devries also observed Horizontal Gaze Nystagmus, which is an indication of impairment. Hensley was unable to recite the alphabet or maintain balance while his eyes were closed and his head was tilted. Upon Lieutenant Vishnefski’s testing, Hensley required two attempts to recite the alphabet and showed both Horizontal and Vertical Gaze Nystagmus. On the recording, Lieutenant Vishnefski remarks that he suspects Hensley has ingested pain medication of some type. Record Document 23, Ex. I.
Hensley was arrested for Driving While Intoxicated, in violation of Louisiana Revised Statute 14:98, and transported to the police station. There, after being advised of his rights, Hensley refused to provide a sample of his breath or submit to any other tests. He continued to deny any alcohol use. He was transported to the Shreveport City Jail for processing.
Shortly thereafter, Chief Shaw initiated an administrative investigation and directed Sergeant Deal of Internal Affairs to obtain samples of Hensley’s breath, urine, and blood in order to test for drugs and alcohol. With the assistance of Sergeant Perkins, Sergeant Deal picked Hensley up from the jail and transported him to Willis-Knighton Work Kare to be tested. Hensley was handcuffed in the back of Sergeant Perkins’s unit, and the unit’s video and audio recording system was activated. Once they pulled into the parking lot of Work Kare, Sergeant Deal advised Hensley of his Garrity rights,  specifically that anything derived from the testing could not be used in a criminal proceeding against him. Hensley was uncuffed before entering Work Kare. Work Kare could not perform the blood test, so Sergeants Deal and Perkins transported Hensley to Willis-Knighton Pierremont Hospital.
Sergeant Perkins’s recording was still active upon arrival at the hospital. It is clear from the recording that Hensley was not fond of needles and did not want his blood to be drawn. The parties dispute whether Sergeant Deal advised Hensley that he had a right to refuse the test. Sergeant Deal’s affidavit states, “I informed him that he could refuse to provide blood, but because he was ordered by Chief Shaw to provide the samples, his refusal could result in disciplinary action, up to and including termination.” Record Document 23-3, p. 5. Curiously, however, upon questioning at a Civil Service Board hearing, Sergeant Deal was asked “Was Officer Hensley advised that he didn’t have to take the blood test?” Record Document 22-2, p. 12. Sergeant Deal responded, “No.” Id. at p. 13. She also testified that the Garrity form does not advise him that he has a right to refuse the blood test. Id. at p. 12.
Hensley denies that he was ever advised of the right to refuse the test. However, at a Civil Service Board hearing, he testified that while Sergeant Deal did not necessarily inform him of his right to refuse, “I know what the consequences are to deny any part of administrative-- . .., ” which implies that he knew he could refuse but doing so would have consequences. Record Document 22-2, p. 22.
The recording provided by the Defendants, Record Document 23, Exhibit J, captures Hensley’s pointed question to Sergeant Deal, inquiring whether he has to provide a blood sample. On this recording, the Court can ascertain Sergeant Deal saying “no, ” however the remainder of her answer or explanation is inaudible. The audio then inexplicably cuts off after that exchange. Ultimately, the hospital performed the blood test, the results of which were negative for known illegal narcotics. The parties agree that Hensley did have alcohol in his bloodstream.
Hensley filed suit against the Defendants, contending that they violated his Fourth Amendment rights and his rights under the Louisiana State Constitution when they required him to submit to a blood test without a warrant. He also alleges that Chief Shaw violated Louisiana Revised Statute 49:1015 by demanding a blood sample in the absence of a written policy. The Defendants counter that there was no constitutional violation, federal or state, that the state statute at issue was complied with, and that in any event, Chief Shaw is entitled to qualified immunity. The instant cross-motions for summary judgment followed.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 56(a) directs that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Summary judgment is appropriate when the pleadings, answers to interrogatories, admissions, depositions and affidavits on file indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986). When the burden at trial will rest on the non-moving party, the moving party need not produce evidence to negate the elements of the non-moving party’s case; rather, it need only point out the absence of supporting evidence. See id. at 322-323.
Once the movant carries its initial burden, it is incumbent upon the non-moving party to demonstrate the existence of a genuine dispute as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)(citations omitted). If the motion is properly made, however, Rule 56(c) requires the nonmovant to go “beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial.” Wallace, 80 F.3d at 1047 (citations omitted). This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory or unsubstantiated allegations, or by a mere scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, ...