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Hassan v. City of Shreveport

United States District Court, W.D. Louisiana, Shreveport Division

June 18, 2018

M'LEAH HASSAN
v.
CITY OF SHREVEPORT

          HAYES, JUDGE

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE MAGISTRATE, JUDGE

         Before the Court is Plaintiffs Omnibus Motion in Limine. [Record Document 63]. At the Court's request, the parties have also briefed the burden of proof on Plaintiffs consent to sexual contact with Defendant James Greene ("Greene"), the right of Stephen Gipson ("Gipson") to assert the Fifth Amendment privilege, the admissibility and relevance of Greene's state-court acquittal, and the admissibility of Plaintiffs Exhibits 26, 30, and 31. [Record Documents 75, 85, 86, 87, 88, 89, 90, and 91].

         For the reasons that follow, Plaintiffs Motion in Limine [Record Document 63] is GRANTED IN PART and DENIED IN PART. It is GRANTED as to Gipson's and Greene's awards and commendations, but DENIED as to their performance reviews, subject to any other evidentiary objections.

         The Court HOLDS that on Plaintiffs battery, assault, false imprisonment, intentional infliction of emotional distress, and Fourteenth Amendment claims, Plaintiff bears the burden to prove that she did not consent to sexual contact with Greene. On Plaintiffs Fourth Amendment claims, Defendants must prove that she consented to sexual relations with Greene. On her 42 U.S.C. § 1983 claims against the City of Shreveport (the "City") and Willie Shaw, Jr. ("Shaw") (collectively, the "City Defendants"), Plaintiff bears the burden of proof on the issue of her consent on claims whose constitutional basis lies in her Fourteenth Amendment right to bodily integrity, while Defendants must prove her consent on her claims arising from her Fourth Amendment right to be free from unreasonable seizure.

         The Court HOLDS that Gipson may invoke his Fifth Amendment privilege, but that he must do so on a question-by-question basis. The Court will allow the jury to draw an adverse inference against Defendants from Gipson's invocation of the privilege, but will also provide, upon request, a limiting instruction that the inference cannot be made when the fact to be inferred is otherwise inadmissible.

         The Court HOLDS that Greene's acquittal in state court for Abuse of Office is admissible because no party has objected.

         The Court HOLDS that the investigator's statements in Plaintiffs Exhibit 26 are admissible, but that any other person's statements within the exhibit are admissible only if they are nonhearsay or fall within a hearsay exception.

         The Court HOLDS that Plaintiffs and Gipson's statements within Exhibits 30 and 31 are admissible for impeachment purposes and that Plaintiffs statements within Exhibits 30 and 31 are admissible to rebut an implied charge of fabrication. After an evidentiary hearing, the Court will consider the admissibility of Gipson's statements as statements made during and in furtherance of a conspiracy with Defendants.

         I. Background

         Plaintiff M'Leah Hassan ("Hassan") was allegedly raped at the Shreveport Police Department (the "Department") by Greene, then an officer with the Department. [Record Document 1 at 2, 6-7]. She reported the incident to Gipson, who is also an officer with the Department, and with whom she was romantically involved at the time. [Record Documents 53-4 at 3-4 and 57-4 at 5-6]. After Hassan filed a criminal complaint, Greene was acquitted of Abuse of Office following a trial at which Gipson testified.

         Hassan then filed the instant suit, naming as Defendants Greene, the City, and Shaw, then the Shreveport police chief. [Record Document 1]. Against the City Defendants, Hassan asserted 42 U.S.C. § 1983 claims for failure to train, inappropriate retention of Greene as an officer, and inadequate supervision of Greene. [Id. at 8-9, 13-15]. Against Greene and the City, Hassan brought tort claims for false imprisonment, battery, and assault. [Id. at 9-11, 15-18]. Against Greene, she raised § 1983 claims for violations of the Fourth Amendment prohibition on unreasonable seizure and the Fourteenth Amendment right to bodily integrity. [Id. at 9-12]. Hassan also asserted an intentional infliction of emotional distress claim against Greene and a negligent supervision claim against the City. [Id. at 18-22]. In response, Defendants denied liability, and Shaw claimed qualified immunity. [Record Documents 7 and 9].

         Discovery began, and the first portion of Gipson's deposition was completed. [Record Document 25 at 1]. Gipson then refused to participate in the remainder of his deposition and failed to appear before the Magistrate Judge to explain his refusal. [Id. at 2]. At a show-cause hearing at which Gipson finally appeared, this Court ordered a $6, 000 sanction, which was to be lifted with the exception of a $500 fine if he appeared and testified truthfully at his deposition. [Record Documents 27 and 32]. When the deposition resumed, Gipson invoked his Fifth Amendment privilege in response to many questions. [Record Document 53-5]. Continuing his pattern of resistance to this Court's authority, Gipson paid the fine only after the Court issued yet another show-cause order. [Record Documents 48 and 52].

         Believing that Gipson testified untruthfully at Greene's criminal trial, Hassan sought leave to amend her complaint to name Gipson as a defendant. [Record Document 37]. The Court denied leave, and this matter proceeded to summary judgment. [Record Documents 40, 53, and 54]. The Court dismissed Hassan's punitive damages claims against the City and Shaw in his official capacity, but denied the parties' summary judgment motions on all other claims. [Record Document 62]. Shaw then took an interlocutory appeal on the issue of qualified immunity. [Record Document 69].

         Before granting Shaw's motion to stay the case pending the outcome of the appeal, [Record Documents 73 and 79], the Court had received evidentiary motions and ordered briefing on particular legal issues, [Record Documents 63, 70, and 75]. It is to these matters the Court now turns.

         II. Law and Analysis

         A. Burden of Proof on Hassan's Consent to Sexual Contact with Greene

         The parties dispute whether Hassan consented to sexual relations with Greene. [Record Document 53-1 at 2]. The Court asked the parties to brief the question of which party will bear the burden of proof on this issue and noted that the burden may be allocated differently for different claims. [Record Document 75 at 3-4]. Hassan argues that for her battery claim, she must prove that she did not consent, but that consent is irrelevant to her remaining claims. [Record Document 91 at 4-7]. The City Defendants argue that Hassan has the burden to show the absence of consent as to all of her claims. [Record Document 90 at 1-2]. Greene argues that lack of consent is an element of battery and assault, but does not address Hassan's other claims. [Record Document 86 at 1-2].

         Hassan has pleaded four intentional tort claims to which state law applies. See, e.g., Waganfeald v. Gusman, 674 F.3d 475, 480 (5th Cir. 2012). The Louisiana Supreme Court has instructed: "[i]n a suit for damages resulting from an intentional tort, the claimant must carry the burden of proving all prima facie elements of the tort, including lack of consent to the invasive conduct." Landry v. Bel/anger, 2002-1443, p. 16 (La. 5/20/03); 851 So.2d 943, 954. The Court therefore holds that on her intentional tort claims for battery, assault, false imprisonment, and intentional infliction of emotional distress Hassan bears the burden to prove that she did not consent to sexual relations.

         Hassan also raises two constitutional claims: unreasonable seizure under the Fourth Amendment and an invasion of her Fourteenth Amendment right to bodily integrity. In criminal law, the state must prove free and voluntary consent to a search or seizure. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). Because Hassan claims that Greene in his role as a police officer violated her Fourth Amendment right to be free from unreasonable seizure, the Court holds that as to this claim Defendants must prove that Hassan consented to sexual contact with Greene.

         For an executive official's conduct to violate a substantive due process right to bodily integrity, the conduct must "shock[] the conscience." Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Nonconsensual or coerced sexual contact easily satisfies this standard. See Doe v. Taylor Indep. Sch. Dist, 15 F.3d 443, 451-52 (5th Or. 1993) (en banc) (holding that students have a substantive due process right to be free from sexual abuse by teachers). It follows that consensual sexual conduct, even if highly inappropriate, does not shock the conscience. Because a plaintiff must establish that conscience-shocking conduct occurred, the Court concludes that a plaintiff alleging an invasion of her bodily integrity via unwanted sexual contact also bears the burden to prove that she did not consent. Although the Fifth Circuit has no precedent directly on point, the Eighth and Ninth Circuits have reached the same conclusion. See Lee ex re/. Lee v. Borders, 764 F.3d 966, 972 (8th Or. 2014); Lyons v. Williams, 91 F.3d 1308, 1311 (9th Or. 1996). Therefore, the Court holds that Hassan must prove her lack of consent in order to prevail on her Fourteenth Amendment claim.

         Hassan's § 1983 municipal liability claims turn on misconduct by the City Defendants that allegedly enabled Greene to violate her constitutional rights: failure to adequately train him, failure to adequately supervise him, and inappropriate retention of him as a police officer. Because these claims are only valid to the extent that the City's policies and its supervisors' decisions were "the 'closely related' cause of Greene's violation of Hassan's constitutional rights to bodily integrity and protection from unreasonable seizure, Doe, 15 F.3d at 453 (quoting City of Canton v. Harris, 489 U.S. 378, 391 (1989)), the burden of proving her consent should be allocated in the same manner. Hence, the Court holds that for the claim that Defendants' policies caused Greene to violate Hassan's Fourteenth Amendment rights, Hassan must prove that she did not consent, while for her claim that municipal policies caused Greene to violate her Fourth Amendment rights, Defendants bear this burden.

         Finally, Hassan raises a state-law negligent supervision claim against the City. Because sex between a police officer and a criminal complainant at a police station is highly inappropriate, a jury could find that the City negligently supervised Greene even if the sex was consensual. The question of Hassan's consent may, however, affect the extent to which she suffered damages from the encounter. Under Louisiana's duty-risk analysis, a plaintiff must prove "actual damages" in order to prevail on a negligence claim. See Pinsonneault v. Merchants & Farmers Bank (& Tr. Co,, 2001-2217, p. 6 (La. 4/3/02); 816 So.2d 270, 276. While a jury finding that Hassan consented to sexual contact with Greene might result in a finding that she was not damaged, Hassan is not required to prove that she did not consent in order establish the elements of her negligence claim. Therefore, the Court holds as to Hassan's negligent supervision claim that neither party is required to demonstrate that she did not consent to sexual contact.

         To summarize, on Hassan's intentional tort claims and on her § 1983 claims arising from a violation of her right to bodily integrity, Hassan bears the burden of proving that she did not consent. On her § 1983 claims arising from her right to be free from unreasonable seizure, Defendants must show that she did consent to sexual contact. Neither party must necessarily prove the presence or absence of consent on her negligent supervision claim.

         B. Admissibility of Greene's and Gipson's Awards, ...


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