United States District Court, E.D. Louisiana
TRAVIS SEALS, ET AL.
BRANDON MCBEE, ET AL.
REPORT AND RECOMMENDATION
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.
District Court referred the determination of the amount of
reasonable attorneys' fees and costs to the undersigned
Magistrate Judge. [Doc. # 93]. Now before the Court is the
Motion to Tax Costs and Attorney's Fees [Doc. #86] filed
by plaintiffs Travis Seals and Ali Bergeron. The motion is
opposed. [Doc. #88]. Having reviewed the pleadings and the
case law, the Court rules as follows.
underlying facts are for the most part unimportant here. In
short, plaintiffs Travis Seal and Ali Bergeron challenged as
unconstitutional Louisiana Revised Statute §14:122,
which criminalizes “the use of violence, force, or
threats” on any public officer or employee with the
intent to influence the officer's conduct in relation to
his position. Plaintiffs argued that the statute
unconstitutionally infringes their free speech rights under
the First Amendment because “threats” include
both “true” threats, i.e., those of
violence to a police officer in the course and scope of his
duties, and lawful threats, i.e., threats to sue a
police officer or challenge an incumbent politician for his
seat. The District Court agreed and enjoined Louisiana from
enforcing Section 14:122 as it relates to
“threats.” Seals v. McBee, Civ. A. No.
16-14837, 2017 WL 3252673 (E.D. La. July 31, 2017). The Fifth
Circuit recently affirmed the District Court's opinion
and denied rehearing en banc. Seals v.
McBee, 898 F.3d 587 (5th Cir. 2018), reh'g en
banc denied, ___F.3d ___, No. 17-30667, 2018 WL 5659735
(5th Cir. 2018).
Law and Analysis
Entitlement to Fees and Who is Responsible for the
only party to oppose plaintiffs' motion for fees is the
Attorney General of Louisiana, who argues that he alone
should not be responsible for the fees and costs incurred by
plaintiffs. No. party seriously contends that plaintiffs are
entitled to their fees and costs here. The Attorney General
merely argues that the fees and costs should be apportioned
among all defendants. For their part, plaintiffs do not care
either way who pays the fees and costs as long as they are
Court rejects the Attorney General's argument - mainly
because it is foreclosed by the District Court. In its
referral to this Court, the District Court held:
This Court agrees that the Attorney General should be solely
responsible for the attorney's fees and costs that
Plaintiffs incurred in their challenge of the
constitutionality of § 14:122. The Attorney General
intervened in this action to specifically defend the
constitutionality of the statute. Indeed, it was the only
party to oppose Plaintiffs' Motion for Partial Summary
Judgment seeking a holding that the statute was
unconstitutional. Defendants at all times maintained that
they relied on the statute in a good faith belief in its
constitutionality but never sought to defend such. Further,
the constitutionality of § 14:122 is the only issue that
has been litigated thus far in this litigation, and
Plaintiffs' allegations against Defendants remain
Accordingly, Plaintiffs are entitled to an award of
attorney's fees and costs pursuant to 42 U.S.C. §
1988 to be assessed solely against the Intervenor Attorney
[Doc. #93 at p. 2] (footnotes omitted).
issue of who is responsible for the payment of
plaintiffs' fees and costs has thus been removed from the
ambit of this Court's recommendation.