Smith v. State, Department of Public Safety

384 So. 2d 499, 1980 La. App. LEXIS 3803
CourtLouisiana Court of Appeal
DecidedMay 6, 1980
DocketNo. 14133
StatusPublished

This text of 384 So. 2d 499 (Smith v. State, Department of Public Safety) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. State, Department of Public Safety, 384 So. 2d 499, 1980 La. App. LEXIS 3803 (La. Ct. App. 1980).

Opinion

McClendon, Judge.

This is a suit brought by the parents of a 16 year old boy who was killed by a bullet fired by a state trooper during a high speed chase. Defendants are the trooper and his employer, Louisiana Department of Public [500]*500Safety. From an adverse ruling in the trial court, plaintiffs perfected this appeal. We affirm.

The trial court in its excellent written reasons for judgment clearly sets forth the facts, issues and applicable law, as well as the correct conclusions. We therefore adopt its opinion in its entirety:

“The following are the facts surrounding the death of the youth:

“Trooper Odom of the State Police was on routine patrol on 1-20 west of West Monroe at 1:15 A.M., when he detected on his radar a speeding vehicle and started pursuing it, notifying his headquarters.

“The car refused to stop and commenced evasive maneuvers. Despite its efforts, the trooper was able to get close enough to identify the license numbers which he relayed to his headquarters. He was informed that the vehicle was stolen.

“The maneuvers of that car were highly dangerous, including speeding at more than 100 mph, passing cars left and right, preventing Odom from pulling alongside, etc.

“Troop headquarters was kept informed by radio of this pursuit and other troopers began converging in order to assist in the arrest. One of these was Jerry Durham, the defendant.

“Finally, Odom was successful in getting the car stopped on the highway. The occupants refused to get out. As Odom approached the car, with his pistol drawn, the car started up and ran over Odom, throwing him up over the hood and top of the car. Odom, although injured, managed to get back to his car and radioed headquarters what had happened, that he was hurt and to send an ambulance; also that the car was headed east in the west bound lane of 1-20.

“Durham, who was headed west on 1-20, of course, heard all of this on the radio. He saw the car coming toward him and cut across the median to head back east in an effort to get ahead of the car.

“In the meantime Trooper Norris, who was east of this scene, attempted to block the highway, but was unsuccessful as the car went around him on the shoulder.

“Then ensued a high speed chase (100 mph) in an easterly direction in the west bound lane of 1-20 with cars and trucks being forced off the road to avoid collision.

“The car left the highway by cutting across the median to its right and taking the Thomas Road exit.

“By this time the State Police had notified other law enforcement agencies and both Sheriff’s deputies and West Monroe Police were converging on the scene from all directions.

“After leaving 1-20, the chase was entirely on two lane black-top and gravel roads in residential areas at high rates of speed.

“Shortly after they left 1-20, the voice of Odom came on the radio notifying his fellow troopers that the driver of the car should be regarded as highly dangerous.

“To describe the details of the ensuing chase is not necessary except to say that by this time at least six or eight police units were involved.

“During this chase, Durham was the lead police car. He drew his revolver and attempted to shoot the rear of the escaping car, firing all six rounds without any effect on the preceding car. Durham knew that there were other cars behind him, but he didn’t know how many because he was concentrating on his driving. Neither the Sheriff’s cars nor the West Monroe Police cars were on his radio frequency.

“When the car went through the intersection of Smith and Washington Streets, which is a major intersection with a flashing red light, without stopping, it was pursued by two troopers and a Sheriff’s car. The others broke off and proceeded north on Washington Street in an effort to head it off.

“The car turned right at the next intersection onto a gravel road and then right onto the Bethel Church road headed back to Washington Street.

“Durham pulled out his shotgun which was loaded with 00 buckshot and fired twice at the car. As the car turned left to [501]*501go through the Bethel Church parking lot, Durham fired a third time. As later revealed, this last buckshot hit the car and one hit the driver.

“The car traversed the length of the parking lot — 300-400 ft. — jumped the ditch on the far side of the lot, and came to rest in the ditch on the opposite side of the street.

“The driver, the young son of plaintiffs, was shot in the head. His companion was not hurt.

“The legal question posed is whether under the circumstances Trooper Durham used an unreasonable or excessive amount of force in attempting to arrest young Smith, thereby making him and his employer liable in damages.

“Chief Justice Sanders, in Kyle v. City of New Orleans, 353 So.2d 969, 972 (1977) explained the law applicable:

“ ‘. . Louisiana Code of Criminal Procedure Article 220 provides:
“ ‘A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.’
“ ‘The use of force by law enforcement officers must be tested by the “reasonable force” standard established by this article. The test precludes “clearly inappropriate force.” LSA-C.Cr.P. Art. 220. Official Revision Comment (b).
“ ‘The use of force when necessary to make an arrest is a legitimate police function. But if the officers use unreasonable or excessive force, they and their employer are liable for any injuries which result. LSA-C.C. Art. 2320; Picou v. Terrebonne Parish Sheriff’s Office, La. App., 343 So.2d 306 (1977), writ refused La., 345 So.2d 506 (1977); Cheatham v. Lee, La.App., 277 So.2d 513 (1973); Bourque v. Lohr, La.App., 248 So.2d 901 (1971); Taylor v. City of Baton Rouge, La.App., 233 So.2d 325 (1970).
“ ‘Whether the force used is reasonable depends on the totality of the facts and circumstances in each case. A court must evaluate the officer’s actions against those of ordinary, prudent, and reasonable men placed in the same positions as the officers and with the same knowledge as the officers. Picou v. Terrebonne Sheriff's Office, supra; 6 A C.J.S. Assault and Battery § 97, p. 491. The degree of force employed is a factual issue. Picou v. Terrebonne Sheriff’s Office, supra; Castriotta v. Cronvich, La.App., 277 So.2d 744 (1973); Espenan v. Carona, La.App., 179 So. 119 (1938). As such, the trial court’s finding is entitled to great weight. Canter v. Koehring Co., La., 283 So.2d 716 (1973).
“ ‘Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment. See Picou v. Terrebonne Parish Sheriff’s Office, supra; Logan v. Swift, La.App., 327 So.2d 168 (1976); Crawford v.

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Related

Kyle v. City of New Orleans
353 So. 2d 969 (Supreme Court of Louisiana, 1977)
Bourque v. Lohr
248 So. 2d 901 (Louisiana Court of Appeal, 1971)
Crawford v. Maryland Casualty Company
169 So. 2d 612 (Louisiana Court of Appeal, 1964)
Picou v. Terrebonne Parish Sheriff's Office
343 So. 2d 306 (Louisiana Court of Appeal, 1977)
Logan v. Swift
327 So. 2d 168 (Louisiana Court of Appeal, 1976)
Castriotta v. Cronvich
277 So. 2d 744 (Louisiana Court of Appeal, 1973)
Cheatham v. Lee
277 So. 2d 513 (Louisiana Court of Appeal, 1973)
Graham v. Ogden
157 So. 2d 365 (Louisiana Court of Appeal, 1963)
Sauls v. Hutto
304 F. Supp. 124 (E.D. Louisiana, 1969)
Canter v. Koehring Company
283 So. 2d 716 (Supreme Court of Louisiana, 1973)
Taylor v. City of Baton Rouge
233 So. 2d 325 (Louisiana Court of Appeal, 1970)
Espenan v. Carona
179 So. 119 (Louisiana Court of Appeal, 1938)

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Bluebook (online)
384 So. 2d 499, 1980 La. App. LEXIS 3803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-department-of-public-safety-lactapp-1980.