Warning: Illegal string offset 'blog' in /home/haedicke3378/public_html/wp-content/themes/dejure/includes/admin/extensions/meta-box/metaboxes-single-blog.php on line 11

Warning: Illegal string offset 'uncategorized' in /home/haedicke3378/public_html/wp-content/themes/dejure/includes/admin/extensions/meta-box/metaboxes-single-blog.php on line 11
Thoughts and News About the Practice – Page 2 – The Law Offices of Stephen J. Haedicke, LLC


A recent case in the Fifth Circuit highlights the on-going evolution of legal doctrines addressing race and jury selection.  Courts have been wrestling with these issues at least since the Supreme Court announced in Batson v. Kentucky that attorneys could not discriminate on the basis of race during jury selection.  (Batson was a criminal case, but the Supreme Court has extended its rule to civil cases as well.  See Edmonson v. Leesville Concrete Co.  The Supreme Court has also prohibited discrimination on the basis of ethnicity and gender in jury selection.  See Hernandez v. New York (ethnicity) and J.E.B. v. Alabama (gender)).  In the recent United States v. Thompson, the Fifth Circuit addressed issues related to “pretext”– that is, when the attorney accused of racially discriminating in jury selection offers a “race neutral” reason for striking a prospective juror but there is suspicion that the proffered reason is not in fact true.

Batson issues generally involve a three step inquiry.  First, a litigant alleges that the other side’s attorney has used his or her jury challenges in a discriminatory manner.  Second, if the court believes a prima facia case of discrimination has been shown–for example, if the accused attorney has used all or most of his or her strikes against a certain demographic group–then the court will require the accused attorney to explain his or her reasons for the strikes.   Third and finally, the court will determine whether the proffered reasons are credible or whether they are actually just pretexts masking impermissible discrimination.

In Thompson, the prosecutor used 71% of his strikes against African-American jurors, and the district court believed that was sufficient to make out a prima facia case of discrimination.  The court therefore required the prosecutor to provide his reasons for the strikes.  The reasons the prosecution proffered were primarily based on his (alleged) perception of the potential jurors’ demeanor in court.  For example, for one of the jurors, the prosecutor claimed to have struck him because “he sat there with his arms folded . . . with a mean look on his face.”

In relying on in-court demeanor to justify his strikes of these jurors, the prosecutor took a somewhat risky course.  Although Batson challenges are very difficult to win, those that are won usually involve an attorney’s claim to have based the strike on the juror’s demeanor or the attorney’s “gut feeling” about the juror.  Such subjective reasons are much more likely to be found to be pretexts than are objective reasons supported by the record.  See, e.g, the Supreme Court’s decision in Snyder v. Louisiana, which found a prosecutor’s proffered race-neutral reasons for striking a juror, one of which was based on demeanor, to be likely pretext and remanded the case for an evidentiary hearing on the issue.

The Fifth Circuit in Thompson, however, ultimately agreed with the district court that the prosecutor’s reasons, though based on a subjective evaluation of demeanor, were credible.  In doing so, the Court also held that Snyder does not require the district court to make specific factual findings on the record regarding a prospective juror’s demeanor.  The Fifth Circuit thus aligned itself with the Eleventh Circuit on this issue, and rejected the contrary reading of Snyder adopted by the Seventh Circuit in United States v. McMath.

Although somewhat involved and technical, these issues regarding diversity on juries are vitally important both for the individual and society.  Being able to serve on juries is a constitutional right, and, according to 19th century commenter  Alexis de Tocqueville, one of the most vitally important institutions in American democracy.  In our heterogeneous society, diverse juries also probably add legitimacy to the verdicts they render– witness the widespread social upheaval that occurred after a nearly all-white jury (and one which contained no African-Americans) acquitted the officers in the Rodney King beating.  Furthermore, and in some ways even more interesting, empirical research has shown that juries containing a diverse collection of people from different races, genders, and socio-economic backgrounds may in fact work better as fact finders.   Samuel Sommers of Tufts University has conducted a number of intriguing studies in this area, and his findings suggest that jurors within a diverse group tend to get fewer facts wrong and rush to judgment less often.



Stephen Haedicke was recently selected as one of the Top 100 Criminal Defense Lawyers in Louisiana by the National Trial Lawyers Association.  The National Trial Lawyers is a professional organization of America’s top trial lawyers.  Membership into the organization is by invitation only and is extended to those individuals who exemplify superior qualifications, trial results, and leadership in their respective fields.

A case newly filed by the Law Office and alleging a police beating and subsequent cover up is receiving extensive coverage from Fox 8 news here in New Orleans.  The new suit alleges that police beat a young tourist from Alabama while he was chained to a bench at the 8th District Police Station in the French Quarter.  It also alleges a subsequent cover up, including attempts to destroy surveillance video of the incident.

You can read the story and watch the segment, which includes an interview with me, at the link below.


This past Tuesday, I secured another not guilty verdict for a client at Orleans Parish Criminal Court.  The client was charged with burglary and unauthorized possession of stolen things.  After over a year of wrangling with the State– first to secure all the discovery to which we were entitled (the discovery that they repeatedly refused to disclose was quite beneficial to the client), and then to get necessary police witnesses to come to court– we finally made it to trial, which was before the court alone.  After hearing from the police witnesses and the alleged victim, who had changed his story numerous times at that point, Judge Van Davis indicated she’d heard enough.  The verdict:  Not Guilty.  A good day in court.

Impact of the 2012 Louisiana Legislative Session on Criminal Law—Part 2

Here is the remainder of my summaries of selected changes to the criminal law made during the 2012 Legislative Session.  Note that this list is not complete; these are just the changes that appeared most important to me.

Substantive Criminal Law (Title 14)

HB 47, effective August 1, 2012, amends the Louisiana DWI law to provide a stiff new penalty for repeat offenders in some circumstances.  Now, if someone commits a second DWI offense within one year of a first offense DWI, then he or she must spend at least 30 days in jail.  The new law specifically provides that this 30 day jail term must be served “without benefit of probation, parole, or suspension of sentence.”  That means that the defendant who finds himself in this position will have to serve at least 30 days in jail—there’s no getting around it.

HB 96, effective August 1, 2012, creates the crime of “online impersonation.”  This new misdemeanor criminalizes stealing someone’s identity by opening an email or social networking account in that person’s name with “intent to harm, intimidate, threaten or defraud.”  The penalty is a fine and 10 days to 6 months in jail.

HB 600, effective August 1, 2012, creates the crimes of failure to report a missing or deceased child (the new provisions are LA RS 14:403.7 and 403.8).  This act appears to be in response to the verdict in the Casey Anthony case in Florida.  Although perhaps laudable in some ways, the new laws contains some provisions that are potentially troubling.  Specifically, under the new law, a parent can be found guilty of failing to report their child as missing if the parent does not know where the child is and has not had contact with him or her for 12 hours (if the child is under 13) or 24 hours (if the child is older than 13).  The act also contains stiff penalty provisions:  If the child is harmed during the time the parent has not reported them missing, then the parent faces up to 10 years in prison without the possibility of parole, probation, or suspension of sentence.  If the child is killed during the relevant period, then the parent faces a mandatory minimum 2 years in prison and up to 50 years.  These seem like pretty stiff consequences for what could be honest mistakes by otherwise good parents.

This act also creates the crime of failing to report a deceased child.  If a child’s caretaker discovers that a child is deceased, he or she must report the death to appropriate authorities within one hour of the discovery.  The penalty for failure to do so is up to five years in prison and a fine.

SB 121, effective June 5, 2012, creates the new crime of Domestic Abuse Aggravated Assault (LA RS 14:37.7).  This provision applies where a domestic partner assaults another with a dangerous weapon.  The penalty is 1 to 5 years in jail and a fine.  If a child is present in the household or on the scene when the assault occurs, there is a mandatory minimum penalty of 2 years in prison, without benefit of probation, parole, or suspension of sentence.  The maximum is still 5 years.

SB 243, effective June 7, 2012, creates the crime of failure to report certain felonies, specifically, homicide, rape, or sexual abuse of a child (new provision is LA RS 14:131.1).  The penalty for a violation is up to 1 year in jail.

Criminal Procedure and Sentencing (Title 15)

HB 228, effective August 1, 2012, provides a window of possibility for non-violent, non-sex-offender defendants who have been sentenced under 15:529.1, Louisiana’s habitual offender law.  Previously, people who were “billed”—that is, sentenced as someone who has previously been convicted of one or more felonies—were completely ineligible for “good time” credit while in prison.  (“Good time” credit is the reduction in the amount of time a person must do on their prison sentence when they do not cause any problems in the prison).  Under this new law, people sentenced under section 529.1 can obtain reduction in their prison sentences if they participate in certain treatment and rehabilitation programs offered by the Department of Corrections (DPSC).  It will likely be left up to the Department to determine how to administer this law.

HB 994, effective August 1, 2012, also deals with good time.  This act increases the amount of good time credit that a prisoner can earn.  Previously, it was 35 days for every 30 days of good behavior.  Now, it is 45 days for every 30 days of good behavior (1 and ½ days for every day of good behavior).

HB 1026, effective August 1, 2012, appears to make second offenders eligible for parole at the same time as first offenders.  A first offender is eligible for parole after serving 1/3 of his or her sentence.  Under the old law, a person who is a second offender was not eligible for parole until serving ½ of their sentence.  The new law reduces that requirement to 33 and 1/3 percent.  Note that this law does not apply if a person has been convicted of a crime of violence, sex offense, or as a habitual offender.

Title 32 (Driver’s Licenses)

SB 489, effective August 1, 2012, provides that law enforcement officers can no longer be compelled to appear and testify at an administrative hearing to revoke someone’s license after a DWI arrest.  This means that a person’s license can be suspended on the basis of a police report alone, without an opportunity to cross examine or otherwise challenge the officer at the administrative hearing.


This past session in the Louisiana legislature was an active one for the criminal law.  In addition to some laws that did not pass—most notably (and unfortunately) a provision to require prosecutors to divulge all excupatory information to the defense—there were significant changes in a number of areas.  Below is a summary of some of the highlights.  I’ll complete the review in a later post.  For a complete list of the new laws, go to http://lapda.org/site76.php.


HB512, effective August 1, 2012, provides that admissions of criminal conduct that occur during certain parole revocation proceedings (see LA C.Cr.P. Art. 899.1 and LA RS 15:574.7) cannot be introduced in evidence during a criminal trial.  The act modifies LA Code of Evidence Article 803(8)(b)(i), which specifies certain exceptions to the rule.  This act restricts one of those exceptions so that the exception does not cover reports from the parole proceedings.


HB9 would amend the state constitution to permit the legislature to strip retirement benefits from public employees who are convicted of felony acts associated with their positions.  As this is a proposed constitutional amendment, it will be submitted to the voters on November 6, 2012.

SB 303 would amend the state constitution to provide that the right of each citizen to keep and bear arms is fundamental and shall not be abridged.  Any infringement of the right would be subject to strict scrutiny by the courts.  Again, this will be voted on November 6, 2012.

Criminal Procedure:

HB581, effective August 1, 2012, makes an important change to provisions regarding bail.  This Act creates C.Cr.P. Art. 334.4, which addresses the situation where the District Attorney dismisses a case but then reinstitutes the same or lesser charge in another prosecution.  The new code provision requires a judge to reinstate a defendant to the bail that he or she posted in the case that was dismissed, so long as the surety consents in writing.  Additionally, the new code provisions permits Orleans Parish judges to establish rules allowing them to issue bonds and releases telephonically.

Practice Thought:  Defense attorneys may want to speak with their clients’ bondsmen to make sure the bondsmen will agree to reinstate the bond if there is a dismissal/reinstitution.  Or, hopefully, bondsmen will modify their standard contracts to agree up front.

HB980, effective August 1, 2012, limits a court’s ability to issue a warrant when there has been an “at-large” screening, meaning that the district attorney has filed a bill of information charging someone with a crime, but there has never been any probable cause determination that the person actually committed the crime.  This provision modifies C.Cr.P. Art. 496 to state that a court shall issue an arrest warrant in such situations only if the bill of information is accompanied by an affidavit establishing probable cause.

Practice Thought:  Although the new provision does not expressly state that arrest warrants cannot issue unless the bill is accompanied by an affidavit, that is the way it should be interpreted.

HB1068, effective May 17, 2012, provides a welcome avenue to deal with certain mandatory minimum sentences.  The act should, hopefully, make meaningful change in Louisiana’s over-imprisonment culture possible.

The bill creates C.Cr.P. Art. 890.1, which permits the prosecution, defense, and the court to agree to waive mandatory minimum penalties for any crime except crimes of violence or sex offenses.  This will likely have the most effect in non-violent drug cases, where mandatory minimum sentencing provisions can result in extended prison terms.

Practice Thought:  Such agreements should be expressed clearly in the record, preferably in writing, so that there is no confusion once the defendant is transferred to DOC custody.

SB329, effective August 1, 2012, prohibits judges from allowing defendants to be released on their own recognizance (meaning they don’t have to post a bond first) if they have been charged with certain listed offenses.  Although it would be unlikely for anyone charged with most of the offenses to be released on an OR bond, there are some surprises.  For example, alleged second-offense DUI offenders can no longer get an OR bond.

SB659, effective August 1, 2012, makes some important revisions to the discovery provisions of the Code of Criminal Procedure.  It primarily modifies Article 521 and 717, and it creates a new Article 725.1.

The act modifies Article 521 to provide that if the defendant requests exculpatory material from the state within 15 days of arraignment (or a later date if permitted by the court), then the court must fix a date by which the state will provide that information.  This could be an important tool for defense counsel to ferret out beneficial information that the state has in its possession.

–Practice Thought:  How will this provision be enforced?  Will the court impose sanctions on the state if it is shown that prosecutors failed to comply with a court order to produce exculpatory material by a certain date?

The act also modifies Article 717, which deals with what information the state must provide to the defense upon a defense request.    The act creates subsections to Article 717 that require the DA to provide the defense with (1) the criminal records of any state witnesses and (2) any inducement offered by the district attorney to secure the testimony of a witness in its case in chief against the defendant.  The act states that the district attorney does not have to turn this information over until trial.

Practice Thought:  Brady v. Maryland already required the district attorney to provide this type of material to the defense, and there are Supreme Court cases acknowledging that exculpatory materials can radically effect plea negotiations.  Is the part of this act permitting the district attorney to hold this material until trial constitutional?  I don’t think it is, especially considering the Supreme Court’s recent cases on plea negotiations and effective assistance of counsel.  See Missouri v. Frye and Lafler v. Cooper.  How can an attorney effectively advise a client on whether to accept a plea offer if the state is withholding information that effects the evaluation of the situation? 

Finally, the act creates Article 725.1, which mandates that the defense provide the state a witness list before the beginning of the defense case.  This provision applies only if the defense has requested information regarding the state’s witnesses pursuant to Article 71

Quoting Billy Joel’s “We Didn’t Start the Fire,” federal Judge Carl Barbier recently denied the City of New Orleans’s Motion for Summary Judgment on two plaintiffs’ false arrest claims.  The Law Office represents the two plaintiffs, along with AJ Ibert and JC Lawrence.  The plaintiffs’ claims are based on the Supreme Court’s decision in Franks v. Delaware, 438 US 154 (1978), which held that it is a violation of the Fourth Amendment for a police officer to include false information in an arrest warrant for an individual.  Subsequent cases in the Fifth Circuit have held that it is also a Franks violation if an officer omits material exculpatory information from the warrant application.  Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997).  In both situations, if there is no probable cause once the false information is removed and/or the true exculpatory information is added to the warrants, then the arrest violates the plaintiff’s rights.

In this case, Judge Barbier held that the plaintiffs’ evidence established a Franks violation.  According to his opinion, the New Orleans Police Officer involved in the case violated Franks by including false information in the arrest warrants, and by leaving out material, exculpatory information.

You can read the opinion in Richardson et al. v. Serpas et al.  below.  After this decision, the City agreed to a favorable settlement for the plaintiffs.

Ruling on Summary Judgment-Starks

Last Friday, June 15, 2012– the 797th anniversary of the Magna Carta– I was very honored to receive a Pony Award from Sam Dalton and Mary Howell.  Liz Cumming, John Adcock, and Katie Schwartzman were also all recipients

What is a Pony Award, you ask?  Well, as Sam and Mary explained, it’s a friendly award for having worked really hard for a good cause.  My award was based on my work on what’s come to be called the attorney-visitation case.  The Law Office, along with the law firm of Stone Pigman, former Chief Justice of the Louisiana Supreme Court Pascal Calogero, and Liz Cumming, represents the Orleans Parish Public Defender’s Office in the case against the Orleans Sheriff.  The suit alleged that the attorney-visitation conditions at the Orleans Parish Prison violated the statutory and constitutional rights of detainees by impinging on their right to counsel in a number of ways, including excessive wait times and lack of privacy for attorney-client meetings.  After literally years of work (all pro bono), we finally obtained a consent judgment in which the Sheriff agreed to a major overhaul of the visitation conditions.  You can read the petition, memorandum in support, consent judgment, and related news articles on the case below. Our case relied in part on Louisiana Code of Criminal Procedure Article 511 which, as far as we could tell, has never been raised in civil case regarding conditions of confinement.



Affidavits.Exhibits A-O

30 Day Prelim Injunction0001

New Orleans defense attorneys sue sheriff, citing lack of privacy for client consultation

And here’s me with Sam Dalton and the Pony Award!  (Sorry; the explanation for why it’s called the “Pony Award” is a closely guarded secret).










At the conclusion of a recent trial, the judge posed a question, “If I find that the defendants (two sheriff deputies) had probable cause to make an arrest of the plaintiff, could I still find that they used excessive force in doing so?”.

The answer:  Absolutely.  The Fourth Amendment protects against unreasonable searches and seizures, and although it is an important factor to consider, whether the police have probable cause to arrest someone is not the end of the inquiry.  In other words, just because police can lawfully arrest someone, it doesn’t mean that they can beat or otherwise abuse a suspect while doing so.  The law requires officers to act with restraint even in tense situations; when they cross the line, courts will hold them to account even in the face of post hoc rationalizations.

In researching the judge’s question, I came across five cases that illustrate the point.

1.   Deville v. Marcantel, 567 F.3d 156, 167-68 (5th Cir. 2009)

In Deville v. Marcantel, the Fifth Circuit found that defendant officers were not entitled to summary judgment because the level of force they allegedly exerted on the plaintiff was disproportionate to the need.  The plaintiff in Deville had been pulled over for a minor offense—exceeding the speed limit by 10 miles an hour—but refused to get out of the car when requested to do so by the officer.  The plaintiff’s granddaughter was in the car.  Another officer arrived on the scene and again requested that the plaintiff exit the car.  When she again refused, the second officer broke the driver’s side window (which the plaintiff had rolled up after speaking with the first officer), reached in, and forcibly removed the plaintiff from the car. The plaintiff sustained injuries during this encounter.  

Reviewing this circumstance, the Fifth Circuit noted, first, that the underlying justification for the arrest of plaintiff was a minor traffic offense.  Second, there was no indication that the plaintiff was a threat to the officers at the time force was exerted Although the officers claimed that the plaintiff could have used her car as a weapon or to flee, there was no indication that the plaintiff had made moves to do so when the second officer broke her window and seized her.  Thus, there were no exigent circumstances justifying the level of force used to secure the arrest.  Furthermore, the Court specifically noted that further verbal interactions with the plaintiff would have been the reasonable course for the defendant officers to take, given the lack of emergency circumstances.  See also Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001) (finding officer’s use of beanbag shot against unarmed suspect excessive where there was no indication that officer considered less extreme tactics or issued verbal warning before firing).

2.   Richman v. Sheahan, 512 F.3d 876, 883 (7th Cir. 2008)

In Richman v. Sheahan, the plaintiff’s estate sued after he died during the course of being removed from a court room.  The plaintiff, who was morbidly obese, had been ordered to leave by the judge.  When he refused, the judge pushed a panic button on his bench and deputies arrived.   The plaintiff, who was morbidly obese, was well known to the deputies because he had been to the courthouse before.   The deputies attempted to usher him out of the court room, but he refused to leave and instead started to cling to the podium.  The deputies then took him to the ground, where the plaintiff resisted by moving his arms and legs.  Deputies, some of them on the plaintiff’s back, continued to struggle with him until finally they put him in handcuffs.  The plaintiff yelled that he could not breath.  He then died.  

Considering these circumstances, the Seventh Circuit concluded that the deputies used excessive force in their interaction with the plaintiff.  The plaintiff was well known to the deputies and was unarmed.  Furthermore, there were no emergency circumstances requiring the deputies to take the plaintiff to the ground; court was over for the day, and so the plaintiff was not causing any disruption to proceedings.  Finally, the plaintiff’s obesity was obvious, and so the deputies should have known that taking him to the ground created a serious risk of positional asphyxia.  

3.   Bushell-McIntyre v. City of San Jose, 252 Fed. Appx. 810, 812 (9th Cir. 2007)

Similarly, in an unpublished opinion, the Ninth Circuit concluded that an officer used excessive force to arrest a plaintiff for a battery she committed against him.  In Bushell-McIntyre v. City of San Jose, the plaintiff admittedly committed a battery against an officer when she touched his badge.  252 Fed. Appx. 810, 812 (9th Cir. 2007). However, the plaintiff did not injure the officer in any way during the course of this battery.  After the battery, the defendant officer proceeded to apply a pain-compliance hold on the plaintiff, push her outside, and slam her into a car.  The Ninth Circuit held that these facts supported the conclusion that the officer used excessive force given testimony that the plaintiff was “calm, sober, and compliant” and that the battery on the officer caused no injury to him.  

4.  Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994)

In yet another excessive-force case, the Fourth Circuit held that an officer was not entitled to qualified immunity even where there were allegations that the plaintiff had resisted a lawful arrest.  In Rowland v. Perry, the Court considered a situation where a mildly retarded man, the plaintiff, had picked up a five dollar bill that a woman had dropped at a bus station.  An officer observed him pick up the bill and ordered that he return it to the woman.  The plaintiff had a brief conversation with the woman but then left the station without giving her the bill.  The officer followed the plaintiff and confronted him.  A struggle ensued, during which the plaintiff was taken to the ground and received injuries.  

Contending that he was entitled to qualified immunity, the defendant officer in Rowland urged the Court to look at the situation in a “segmented” fashion in which the officer’s escalating force corresponded to escalations by the plaintiff.  The Court refused to view the situation in such a way, noting that “[a]rtificial divisions in a sequence of events do not aid a court’s evaluation of objective reasonableness.” Instead, the Court considered the overall situation, including the seriousness of the alleged crime, whether the plaintiff presented an immediate threat to the officer, and whether he was actively resisting arrest or attempting to flee.  The Rowland court went on to hold that viewing the entire situation, it was impossible to escape the conclusion that the plaintiff had suffered a relatively serious injury over a very minor offense, picking up a lost five dollar bill.  Furthermore, there was no suggestion that the plaintiff was armed or otherwise a threat to the officer or anyone else at the time the officer decided to take him to the ground.   Given the minor nature of the crime and the fact that the plaintiff was not a genuine threat, the Court concluded that a jury could find that no reasonable officer would have thought that taking the plaintiff to the ground was justified under the circumstances.

5.   Burns v. City of Redwood City, 737 F. Supp. 2d 1047 (N.D. CA 2010)

Finally, in Burns v. City of Redwood City, a District Court denied summary judgment to officers who used excessive force to arrest a man who had battered one of them while in a state of confusion because of life-threatening hypoglycemia, or insulin shock.  In Burns, the plaintiff, a professional body builder, went into insulin shock at a movie theater.  He was wandering around outside when officers approached him.  He did not respond to the officers’ inquiries regarding whether anything was wrong with him.   Then, he either stumbled into or actively pushed one of the officers.   At this point, the officer pepper sprayed the plaintiff’s face.   A scuffle ensued, during which the plaintiff was taken to the ground and eventually put in handcuffs.  

Analyzing this situation, the District Court first noted that the intrusion onto the plaintiff’s liberty was not insubstantial:  He was pepper sprayed, taken to the ground, and placed into handcuffs after a struggle.  In contrast, the Court found that the underlying crimes the plaintiff allegedly committed—battery on an officer and public intoxication—were minor, especially considering that the officer suffered no injury from the alleged battery.  The Court further noted that the defendant officers had failed to give the plaintiff any verbal commands to submit to arrest before they employed force to subdue him.   It also rejected the officer’s contention that he felt threatened by the plaintiff after the battery, noting that there was no indication that the plaintiff was armed and “a simple statement by an officer that he fears for his safety or the safety of others .  . . is not enough . . . . [T]here must be objective factors to justify such a concern.”  Id. (quoting Deorle, 272 F.3d at 1281).  Considering the circumstances of the arrest in Burns, the District Court concluded that a jury could find that objective factors did not justify the officer’s alleged concerns.

There’s an old saying you sometimes here—“What a difference a year makes.”  That’s no where more true than when bringing a § 1983 civil rights complaint in Louisiana.

Section 1983 provides a cause of action anytime someone violates your federal civil rights under color of law.  Common examples of § 1983 cases include police brutality or excessive force claims, claims against jail or prison guards for excessive force, and claims for denial of medical care to prisoners or pre-trial detainees.  State actors and even municipalities can also violate § 1983 by engaging in practices, promulgating policies, or establishing conditions that infringe on federally guaranteed rights (e.g., First Amendment right of free speech and association, right to privacy, right against cruel and unusual punishment, etc.).

There are, however, strict rules governing when a person can bring a claim for an alleged § 1983 violation.  These rules are commonly called “statutes of limitations,” but in Louisiana, because of our civil code heritage, they are called “liberative prescriptive” periods (or, sometimes, peremptory periods).

In Louisiana, the general rule is that you must bring a § 1983 lawsuit within one (1) year from the date of your injury.  The reason for that short, one-year period is that federal courts determine the deadline for a § 1983 law suit by looking at the deadline for personal injury actions in the state where the suit is brought.  That means that the deadline for a § 1983 claim differs depending on what state you are in.  In Louisiana, state law provides for one year to bring a personal injury action and so there is just one year in which to bring a § 1983 claim in this state.

This apparently simple rule contains many complexities that can be traps for the unwary.  Here are a few examples that highlight the importance of talking to a lawyer quickly if you think your rights have been violated:

1. The Time May Run Even When You Don’t Have Actual Knowledge of Your Injury

Note that the general rule provides that the time for a § 1983 suit begins to run from the date of injury.  It does not say that you must be aware of your injury.

In practice, courts have interpreted the general rule to mean that the time starts to run when you knew or should have known of your injury (ie., the civil rights violations).  This is called the “discovery rule.”  The discovery rule provides that the clock starts ticking when the plaintiff either actually discovers that he or she has been injured or knows of facts that should have alerted him or her to the injury.  Again, note that the rule does not require actual knowledge; it just requires knowledge of facts that would have put a reasonable person on alert that their rights have been violated.

A civil rights injury is often obvious—if a police officer or prison guard beats you without cause or justification, you’ll probably know it at the time.  Sometimes, however, the time of injury for a civil rights violation can be less obvious, such as where conditions of confinement at a particular prison or jail have grown so bad that they systematically violate prisoners’ rights.  The discovery rule means that a plaintiff has the duty to actively investigate potential claims even where he or she isn’t sure about their viability.  Even where you only think you might have a civil rights claim, you have to seek out the true facts of a situation and, if appropriate, file suit before a year from the date of injury.

2. The Time Runs Even if You Don’t Know Who Caused Your Injury

It would be reasonable to think that the one-year clock would not start ticking on a § 1983 action until the plaintiff discovered who it was that injured him or her.  Courts have, however, taken a stricter approach.  For cases in Louisiana, the general rule is that the plaintiff must both bring suit and name the appropriate defendants within the one-year time limit.  Bringing suit against only “John Doe” or “Unknown Defendants” within the one year is insufficient; you have to actually name the particular defendants.

There are exceptions to this rule—for example, if there are two or more people who injure you jointly, then filing suit against one of them will interrupt the one-year period as to the others—but it is dangerous to rely on exceptions to save a potential claim.  The safer course is to promptly investigate and file suit on potential claims, so that unknown or additional defendants can be identified quickly.

3. The Time Runs Even if You Have an Open Criminal Case Related to Your Civil Rights Complaint

It is not uncommon for people to face unjust criminal charges after police or other authorities have violated their civil rights during an encounter.  Many people tend to think they cannot file a civil rights complaint if there is also an open criminal case against them at the time.

Again, however, courts have taken a stricter view.  Even if a possible civil rights plaintiff is a criminal law defendant in another court, he or she still must file any § 1983 suit within one year of the date of injury.  To take a common example:  If someone has been the victim of excessive force during the course of an arrest, he or she must file a § 1983 suit within one year of the arrest, even if criminal charges related to the arrest are still pending.  Similarly, the time for a claim for false arrest does not run from the time the charges against you are dismissed or you are found not guilty.  Instead, the time runs from the time of your arrest (or, more precisely, from the time your case enters the criminal justice system and your detention is pursuant to court order).

4. Claims May Be Subject to Different Requirements, e.g., Administrative Exhaustion

In some circumstances, there are requirements that must be satisfied before a § 1983 suit can be filed.  If a potential plaintiff is incarcerated, for example, then he or she must exhaust administrative procedures before they can bring a § 1983 suit based on a civil rights violation.  Again, courts are strict:  The exhaustion must occur and the suit must be filed before the one year time limit passes.

So, remember the difference a year makes.  If you believe you have suffered a violation of your civil rights, speak to a lawyer today.