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Daniel Barker. Dennett Every thinking person wants to lead a life of meaning and purpose. After Brock fired a total of three shots at Lagarde and one shot at David, Brock retreated down Dale Street towards Warfield Street waving his weapon at the officers, and firing one additional shot in their direction. David fired two shots at Brock before Brock retreated. While Brock was backing down Dale Street, the officers heard gunfire coming from both the north and south ends of the street.
They estimated a total of about 20 shots were fired. Throughout the gun battle, both officers were frightened for their lives. During the gunfire, young Gordon staggered towards David from across the street and said, "I'm shot". After searching Gordon for weapons and finding none, David protected him from the gunfire.
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In response to David's question "Who was that crazy man shooting at us? Neither Officer Lagarde nor Officer David saw their bullets take effect nor did they see bullets fired by anyone else take effect. In pertinent detail Hagen corroborated the testimony of Lagarde and David. Hagen further testified:. The physical evidence collected during two investigations of the scene after the incident — a spent.
Sergeant Norman Knaps, a police investigator, testified a strike or graze found on the windshield of the brown Oldsmobile could only have been caused by someone shooting in an uptown direction from the location of the dice game. He stated the police officers could not have caused the strike or graze on the windshield because the officers were shooting in a downtown direction from the middle of the street.
Plaintiffs additionally contend on appeal that the defendants' version of the shooting incident is "implausible" for the following reasons:. This contention is based on the fact that the police officers fired only. We do not agree with any of these additional plaintiff contentions. If any of the dice-playing group actually had a weapon, and we are convinced that at least one of them did, he would not be expected to leave his weapon at the scene. Regarding the second additional contention, as we have just said, we are convinced at least one member of the group, Brock, did possess and, additionally, fire a hand gun.
We find that no bullet holes, other than such as would appear to have been made by. The two police investigations had been conducted in a hurried manner hereunder we set forth testimony relative to the hostility of the crowds during the investigations and it is quite possible that. That the prosecution against Brock was dropped by the district attorney's office a matter solely within the discretion of the district attorney is of no significance here because considerations enter into such a determination in a criminal matter which play no part in a civil suit as, for example, in a criminal case the fact that the state must prove guilt beyond a reasonable doubt while in this, a civil case, the burden of proof is upon the plaintiffs.
Finally, the fact that Brock returned to the scene does not impress us in any way; and we certainly would not expect him to return while carrying a weapon. Plaintiffs also point out that the second investigation of the scene was not made until after decedent's death and they argue the evidence produced by the second investigation was gathered and disposed of under these suspicious circumstances, i.
We are not impressed by these arguments. Two investigations of the scene were made by the police department. The first began at approximately p. Sergeant Norman Knaps, who was assigned to the homicide division, was the commanding officer for both investigations. He testified he was not satisfied with the time consumed in the first investigation and would have stayed "possibly two hours longer" if circumstances had permitted.
It is apparent he would have stayed longer in both investigations except for the fact that they were impeded by a hostile, rowdy crowd.
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His police report states no photographs were taken at the second investigation because he feared a "senseless, and possibly violent, confrontation with the crowd". As to the above arguments 2 and 3 , Lieutenant Kenneth Knapp testified he ordered the destruction of the evidence on October 11, because it is a routine practice of the department to discard evidence if it is not needed for use in the Criminal District Court.
He said that when he ordered the destruction of the evidence he was unaware of the plaintiffs' suit. However, he explained that even if he had known about the plaintiffs' case, he would have still ordered the evidence destroyed because the police department does not have the room to store evidence needed for civil proceedings.
Officer Waguespack corroborated Knapp's testimony as to the police department's policy for destruction of evidence. Waguespack also testified it is customary to receive evidence from a policeman six weeks after it is obtained. He explained that evidence is turned over at different times, sometimes late and sometimes early, but generally within two or three weeks. The transcript erroneously placed Waguespack's testimony under Lieutenant Knapp's name.
This error becomes apparent upon reading counsel's comments at of the transcript, Vol.
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See also, of the transcript, Vol. We accept as correct the testimony set forth in the two immediately preceding paragraphs. Although the rule relative to destruction of evidence may not be the best possible rule under all circumstances, it was nonetheless the rule in effect at the time and the police officers were simply following a rule they were required to follow.
Accordingly, we accept the defendants' version of the manner in which the incident occurred.
Our conclusion is that three police officers were fired upon by Brock without provocation after they had gotten out of their automobile and that Lagarde and David returned the fire, shooting at Brock, and young Gordon was inadvertently struck by one of the bullets fired by Lagarde. In this connection we note the plaintiffs' version of the shooting incident that the officers began firing at the dice-playing group without provocation immediately after getting out of their police vehicle is more "implausible" as plaintiffs describe defendants' version than the defendants' version of the incident.
Under these facts, Lagarde was shooting with ample provocation; he was shooting to save his own life as well as the lives of his fellow officers. Because he was not the aggressor in the shooting incident, the defense of self defense is available for him to urge against any instigators of the gun battle. Officer Lagarde may not, however, urge the defense of self defense against plaintiffs, because the decedent was not an instigator or aggressor.
However, while the "aggressor doctrine" alone will not defeat plaintiffs' claim against Lagarde, plaintiffs still must meet the requirements of La. That article requires plaintiffs prove fault on the part of Lagarde. See Anderson v. Clements , La. Levy , La. McKey , La. Ogden , La.
Plaintiffs did not sustain their burden of proving Lagarde was negligent. Under the facts Lagarde acted as a reasonable man, and did not use "excessive force"; his use of his service revolver was justifiable and did not constitute fault. See Patterson v. Kuntz , La. Isgitt , La. For the reasons assigned, the judgment appealed from is affirmed.
The factual resolution of the conflicting versions of the shooting incident is a credibility determination of the trial judge. Under the mandate of Canter v.
Koehring , So. I agree with the statement in the dissenting opinion that under the theory of reacting in self-defense the police officers would not be justified in discharging their weapons indiscriminately into a group that includes innocent persons. However, it is my appreciation of the evidence that upon their arrival at the scene and upon identifying themselves as policemen the participants in the dice game and the onlookers scattered and one or more of them began firing at the police.
Unfortunately the decedent remained on the scene and became the innocent victim.
The trial judge obviously found the action of the police officers in returning fire not to be unreasonable under the stress of the circumstances. All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
It is one thing to say that a police officer acting as such is immune from personal liability for shooting an innocent bystander to death. It is another thing to say that the innocent bystander has no remedy because his injury was not the result of "fault" La. Under either saying the policeman is not liable. But if the policeman escapes liability on the theory of immunity, his governmental employer cannot escape liability because the Louisiana constitution expressly prohibits holding the government immune.
Bridges v. Alaska Housing Auth. See also Lipman v.
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Brisbane Elem. The trial judge's and the majority's radical error is that, in their reasonable resolve to protect the policeman from liability especially for a snap-judgment under fire , they unnecessarily declare that he behaved reasonably — without fault, negligence or even want of skill — in responding to a shot from a crowd of citizens by shooting an inexactly-aimed shot towards the crowd from which the first shot came. Such a declaration is unnecessary because a judgment against the policeman and the city will be collected from the city alone, effectively giving the policeman immunity.
To categorize the policeman's behavior as non-tortious is unsupportable.