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Qualified immunity granted for off duty deputy at restaurant


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On February 22, 2020, Dexter Gaspard, who is a sheriff’s deputy with the Terrebonne Sheriff’s Office, was eating at Honest Abe’s BBQ in Houma, Louisiana. At that time, Gaspard was not on duty and wearing plain clothes. Willie Levens, who worked part time at the restaurant, previously met Gaspard when he was in uniform. While Gaspard was eating, a Mardi Gras party bus with parade partygoers pulled up to the restaurant. Levens departed the bus with some partygoers and entered the restaurant. In his complaint, Levens alleged that Gaspard was “grossly intoxicated” and mistook him for another individual. Levens asserted that Gaspard pushed him out the door to the restaurant, causing him to fall and sustain severe injuries.

Levens further alleged that Gaspard followed him outside and forcibly restrained him against a vehicle by holding his elbow against his neck. Gaspard informed him that he was a police officer and that he had called additional police officers to the scene. Levens further alleged that once the additional deputies arrived, they determined he was not suspected of any wrongdoing and allowed him to leave the premises.

In Gaspard’s deposition, however, he testified that it was not he who was intoxicated, but Levens. Specifically, Gaspard testified that after Levens entered the restaurant, he observed him being belligerent, hollering, and spilling some beer on the floor. An owner of the restaurant (Tyler Verdin) then asked Levens to stop and leave. Gaspard saw Verdin grab Levens and try to escort him out the door, but he pulled away causing Verdin to fall over a child’s highchair. Gaspard testified that at that point, the customers in the restaurant became frightened.

Gaspard stood up and grabbed Levens, but Levens pushed him backwards. Gaspard then stepped forward with Levens, and they exited the door, at which point Gaspard let him go. Levens then ran into a wheel stop in the parking lot, falling backwards on his bottom. The security footage is consistent with Gaspard’s testimony. It shows Gaspard pushing Levens out the door to the restaurant, and Levens falling backwards. Gaspard and others followed Levens outside. They are visibly agitated with him, motion for him to stay out of the restaurant, and someone even locks the door to prevent him from reentering. Levens shows obvious signs of intoxication—he can barely standup and walk. Levens fellow paradegoers surround him after he stands up, try to keep him upright, and restrain him from walking back towards the restaurant. After he goes back into the party bus, and then comes back out with another man, he approaches Gaspard. Gaspard holds his arm up to prevent Levens from reentering the restaurant. Finally, Levens, Gaspard, and the other man walk to the other side of the restaurant, out of the view of the security cameras.

Levens alleges that Gaspard then forcibly restrained him by holding his elbow against his neck. Gaspard testified that he actually pulled Levens out of oncoming traffic in the street and that he held Levens’ arm while Levens leaned against a vehicle until other sheriff deputies arrived on the scene. In his complaint, Levens seeks damages under 42 U.S.C. § 1983 for excessive use of force and unlawful detention in violation of his constitutional rights. Gaspard moved for summary judgment seeking dismissal of Levens’ complaint based on qualified immunity because his actions constituted a reasonable use of force. The district court granted the motion, determining that based on the video surveillance and deposition testimony, Gaspard’s use of force was reasonable. The 5th affirmed.


To prevail on his excessive force claim, Plaintiff must show (1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable. See Scott.

Plaintiff asserts that Gaspard used unreasonable and unnecessary force when he grabbed him and threw him out of Honest Abe’s Restaurant. He asserts that the video footage shows Gaspard using excessive and unnecessary force. We disagree. The video footage shows that Gaspard’s use of force was not clearly unreasonable. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Relevant factors include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Scott.

Here, the video footage shows that Plaintiff was severely intoxicated—he could barely standup and walk. Although there is no video footage of what occurred while Plaintiff was inside the restaurant, it is clear from the agitated looks of Gaspard and others who followed Plaintiff outside that Plaintiff had been disruptive and uncooperative and was not welcome in the restaurant. Moreover, it is apparent that Plaintiff’s behavior was a threat to the safety of those inside the restaurant, as someone locked the doors to the restaurant immediately after Plaintiff exited so that he could not gain reentry. While the video shows that Gaspard pushed Plaintiff out the door, Gaspard’s use of force was not clearly excessive or clearly unreasonable in light of Plaintiff’s severe intoxication and threatening behavior.