CANTRELL v. BREAUD (2025)

In this alleged stalking case, the plaintiff, LaToya W. Cantrell, Mayor of the City of New Orleans, appeals the trial court's: denial of her exception of no cause of action; granting of the defendant's, Anne W. Breaud, special motion to strike plaintiff's petition for protection from stalking or sexual assault pursuant to La. C.C.P. art. 971; and awarding Ms. Breaud legal fees and costs pursuant to La. C.C.P. art. 971.

FACTS AND PROCEDURAL HISTORY

On the afternoon of Sunday, April 7, 2024, from the balcony of her residence at the Upper Pontalba Apartments, Ms. Breaud took photographs of Mayor Latoya Cantrell and NOPD Officer Jeffrey Vappie, a member of the mayor's security detail, while the two were seated at a table on the Chartres Street side balcony of the Tableau Restaurant, located in the French Quarter.

On May 9, 2024, Mayor Cantrell filed an official police report (NOPD Incident No. E-08673-24) setting out the alleged criminal actions of Ms. Breaud of the taking the photos, which took place on April 7, 2024. On May 10, 2024, Mayor Cantrell filed a “Petition for Protection From Stalking or Sexual Assault (hereinafter referred to as the “Restraining Order”) pursuant to La. R.S. 46:2171, et seq. against Ms. Breaud in Orleans Parish Civil District Court. The petition and order were on a form that Mayor Cantrell filled in prior to her pro se filing. In summary, the petition for the Restraining Order set out that Ms. Breaud had followed her, harassed her and was an uninvited presence. In her own handwriting, Mayor Cantrell set forth that the “[a]ctions of the defendant have placed me and my family in greater risk of being harmed, jeopardizing my safety especially at places I frequent.” She further provided that “[T]he defendant aggressively photographed and harassed me while I was having lunch on a restaurant balcony.” The trial court granted the petition and on May 10, 2025, a temporary restraining order/order of protection (“TRO”) was issued and a contradictory rule to show cause hearing was set for May 20, 2024, to determine whether the temporary restraining order should be continued. On May 17, 2024, Ms. Breaud filed a “Special Motion to Strike the Petition for Protection from Stalking or Sexual Assault Pursuant to La. C.C.P. art. 971 (hereinafter referred to as the “Motion to Strike”).¹

On May 20, 2024, the parties mutually agreed to continue the rule to show cause hearing until June 18, 2024. On June 5, 2024, Mayor Cantrell filed a Peremptory Exception of No Cause of Action in response to Ms. Breaud's Motion to Strike. Following the June 18, 2024 hearing, the district court denied Mayor Cantrell's Exception of No Cause of Action, granted Ms. Breaud's Motion to Strike, and further, awarded Ms. Breaud attorney's fees and costs in the amount of $15,393.52. The district court issued a signed judgment on August 26, 2024. Mayor Cantrell appeals the district court's judgment. As a response to the appeal, Ms. Breaud seeks an additional award of attorney's fees and costs incurred in defending this appeal.

DISCUSSION

Mayor Cantrell raises the following assignments of error: (1) the trial court erred when it rendered its judgments on June 18 and August 26, 2024; (2) the trial court erred when it denied Mayor Cantrell's peremptory exception of no cause of action, and granted Ms. Breaud's special motion to strike under La. C.C.P. art. 971, ordering legal fees and costs against Mayor Cantrell; (3) the trial court erred when it struck Mayor Cantrell's petition from the record; (4) the trial court erred when it held, in essence, that stalking and taking photographs, and other non-speech allegations in Mayor Cantrell's petition, constituted speech, or free speech, under La. C.C.P. art. 971; and (5) the trial court erred when it held that Ms. Breaud's right of free speech was violated by Mayor Cantrell's petition and the TRO issued thereunder. In response, Ms. Breaud seeks an additional award of legal fees and costs associated with defending Mayor Cantrell's appeal.

An appellate court reviews an exception of no cause of action de novo. Adema v. S. Nat. Gas Co., L.L.C., 23-0052 p. 2 (La. App, 4 Cir. 5/1/23), 367 So.3d 773, 776 citing Succession of Horrell, 21-0168, p. 7 (La. App. 4 Cir. 11/17/21), 331 So.3d 1072, 1079. When reviewing a trial court's ruling sustaining or overruling an exception of no cause of action, the court of appeal should review the case de novo because the exception raises a question of law and the “lower court's decision is based only on the sufficiency of the petition.” City of New Orleans v. Bd. Of Comm'rs of Orleans Levee Dist., 93-0690, p. 28 (La. 7/5/94), 640 So.2d 237, 253.

Likewise, “[a]ppellate courts review a trial court's ruling on a special motion to strike using the de novo standard of review because it involves an issue of law; the issue on review is thus whether the trial court was legally correct.” Alexander v. Times-Picayune, L.L.C., 16-1134, p. 2 (La. App. 4 Cir. 5/31/17), 221 So.3d 198, 201 quoting Herman v. Tracage Dev., L.L.C., 16-0082, p. 4 (La. App. 4 Cir. 9/21/16), 201 So.3d 935, 939.

We first address the denial of Mayor Cantrell's exception of no cause of action. La. C.C.P. art. 921 provides that “[a]n exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or incidental action, to retard, dismiss, or defeat the demand brought against him.” See also Dean v. Delacroix Corp., 04-0831, p. 10 (La. App. 4 Cir. 5/11/05), 904 So.2d 46, 52. “The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. “The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition.” City of New Orleans v. Bd. of Directors of the Louisiana State Museum, 98-1170, p. 9 (La. 3/2/99), 739 So.2d 748, 755. “The burden of showing that the plaintiff has stated no cause of action is upon the exceptor.” Id.

La. C.C.P. art. 971 “was enacted by the legislature as a procedural device to be used early in legal proceedings to screen meritless claims pursued to chill one's constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press.” Perniciaro v. McInnis, 19-067 (La. App. Cir. 4/1/20), 293 So.3d 1144, 1152 (quoting Lee v. Pennington, 02-0381, p. 4 (La. App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041). La. C.C.P. art. 971(A) provides:

A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

Here, Ms. Breaud properly plead a cause of action in her pleading seeking to strike the Mayor's petition “․ the claims therein arise from an exercise of free speech under the Louisiana and U.S. Constitutions․” As such we find no error in the trial court's denial of the exception of no cause of action.

We next review Mayor Cantrell's complaint that the trial court erred in striking her petition from the record. La. C.C.P. art. 964 states: “The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.” In enacting La. C.C.P. art. 971, the Louisiana Legislature recognized that “there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances” and “that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through the abuse of the judicial process. 1999 La. Acts, No. 734, Sec. 2. As stated above, “unless the court determines that the plaintiff has established a probability of success on the claim,” such claim “shall be subject to a special motion to strike.” La. C.C.P. art. 971(A); see also Shelton v. Pavon, 17-0482 (La. 10/18/17), 236 So.3d 1233; Darden v. Smith, 03-1144, p. 8 (La. App. 3 Cir. 6/30/04), 879 So.2d 390, 397. Here, it appears that Mayor Cantrell's action against Ms. Breaud was clearly designed to suppress, restrain and prohibit her rights provided under the United States and Louisiana Constitutions, including the exercise of taking photos of a public figure in a public place. Further, it was unlikely that Mayor Cantrell's petition for protection against Ms. Breaud would be successful. Accordingly, the trial court properly struck Mayor Cantrell's petition from the record.

In her fourth assignment of error, Mayor Cantrell contends that the trial court erred in holding that stalking, taking photographs, and other non-speech activities constituted free speech under La. C.C.P. art. 971. She argues that the actions sought to be enjoined are for non-verbal, non-speech stalking and photography; that she never sought to enjoin Ms. Bread's exercise of free speech; that CCP article 971 only contemplates an oral or written speech element, and that the activities complained of by Ms. Breaud are not afforded the protections set forth in 971.

We disagree and find that Mayor Cantrell's interpretation of free speech as contemplated by CCP article 971 to be unduly narrow. The United States Supreme Court has held that streets, sidewalks, and parks have historically been held to be in trust for public use and are arenas for free expression. Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). The courts have further recognized the public's right to record matters of public interest, especially in public forums. Id. In Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), the Supreme Court held that conduct can be protected under the First Amendment if it is intended to convey a message and it is likely to be understood by those who view it. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), the Supreme Court recognized that the selection and presentation of visual and other expressive elements constitute speech.

The federal courts of appeal have also recognized that various non-speech activities are protected by the First Amendment. In Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), the First Circuit held that the First Amendment protects the right to record public officials in public spaces. In Fields v. City of Philadelphia, 862 F.3d 353 (3rd Cir. 2017), the Third Circuit reaffirmed that the act of taking photographs or videos in public, particularly of public officials, is protected by the First Amendment.

Here, Ms. Breaud, while standing on her own balcony, took photographs of Mayor Cantrell and her security officer as they were seated at a table on the balcony of a restaurant just across from her residence. Clearly, Ms. Breaud was within her constitutionally protected rights while observing and photographing this openly public activity. Ms. Breaud's activities were plainly and fundamentally protected by the First Amendment. Accordingly, we find no error in the trial court's holding that Ms. Breaud's activities constituted speech or free speech as contemplated by La. C.C.P. art. 971.

In her final assignment of error, Mayor Cantrell contends that the trial court erred when it held that Ms. Breaud's right of free speech was violated by Mayor Cantrell's petition for protection and the TRO issued thereunder. Ms. Breaud asserts that Mayor Cantrell's filing of her May 10, 2024 petition for protection was in retaliation against Ms. Breaud for the public scrutiny that Ms. Breaud's April 7, 2024 photographs of Mayor Cantrell and Officer Vappie brought to light. Mayor Cantrell did not immediately report the April 7, 2024 incident to the New Orleans Police Department, but waited until May 9, 2024 to call the NOPD to her office to file a police report, which she used to bolster her allegations in her May 10, 2024 petition for protection. As discussed above, Ms. Breaud opposed Mayor Cantrell's petition for protection with the special motion to strike afforded by La. C.C.P. art. 971, the provision created by the legislature for instances where a citizen's right of freedom of speech is sought to be curtailed improperly through the judicial process. As set forth above, we find that Ms. Breaud's actions in taking photographs were protected by the First Amendment. Accordingly, we affirm the trial court's holding that Ms. Breaud's right of free speech was sought to be curtailed by the Mayor's injunctive request.

The trial court awarded Ms. Breaud attorney's fees and costs in the amount of $15,393.52. La. C.C.P. art 971(B) states: “In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.” Considering the mandatory language of La. C.C.P. art 971(B), we are bound to award Ms. Breaud reasonable attorney's fees and costs for this appeal. Accordingly, we award Ms. Breaud $8,000.00 for attorney's fees and all costs related to this appeal.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed. We also grant Ms. Breaud $8,000.00 in attorney's fees associated with this appeal as well as all costs.

AFFIRMED

I respectfully dissent. This case presents a serious and developing question in Louisiana law as to whether a verified petition for protection from stalking under La. R.S. 46:2171 et seq., alleging conduct that may constitute a crime, can be summarily dismissed under La. C.C.P. art. 971, Louisiana's anti-SLAPP statute, which was enacted to prevent retaliatory lawsuits aimed at chilling constitutionally protected speech. The majority concludes that Article 971 applies in the case sub judice. I respectfully disagree. Article 971’s application to protective order proceedings, particularly those involving stalking, raises new and pressing concerns, especially in light of increased threats and targeted harassment against public officials.¹

Article 971 was designed to protect against the misuse of civil litigation to punish or suppress protected expression. Alexander v. Times-Picayune L.L.C, 16-1134, p. 3 (La. App. 4 Cir. 5/31/17), 221 So.3d 198, 201 (noting that the purpose of Article 971 is “to screen out meritless claims pursued to chill one's constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press”). See also Terrell v. Derouen, 21-1327, p. 2 (La. App. 1 Cir. 7/5/22), 345 So.3d 1065, 1067 n. 1 (noting that Article 971 “applies in a very specific situation: when a litigant has brought a cause of action, typically alleging defamation, in an effort to chill the First Amendment speech of its target”).

Article 971 creates a two-step burden-shifting framework. First, the defendant must make a prima facie showing that the petitioner's claim arises from an act in furtherance of the defendant's right of petition or free speech in connection with a public issue. Jones v. St. Augustine High Sch., Inc., 21-0474, p. 8 (La. App. 4 Cir. 2/16/22), 336 So.3d 470, 476-77 (citing Melius v. Keiffer, 07-0189, p. 3 (La. App. 4 Cir. 3/12/08), 980 So.2d 167, 171). If that burden is met, the burden shifts to the petitioner to demonstrate a “probability of success” on the claim. Id., 21-0474, p. 8, 336 So.3d at 477.

Our Court has not explicitly addressed whether courts may resolve factual disputes or assess witness credibility when determining if a petitioner has met the burden of establishing a “probability of success” under Article 971.² However, persuasive authority from the Louisiana Second Circuit and the Louisiana federal courts explains that such credibility determinations are inappropriate at this stage. In Bradford v. Judson, 44,092, p. 15 (La. App. 2 Cir. 5/6/09), 12 So.3d 974, 983, the Second Circuit treated the Article 971 “probability of success” standard as functionally equivalent to summary judgment under Louisiana law and rejected the notion that either standard permits the court to weigh credibility. See also, Catherine Palo, 22 La. Civ. L. Treatise, Summary Judgment & Related Termination Motions § 3:19 (2025 ed.).

The federal courts interpreting Article 971 similarly recognize that the “probability of success” standard does not authorize courts to resolve factual disputes. See Lozovyy v. Kurtz, 813 F.3d 576, 586 (5th Cir. 2015) (noting that the “probability of success” standard “does not permit courts to weigh evidence, assess credibility, or resolve disputed issues of material fact”); Block v. Tanenhaus, 867 F.3d 585, 590 (5th Cir. 2017) (citing Block v. Tanenhaus, 815 F.3d 218, 221 (5th Cir. 2016) (holding that the non-movant's burden in opposing an Article 971 motion is the same as that under Rule 56 in opposing summary judgment).³

I find that Article 971 does not permit summary dismissal when genuine disputes of material fact exist or when credibility is at issue. Protective order petitions, particularly those involving allegations of stalking or emotional distress, almost invariably raise factual disputes and credibility determinations that cannot be resolved on the face of the pleadings or affidavits alone.

The petition filed by Mayor Cantrell under La. R.S. 46:2171 et seq. is not a defamation claim usually involved in anti-SLAPP motions. It does not seek to suppress speech, nor does it allege harm arising from public commentary or expression. Rather, it invokes the protections of Louisiana's stalking statute, La. R.S. 14:40.2(A), which defines stalking as:

[T]he intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act․

Stalking is not protected speech. It is a pattern of conduct, and its legal significance depends on context, intent, and effect and not on content. The appropriate legal standard of stalking is objective and requires an inquiry into whether the conduct would cause a reasonable person to feel fear or distress.

Mayor Cantrell's verified petition alleges precisely the type of conduct contemplated by the stalking statute, including the creation and dissemination of over 800 hours of video, photographing and filming at locations she frequents, and behavior that she alleges caused emotional distress and exposed her and her family to public risk.⁴ These are not conclusory allegations, nor are they grounded in the suppression of public discourse. If proven, they may warrant both civil protective relief and criminal liability. To permit dismissal of such claims under Article 971 before discovery, without testimony, and based solely on affidavits extends the anti-SLAPP statute beyond its intended procedural and constitutional bounds.

Although both anti-SLAPP protections and protective order statutes are designed to prevent abuse of the legal process, Louisiana's protective order framework, particularly in cases involving stalking, operates under a distinct, expedited set of procedures that provides additional safeguards against retaliatory or frivolous claims. See La. R.S. 46:2135(A)–(B). La. C.C.P. art. 3608 allows a defendant to recover damages and attorney's fees for the wrongful issuance of a temporary restraining order or preliminary injunction. If the allegations in a protective order petition are knowingly false, the petitioner may face serious criminal penalties.⁵ The protective order petition form itself includes an acknowledgment warning petitioners of these consequences. Protective order provisions render the procedural shortcut and attorney fee provisions of Article 971 unnecessary and inappropriate in this context, particularly because the petition alleges conduct that may constitute a crime. Courts should rely on these direct statutory remedies rather than extend Article 971 beyond its intended function to dismiss serious allegations before a factual record is developed.

Moreover, the majority's suggestion that Mayor Cantrell's presence in a public setting negates her claim fundamentally misapprehends the law. La. R.S. 14:40.2 explicitly recognizes that stalking often occurs in public. Repeated, unwanted, and fear-inducing presence even on a public sidewalk, in a restaurant, or outside a home can satisfy the elements of the offense. Public officials do not waive their right to safety and dignity by appearing in public. The proper inquiry is not where the conduct occurred, but whether it occurred and was it repeated, targeted, and would cause a reasonable person fear or distress. That fact-sensitive determination should not be made on a motion to strike.

The procedural mechanisms afforded by Article 971 are significant but they must be applied with caution. When serious allegations implicating criminal conduct and public safety are raised, courts must address such allegations through full evidentiary hearings and legal process, and not resolve such allegations at the pleadings stage on affidavits alone. To apply Article 971 in this context circumvents the procedural framework expressly established for protective order proceedings, thereby denying the parties a meaningful opportunity to be heard and depriving the public of the transparency and a factual record required for proper adjudication. Where issues of safety, reputation, and public accountability are at stake, the truth must be developed through a full and fair evidentiary record. Such a fact-finding process ensures that any appellate review is grounded in a complete factual context, allowing for meaningful and accurate review.

I would reverse the district court's rulings and remand the matter for a full evidentiary hearing on the merits of Mayor Cantrell's petition. Such a proceeding is necessary not only to ensure procedural fairness and adherence to the statutory framework governing protective orders, but also to preserve the integrity of Louisiana's protective order system and to reaffirm the limited, carefully defined purpose of its anti-SLAPP statute.

FOOTNOTES

1.   This article provides for a mechanism available to defendants named in Strategic Lawsuits Against Public Participation or “SLAPP Suits” which are generally filed against individuals to quell their participation in public matters and discourse.

1.   See, e.g., John G. Roberts, Jr., 2024 Year End Report on the Federal Judiciary 15 (Dec. 31, 2024) (“According to United States Marshals Service statistics, the volume of hostile threats and communications directed at judges has more than tripled over the past decade. In the past five years alone, the Marshals report that they have investigated more than 1,000 serious threats against federal judges.”), and PBS News, Why political violence and violent threats are on the rise in the United States (July 14, 2014), https://www.pbs.org/newshour/show/why-political-violence-and-violent-threats-are-on-the-rise-in-the-united-states.

2.   Louisiana courts have recognized that factual disputes cannot be resolved in preliminary proceedings where credibility is at issue. See Gurvich v. New Orleans Private Patrol Service, Inc., 578 So.2d 195, 198-99 (La. App. 4 Cir. 1991) (reversing trial court's issuance of mandatory preliminary injunction where conflicting affidavits created material factual disputes that could not be resolved without further evidence). This principle supports the conclusion that Article 971, like preliminary injunction proceedings under La. C.C.P. art. 3601 et seq., does not authorize dismissal where material facts remain in dispute and credibility must be assessed through an evidentiary hearing with testimony.

3.   These federal decisions rely on California's anti-SLAPP jurisprudence, which interprets a virtually identical statute. As recognized by Louisiana courts, including the Second Circuit in Baxter v. Scott, 37,092, pp. 8-9 (La. App. 2 Cir. 5/16/03), 847 So.2d 225, 231-32, vacated as moot, 03-2013 (La. 11/14/03), 860 So.2d 535, California's anti-SLAPP law provides persuasive guidance in interpreting Article 971. California courts consistently hold that a petitioner need only make a prima facie showing of facts to sustain a favorable judgment, and that motions to strike should not be granted where material fact issues exist or credibility is at issue. See D'Arrigo Bros. of Cal. v. United Farmworkers, 224 Cal.App.4th 790, 800, 169 Cal.Rptr.3d 171, 178 (6th Dist. 2014); GetFugu, Inc. v. Patton Boggs LLP, 220 Cal.App.4th 141, 155, 162 Cal.Rptr.3d 831, 841 (2d Dist. 2013). As noted in Shelton v. Pavon, 17-0482, p. 7 (La. 10/18/17), 236 So.3d 1233, 1245 (Weimer, J., dissenting), the Louisiana and California statutes are textually identical. Accordingly, the prevailing interpretation of Anti-SLAPP statutes does not authorize resolution of factual disputes or the weighing of credibility, especially where the petition implicates claims of stalking and safety-based protection.

4.   While Breaud's affidavit denies most of the conduct alleged by Mayor Cantrell, asserting no following, no communication, and only two photographs taken from her own balcony, those denials squarely contradict the Mayor's sworn petition. The verified petition alleges a sustained pattern of fear-inducing conduct. This conflict in sworn accounts raises genuine factual disputes and credibility determinations that cannot be resolved through affidavits alone. See Bradford v. Judson, 44,028, p. 15, Gurvich, 578 So.2d at 198-99. By granting the motion to strike without an evidentiary hearing, the district court and now the majority implicitly accept Breaud's version of events as true and disregard the Mayor's verified allegations. This inference, made without discovery or testimony, exceeds the procedural scope of Article 971. See Lozovyy, 813 F.3d at 586. Moreover, even assuming Breaud's factual denials are true, she does not rebut the effect of her actions, that is the fear, intimidation, and emotional distress alleged by Mayor Cantrell based on an objective standard, which is central to the legal definition of stalking and remains legally unaddressed.

5.   Filing a false sworn statement in such a proceeding may constitute perjury under La. R.S. 14:123, or filing false public records under La. R.S. 14:133, and the penalty for committing these offenses is severe. See La. R.S. 14:123(C)(4) (“Whoever commits the crime of perjury shall be punished as follows: When committed in any civil action ․ or in any other legal proceeding, by a fine of not more than ten thousand dollars or imprisonment at hard labor for not more than five years, or both.”); see also La. R.S. 14:133(C)(1) (“Whoever commits the crime of filing false public records shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars, or both.”).

Judge Daniel L. Dysart