SMITH III v. HOUSING AUTHORITY OF NEW ORLEANS AB (2017)

 This appeal arises from plaintiff's termination as a housing authority police officer. Plaintiff contends that he was terminated as an “at will” employee instead of as a civil servant, which violated his civil rights. Defendants filed numerous exceptions. The trial court granted the housing authority's and his supervisors' exceptions of no cause of action as to 42 U.S.C. § 1983, and dismissed plaintiff's claims regarding same.

We find that the housing authority is an instrumentality of the state except as outlined in La. R.S. 40:539(C)(8)(b). As such, HANO does not constitute a person for purposes of a § 1983 suit. Further, plaintiff's supervisors' actions regarding his termination from an “at-will” position for sleeping on duty were objectively reasonable. Accordingly, the trial court did not err by granting the exceptions of no cause of action. The trial court's judgment is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Emanuel Smith III was employed as a police officer with the Housing Authority of New Orleans (“HANO”), when he alleged that Silas Phipps, Jr. illegally retrieved information about him from the National Crime Information Center (“NCIC”) and then shared the information with third parties. Mr. Smith  contends that Mr. Phipps' actions caused “great embarrassment, humiliation, and loss of standing in his community and with his peers.” Mr. Smith spoke with Robert Anderson, the chief of HANO police, wherein Mr. Anderson allegedly told Mr. Smith to sue him. Mr. Smith then filed a formal complaint against Mr. Phipps. Subsequently, Mr. Smith was cited for sleeping while on duty for the second time and was terminated by a supervisor, Greg Fortner.

Mr. Smith filed a Petition for Damages, Declaratory Judgment, and Writ of Mandamus against HANO, Mr. Phipps, Mr. Anderson, Mr. Fortner, and AIG Insurance Company (“AIG”), as HANO's insurer, asserting that he was wrongfully terminated without civil service protections and because he was a whistleblower. Thereafter, HANO, Mr. Anderson, Mr. Fortner, and AIG (collectively “Defendants”) filed a dilatory exception of vagueness and a peremptory exception of no cause of action. Mr. Phipps also filed an exception of no cause of action. The trial court granted HANO's exception of vagueness and ordered Mr. Smith to amend his petition within twenty days.¹ Further, the trial court granted HANO, Mr. Anderson, Mr. Fortner, and AIG's exception of no cause of action regarding Mr. Smith's 42 U.S.C. § 1983 (“§ 1983”) claims. The trial court dismissed Mr. Smith's § 1983 claims with prejudice. Mr. Smith's supplemental petition ² and devolutive appeal followed.

Mr. Smith asserts that the trial court erroneously granted the Defendants' exceptions of no cause of action because HANO is an instrumentality of the state. Mr. Smith also contends that he possesses valid § 1983 causes of action against  Messrs. Anderson and Fortner because they are not protected by immunity.³

NO CAUSE OF ACTION

“An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.” La. C.C.P. art. 921. An exception of no cause of action is a peremptory exception, the function of which “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. See also La. C.C.P. art. 927. “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934. However, “[i]f the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.” Id.

“The burden of demonstrating that no cause of action has been stated is upon the mover or exceptor.” 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. The trial “court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party.” Id. The appellate court reviews a sustained exception of no cause of action with the de novo standard of review “because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition.” Id. This Court must “follow the accepted rule that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” Id.

“The question therefore is whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief.” Id., 93–0690,p. 29, 640 So.2d at 253. “The petition should not be dismissed merely because plaintiff's allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the petition to determine if the allegations provide for relief on any possible theory.” Id. Generally, “an exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insuperable bar to relief.” Id. “In other words, dismissal is justified only when the allegations of the petition itself clearly demonstrate that the plaintiff does not have a cause of action, or when its allegations indicate the existence of an affirmative defense that appears clearly on the face of the pleading.” Id.

42 U.S.C. § 1983

42 U.S.C. § 1983 reads as follows:

 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Mr. Smith contends that his petition sets forth causes of action against HANO and Messrs. Anderson and Fortner pursuant to § 1983. Therefore, he maintains on appeal that the trial court erroneously granted the Defendants' exceptions of no cause of action.

HANO

Mr. Smith asserts that HANO cannot “pick and choose” when or when not to be considered an instrumentality of the state.

La. R.S. 40:539 was amended following HANO's takeover by the United States Department of Housing and Urban Development (“HUD”) to provide that:

[n]otwithstanding any provision of Subparagraph (a) of this Paragraph or of any other law to the contrary, the Housing Authority of New Orleans shall not be considered to be an instrumentality of the state for purposes of Article X, Section 1(A) of the Constitution of Louisiana, and employees of the authority shall not be included in the state civil service.

La. R.S. 40:539(C)(8)(b) (emphasis added). Article X, Section 1(A) of the Louisiana Constitution states:

The state civil service is established and includes all  persons holding offices and positions of trust or employment in the employ of the state, or any instrumentality thereof, and any joint state and federal agency, joint state and parochial agency, or joint state and municipal agency, regardless of the source of the funds used to pay for such employment. It shall not include members of the state police service as provided in Part IV of this Article or persons holding offices and positions of any municipal board of health or local governmental subdivision.

When read in pari materia, the revision provides that, for the limited purposes of the State of Louisiana's civil service system, HANO is not considered an instrumentality of the state. Further, HANO's employees are exempt from the civil service system. Otherwise, when dealing with matters outside the realm of the civil service system, HANO is considered an instrumentality of the state. See Dep't of State Civil Serv. v. Hous. Auth., 95-1959, p. 5 (La. App. 1 Cir. 5/10/96), 673 So.2d 726, 729 (“housing authorities are state agencies, or alternatively, instrumentalities of the state.”).

The United States Supreme Court held that “a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). “[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Id., 436 U.S. at 694, 98 S.Ct. at 2037. “Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id., 436 U.S. at 694, 98 S.Ct. at 2037–38.

“[S]tate officials literally are persons.” Will v. Michigan Dep't of State  Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). “But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” Id. “As such, it is no different from a suit against the State itself.” Id. Thus, the United State Supreme Court found that “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Id.

Given the laws providing that HANO is an instrumentality of the state, which does not constitute a person under the auspices of § 1983, we find that the trial court did not err by granting HANO's exception of no cause of action and dismissing Mr. Smith's § 1983 claims against it.

Mr. Anderson & Mr. Fortner

Mr. Smith next asserts that he possesses a valid cause of action against his supervisors, Messrs. Anderson and Fortner, because there is no sovereign immunity for state officials acting unconstitutionally. Thereby, Mr. Smith maintains that the trial court erred by granting Messrs. Anderson and Fortner's exceptions of no cause of action regarding their individual capacity.⁴

The United States Supreme Court iterated “the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). “The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative.” Harlow v. Fitzgerald, 457 U.S. 800, 813, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). “Public officials acting within the scope of  their official duties are shielded from civil liability by the qualified immunity doctrine.” Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). “Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by a defendant official.” Id., 457 U.S. at 815, 102 S.Ct. at 2736. The United States Supreme Court held that

qualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury․”

Id., 457 U.S. at 815, 102 S.Ct. at 2737, quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975).

To show that Messrs. Anderson and Fortner are not entitled to qualified immunity, Mr. Smith was required to “satisfy a three-part test.” Kipps, 197 F.3d at 768. “First, ‘[a] court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of a constitutional right at all.’ ” Id., quoting Wilson v. Layne, 526 U.S. 603, ––––, 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999). “Second, the court must ‘determine whether that right was clearly established at the time of the alleged violation.’ ” Id. Finally, “[i]f it is determined that the official's conduct was unconstitutional, then the court must decide whether the conduct was nonetheless ‘objectively reasonable.’ ” Kipps, 197 F.3d at 768, citing Eugene v. Alief Indep. School Dist., 65 F.3d 1299, 1305 (5th Cir. 1995). Further, “ ‘Objective reasonableness is a matter of law for the courts to decide, not a matter for the jury.’ ” Kipps, 197 F.3d at 769, quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).

Mr. Smith contends that upon being informed of Mr. Phipps' alleged  wrongdoing, Messrs. Anderson and Fortner failed to “timely perform a meaningful investigation about his complaint.” Mr. Smith maintains that he was then targeted as a “whistleblower” or “troublemaker” and fired. Mr. Smith avers that he was wrongfully denied the protections provided for by the civil service and Police Officer's Bill of Rights.

Mr. Smith's assertion of entitlement to La. R.S. 40:2531 lacks merit. La. R.S. 40:2531 applies:

only to police employees as defined by R.S. 40:1372(5), Louisiana P.O.S.T. certified probation and parole officers employed by the Louisiana Department of Public Safety and Corrections, division of probation and parole, and to those law enforcement officers employed by any municipality and campus police employed at any state-supported college or university who are under investigation ․

La. R.S. 40:1372(5) provides that a “ ‘[p]olice employee’ means any employee who is assigned to police work as a peace officer pursuant to R.S. 40:1379.” Further, La. R.S. 40:1379 outlines the duties and powers of state police employees. Mr. Smith does not belong to the class of persons protected by La. R.S. 40:2531. He was not a state police employee, a “police employee,” a “probation and parole officer”, or a law enforcement officer employed by a municipality or state-supported college/university. See La. R.S. 40:2531, 40:1372(5), and 40:1379. HANO is “a public body, corporate and politic, previously established, or to be established, by a municipality or a parish ․ exercising necessary and essential governmental functions for the purposes ․ in matters of statewide concern, although its operations are local in nature.” La. R.S. 40:384(16). See also La. R.S. 40:383. As such, he is not entitled to the protections outlined in the Police Officer's Bill of Rights.

 The record indicates that Mr. Smith was terminated for a second offense of sleeping while on duty. Assuming arguendo that Messrs. Anderson and Fortner's conduct was unconstitutional and notwithstanding any subjective motivations, the record reveals that it was objectively reasonable to terminate an “at-will” employee ⁵ for the second offense of sleeping on duty. Further, “[a]n official cannot reasonably be expected to know at the time an action occurs that the law forbade conduct that was not previously identified as unlawful.” Amato v. Office of Louisiana Com'r of Sec., 94-0082, p. 10 (La. App. 4 Cir. 10/3/94), 644 So.2d 412, 418. Accordingly, if La. R.S. 40:539(C)(8)(b) was later determined to be unconstitutional, Messrs. Anderson and Fortner could not be held liable under § 1983 for firing an “at-will” employee, i.e., not covered by the civil service rules, at the time.

Further, La. R.S. 9:2798.1 provides general tort immunity, stating that “[l]iability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.”

Even assuming all the allegations contained in the petition are true, there are no facts that lead this Court to conclude that Mr. Smith's termination was objectively unreasonable. Accordingly, the trial court did not err by granting Messrs. Anderson and Fortner's exception of no cause of action, as they benefit from qualified immunity from a § 1983 suit and La. R.S. 9:2798.1 general tort immunity.

DECREE

 For the above-mentioned reasons, we find that HANO is an instrumentality of the state except as outlined in La. R.S. 40:539(C)(8)(b). As such, HANO is not a person for purposes of a § 1983 suit. Therefore, the trial court did not err by granting HANO's exception of no cause of action. Likewise, as HANO is an instrumentality, Messrs. Anderson and Fortner, in their official capacities, are not persons for the purposes of a § 1983 suit. As such, the trial court did not err by granting their exceptions of no cause of action. Further, Messrs. Anderson and Fortner's actions regarding Mr. Smith's termination from an “at-will” position for sleeping on duty were objectively reasonable. Accordingly, the trial court did not err by granting their exceptions of no cause of action in their individual capacities. The trial court's judgment is affirmed.

AFFIRMED

 I respectfully dissent for the following reasons.

First, I would have followed the law and reasoning contained in Sommer v. State, Dept. of Transp. and Development, 758 So.2d 923 (La. App. 4 Cir. 3/29/2000). See also Encalarade v. New Orleans Center for Creative Arts/Riverfront, 2010 WL 2854275, at 2 & n. 22 (La. E.D. 7/19/10) cited in Garcia v. Housing Authority of New Orleans, 2013 WL 264332, at 4, –––F.2d. –––– (La. E.D. 1/23/13) wherein it is the clear pronouncement of the law of this circuit that:  (1) HANO is not protected under the discretionary acts doctrine;  (2) that HANO and its employees are “persons” within meaning of 42 U.S.C § 1983. (3) Sommer supara established that a non-privileged communications to third parties regarding an employee are defamatory and give rise to a cause of action for which there is a remedy at law;  (4) HANO could be held solidarily liable under the laws of this state and circuit.

Next, I find it imperative to apply the Louisiana Discretionary Acts Doctrine as found in La. R.S. 9:2798.1. A governmental agency is protected from liability at the policy making or ministerial level, not at the operational level. Fowler v. Roberts, 556 So.2d 1, 15 (La. 1989). Although I agree with the majority on this point, I submit that the decision of the trial court fails to apply the law in this  circuit. In determining whether La. R.S. 9:2798.1 is applicable herein we are to apply a two-step analysis. The trial court must first decide if the governmental action is a matter of choice, and, if so, whether the government's selection of alternative choices was policy based. Boguille v. Chambers, 96–1173 p. 11 (La. App. 4 Cir. 12/11/96), 685 So.2d 582, 589, citing Rick v. State, DOTD, 93–1776 (La.1/14/94), 630 So.2d 1271. The record in this case is void of any such analysis or determination;  therefore I would reverse the district court on its application of the exemptions provided under La. R.S. 9:2798.1.

Even conceding that Mr. Smith's action was a matter of choice, it cannot be held to be policy-based. Mr. Smith asserts facts which, if taken as true for the purpose of an exception of no cause of action, fall within the exemptions from immunity contained in La. R.S. 9:2798.1 C (1) and (2). These provisions impose liability on public entities and their agents for certain acts as public officials. The record reveals that Mr. Smith's allegations convey the notion of intentional and malicious conduct by HANO and its employees which denies them the benefit of the discretionary acts doctrine.

I also believe that the petition should be reviewed in the light most favorable to Mr. Smith. The exception of no cause of action tests the legal sufficiency of a petition by examining whether, based upon the facts alleged within the four corners of the petition, the law affords the plaintiff a remedy. Meckstroth v. Louisiana Dep't of Transp. & Dev., 2007–0236, p.2 (La. App. 4 Cir. 6/27/07), 962 So. 2d 490, 492.

Mr. Smith's petition contains approximately eighteen allegations of misconduct on the part of HANO officials which were performed at the operational level. In the State of Louisiana, these allegations, if proven, have a remedy in economic damages.

 On February 16, 2016 Mr. Smith filed a petition for damages in Civil District Court for the Parish of Orleans. Mr. Anderson and Mr. Fortner were sued both in their capacity as employees of HANO, and individually.¹

In keeping with Meckstroth, the decision of the trial court does not comport with this axiom of Louisiana Law.

As to 42 U.S.C § 1983 the majority holds that HANO and its employees are collectively instrumentalities of the state except as outlined in La. R.S. 539(C)(8)(b) and are not a persons within the meaning of 42 U.S.C. § 1983. The United States Supreme Court in Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), determined that state officials, acting in their official capacities, are outside the class of persons subject to liability under 42 U.S.C. § 1983. However, the Court also rejected the notion that this language means that the statute does not authorize suits against state officers for damages arising from official acts. Id. Consequently, HANO and its employees who are sued in their individual capacities are persons in light of 42 U.S.C. § 1983. Hafer v. Melo, 502 U.S. 21, 22–23, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).

Mr. Smith has sued the HANO employees in both their official and personal capacities for their individual acts and for violations of constitutional rights by state officials acting under the color of state law. A personal capacity suit is only another way to sue the entity of which an officer is an agent. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Consequently, an official, sued in his official capacity, has only those defenses which are afforded to the state agency.

In this case the majority agrees that HANO is not to be considered as an instrumentality of the state for purposes of Article X, Section 1(A) of the Constitution of Louisiana. Therefore with a few exceptions, most of HANO  employees are not included in the state civil service system. La. R.S. 40:539(C)(8)(a) and 40:539(C)(8)(b). HANO and its employees also assert that they are immune from liability pursuant to La. R.S 40:515 which declares that no representative of a local housing agency shall personally be civilly or criminally liable for:  acts not committed or authorized by such persons;  action authorized or taken in good faith;  under prescribed circumstances, denial of individuals to access to public housing;  disclosure of confidential information. I will address each of these defenses sequentially.

Regarding the presumed immunity from the obligation to provide Mr. Smith with the right to due process in an adverse personnel action proceeding as is required, the reliance on the “at-will” character of employment is misplaced. The Civil Code provides that an employment contract for an indefinite duration may be terminated by either the employee or the employer at any time without cause. Reasons for termination of or by an at-will employee need not be accurate, fair, or reasonable. Mix v. University of New Orleans, 609 So. 2d 958 (La. App. 4 Cir. 1992). However, the doctrine of employment-at-will is limited by federal and state statutes that prohibit discrimination and retaliation against employees. One such limitation of the application of the at-will doctrine is retaliation for whistle blowing. See R.S. 23:967(a);  Matthews v. Military Dept. ex rel. State, 970 So. 2d 1089 (La. Ct. App. 1st Cir. 2007);  Hale v. Touro Infirmary, 886 So. 2d 1210 (La. Ct. App. 4th Cir. 2004) § 12:3.Statutory limitations, La. Prac. Employment Law § 12:3. Herein Mr. Smith has made such an allegation. If these allegations are taken as true, HANO should have to defend their good faith termination of Mr. Smith. In the absence of a valid nondiscriminatory reason for termination that is related to the whistleblower allegation. For this reason I would deny the exception of no cause of action.

 Now I will address the defenses of immunities provided by La. R.S. 9:2798. The defenses and immunities provided to HANO and its employees are found within the provisions of La. R.S. 9:2798.1 wherein the State of Louisiana has consented to be sued. However, the exemptions provided in paragraphs A and B of that statute are withdrawn from conduct by public officials acting in their official capacity as illustrated in La. R.S. 9:2798.1 C (1) and (2). Hence HANO and its employees are not afforded immunity when “(1) [a]cts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists;  or (2) [t]o acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” Id.

As stated previously, Mr. Smith's allegations are sufficient to state a cause of action under the exemption provided La. R.S. 9:2798.1 because the allegations can be characterized as willful, intentional, and violations of constitutional rights. Mr. Smith's allegations, if taken as true for the purpose of the exception of no cause of action, are acts and omissions that can be characterized as not reasonably related to the legitimate governmental objective for which policy making or discretionary policies exist. Consequently such actions are not exempt from liability under 42 U.S.C. § 1983. I would reverse the decision of the district court on this basis as well.

As to the personal capacity aspect of the suit, Mr. Smith sought to impose individual liability upon a government officer for actions taken under the color of state law. Such an action it is sufficient to establish personal liability in light of 42 U.S.C. § 1983 in order to plead conduct that shows that the official acted under the color of state law and caused a deprivation of the federal right of to due process under the Police Bill of Rights.

 While Mr. Smith, in a personal-capacity suit, need not establish a connection to governmental policy or custom, officials sued in their personal capacities (unlike those sued in their official capacities), may assert personal immunity defenses such as objectively reasonable reliance on existing law. Thus the United States Supreme Court made it clear that acts outside the official's authority and not essential to the operation of state government as well as those within the official's authority and necessary to the performance of governmental functions can subject an official to 42 U.S.C. § 1983 liability. Hafer, supra, 502 U.S. at 27, 112 S.Ct. 358.

From this reasoning, I conclude that Mr. Smith alleged sufficient facts in his petition to state a cause of action concerning policy decisions on which relief could be granted.

In this case HANO was bound to discipline Mr. Smith, the peace officer, pursuant to La. R.S. 40:456.1 and La. R.S. 40:2531, the “Police Bill of Rights”. HANO has no choice or discretion in how it would discipline its peace officers. The plain meaning of the statutes require that Mr. Smith be given his right to due process that is afforded to all certified police officers in the State of Louisiana.

Taking as true the allegation of abuse of administrative authority that caused the injury claimed by Mr. Smith, he should be able to recover damages, especially if the conduct that caused the injury is not protected by policy or procedures of the HANO. As stated above, there are sufficient allegations of bad faith in the employment termination process to state a cause of action. An example of such allegations is the claim that Mr. Smith was entitled to be disciplined as a peace officer and afforded the Police Bill of Rights.

Mr. Smith alleges that he is a peace officer within the meaning of La. R.S. 40:456.1 and La. R.S. 40:2531. HANO police officers are peace officers in light of La. R.S. 40:456.1 and La. R.S. 40:2531 and are required to provide due process protections afforded to police employees as defined by R.S. 40:1372(5). The issue  was addressed by the Attorney General as follows:  “as used in La. R.S. 40:2531, applies to all police employees, including the elected or appointed head of a law enforcement department, who are authorized to make arrests, perform searches and seizures, or execute criminal warrants, and who are responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state.” Op. Atty. Gen. No. 13–0207 (03/19/2014), 2014 WL 1404481. These functions are identical to the duties imposed on HANO peace officers pursuant to La. R.S. 40:456.1 (A). This statute is inscribed under Title 40 of the Louisiana Revised Statutes. It is the same title that addresses the qualifications and discipline for Peace Officers in the State of Louisiana. This title concerns Public Health and Safety including Housing Authorities and Slum Clearance, Housing Authority Law in Chapter 3. Under La. R.S. 40:456.1, HANO peace officers are required to be certified under the police officer standard training. This is the same training required for all peace officers in the state of Louisiana including the Louisiana State Police. A review of the statute makes the legislative intent clear. It reads as follows:

A. The Housing Authority of New Orleans, referred to hereafter as HANO, may appoint and commission peace officers who shall enforce laws, rules, and regulations to secure the protection of persons, properties, or interests relating to HANO.

B. HANO's peace officers may carry weapons, concealed or exposed while in the performance of their duties, and shall take such action as is authorized by law, rule, or regulation to protect persons, properties, or interests relating to HANO. Such peace officers shall exercise regular police powers of the state granted to law enforcement officers, including but not limited to, enforcement of municipal laws, issuance of municipal summons and citations and with respect to criminal and other offenses affecting the protection of persons, properties, or interests relating to HANO or affecting the performance of their duties.

C. HANO's peace officers shall be P.O.S.T. certified in accordance to the Peace Officers Standard and Training Law.1

D. HANO's peace officers shall prevent and detect crime, apprehend criminals, enforce the criminal and traffic laws of the state, keep the peace and good order in the state by the enforcement of the state's police powers, and perform any other related duties imposed upon them by the legislature.

 This statute must be given its plain meaning. HANO's peace officers are empowered to enforce the “State's police powers”. As recently stated in McLane S., Inc. v. Bridges, 2011–1141, p.5–6 (La. 1/24/12), 84 So. 3d 479, 483 it is a fundamental principle of statutory interpretation that when a „law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.” Id. citing Harrah's Bossier City Inv. Co., LLC v. Bridges, 09–1916 (La.5/11/10), 41 So.3d 438, 446–447 (citing La. C.C. art. 9) and Tarver v. E.I. Du Pont De Nemours and Co., 93–1005 (La.3/24/94), 634 So.2d 356, 358)

The majority opinion herein stated that the assertion of entitlement to La. R.S. 40:2531 was unfounded because Mr. Smith does not belong to the class of persons protected by that statute. The plain language of that statute quantifies the functions of police officers as the same as those of HANO peace officers. Therefore, I respectfully disagree because HANO Peace Officers are peace officers and police employees within the meaning of La. R.S. 40:2531, and should be disciplined according to the rights guaranteed by La. R.S. 40:2531.

For the forgoing reasons, I would respectfully reverse the decision of the trial court on all issues and reinstate, HANO, Robert Anderson, Greg Fortner, and AIG as defendants.

FOOTNOTES

1.   Mr. Smith's claims regarding § 1985, § 1986, La. R.S. 23:967, La. R.S. 42:1169, and enforcing alleged remedies available through the Civil Service System (the alleged unconstitutionality of La. R.S. 40:539(C)(8)(b)) still remain.

2.   The trial court ordered Mr. Smith to amend his petition. However, the amended petition is not before this Court on appeal.

3.   Mr. Smith also asserts that La. R.S. 40:539 exempting HANO police officers from the civil service system is unconstitutional. However, the constitutionality of the statute is not before us on appeal, as the trial court has not yet ruled on the issue without the full involvement of the Attorney General. The trial court's judgment stated:  The Plaintiff's No Cause of Action pursuant to LA R.S. 40:539 C(8) being “at will” employees as HANO is not part of the State's Civil Service is DENIED at this time in order that the Court may receive further information, after timely notice, from the Office of the Louisiana Attorney General in regard to the constitutionality of this statue [sic].”

4.   Having found that HANO is an instrumentality of the state, Messrs. Anderson and Fortner, in their official capacities, are likewise not “persons” for the sake of § 1983. We distinguish Sommer v. State, Dep't of Transp. & Dev., 97-1929 (La. App. 4 Cir. 3/29/00), 758 So.2d 923, 935, in that the Sommer court found that the public entities and their employees waived the right to immunity from § 1983 liability.

5.   La. R.S. 40:539(C)(8)(b) specifically exempts HANO employees from the state civil service system.

1.   See the petition and amended petition of the Appellant.

Judge Terri F. Love

BROUSSARD, J., DISSENTS