monaco v. whole foods

7/23/2019 Monaco v. Whole Foods

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ALBERT V. MONACO * CIVIL ACTION NO. 2:13-cv-2624

versus * SECTION

WHOLE FOODS MARKET, INC., * MAG.SERGEANT WADE BOWSER and

THE CITY OF NEW ORLEANS *

COMPLAINT FOR DAMAGES FOR ASSAULT, BATTERY, FALSE IMPRISONMENT,INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND NEGLIGENT

INFLICTION OF EMOTIONAL DISTRESSAND FOR DAMAGES UNDER 42 U.S.C. 1983, ET SEQ.,

NOW INTO COURT comes Albert V. Monaco, a major and resident of the Parish of

Orleans, State of Louisiana, who alleges as follows:

INTRODUCTION.

1. This action arises from an incident that occurred on Saturday, January 5, 2013, at a Whole

Foods Market located in the City of New Orleans, in which SERGEANT WADE BOWSER

physically assaulted and falsely imprisoned ALBERT V. MONACO, an adult male customer.

Plaintiff hereby brings suit for damages under Louisiana law and for deprivation of civil rights

under 42 U.S.C. 1983.

JURISDICTION AND VENUE.

2. Plaintiff sues for violation of civil rights pursuant to 42 U.S.C. Section 1983 and for related

damages against a foreign corporation exceeding $75,000.00. This court has jurisdiction over such

claims pursuant to 28 U.S.C. Sections 1331, 1332, 1343 and 1367.

Case 2:13-cv-02624-LMA-JCW Document 1 Filed 05/06/13 Page 1 of 15


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3. The acts and omissions giving rise to Plaintiffs claims occurred inNew Orleans, Louisiana

and therefore the appropriate venue for this action is the United States District Court for the Eastern

District of Louisiana located in New Orleans, Louisiana.

PARTIES.

4. Plaintiff, ALBERT V. MONACO (Mr. Monaco), is a major and resident of the Parish of

Orleans, State of Louisiana.

5. Defendant, WHOLE FOODS MARKET, INC. (Whole Foods), is a foreign corporation

whose headquarters is located in Austin, Texas, which at all relevant times has been doing business

in the State of Louisiana.

6. Defendant, THE CITY OF NEW ORLEANS (the City), is a municipal corporation

operating pursuant to the Constitution and laws of the State of Louisiana and located within the

U.S. Eastern District for the State of Louisiana.

7. Defendant, SERGEANT WADE BOWSER (Sgt. Bowser), was at all times relevant to

this complaint duly appointed and acting as an officer of the New Orleans Police Department,

acting under color of law, to wit, under color of statutes, ordinances, regulations, policies, customs

and usages of the State of Louisiana and/or the New Orleans Police Department.

STATEMENT OF FACTS.

8. On the evening of Saturday, January 5, 2013, Mr. Monaco parked his vehicle and entered

the Whole Foods Market, a supermarket located 5600 Magazine Street, New Orleans, Louisiana,

70115, which is owned and operated by Whole Foods.

9. When Mr. Monaco entered the Whole Foods Market, he was carrying a holstered Colt 1911

semi-automatic pistol clearly visible on his hip.



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10. At the time Mr. Monaco entered the Whole Foods Market, there were no signs at any

entrance or exit of the building indicating that Whole Foods prohibited firearms.

11. Mr. Monaco had previously shopped at Whole Foods Market many times without incident

and was known by its management and employees.

12. At no time prior to January 5, 2013 had Mr. Monaco been instructed that the carrying of

firearms was prohibited in Whole Foods Market, nor was he aware of any such store or corporate

policy being adopted by Whole Foods.

13. On information and belief, Sgt. Bowser was working a security detail at Whole Foods

Market on the evening of January 5, 2013.

14. Sometime after entering Whole Foods Market, Mr. Monaco approached the deli counter in

the rear of the supermarket to order some cheese. As he was being handed his purchase, he was

suddenly, and without any warning, grabbed from behind by Sgt. Bowser who instructed him not to

move. Sgt. Bowser wrapped one arm around Mr. Monacosthroat while he pulled Mr. Monacos

gun from his holster with his opposite hand.

14. Sgt. Bowser proceeded to hold Mr. Monacos hands behind his back and marched him

through the store while other customers watched. Sgt. Bowser told Mr. Monaco that he was being

detained for carrying a firearm in the store.

15. Sgt. Bowser led Mr. Monaco into a back room of Whole Foods Market where he proceeded

to loudly berate him for carrying a firearm openly, calling him stupid when he asserted that it was

not illegal to carry a firearm openly. Sgt. Bowser then unloaded Mr. Monacos firearm in his

presence.



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16. While in the back room, Sgt. Boswer asked for Mr. Monacos identification. Mr. Monaco

produced his drivers license. At that time, Mr. Monaco began using his cellular telephone to film

his encounter with Sgt. Bowser, at which point Sgt. Bowser lowed his voice and began to appear

more composed. In the back room, the following colloquy was recorded:

SGT. BOWSER: You do what you want. Youre being escorted off the property; youre notallowed to come back into the store the rest of the night. You understandthat?

MR. MONACO: Yes, sir.

SGT. BOWSER: Lets go out to my car.

17. Sgt. Bowser proceeded to carry Mr. Monacos unloaded firearm from of the back room

while Mr. Monaco followed behind him. Sgt. Bowser again paraded Mr. Monaco all the way

through the store to the front entrance in full view of numerous customers and staff. While

walking through the store, Sgt. Bowser told an employee to tell her to meet me at my car outside,

apparently referring to a store manager.

18. Mr. Monaco felt humiliated by the ongoing encounter and hoped to encourage Sgt. Bowser

to be more discreet. Accordingly, as Sgt. Bowser approached the front doors to Whole Foods

Market that face Magazine Street, he told Sgt. Bowser: My cars out back. Sgt. Bowser

responded: Well, youre coming out here by my car.

19. Sgt. Bowser exited from the front of Whole Foods Market and approached his car, a white,

unmarked vehicle parked on Joseph Street near the corner with Magazine Street on the eastern side

of the Whole Foods Market. Mr. Monaco followed behind, continuing to film the encounter.

When the pair reached Sgt. Bowsers car, he slammed Mr. Monacos gun and its magazine down

on the hood. Sgt. Bowser then pulled a large metal notebook from the rear of his car and positioned



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it on the hood of his car next to Mr. Monacos firearm. At some point, one of the managers of

Whole Foods came out and began observing the encounter. While Sgt. Bowser prepared the

notepad and began writing, the following colloquy occurred:

MR. MONACO: Is that you, Sergeant Bowser?

SGT. BOWSER: Yep.

MR. MONACO: by Sergeant Bowser.

SGT. BOWSER: You a travelin man?


SGT. BOWSER: Then you should know what Im talkin about.

20. Sgt. Bowser continued to write in his notebook while Mr. Monaco waited behind him on

the drivers side of Sgt. Bowsers vehicle. At some point, Associate Store Team Leader MITZI

MICHELLI (Ms. Michelli) from Whole Foods Market approached and observed the ongoing

encounter from the passenger side of Sgt. Bowsers vehicle. After a brief period of silence, the

colloquy continued:

MR. MONACO: It is my understanding that if a business does not want firearms in theirproperty that they have to post it.

SGT. BOWSER: [INTERRUPTING] -- your understanding is wrong. Your understanding iswrong.

MR. MONACO: So they dont have to post a sign?

SGT. BOWSER: [INTERRUPTING]. Louisiana is an open-carry state, but private propertycan dictate who carries a firearm in their store.

MR. MONACO: Nobody said no. It was not posted.

SGT. BOWSER: [INTERRUPTING]. Three people have already told me tonight you werecarrying a gun in the store.



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MR. MONACO: That is correct.

SGT. BOWSER: And Im tellin you you cant carry a gun in the store. Youre not acommissioned police officer. This is private property. And youre in the

City of New Orleans. Everything changes. All right? New Orleans candictate their own laws.

MR. MONACO: Thats understand I understand that you can tell me not to carry in thestore.

SGT. BOWSER: [INTERRUPTING]. Youre arguing with me about something that I amtelling you exactly the way it is, ok? You record this all you want, that is theway it is. Three people alerted me that youre carrying a gun in the store.

You cannot carry a gun in the store. Thats one of the managers right there

[POINTING TO HIS LEFT AT MS. MICELLI].

MR. MONACO: I know, she knows me. I shop here all the time. Whats the problem? [TOMS. MICELLI].

MS. MICHELLI: We dontwe dont allow guns in the store.

MR. MONACO: Well, I mean, you could have told me that. You could say: Hey, you, dontbring that in here. That would be no problem; thats your right, but, Imean, for him to just walk up and grab me from behind without, you know,addressing himself, or anything, and then strip me of my firearm, that-thatsunconstitutional. I mean, its your right, absolutely, to say hey, you know

what or have him say it, but I mean, to have him come up and grab me,strip me of my firearm

[MS. MICELLI WALKS OVER TO SGT. BOWSER, WHO TURNS TO MR. MONACO].

SGT. BOWSER: What, you wanna know why I did it? Twenty-five years as a police officerIm not gonna give you the drop on me. You understand that? Thats why I

did it. You have a problem with that? Im not even gonna apologize. Thats

why I did what I did. [PAUSES AND POINTS AT MR. MONACO].Youre lucky thats all Idid.

21. Sgt. Bowser turned away from Mr. Monaco and appeared to be wrapping up paperwork and

communicating on his cars radio while Mr. Monaco waited. Ms. Michelli turned to Mr. Monaco

and asked how his dog was. Mr. Monaco replied that his dog was great. Mr. Monaco continued,



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however, to tell Ms. Micelli that they needed to post signage indicating that no firearms are allowed

in the supermarket, noting that he had been able to open carry without incident in other

supermarkets. Ms. Micelli admitted that no firearms signs were present in another Whole Foods

Market. Sgt. Bowser then turned back to Mr. Monaco and the following colloquy occurred:

SGT. BOWSER: All right, this whats gonna happen. I got your information. Like I said,people file complaints, Im gonna document the incident. Im gonna let you

leave with your weapon, you understand that?


SGT. BOWSER: You wanna shop in the store, your weapon stays in your car from now on.You understand that?

MR. MONACO: I understand that.

SGT. BOWSER: You heard the manager tell you they dont allow that in the store.

MR. MONACO: I understand that.

SGT. BOWSER: All right. And I know what youre gonna say: Its your rights, blah, blahblah

MR. MONACO: No, I know its not my right.

SGT. BOWSER: Let me finish. Youre gonna tell me its your right to have a gun, Ive heardthe arguments before. I never said I didnt understand that. Louisiana is an

open carry state, but the City of New Orleans, private property can dictatewho can carry and cannot carry weapons. Im the only one that can carry agun on this property, and a) Im working here; and, b) Im commissioned.

Thats it. Youre not the first person thats come in here with a gun strappedto his side and they walk up to me and say: Hey, a guys strappin. I come

to find out hes probation or parole, whatever the case may be. They didnt

put their badge on their belt. I did the same thing to em.

22. Mr. Monacos gun was returned to him by Sgt. Bowser. Mr. Monaco proceeded to return to

his vehicle in the rear parking lot and left the store.



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COUNT 1:CLAIM FOR ASSAULT, BATTERY AND FALSE IMPRISONMENT AGAINST

SGT. WADE BOWSER AND WHOLE FOODS MARKET, INC.

23. The factual allegations of the foregoing paragraphs are incorporated as if stated herein.

24. Under Louisiana law, a battery is [a] harmful or offensive contact with a person,

resulting from an act intended to cause the plaintiff to suffer such a contact . . .1 The

defendants intention need not be malicious nor need it be an intention to inflict actual damage. It

is sufficient if the defendant intends to inflict either a harmful or offensive contact without the

others consent.2

25. Wrongful arrest, or the tort of false imprisonment, occurs when one arrests and restrains

another against his will and without statutory authority. The tort of false imprisonment consists

of the following two essential elements: (1) detention of the person; and (2) the unlawfulness of

the detention. Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La. 07/10/06); 935 So. 2d 669,

690.

26. Under La. Civ. Code art. 2323, employers are answerable for the damage occasioned by

their servants and overseers, in the exercise of the functions in which they are employed.

Whether an employees act is within course and scope of employment is determined by four

factors: (1) the act was primarily employment rooted; (2) the act was reasonably incidental to

the performance of the employees duties; (3) the act occurred within normal work hours and (4)

the act occurred on the employers premises. Duryea v. Handy, 96-1018 (La.App. 4 Cir.

1 Landry v. Bellanger, 2002 1443 (La. 05/20/03); 851 So. 2d 943, 949 (quotingCaudle v. Betts, 512 So. 2d

389, 391 (La. 1987)).

2 Id.



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10/01/97); 700 So. 2d 1123, 1127-1128 (citing Luccia v. Cummings, 94-416, 646 So. 2d 1142,

1144 (La. App. 5 Cir. 11/16/94)).

27. In the present case, Sgt. Bowser assaulted and battered Mr. Monaco when he abruptly and

without warning grabbed him by the neck from behind and disarmed him non-consensual

contact that was both harmful and offensive. Mr. Monaco had not been asked to leave the store

and had not committed any crime. Moreover, Sgt. Bowser did not have any reason to suspect

Mr. Monaco of having committed any crime. Accordingly, there was no lawful cause to detain

or arrest Mr. Monaco.

28. After Sgt. Bowsers unjustified assault and battery, Mr. Monaco was restrained and

marched into a back room of the store. This amounted to an illegal detention, or false

imprisonment.

29. At the time of Sgt. Bowsers encounter with Mr. Monaco, Sgt. Bowser was employed by

Whole Foods as part of a paid detail and was acting in the course and scope of his employment

with Whole Foods. Specifically, Sgt. Bowser was enforcing a store policy at the request of

Whole Foods. Sgt. Bowsers actions occurred on store property and during regular store hours.

Finally, Sgt. Bowser openly stated that he had previously done the same thing to other persons

carrying firearms in Whole Foods, indicating that this was not an isolated incident.

COUNT 2:CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINSTSGT. WADE BOWSER AND WHOLE FOODS MARKET, INC.

30. The factual allegations of the foregoing paragraphs are incorporated as if stated herein.



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31. Under Louisiana law, an action for intentional infliction of emotional distress consists of

three elements:

(1) the conduct of the defendant was extreme and outrageous;

(2) the emotional distress suffered by the plaintiff was severe; and

(3) the defendant desired to inflict severe emotional distress or knew that severe

emotional distress would be certain or substantially certain to result from his (its)

conduct.3

A claim for negligent infliction of emotional distress, on the other hand, must establish the five

elements of duty-risk analysis, which are as follows:

(1) the defendant had a duty to conform his or her conduct to a specific standard of

care (the duty element);

(2) the defendant failed to conform his or her conduct to the appropriate standard (the

breach of duty element);

(3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries

(the cause-in-fact element);

(4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries

(the scope of liability or scope of protection element); and

(5) actual damages (the damages element).4

32. Mr. Monaco submits that Sgt. Bowser, acting in the course and scope of his employment

with Whole Foods, either intentionally or negligently caused him to suffer severe emotional distress

by assaulting, battering, and falsely imprisoning him. Sgt. Bowsers conduct was unlawful and

3 Lawson v. Straus, 98-2096, p. 8 (La. App. 4 Cir. 12/8/99), 750 So. 2d 234, 240.



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outrageous, particularly given his status as an NOPD sergeant. Sgt. Bowser paraded Mr. Monaco

through the store towards his vehicle, parked near a busy thoroughfare, and refused Mr. Monacos

request to continue the encounter to his car in the rear parking lota more discrete location. As a

result, the public impression was given that Mr. Monaco was guilty of a crime sufficient to warrant

his disarmament and detention. Mr. Monaco was attacked and publicly humiliated, causing him to

suffer severe emotional distress.

COUNT 3:CLAIM FOR DAMAGES UNDER 42 U.S.C. 1983, ET SEQ., AGAINST

SGT. WADE BOWSER AND THE CITY OF NEW ORLEANS

33. The Civil Rights Act, codified as 42 U.S.C. 1983, provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom orusage, of any state or territory or the District of Columbia, subjects, or causes to besubjected, any citizen of the United States or any other person within the jurisdictionthereof to the deprivation of any laws, privileges or immunities secured by theConstitution and laws, shall be liable to the party injured in an action at law, suit inequity, or other proper proceeding for redress. 42 U.S.C. 1983.

34. Mr. Monaco alleges that Sgt. Bowser and the City, jointly and/or severally, deprived him of

his Fourth Amendment rights, and those rights, privileges, and immunities secured by the Fifth and

Eighth Amendments to the Constitution as incorporated and applied to the states through the

Fourteenth Amendment, in the following particulars:

A. By unlawfully seizing (detaining and/or arresting) Mr. Monaco without any lawful

cause or reasonable suspicion that he had committed any crime;

B. By using excessive force in disarming Mr. Monaco, namely by Sgt. Bowser

grabbing him around the neck without having identified himself as a police officer;

4 Mathieu v. Imperial Toy Corporation, 94-0952, pp. 4-5 (La. 11/30/94); 646 So. 2d 318, 322.



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C. By violating Mr. Monacos right under the Louisiana Constitution to openly carry a

firearm on his person; and,

D. By failing to provide supervision and/or proper training to prevent such incidents of

unlawful detention and excessive force.

35. Mr. Monaco brings a claim against Sgt. Bowser, individually as well as in his official

capacity, pursuant to 42 U.S.C. 1983 and for punitive damages.

36. At all material times, Sgt. Bowser was acting under color of state law. Defendant was

wearing his official New Orleans Police Department uniform and justified his actions by asserting

that New Orleans can dictate their[sic] own laws. In fact, the City has no laws against the open

carrying of firearms, and in any event, the State of Louisiana preempts all local firearms laws

enacted after July 15, 1985. See: La. Rev. Stat. 40:1796.

37. Force is excessive, and therefore violates the Fourth Amendment, if it is not reasonable in

light of the circumstances facing the officer. See: Graham v. Connor, 490 U.S. 386, 398 (1989).

Likewise, a lawful detention or arrest of a citizen requires reasonable suspicion or probable cause.

Sgt. Bowser had no lawful cause to use physical force of any kind against Mr. Monaco to effect his

detention because he had no reason to suspect him of any crime. Sgt. Bowser had no reason to

suspect that Mr. Monaco was violent or dangerous.

38. Openly carrying a firearm is not only not illegal in Louisiana, it has been held by the

Louisiana Supreme Court to be a constitutionally-protected activity:

The carrying of an unconcealed weapon is not a special privilege or advantageenjoyed by a police officer. Each citi zen is guaranteed the right to keep and bear

arms not concealed on his person. La. Const. 1974, Art. 1, 11; cf. La. R.S. 14:95.

State v. Nelson, 367 So. 2d 317, 318 (La. 1979) (emphasis supplied).



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39. The City of New Orleans is also liable under 42 U.S.C. 1983 for failing to supervise and

train its police officers, and for overlooking officer misconduct. The city failed to train its officers

in city and state law relative to the open carrying of firearms and also failed to train its officers in

the proper legal standards and safe procedures for detaining and disarming citizens. The Citys

failure to supervise and train its police officers, and the Citys willful blindness towards the

constitutional violations of its employees, constitute gross negligence and/or deliberate and

conscious indifference to peoples rights including the right to free from unreasonable search and

seizure and the right to keep and bear arms under Article I, Section 11 of the Louisiana

Constitution.

40. Additionally, municipalities may be held liable under 42 U.S.C. 1983 for constitutional

torts that are committed pursuant to a policy, procedure, practice, or custom of the municipality.

Even if the Citys practice of overlooking constitutional torts was not authorized by an officially

adopted policy, the practice may be so common and well-settled that it fairly represents official

policy. See:Bd. of County Commrs of Bryan County v. Brown, 520 U.S. 397, 404 (1997).

41. In the present case, the Citys formal and informal actions in overlooking, hiding and/or

tacitly encouraging police misconduct reflect a policy, practice custom and procedure authorizing

and allowing illegal detentions and the use of excessive force. The Citys actions were a proximate

cause of Mr. Monacos injuries.

42. A city may be held liable for its failure to train a single police officer when the officers acts

were so egregious that the city should have had clear warning that the particular officer posed a

danger to citizens. See: Pineda v. City of Houston, 124 F. Supp. 2d 1057, 1068 (S.D. Tex. 2000).



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43. Sgt. Bowser openly boasted that he had repeatedly disarmed and detained citizens without

warning simply for openly carrying a firearm. The City was aware that Sgt. Bowser was illegally

disarming and detaining citizens, yet did nothing. By failing to discipline, supervise, or train Sgt.

Bowser, the City authorized or ratified Sgt. Bowsers wrongful acts.

44. The Citys acts and omissions, when viewed objectively, involved an extreme degree of

risk, considering the probability and magnitude of harm to others. The City had actual, subjective

awareness of the risks involved, but nevertheless proceeded with conscious indifference to the

rights safety, or welfare of others, including Mr. Monaco. The Citys failure to train Sgt. Bowser

constitutes gross negligence and/or deliberate and conscious indifference to the rights, safety, and

welfare of others.

PRAYER FOR RELIEF.

WHEREFORE, Plaintiff Albert J. Monaco, prays that after trial by jury, judgment be

rendered in his favor and against the Defendants for the following relief:

A. All items of damages in the full amount, including interest from the date of

judicial demand, including costs, penalties and other items of damages, together with

interest thereon;

B. All damages and penalties, including punitive damages, under the Civil Rights

Act of 1871, 42 U.S.C. Section 1983;

C. An award of reasonable attorneys fees and his costs pursuant to the Civil Rights

Act of 1871, 42 U.S.C. Section 1988 and any other available law; and,

D. All other appropriate legal and equitable relief to which Plaintiff may show

himself to be justly entitled.



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PLAINTIFF REQUESTS TRIAL BY JURY ON ALL ISSUES SO TRIABLE.

Respectfully submitted on this 3rd day of May, 2013,By: Owen M. Courrges, Attorney at Law

____________________________________OWEN M. COURRGES, Bar Roll No. 31113Attorney at Law1450 Josephine StreetNew Orleans, LA 70130Tel: (504) 304-7916Email:[email protected]

Attorney for Albert V. Monaco.

mailto:[email protected]:[email protected]:[email protected]:[email protected]

monaco v. whole foods

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