The Volokh Conspiracy
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New Orleans Mayor Wasn't Entitled to Restraining Order Against Woman Who Took Photos of Her in a Public Place
A temporary order had been issued, but the trial court refused to extend it into a permanent order, and awarded $15K in attorney fees; an appellate court has just upheld the trial court's final decision, and added $8K for appellate attorney fees.
From Cantrell v. Breaud, decided Monday by Louisiana Court of Appeal Judge Daniel L. Dysart, joined by Judge Karen K. Herman:
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.
By way of background, Nola.com (John Simerman), reporting on the case, stated that, "the snapshots that roiled New Orleans, revealing Mayor LaToya Cantrell enjoying drinks on a French Quarter balcony with her alleged police officer paramour, Jeffrey Vappie." Vappie is also being prosecuted for alleged fraudulent timecard submission and other false statements related to the alleged affair.
On May 9, 2024, Mayor Cantrell filed an official police report 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") … against Ms. Breaud …. 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 … hearing was set for May 20, 2024, to determine whether the temporary restraining order should be continued.
Breaud moved to strike the petition under the Louisiana anti-SLAPP statute (Code of Civil Procedure article 971), which is designed to allow prompt dismissal of legally unfounded claims that were based on protected First Amendment activity (and to allow a prevailing defendant to get her attorney fees paid by the plaintiff). The court granted the motion to strike, and "awarded Ms. Breaud attorney's fees and costs in the amount of $15,393.52." On appeal, the panel majority affirmed:
[I]t 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….
Mayor Cantrell … 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 courts have … recognized the public's right to record matters of public interest, especially in public forums…. In Glik v. Cunniffe (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 (3d 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….
Judge Joy Cossich Lobrano dissented, concluding that the anti-SLAPP statute shouldn't be applied to stalking petitions:
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. 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.
And she also argued that Mayor Cantrell had in any event adequately alleged legally actionable stalking:
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. 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.
{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. 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. 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.} …
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.
I tried to dig more into the dissent's noting that "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," which the majority didn't respond to. Apparently Judge Dysart expressed some doubt about it at oral argument; from NOLA.com (John Simerman):
On Wednesday, Dysart homed in one claim that Cantrell made in her petition, alleging that Breaud "has been the source of photographs and video (over 800 hours of video) that has been used to attack, dehumanize, weaponize my character and caused harm; risking my overall safety."
Dysart asked Castaing for clarity.
"The 800 hours of video: Is that something you can concede one way or the other?" he asked.
"We can amend that," responded Castaing, later adding, "Until we have discovery, I don't know."
And Fox 8 (Lee Zurik & Ken Daley) wrote, with regard to the "800 hours" allegation,
The Fox 8 "Outside the Office" investigation utilized hundreds of hours of video that documented time the mayor spent with Vappie inside the city-owned Upper Pontalba apartment, sometimes during the work day. But the video used in the investigation did not come from the woman. It was obtained from a public camera belonging to the French Market Corporation through a public records request.
"Some of the the information here is totally, factually incorrect," {crime watchdog} [Rafael] Goyeneche said of Cantrell's court filing. "She's alleging that the person that took the picture on April 7 filmed 800 hours of video coming and going from the Pontalba apartment. Everybody in the city of New Orleans knows that Fox 8 got that information from the French Market Corporation, in the camera that was set up right outside the mayor's (former apartment).
"That was the French Market Corporation's video camera footage that prove the comings and goings of the mayor and Officer Vappie. So, this is really factually incorrect, and really a pathetic attempt by the mayor to send a message to this person and anyone else that, 'If you do, I'm going to push back.' And she's using the legal system as a weapon….
"So this is, I think, purely retaliatory …. Because in this petition, the mayor is saying that this person, this victim, has been stalking the mayor for two years. What are the complaints that have been filed? Has Officer Vappie, who's her protector, has he written any incident reports about threats to the mayor offered by this person or anybody else?"
Justin B. Schmidt represents Breaud.
