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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA
SHANE M. GATES,

CIVIL ACTIONS
NOS. 07-6983 and 13-6425

Plaintiff,

versus

JUDGE STANDWOOD R. DUVALL, JR.

SHERIFF RODNEY JACK STRAIN,

et al.,
Defendants.

MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.

PLAINTIFFS OPPOSITION
TO DEFENDANTS JOINT MOTION TO LIFT STAY
NOW COMES the Plaintiff herein, Shane M. Gates, through his undersigned counsel,
who respectfully opposes the Defendants Joint Motion to Lift Stay (Rec. Doc. 211) on the following grounds.
1.
The relief sought by the Defendants/Movants is not authorized by law, inasmuch as the
Movants cite no authority whatever to justify their request that this Honorable Court order Mr.
Gates to submit himself physically to the same state authorities in St. Tammany Parish, Louisiana who have already viciously and unlawfully beaten him, without provocation or justification,
while he was handcuffed and unable to defend himself after his unlawful arrest, and who now
show every disposition to continue their oppression of and assaults upon him.
2.
The Defendants/Movants Motion was filed herein in bad faith and for an utterly improper purpose, having been filed in violation of Rule 11, Fed. R. Civ. Proc., of Rule 3.3, R. Prof.
Cond., Rule 8.4(c), R. Prof. Cond., Rule 8.4(d), R. Prof. Cond., and Rule 8.4(g), R. Prof. Cond.:

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a. Their Motion violates Rule 11, Fed. R. Civ. Proc., because it was filed for the purpose
of harassing and delaying Mr. Gates pursuit of his civil rights tort lawsuit against these same
Defendants/Movants.
b. Their attorneys, by filing this Motion, violated Rule 3.3, R. Prof. Cond., requiring attorneys to exercise candor toward the tribunal, because it deliberately omits to disclose to this
Court numerous material facts and issues of law that are not only adverse to the position asserted
by the Defendants/Movants but which render their Motion and the relief they have requested
both impossible and utterly nugatory.
c. Their attorneys, by filing this Motion, violated Rule 8.4(c), R. Prof. Cond., because its
filing constitutes conduct importing dishonesty regarding, fraud upon, deceit against, and misrepresentations toward, both this Court and Mr. Gates.
d. Their attorneys, by filing this Motion, violated Rule 8.4(d)l, R. Prof. Cond., because
the representations made to this Court therein, and the motives for its filing, are alike prejudicial
to the administration of justice. And, finally,
e. Their attorneys, by filing this Motion, violated Rule 8.4(g), R. Prof. Cond., which forbids using a purported criminal prosecution for the purpose of obtaining an advantage in civil
litigation.
3.
Among the material matters that the Defendants/Movants have concealed from this Court
is the fact that their renewed or continued prosecution now would be barred under the Louisiana
Constitution and the United States Constitutions respective bans on double jeopardy in criminal
cases, as well as by Louisianas statutory time bar on misdemeanor prosecutions.

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4.
Initially, the State made a deliberate choice to bill Mr. Gates on the felony flight charge
under La. Rev. Stat. 14:108.1 rather than on a misdemeanor resisting arrest charge under La.
Rev. Stat. 14:108.2 because the former would exact the heaviest potential penalty. This was confirmed during a hearing in the state court on May 10, 2010. On that day, Ronald Gracianette,
then the head of the St. Tammany Parish District Attorneys criminal division and now one of
the individual Defendants/Movants herein, testified under oath that the District Attorneys Offices own evaluation of Shane Gates arrest resulted only in the institution of the felony charge
of unlawful flight, because that charge carried the highest potential penalty available. (See Exhibit A, p. 61, lines 6-18.) Mr. Gracianette further testified that the misdemeanor charge of
resisting arrest was instituted only later, and when it was filed, that was solely at the special request of Charles M. Hughes, Jr., who was at that time the attorney representing St. Tammany
Parishs liability insurer. (See Exhibit A, p. 61, lines 19-32.) A copy of the relevant portion
of the transcript of May 10, 2010 hearing, which contains Mr. Gracianettes admission against
interest, is attached hereto as Exhibit A and by reference incorporated herein.
5.
On July 27, 2012, the trial jury in that state felony prosecution returnedafter less than
30 minutes deliberationa general verdict in favor of Mr. Gates, finding him not guilty of the
matters that had been presented to it. A copy of that jury verdict is attached hereto as Exhibit
B and by reference incorporated herein.
6.
Although intoxication is not an element of felony flight that the State was required to
prove at Mr. Gates trial on that latter charge, nevertheless, on July 27, 2012, the State chose

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over Mr. Gates strenuous objectionto devote almost an entire day of trial to introducing into
evidence exhibits and testimony that the State contended would prove that, at the time of Mr.
Gates arrest, his blood alcohol level was 0.273%, i.e., that he was intoxicated more than three
times the legal limit for operating a motor vehicle. (The only other testimony adduced by the
State that day involved the factual elements required for it to prove Mr. Gates alleged resisting
arrest.)
7.
When Mr. Gates initially objected to the admission of the materials relating to his alleged
state of intoxication, the trial court upheld its exclusion, but the State took this issue to the Louisiana First Circuit Court of Appeal on an overnight writ application. The First Circuit granted
that writ on July 26, 2012, the third day of the felony trial, whereupon Mr. Gates took another
overnight writ to the Louisiana Supreme Court. On July 27, 2012, the fourth day of the felony
trial, the state supreme court denied his writ, State v. Gates, 2012-1744, 92 So.3d 350 (La.
7/27/2012), after which the State spent an entire day, July 27, 2012, the final day of the felony
trial, doing nothing but putting on several witnesses and other evidence, all of which and whom
it intended to prove Mr. Gates state of intoxication at the time of the traffic stop concerned.
Thus this evidence of intoxication was no mere de minimis happenstance or side issue raised incidentally during the States presentation of its case but, on the contrary, was a major portion of
the States plan to sway the jury in its favor, was extensively litigated by both sidesto the point
that each side filed an emergency writ application in the appellate courtsand on which Mr.
Gates was incontestably put in jeopardy at trial.
A copy of the transcript of that fourth day of trial, showing the States introduction of this
evidence of Mr. Gates supposed intoxication (Exhibit C, passim) and of his supposed resisting

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his arrest (see Exhibit C, page 165, line 13 through page 184, line 20), and the efforts Mr.
Gates was forced to make in response to this evidence, is attached hereto as Exhibit C and by
reference incorporated herein.
8.
Thus when that trial juryagain, after less than 30 minutes deliberationreturned a
general verdict finding Mr. Gates to have been not guilty of the matters submitted to it, all the
predicate facts that could have been used, then or later, for the pursuit of either the DWI charge
against him or the resisting arrest charge, were conclusively and finally determined in his favor
and adversely to the State. Because he was once placed in jeopardy on those facts, the State cannot now be relitigate them against him without violating his state and federal protections against
double jeopardy.
9.
Even if the States relitigation of these two misdemeanor charges against Mr. Gates were
not now barred under the constitutional guarantees against double jeopardy, all of those misdemeanor charges would now be time-barred, both under the specific Louisiana statutory provision
that requires misdemeanor cases to be tried within one year of an arrest, La. Code Crim. Proc.
Art. 578(A)(3), and under the U. S. Constitutions VI and XIV Amendment due process guarantee of a speedy trial.
10.
Louisiana Code of Criminal Procedure, Article 578, provides in its entirety:
Art. 578 General rule
A. Except as otherwise provided in this Chapter, no trial shall be commenced
nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;

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(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the
prosecution.
B. The offense charged shall determine the applicable limitation.
[Emphasis supplied.]
11.
Mr. Gates was arrested on November 16, 2006 and the state court felony trial concluded
on July 27, 2012, more than five years and eight months after that arrest. During that entire time,
Mr. Gates was continuously resident in St. Tammany Parish, his residence address was on file
with the state trial court, and he was personally present in court in connection with the felony
case on at least forty-four (44) occasions, on any one of which he could have been served with a
notice of hearing or trial on those misdemeanor charge, provided only that any such hearing or
trial ever been set.
12.
However, throughout that five years and eight months that elapsed between Mr. Gates
arrest and the conclusion of his felony trial, at no time were those misdemeanor charges ever set
for trial or hearing. Where they were never set for trial, then of course no notice of any trial date
regarding them was ever issued by the state trial court and so, of course, no such notice was ever
served, either upon Mr. Gates himself or upon any of his counsel of record. Thus the running of
the time-bar period under La. Code Crim. Proc. 578(A)(3) was never interrupted and thus, too,
the States statutory one-year window of opportunity to try Mr. Gates on those misdemeanor
charges closed on November 16, 2007, long before his felony trial even commenced, let alone
concluded.

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13.
Throughout the entire five years and eight months that elapsed between Mr. Gates arrest
and the conclusion of his felony trial, both the State and he requested one or more continuances
in the felony case but Mr. Gates never requested any continuance of any trial or hearing on those
misdemeanor charges. (Nor would he have had any occasion to request any such continuance,
inasmuch as no hearing or trial was ever set regarding them.) Thus, by the plain terms of La.
Code Crim. Proc. 578(A)(3), as of the conclusion of the felony trial, the State was already at
least four years and eight months too late to take Mr. Gates to trial upon any misdemeanor
charges that might have remained unresolved. See, e.g., State v. Paul, 2011-1347 (La. App. 4th
Cir. 10/3/2012) (unpublished).
14.
In addition to the time bar imposed by La. Code Crim. Proc. 578(A)(3), the States own
voluntary delay of any misdemeanor trial violated Mr. Gates due process right to a speedy trial
as guaranteed by U.S. Constitution, Amendments VI and XIV.
15.
The United States Court of Appeals for the Fifth Circuit has defined the contours of the
federally-guaranteed due-process right to a speedy trial in Amos v. Thornton, 646 F.3d 199 (5th
Cir. 2011), applying the rule laid down in Barker v. Wingo, 407 U.S. 514, 52122, 92 S.Ct. 2182,
33 L.Ed.2d 101 (1972). In Thornton, it held that after a one-years delay in bringing a criminal
charge to trial, the federal courts must analyze state criminal proceedings to see if they comply
with federal due process standards. After eighteen months delay, in the Barker analysis that delay is considered strongly to favor the defendant and to weigh against the State

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16.
In that same Barker analysis, after five years delay in bringing those charges to trial, the
federal courts are to presume that the states failure to proceed to trial timely has caused harm to
the defendant, without further proof of such damage. But in the instant case, quite apart from
that automatic presumption of damages, there is no doubt that such actual damage has accrued
through the states unwarranted delay, including, without limitation: (a) the death in 2007 of the
hospital laboratory technician who purportedly performed the blood alcohol test on which the
State relies, thus making him unavailable for testimony or to be cross-examined; and (b) the
States failure to preserve the actual blood alcohol sample that was taken from Mr. Gates at Louisiana Heart Hospital on the day of his arrest. This failure makes it impossible for him to obtain
any confirmatory testing by an independent third-party expert. Thus, under the Amos rule, and
quite apart from the issues of the double jeopardy involved in any future trial the misdemeanor
charges and the States failure to comply with La. Code Crim. Proc. 578(A)(3), as a matter of
federally-protected constitutional due process, the State is barred from now proceeding on them
against Mr. Gates.
17.
In this connection, it is especially noteworthy that, at the felony trial, Mr. Gates was, for
these same reasons, denied effective confrontation with the essential witness and evidence
against him on the issue of his intoxication but, despite his unfairly laboring under that disability,
the jury nevertheless returned a general verdict in his favor.
18.
Finally, the Defendants/Movants Motion to Lift Stay was filed in violation of numerous
procedural and ethical rules. The very wording of their Motion (Rec. Doc. 211) and of the un-

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precedented relief they request therein reveals that it was brought solely to obtain an improper
advantage in a civil case, namely, the dismissal of Mr. Gates 1983 civil suit for damages on the
basis of the States specious claim to pursue already-abandoned and now long-expired misdemeanor charges.
19.
Further, at a hearing in the state trial court on May 10, 2010, Ronald Gracianette, at that
time the head of the St. Tammany Parish District Attorneys criminal division, testified under
oath that when Charles M. Hughes, Jr., then the attorney for the liability insurer of the St. Tammany Parish Sheriffs Office and himself one of the individual Defendants/Movants in the instant Motion, specially requested that an additional misdemeanor charge of resisting arrest be
lodged against Mr. Gates, Mr. Gracianette refused to institute that charge unless he received a
victim letter from the arresting Sheriffs Deputy requesting him to do so. He further testified
that he subsequently did receive such a letter from Mr. Hughes and, after getting Mr. Hughes
assurances that this letter would be forwarded to him, granted Mr. Hughes request by charging
Mr. Gates with resisting arrest. (See Exhibit A, page 61, lines 19 through 32.)
20.
The victim letter referred to in Mr. Gracianettes testimony first came to light when it
was produced during a hearing held in the state trial court on May 10, 2010. A copy of it, as then
produced, is attached hereto as Exhibit D and incorporated by reference herein.
21.
As Exhibit D shows on its face, it purports to have been written on or about September
17, 2007 and signed by Nathan Miller, the St. Tammany Parish Sheriffs Deputy who made the

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initial traffic stop of Mr. Gates and Mr. Gates new motor vehicle (i.e., the one he spent the afternoon prior to his arrest purchasing at a dealership in Slidell).
22.
However, on January 5, 2012, Nathan Miller testified under oath that he had nothing to
do with instituting the misdemeanor charges against Mr. Gates, that he never delivered any letter
to Mr. Gracianette or to Mr. Gracianettes office, and that the letter in questionwhich was delivered by Mr. Hughes to Mr. Gracianettewas neither written nor signed by Mr. Miller. A
copy of the relevant portions of Mr. Millers testimony that day is attached hereto as Exhibit E
and by reference incorporated herein.
23.
At the time Mr. Miller gave that testimony, he was (as he still remains) a named defendant in this instant civil case, so it would have been just as much in his personal interest as it was
in that of St. Paul Travelers Insurance for the Hecht rule to have continued to obstruct Mr.
Gates suit against him. Thus Mr. Millers testimony actually constitutes an admission against
interest.
24.
The provenance of the victim letter was the subject of testimony by Mr. Hughes on
May 10, 2010, at which time he averred that he had called Al Strain, then the Chief Deputy of
the St. Tammany Parish Sheriffs Office and brother to then-Sheriff Jack Strain, and told Al
Strain what the victim letter needed to contain. According to Mr. Hughes, Al Strain (who has
since died) assured Mr. Hughes that he would take care of obtaining the letter.

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25.
However, if Mr. Miller did not author the victim letter which Mr. Gracianette received
from Mr. Hughes, the attorney for St. Paul Travelers Insurance, and on which Mr. Gracianette
relied in filing the misdemeanor charges against Mr. Gates, the only rational conclusion is that
either Mr. Hughes or someone associated with him in the insurance companys behalf forged that
letter.
26.
Mr. Hughes motive in arranging for the production of Exhibit D and for delivering it
to Mr. Gracianette is explained in Mr. Hughes own testimony on May 10, 2010. There, he admitted that he wished to have Mr. Gates charged with resisting arrest because, at that time and
under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the prevailing
case law was generally believed to make a conviction on that charge an absolute bar to a victims
recovery on an excessive force claim. A copy of the relevant page of the transcript of Mr.
Hughes testimony is attached hereto as Exhibit F. (The $500,000 self-insured policy to
which Mr. Hughes there admitted that he was concerned to protect represented, in effect, a
$500,000 deductable on the Parishs liability insurance policy.)
27.
Thus Mr. Hughes, in both his capacities as attorney of record for the Parishs liability insurer and as an individual Defendant/Movant herein, admitted that his motive for provoking the
misdemeanor prosecutions against Mr. Gates was solely to obtain an advantage against Mr.
Gates in the latters pursuit of civil tort remedies against that Parish and its officers. How urgently he felt the need to obtain that unethical advantage is shown by the lengths he was pre-

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pared to go to obtain it, such as the letter he delivered to Mr. Gracianette in Nathan Millers
name but, according to Mr. Millers own testimony, without Mr. Millers knowledge.
28.
The Defendants/Movants substantial financial motives for thus trying to whipsaw Mr.
Gates into abandoning his civil suit are shown, inter alia, by the fact that it has now come to
light that Walter Reed, the former District Attorney under whose authority the original charges
were lodged against Mr. Gates, was at the same time representing, as part of his private law practice, St. Paul Travelers Insurance Company, which was then the Parishs liability insurer that is
now at risk of paying a large portion of any judgment herein. The Court will recall that when
Mr. Reed was recently convicted on eighteen (18) federal felony charges, among those charges
was a very similar instance of Mr. Reeds double dipping by representing St. Tammany Parish
Hospital, a public institution, allegedly in his capacity as District Attorney but collecting fees for
that representation through his private law practice, a situation all too akin to Mr. Reeds relationship with St. Paul Travellers Insurance Company.
29.
These same purely financial motives for maintaining the bogus misdemeanor case against
Mr. Gates still persist, as was shown recently when the current District Attorney, Mr. Reeds
successor Warren Montgomery, was asked to abandon further pursuit of the long-expired and
duplicative charges, he refused, stating that he could not afford to do so because a judgment in
Mr. Gates civil case would bankrupt his office. Also, undoubtedly connected with that refusal,
is the fact that Mr. Gates is in possession of documents which show, and he therefore believes,
that Mr. Montgomery himself, in his official capacity as the District Attorney, now represents
One Beacon/Bedivere, the current liability insurer for the Parish (which may also have some lia-

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bilities in the instant case), despite the inherent obvious impropriety of a tax-supported public
agencys using its resources to benefit a private business corporation.
30.
The Defendants/Movants Motion makes the absurd and unreasonable demand that Mr.
Gates place himself at risk of further grevious bodily harm, or even death, by placing himself
once again in the hands of the St. Tammany Parish Sheriffs Office. The reasonableness of Mr.
Gates fears is shown clearly by the facts that (a) the Deputy Sheriff who beat him to a pulp has
never been disciplined for his unlawful actions but, instead, remains on duty there, and (b) the
Sheriffs Department shift supervisor who reported to the scene of Mr. Gates arrest and who allegedly investigated that beating, Lt. Randy Smith, not only took no action regarding that
crime but is now himself the Sheriff in command of that department who, therefore, has a strong
financial interest in avoiding the substantial civil liability asserted in Mr. Gates suit.
31.
Because the institution and maintenance of the misdemeanor charges against Mr. Gates
(actually, of the felony charges on which he was found not guilty as well as the allegedlypending misdemeanor charges) was done for the purpose of extorting an improper and unethical
benefit with respect to his civil claims, each attorney who signed the instant Motion to Lift
Stayi.e., Chadwick W. Collings, David G. Sanders, Emily G. Couvillon, Richard T. Simmons,
Ralph S. Whalen, Nancy A. Cundiff, and Thomas H. Huval, and each individual attorney defendant in Mr. Gates civil action who authorized his or her counsel to file that Motioni.e.,
James D. Caldwell, Richard Schwartz, Walter P. Reed, Ronald Gracianette, Nicholas F. Noriea,
Jr., Kathryn Landry, and Charles M Hughes, Jr., is guilty of seriously violating Rules 11, Fed.
R. Civ. Proc. as well as Rules 3.3, 8.4(c), 8.4(d), and 8.4(g), R. Prof. Cond.

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WHEREFORE, Shane Gates respectfully requests this Honorable Court to deny the Defendants/Movants Motion to Lift Stay on the grounds that the relief sought therein is at once unauthorized, unjust, unethical, and clearly intended to deprive Mr. Gates of substantial and substantive constitutional rights.
/s/ J. A. Hollister
JOHN A. HOLLISTER (La. Bar #6963)
613 Bon Temps Roul
Mandeville, Louisiana 70471
(985) 792-5353
jahollister@yahoo.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the above and foregoing pleading was filed electronically
with the Clerk of the United States District Court for the Eastern District of Louisiana on December 6, 2016, using that Courts CM/ECF system, which system will send a notice of electronic filing to appearing parties in accordance with the Courts established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER

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