An attorney for a young woman paralyzed seven years ago when she was shot at the annual Fourth of July festivities along the downtown Baton Rouge riverfront urged a state judge Monday to give the woman her day in court and not dismiss the city-parish from her lawsuit.
“The police plan in this case was inadequate,” Michael Palmintier, who represents Kayla Smith and her parents, told state District Judge Janice Clark.
Attorneys for the city-parish and state, however, have argued since the inception of the case that there was ample security and lighting at the July 4, 2007, event on the riverfront. The city-parish and state lawyers also have maintained that neither entity owed a duty to Smith to protect her from the “random” and “unforeseeable” criminal acts of an unknown third party.
“In this case, despite the fact that it is horrific, it doesn’t mean it is compensable,” Howell Andrews, an attorney for the city-parish, argued Monday to Clark. He told the judge there were 75 police officers and a SWAT team in downtown Baton Rouge that night.
Clark took the arguments under advisement.
“She’s not asking for sympathy at all. What she needs is her day in court,” Palmintier said afterward of Smith.
The 2007 shooting occurred atop the Mississippi River levee near the USS Kidd Veterans Memorial & Museum and left Smith and Robert M. Blunschi Jr. — both innocent bystanders — paralyzed.
In April 2013, Clark refused to dismiss the state, the Louisiana Naval War Memorial Commission and the Louisiana Veterans Memorial Foundation from the suit. But three months later, a divided state appellate court panel reversed Clark and removed the state and the two military groups from the case.
The 1st Circuit Court of Appeal panel said Smith and her parents — Jennifer Scallan and Brent Smith — “failed to establish any duty” that the state, commission and foundation “owed under the circumstances of this case.”
A unanimous Louisiana Supreme Court in November let the appellate court ruling stand.
Andrews noted Monday to Clark that state District Judge Todd Hernandez last year dismissed the city and Baton Rouge Police Department from a lawsuit filed by the family of a Baton Rouge teenager killed by a stray bullet in October 2010 while standing on the downtown Mississippi River levee.
Darius Augustus, 17, had just left the 13th Gate haunted house and was shot in the chest while trying to flee gunfire that erupted in a large crowd. Police said he was an innocent bystander.
Augustus was standing near the flagpoles on the levee in the 200 block of South River Road near the USS Kidd, across the street from the River Center, when he was shot.
Smith and Blunschi, who were 16 and 21, respectively, at the time of the 2007 shooting, were leaving the annual fireworks show that night when they got caught in an exchange of gunfire. Smith suffered serious spinal cord injuries in the shooting; Blunschi was shot in the head and suffered brain damage.
Devin Collins and Marvin Brown, both of Baton Rouge, initially were charged with attempted second-degree murder and criminal conspiracy in the shooting. Collins was convicted on two counts of aggravated battery in 2009 and sentenced to 12 years in prison. Brown pleaded no contest in 2009 to conspiracy to commit aggravated battery and was sentenced to two years in prison with credit for the 21 months he had served since his arrest. He was released shortly thereafter from Parish Prison.
Collins did not wound either victim when he fired a .25-caliber pistol into the crowd that night but was “actively involved” in the shooting, the 1st Circuit later ruled in affirming his conviction and sentence.
Prosecutors also acknowledged Brown was not the shooter, but said his DNA was found on a 9 mm pistol discovered near the USS Kidd. Prosecutors said Smith’s and Blunschi’s injuries were consistent with a 9 mm bullet. Eleven 9 mm shell casings found at the scene were traced back to the gun, prosecutors noted.