Parish constable acting on legitimate orders from justice?

Published 12:03 am Tuesday, October 31, 2017

FERRIDAY — A Franklin Parish constable who was on scene when a Concordia Parish constable was arrested said his counterpart was acting on legitimate orders.

Henry Herford, who serves on the board of directors for the Justice of the Peace and Constable Association, said he was contacted by District 1 Constable Michael Kelly about an issue he had been having with Ferriday Police Department regarding an eviction notice Kelly was attempting to serve.

The Franklin Parish constable said part of his duties with the organization is educating constables and justices of the peace within his district.

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“I went down to talk to him, thinking he was making some mistakes,” Herford said. “I was just trying to assist in educating him.”

Herford said he then saw the paperwork for the eviction from District 1 Justice of the Peace Elijah “Stepper” Banks.

“I would have been happy to serve it,” Herford said. “I was expecting it to be something they were doing wrong, but I saw everything was on the up and up.”

Herford said he was then asked to go observe the Oct. 24 eviction attempt in which Kelly was arrested by Ferriday Police Department.

Kelly, 37, 153 Kelly Road, was charged with simple criminal damage to property, three counts resisting an officer with force, criminal damage to property, simple battery and home invasion.

“It did not take place like the police said it did,” Herford said.

Banks contends the justice of the peace has jurisdiction on this eviction because the occupant in question was not married to the homeowner, who died recently. Banks said the title would go to the children and the still living wife of the homeowner.

The family filed a complaint, the court hosted a hearing and Banks said he ordered Kelly to evict the occupant.

Herford said once the order has been given, police do not have the jurisdiction to stop it. Herford said only a district judge could stop the order, and the occupant never appealed to a district judge.

Herford said Kelly did not appear to force his way in, but had he done that, Kelly would have been acting within his legal authority.

“In Louisiana, he had the right to kick the door in or break a window to get into the house,” Herford said. “He cannot be arrested for illegal home invasion. He has an order from a judge to do what he did — go into the house and move the lady out.”

Herford said he did not go inside where the alleged battery took place. However, because of the order Kelly had the same power as an arresting officer to remove her, Herford said.

“He had the power to move her out,” Herford said. “He had a legal eviction order.”

As resisting arrest goes, Herford said he witnessed Kelly drop to his knees and comply with what Herford calls an illegal arrest.

“Police had no jurisdiction there whatsoever,” Herford said. “If they were there, they should have assisted the constable and justice of the peace with the eviction. He was arrested illegally.”

Ferriday Police Department officers should face charges for their actions, Herford said.

Banks initially attempted to file charges against Ferriday Police Department officers with the Seventh District Court. Banks said the charges would be obstruction of justice, malfeasance in office, intimidation by a public official and contempt of court.

However, Seventh Judicial District Attorney Brad Burget said any charges the justice of the peace wanted to file would have to be through an investigative agency, such as the Louisiana State Police, Concordia Parish Sheriff’s Office or the Louisiana Attorney General.

Banks said Monday he would attempt to file charges against the department with the attorney general.

Burget said the state attorney general could investigate a crime and make an arrest. And if an arrest was made, the case would then go to Burget for potential prosecution unless he recused himself, he said.

“What is unique about calling the attorney general is they have an educational office,” Burget said. “They educate constables and justices of the peace. Since they have specialized knowledge about how those offices function, it would probably be a good decision by Mr. Banks to refer to the attorney general.”

Ferriday Police Department Investigator Richard Madison last week said he would only comment on Kelly’s criminal charges. On Saturday, Madison also would not comment.

Ferriday Police Chief Arthur Lewis could not be reached for comment.