Ann DESHOTELS; Kimberly Ann Deshotels; Jamie Jourdan Deshotels Pucheu; Matthew Risher Deshotels, Plaintiffs-Appellants v. Mike MARSHALL; Travis Miller; Anthony Mancuso; Jeff Pittman; Jeff Morgan; City of Lake Charles; St. Paul Fire & Marine Insurance Company, Defendants-Appellees.
No. 11-30110.
United States Court of Appeals, Fifth Circuit.
Nov. 10, 2011.
262-270
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Accordingly, the sentence imposed by the district cоurt for the firearm offense is VACATED and the case is REMANDED FOR RESENTENCING.
Robert Lawrence Beck, Jr., Esq., Alexandria, LA, for Plaintiffs-Appellants.
Kenneth Ray Spears, Esq., Mitchell Todd Barnett, Esq., Spears & Gary, L.L.C., Stephen Christopher Dwight, Esq.,
Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM: *
Seldon Deshotels died shortly after an altercation with law enforcement officers from the Lake Charles Police Department and the Calcasieu Parish Sheriff‘s Office. His surviving wife and children, Plaintiffs-Appellants, filed suit against the officers and their employers, among others, asserting claims under
BACKGROUND
The incident giving rise to this case occurred on November 1, 2007, in Lake Charles, Louisiana. At approximately 9:20 p.m., Cherie Norsworthy looked out her back door and saw Seldon Deshotels in her garage. Deshotels, a clinical and anatomical pathologist, had recently moved to Lake Charles for employment purposes and was living in the nearby Nelson Pointe apartment complex. Ms. Norsworthy did not recognize Deshotels, but assumed he was there to see her husband.1 When she opened the door and asked if he was “looking for Greg,” Deshotels “kind of panicked” and quickly exited the garage. Alarmed by Deshotels‘s reaction, Ms. Norsworthy went back into the house and yelled for her husband.
When Ms. Norsworthy told her husband what happened, he instructed her to call the police and then immediately left the house to look for Deshotels. Ms. Norsworthy contacted the Calcasieu Parish Sheriff‘s Office (CPSO). Mr. Norsworthy searched the neighborhood on his four-wheeler and eventually located Deshotels running toward the Nelson Pointe apartment complex. Norsworthy, a trained martial artist, caught up with Deshotels near the gate to the apartment cоmplex, jumped on his back, and applied a choke hold that rendered Deshotels temporarily unconscious. Both men fell to the ground and Norsworthy released the choke hold. Deshotels regained consciousness shortly thereafter.
At about the same time, Jessica Cobb and two friends were driving into the apartment complex parking lot. Cobb testified that when they approached the gate, she saw Deshotels laying on his stomach and Norsworthy sitting on his back. Norswоrthy yelled to Cobb that Deshotels had broken into his house and asked her to call the police. Cobb called 911 and was connected to the Lake Charles Police Department (LCPD). She told the 911 operator that a homeowner was restraining a man who broke into his house and that they were near the gate to the Nelson Pointe apartment complex.
Both CPSO and LCPD dispatched officers to respond to the incident. LCPD officer Jeff Pittman was the first law enforcеment officer at the scene. When he arrived, Deshotels was sitting on the ground and Norsworthy was standing nearby. Norsworthy identified himself as the complainant and Deshotels as the burglary suspect. As Pittman approached the two men, Deshotels got up and began running toward Nelson Road. Pittman chased and quickly caught Deshotels, bringing him to the ground face down. Pittman straddled Deshotels‘s lower back and pulled on his left arm in an attempt to apply handcuffs. Deshotels resisted, pulling his arms down and undеrneath his chest. As Pittman struggled with Deshotels, CPSO deputies Mike Marshall and Travis Miller and LCPD officers Jeff Morgan and Kevin O‘Rourke arrived and began assisting. Marshall attempted to gain control of Deshotels‘s right arm and Miller placed his knee on Deshotels‘s right shoulder. Deshotels was kicking his legs, so officer Morgan crossed one leg over the other and pushed them down towards Deshotels‘s back. Officer O‘Rourke warned Deshotels to stop resisting or he would be tased. When Deshotels failed to surrender his hands, O‘Rourke conducted a five second “drive-stun” tase2 to Deshotels‘s right shoulder. Despite being tased, Deshotels continued to pull his arms under his chest. O‘Rourke moved to Deshotels‘s left side and conducted another drive-stun tase to Deshotels‘s lower back. After the second tasing, the officers secured Deshotels‘s arms and applied handcuffs.3
The parties dispute what, if anything, the officers did to assist Deshotels before the ambulance arrived. McCauley testified that Deshotels‘s tongue appeared to be blocking his airway. He stated that Moss held Deshotels‘s head while he used a pen to move Deshotels‘s tongue in an attempt to clear the blockage. Moss testified that he assisted McCauley until a paramedic arrived and was standing next to Deshotels.
Appellants point to the deposition testimony of Walter Siefford, an EMT/paramedic who responded to the incident. Siefford testified that when he arrived at the scene, Deshotels was lying on his back and a single officer, presumably McCauley, was attempting to pry his mouth open with a pen.4 Siefford stated that the officer repeatedly asked him to help Deshotels. Siefford further testified that Deshotels‘s mouth was full of vomit and that there was vomit on his face and in the аrea around his head. McCauley, Moss, and Thacker all testified that they did not see Deshotels vomit and did not see vomit on or around Deshotels.
Deshotels was eventually transported to Women‘s and Children‘s Hospital where he was later pronounced dead. He was fifty-six years old. According to an autopsy conducted by the Parish Coroner, Dr. Terry Welke, Deshotels was asthmatic and had a blood alcohol level of .12. The reported cause of death was excited delirium. Appellants commissioned a second autopsy, which was performed by Dr. Collie Trant, a board certified forensic pathologist. Dr. Trant concluded that the cause of death was asphyxia caused by a misapplied choke hold, compression of the chest and abdomen during the struggle with the officers, and airway obstruction by gastric contents.
Appellants filed suit on September 18, 2008, naming as defendants, among others, Marshall, Miller, Pittman, Morgan, and O‘Rourke, in their individuаl capacities, and Calcasieu Parish Sheriff Anthony Mancuso in his individual and official capacities. Appellants brought claims under
In opinions filed October 27, 2010, and January 4, 2011, the district court granted summary judgment dismissing Appеllants’ excessive force and bystander liability claims against Marshall, Miller, Pittman, and Morgan. The district court also granted summary judgment dismissing Appellants’ official and individual capacity excessive force claims against Calcasieu Parish Sheriff Anthony Mancuso. The court denied summary judgment on Appellants’ excessive force claims against O‘Rourke. The court also denied summary judgment on Appellants’ claims against Marshall, Miller, Pittman, and
DISCUSSION
This court reviews the grant of summary judgment de novo, applying the same standard used by the district court. Hill v. Carroll Cnty., Miss., 587 F.3d 230, 233 (5th Cir.2009). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Section 1983 Claims Against Marshall, Miller, Pittman, and Morgan
1. Excessive Force
The district court concluded that Marshall‘s, Miller‘s, Pittman‘s, and Morgan‘s actions to subdue аnd handcuff Deshotels were objectively reasonable and that the officers are entitled to qualified immunity from Appellants’
Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established stаtutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine whether qualified immunity applies, the court conducts the two-part analysis set forth in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The court decides “(1) whether facts alleged or shown by plaintiff make out the violation of a constitutional right, and (2) if so, whether that right was clearly established at the time of the defendant‘s alleged misconduct.” Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir.2009). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir.2009) (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151). If the answer to either of the two above questions is “no,” qualified immunity applies and the government official is immune from suit. The plaintiff bears the burden of overcoming the qualified immunity defense. Bennett v. City of Grand Prairie, Tex., 883 F.2d 400, 408 (5th Cir.1989). After the Supreme Court‘s decision in Pearson, 555 U.S. 223, 129 S.Ct. 808, courts have discretion as to which of the two qualified immunity prongs to address first.
Turning to the first prong of the qualified immunity analysis, this court must determine whether the facts, taken in the
To support a fact issue, Appellants point to Marshall‘s deposition testimony stating that he was not concerned for his or the other officers’ safety during the struggle with Deshotels and that he believed they could have handcuffed Deshotels without the use of a Taser. Appellants also point to Miller‘s testimony that he agreed with O‘Rourke‘s use of a Taser and that he would have used his Taser had O‘Rourke not done so first. Appellants further note that Deshotels did not attempt to strike or kick the officers and that the LCPD use of force report characterized Deshotels‘s behavior as “empty hand defensive resistance.”
Appellants’ evidence tends to focus on whether O‘Rourke‘s use of a Taser constituted excessive force, an issue not before the court. The relevant inquiry is whether Marshall‘s, Miller‘s, Pittman‘s, and Morgan‘s individual actions to subdue and handcuff Deshotels were reasonable under the circumstances. See Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir.2007) (holding that each officer‘s individual actions should be considered in determining whether qualified immunity applies). The facts show that the officers were responding to a burglary in progress,5 “a crime normally and reasonably expected to involve a weapon.” United States v. Barnett, 505 F.3d 637, 640 (7th Cir.2007). When Pittman approached the scene, Deshotels immediately fled, and when caught, actively resisted Pittman‘s attempts to apply handcuffs. Marshall, Miller, and Morgan arrived to see Pittman struggling with a large, unruly suspect. (At the time of the autopsy, Deshotels was 5‘10” tall and
2. Bystander Liability
Appellants argue that Marshall, Miller, Pittman, and Morgan are liable for failing to prevent O‘Rourke‘s alleged use of excessive force when he tased Deshotels.6 In support of these claims, Appellants rely on this court‘s holding in Hale v. Townley, 45 F.3d 914, 919 (5th Cir.1995), that “an officer who is present at the scene and does not take reasonable measures to protect a suspеct from another officer‘s use of excessive force may be liable under section 1983.” The court determined that liability under
As discussed abоve, to overcome the officers’ defense of qualified immunity, Appellants must show that the officers “violated clearly established statutory or constitutional rights of which a reasonable person would have known.” Manis v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009). Exercising the discretion provided in Pearson, 555 U.S. 223, 129 S.Ct. 808, we first consider whether the officers’ conduct violated clearly established law. If the answer is “no,” the officers are entitled to qualified immunity and the court need not decide whether Appellants’ facts make out the violation of a constitutional right.
For a right to be clearly established, the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. “As we have held, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” Pasco, 566 F.3d at 579-80 (internal quotations omitted); see also Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (“The relevant, dispositive inquiry in determining whether a right is clearly estаblished is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.“). “[Q]ualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotations omitted).
Thus, the inquiry is whether, under the law in effect at the time of the arrest, the officers could have reasonably believed that they were not required to intervene and prevent O‘Rourke‘s alleged use of excessive force. The answer to that question is clearly “yes.” The facts in Hale are significantly different from the facts in this case. In Hale, 45 F.3d at 919, the plaintiff produced evidence that he was beaten by a police officer while the bystander officer stood by and laughed, making no effort to intervene. Nothing in Hale provided police officers “fair notice” that officers actively engaged in restraining a large, potentially dangerous suspect are required to intervene and prevent another officer‘s use of excessive force. See Manis, 585 F.3d at 845-46 (“If the law at the time of a constitutional violation does not give the officer ‘fair notice’ that his conduct is unlawful, the officer is immune from suit.“). Nor do Appellants provide any other authority, and we could not find any, supporting that proposition. Accordingly, the officers’ actions were objectively reasonable in light of clearly established law and they are entitled to qualified immunity.
State Law Claims Against Marshall, Miller, Pittman, and Morgan
Appellants argue that the district court erred in dismissing their state law excessive force claims against Marshall, Miller, Pittman, and Morgan. In Louisiana, excessive force claims are analyzed under a reasonableness standard similar to that used to evaluate
Appellants also argue that the district court erred in dismissing claims that the officers were negligent under Louisiana law because they “had notice of O‘Rourke‘s intentions with regard to the use of his Taser and ... failed to take any action whatsoever to prohibit O‘Rourke‘s excessive use of force.” Appellants’ brief, however, provides no authority discussing bystander liability claims under Louisiana law or whether Louisiana law enforcement officers have a duty to prevent another
Vicarious Liability Excessive Force Claim Against Sheriff Mancuso
In Louisiana, sheriffs are vicariously liable in their official capacity for the torts of their deputies committed in the course and scope of employment. Jenkins v. Jefferson Parish Sheriff‘s Office, 402 So.2d 669, 669 (La.1981); Riley v. Evangeline Parish Sheriff‘s Office, 637 So.2d 395, 395 (La. 1994). Appellants argue that the state law excessive force claims against deputies Marshall and Miller were erroneously dismissed and therefore it follows that the vicarious liability excessive force claim against Calcasieu Parish Sheriff Anthоny Mancuso was also erroneously dismissed. As discussed above, the state law excessive force claims against deputies Marshall and Miller were correctly dismissed by the district court. Therefore, there is no basis for a vicarious liability excessive force claim against Sheriff Mancuso. The district court‘s ruling on this issue is affirmed.
CONCLUSION
For the foregoing reasons, we affirm the district court‘s grant of summary judge dismissing Appellants’