Cloud v. StoneCloud v. Stone
Lincoln Parish Deputy Sheriff Kyle Luker tased and then shot and killed Joshua Cloud while trying to arrest him during a traffic stop. Cloud‘s parents sued Luker for excessive force, but the district court granted Luker summary judgment after finding no constitutional violation. Like the district court, we conclude Luker reasonably deployed his taser when Cloud continued to resist arrest. We also conclude Luker justifiably used deadly force when Cloud lunged for a revolver that had already discharged and struck Luker in the chest. The district court‘s judgment is affirmed.
Around midday on August 29, 2017, Deputy Luker observed Cloud speeding on I-20 in Simsboro, Louisiana.1 Luker followed Cloud off the interstate and pulled him over on Highway 80, across the street from Simsboro High School. When Luker wrote Cloud a ticket for driving 13 m.p.h. over the speed limit, Cloud protested that Luker could not possibly have seen him on the interstate. Cloud refused to sign his ticket, which is grounds for arrest under Louisiana law. See
Luker attempted to arrest Cloud. He had Cloud exit his pickup truck and face its side with his hands behind his back. Standing behind Cloud, Luker handcuffed his left wrist, at which point Cloud turned partially around to his left. (Plaintiffs contend Cloud turned around, not to keep arguing, but because he had a hearing impairment. We address that assertion below. See infra Section III.A & n.9.) Luker ordered Cloud to turn back around and reached for his right hand to finish handcuffing him. But Cloud then spun all the way around, turning away from Luker‘s reach and facing him head-on, with the handcuffs hanging from his left wrist.
With Cloud now facing him, Luker stepped a few feet back and tased Cloud in the chest. Though both taser prongs hit Cloud and began cycling, they did not incapacitate him. Cloud yelled and pulled the prongs from his chest. Luker then released his police dog from his car with a remote button
The two men, grappling with each other, moved toward the truck‘s open door. Cloud produced a revolver from somewhere near the driver‘s seat.3 As the two struggled for control of the gun, it discharged twice, the second shot hitting Luker in the chest. Luker was in pain but unable to tell how badly he was injured: as it turned out, his protective vest spared him all but a minor injury. As the struggle continued, Luker managed with one hand to radio police dispatch that shots had been fired. Luker was then able to wrest the revolver out of Cloud‘s hands and throw it to the ground on the street behind him. With Cloud disarmed and the police dog now engaging, Luker drew back a short distance, withdrew his duty weapon, and ordered Cloud to get on the ground.
At this point, Cloud was crouching in his truck‘s doorway, keeping the dog at arm‘s length with his hand on the dog‘s head. Cloud‘s revolver was on the ground, behind Luker and to his left. Then, according to Luker, Cloud rushed toward him—“directly at [his] chest or to [his] left a little bit“—and started to move past him. Luker turned to his left, with Cloud‘s shoulder brushing across his chest. As Cloud lunged toward the revolver lying on the ground, Luker fired two shots into Cloud‘s back. Cloud was pronounced dead at the scene shortly thereafter.4
Cloud‘s parents (“Plaintiffs“) filed suit in federal district court against Luker, Lincoln Parish Sheriff Mike Stone, and Lincoln Parish District Attorney John Belton, the latter two in their official capacities. They alleged excessive force claims under
As relevant here, the court held Luker did not use excessive force. First, it found his taser use reasonable, primarily because a reasonable officer would have believed that Cloud was resisting arrest at the time. Second, it found that shooting Cloud was not excessive force because Luker reasonably believed Cloud posed an immediate threat of serious harm. Finally, the court found that, assuming arguendo a constitutional violation, Luker would still be entitled to qualified immunity because he did not violate clearly established law. The court therefore dismissed all claims with prejudice, and Plaintiffs appealed.5
“We review a summary judgment de novo, applying the same standards as the district court.” Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019). “The movant must show ‘there is no genuine dispute as to any material fact and [he is] entitled to judgment as a matter of law.‘” Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (quoting
III
To rebut Luker‘s qualified immunity defense, Plaintiffs must point to summary judgment evidence “(1) that [Luker] violated a federal statutory or constitutional right and (2) that the unlawfulness of the conduct was ‘clearly established at the time.‘” Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)), cert. denied, 140 S. Ct. 388 (2019). “We can analyze the prongs in either order or resolve the case on a single prong.” Garcia, 957 F.3d at 600 (citing Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019)). Here, prong one resolves the case. We address separately Luker‘s taser use and his subsequent shooting of Cloud, in that order.
A
Plaintiffs claim that Luker‘s nonlethal force—first tasing Cloud from a few feet away, then using his taser in drive-stun mode while grappling with Cloud—violated Cloud‘s Fourth Amendment right against excessive force during an arrest. We disagree.
Graham identifies several factors bearing on the reasonableness of force: with “careful attention to the facts and circumstances of each particular case,” courts consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Ibid. We consider “not only the need for force, but also the relationship between the need and the amount of force used.” Joseph, 981 F.3d at 332 (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)) (internal quotation marks omitted). Faced with an uncooperative arrestee, officers properly use “measured and ascending actions that correspond to [the arrestee‘s] escalating verbal and physical resistance.” Id. at 332–33 (quoting Poole, 691 F.3d at 629) (cleaned up).
Of the factors identified in Graham, the extent of Cloud‘s resistance is the most important to analyzing Luker‘s use of his taser. The other two factors—the “severity of the crime at issue” and the “immediate threat to the safety of the officers or others“—are less illuminating. Cloud was suspected of only a minor offense, at least before resisting arrest. On the other
Our cases on police use of tasers have paid particular attention to whether officers faced active resistance when they resorted to a taser. Where, as here, the severity of crime and immediate safety threat are relatively inconclusive, a suspect‘s active resistance to arrest may justify this degree of force. For example, we have held that two officers were reasonable to tase an arrestee because he had “aggressively evaded [their] attempts to apprehend him,” and because they did so after the arrestee “continuously failed to comply,” other “efforts to subdue [him] were ineffective,” and the arrestee had “continued to resist handcuffing” and “kicked an officer after being taken to the ground.” Pratt v. Harris Cnty., 822 F.3d 174, 182 (5th Cir. 2016). In that case, we took as further evidence of “measured and ascending” action that “neither officer used [his] taser as the first method to gain [the arrestee‘s] compliance.” Ibid.; see also Buchanan v. Gulfport Police Dep‘t, 530 F. App‘x 307, 314 (5th Cir. 2013) (“[W]here a suspect resists arrest or fails to follow police orders, officers do not violate his right against excessive force by deploying their tasers to subdue him.“). In another case—one not involving a taser but nonetheless relevant—we held that an officer reasonably pushed an arrestee onto the hood of a police cruiser, causing some bruises and chest pain, because the arrestee “resisted when [the officer] attempted to place handcuffs on him.” Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009). Specifically, the arrestee had “pulled his hand back and turned away from the officer,” then grappled with him briefly. Id. at 216.
By contrast, we have found excessive force when officers tased someone offering only passive resistance or no resistance at all. For example,
The record in this case shows that Cloud actively resisted arrest, which gave Luker reasonable grounds to tase him. While Cloud‘s left hand was being handcuffed, he turned partially around. Luker responded by commanding Cloud to turn back around. But when Luker reached for Cloud‘s right hand, Cloud turned to face him, with the handcuffs dangling from his left wrist. In other words, Cloud took a confrontational stance, deprived Luker of the use of his handcuffs, and thwarted efforts to complete the arrest. Cf. Collier, 569 F.3d at 216, 219 (reasonable to use force on arrestee who “physically resisted when [officer] attempted to place handcuffs on him“). Up to then, Luker had addressed Cloud‘s general uncooperativeness and modest resistance with verbal commands and milder force. But at this juncture things took a more serious turn, making Luker‘s resort to his taser reasonable.
Plaintiffs argue that Cloud‘s resistance was merely passive, but this mischaracterizes the record. Cloud was more than merely uncooperative or argumentative: his actions—not just his failure to follow directions—prevented Luker from completing a lawful arrest. This conduct compares unfavorably with our passive-resistance cases, as well as those of other courts. In Newman, for example, we found a man‘s resistance was passive when he did not disobey any commands and at most pushed himself backwards off a car after officers struck him. 703 F.3d at 762–63. Likewise, in Ramirez, we found passive resistance when a man not yet under arrest or any suspicion exchanged angry words with an officer and pulled his arm out of the officer‘s grasp. 716 F.3d at 372, 378; see also, e.g., Brown v. City of Golden Valley, 574 F.3d 491, 494, 497 (8th Cir. 2009) (passive resistance where passenger in pulled-over car refused command to hang up her phone).
Plaintiffs also argue that Cloud was only turning around to read Luker‘s lips due to Cloud‘s hearing impairment.7 But we measure excessive force by the objective circumstances, not by the subjective intentions of the arrestee. Graham, 490 U.S. at 397. Luker testified he did not know Cloud had any hearing problem, and Plaintiffs have pointed to no evidence suggesting he should have known. To the contrary, Cloud was not wearing hearing aids at any point while in Luker‘s view and had previously communicated with Luker without any apparent difficulty.8 Even if Plaintiffs’ assertion about Cloud‘s reason for turning around is correct, it does not change the objective excessive-force analysis.
Finally, Plaintiffs argue that even if Luker‘s initial tase was justified, his subsequent drive-stun maneuver was excessive. It is true that the same incident can include both lawful and unlawful uses of force. See, e.g., Carroll v. Ellington, 800 F.3d 154, 174, 176–78 (5th Cir. 2015) (granting qualified immunity for one officer‘s initial taser use but not others’ subsequent uses of force); Joseph, 981 F.3d at 335 (“Force must be reduced once a suspect has been subdued.“). Because Luker‘s initial tase had no effect, however, the circumstances justifying force were still present during the drive-stun tasing. Plaintiffs have not pointed to evidence that Cloud complied with any commands or ceased to resist arrest after the first tase. Although Plaintiffs
B
We next address whether Luker‘s use of lethal force was excessive. “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985); see also Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). Our precedent teaches that officers use lethal force justifiably if they reasonably believe the individual is reaching for a gun. See, e.g., Salazar-Limon v. City of Houston, 826 F.3d 272, 278–79 (5th Cir. 2016). We have adhered to this standard even in cases when officers had not yet seen a gun when they fired, or when no gun was ever found at the scene. See, e.g., Manis v. Lawson, 585 F.3d 839, 844–45 (5th Cir. 2009); Reese v. Anderson, 926 F.2d 494, 500–01 (5th Cir. 1991). To show a triable issue, a plaintiff must generally “present[] competent summary judgment evidence that [the arrestee] did not reach . . . for what [the officer reasonably] perceived to be a weapon.” Salazar-Limon, 826 F.3d at 278.
It is evident from the record that Luker could have reasonably believed that Cloud threatened him with serious physical harm. At a minimum, Luker knew that a loaded revolver lay on the ground behind and to his left. More than that, though, he knew that the gun had just discharged twice—once into his chest—and that he had had to wrest it from Cloud‘s hands and toss it away. Finally, he saw Cloud make a sudden move in the gun‘s direction. Even drawing all inferences in Plaintiffs’ favor, the record shows that Cloud was shot while moving toward the revolver and potentially seconds from
IV
Because we find no constitutional violation, we need not reach prong two of the qualified immunity defense and consider whether Luker violated any clearly established law.
AFFIRMED.