*1 Biаnco, and modified categorical “the analysis remain approaches categorical application, their traditional
in the areas of ap those application of including court’s the elements of identifying proaches to may be removed aliens offenses for which 1227(a)(2).” 624 F.3d at under Section . 273
III. conclusion, we affirm the BIA’s In we find that Hernandez- because decision with a dead conviction for assault Zavala’s against someone ly weapon, committed relationship, he had domestic with whom ineligible him for cancellation of renders 1229b(b). § 8 U.S.C. For removal under above, Hernandez-Za the reasons stated for review is petition vala’s DENIED. MASON, Individually and on be Brenda Quamaine Dwayne Mason; half of Individually Billy Mason, and on C. Quamaine Dwayne Mason, behalf of Plaintiffs-Appellants, LAFAYETTE CITY-PARISH CONSOL GOVERNMENT; P.
IDATED James Craft, Capacity In His Official Police; Faul, Martin Individ
Chief ually Capacity, and in His Official
Defendants-Appellees.
No. 14-30021. Appeals, United States Court Fifth Circuit. Nov. *3 Wilkes, Joy III Fayne (argued), C.
John Borne, Wilkes, Rabalais, Rabalais & LA, Smith, L.L.C., Lafayette, for Defen- dants-Appellees. JOLLY, HIGGINBOTHAM, and
Before OWEN, Judges. Circuit OWEN, Judge: R. PRISCILLA Circuit *4 fatally Qua- Officer Martin Faul shot responding Mason while to a re- maine robbery. par- Mr. Mason’s ported armed ents, Billy (together, Brenda and Masоn Fourth, Masons), asserting sued Faul Fifth, and Fourteenth Amend- Eighth, brought The ment violations. Masons employer, claims Faul’s Monell1 Lafayette City-Parish Consolidated Gov- Craft, (Lafayette), and James ernment com- Lafayette’s Chief of Police. The against all plaint also included claims under Louisiana state three defendants qualified Faul raised the law. defense court immunity. granted The district summary judgment defendants’ motion for claims. all of the Masons’ and dismissed material fact there are issues Because summary judgment favor preclude immunity, qualified Faul on the basis of to summary judgment as we reverse the Fourth Amendment Faul on the Masons’ and remand them to and state law claims otherwise affirm court. We the district judgment. the district court’s
I disposed court Laborde, the district Laborde Law Because
David Charles (ar- summary judgment, we state L.L.C., on Firm, Speer, Esq. the ease Jeffery F. light most A.P.L.C., of the case Lafayette, the facts Doueet-Speer, gued), Masons, the nonmovants to the LA, favorable Plaintiffs-Appellants. (1978). Servs., L.Ed.2d 611 Dep’t 436 U.S. 1. Monell v. of Soc. death, apartment. time of his Mr. Babino’s The Masons contend
below.2 At the dating Raequel Babino. Mr. approached was we must conclude that Faul Mason Pitkins, that Paul the father Mason knew no information the incident with additional child, coming apart- was to her of Babino’s during post- because of his statements his bill. evening regarding phone ment one incident interview with the Louisiana State not know that Babino Mr. Mason did following exchange occurred Police. dinner for Pitkins and planned prepare Garcia, Frank between the State Richardson, cousin, Jeremy to cele- his investigator: Police college graduation. brate Pitkins’s recent call, You for the [GARCIA]: volunteered apartment Mr. Mason came Babino’s okay. you y’all got Where were evening pick up dog. He saw dispatched out there? apartment window through Babino I was en route to another [FAUL]: banging upset, and became on the door robbery approximate- armed call around yelling. Babino asked her roommate ly Christopher Saint and Johnston. door, and Babino locked answer herself her bedroom with Pitkins and Yeah, I going to Mar- [FAUL]: Richardson. Mason entered Mr. Department shall’s Store. apartment attempted pry open spoon. bedroom door with а over, the call *5 [GARCIA]: When came eventually opened Babino the bedroom out, dispatch put the call were Mr. the door. Mason entered bedroom any particulars, any there notes or com-
carrying gun and ordered Pitkins and in ments the comment section on the Richardson to leave. Mason threatened to call? someone, “pistol whip” but Babino states Yes, them, I didn’t read but [FAUL]: gun pointed that the remained at the verbally dispatched she them. at ground all times. Babino and Mr. Ma- bedroom, son later the Okay. exited and Mr. What were the com- [GARCIA]: eventually “got They Mason calm.” dis- ments? dog missing
covered that Mr. Mason’s was Theater, robbery, Armed [FAUL]: apartment and intended to leave the to Campus Crossing Apartments, Black dog. search for the male, pants, gun black black shirt with a in apartment, apartment still the meantime, In the Richardson had called operator 911. He told the that an armed Okay, alright. And is there [GARCIA]: individual had “broken into” Babino’s any ’particular why you reason decided apartment get dog. to He that stated he go going to out here instead of to Mar- did not know the individual but that Babi- shall’s? no and Pitkins knew him. Richardson de- Yes, they had a canine handler [FAUL]: suspect operator scribed the to the as a already I going keep there.... was to male, black approximately six feet tall and they you rolling they case know need-
weighing pounds, wearing jeans black got ed me. And then like I I said when and a black shirt. Christopher, original, around Saint
Officer Martin Faul robbery] volunteered re- the first 64 went [armed Charlie, spond my to an incident described I put as so base radio on Char- robbery reported armed that had been it from And stopped scanning. lie and (5th Cir.2012). Guedry, 2. See Newman v. if So, tucking and his chin ing up with Faul Alpha. on on me I still had one
then fight, And when Babino claims Alpha. preparing he were listening to I still was I Alpha, in on up call come I Mr. had his hands and was heard Mason said, “Headquar- I Alpha, On gun so close. moving. Faul saw Mr. Ma- 64, show me first from that ters distract yelled Faul “Gun!” and son’s waistband. know, I that one.” You route to en dog his towards Mr. Mason. Babino sent closer or I I was know if said don’t his only dropped that Mr. Mason asserts said, And whatever, “10-4.” they but dog crotch after the had hands to his did all computer [sic] ... then Faul, him, in contrast attacked who attention stuff, paid I but never no right hand went сlaims that Mason’s Mr. computer. to the dog. he released the to his side before no paid the “never argue that The Masons had at- dog Faul asserts that once the statement computer” to the attention Mason, Mason’s hand tacked Mr. Mr. came no about that Faul had information shows gun, began his so Faul in contact with approached. he the situation that Mr. shooting. asserts Mason Babino apartment complex arrived at the Faul require the officer to anything never did Brittney Dugas that Officers and saw attack, that for an Mr. release removed there. Faul Galland were Jace gun, Mason never touched car. The three canine from his resist, as- attempted to Mr. Mason never Pit- Richardson and encountered officers police. upon or fire sault Babino’s kins, them toward who directed apartment. shot struck Mr. Mason in Faul’s initial opened and Babino
Mr. Mason shot struck chin. second Mr. door to find apartment shoulder, moving right Mason matched Mr. Mason guns drawn. their to the front. The slightly from the back received alleges description upper part back third shot struck *6 in front of Babino moved dispatch. arm, fracturing his hu- right Mr. Mason’s so that herself positioned Mr. She Mason. Traylor, pa- a forensic Dr. James merus. Officers Du- Mr. Mason from she shielded defense, stated that while thologist for the screamed to She gas Galland. and severely restricted fracture have would officers, doing? He’s not you are “What arm, right of Mr. Mason’s the movement wrong?” nothing. What’s doing able to flex some he would been have elbow, very effectively, but though then issued commands officers The. Babino, witnesses have been but the his arm “would moving Mr. and that Mason Dr. Additionally, issued. as to what commands were extremely differ painful.” Babino, only or- the officers could According that Mr. Mason still Traylor testified up. Faul their hands put very them to dered but also not moved shoulder have officer to only was the that Galland asserts in struck Mr. Mason The fourth shot well. told Mr. that Galland commands and wall, issue fracturing a right chest his lateral ground. get on the and Babino Mason Mr. Mason on fifth shot struck rib. The that state Dugas and Galland arm, left of the upper portion back for Mason conflicting orders Mr. issued Traylor Dr. left humerus. fracturing the up get their hands keep Babino to fifth shot the time the was that at testified ground. on the fired, prone position, in a Mr. Mason stopped temporarily then face down. Faul Mr. that Although the officers contend firing. by squar- reacted to commands Mason gun
Faul claims that Mr. Mason then moved Faul: Where was the it when was all said and done and who took it out? if he his shoulder and elbow as were about And where was it at? over, gun, out the and start spin pull [Lafayette Garcia: Police Bart Officer] shooting. Dugas asserts that Mr. Officer [Ryder] took it. trying Mason was “still to reach for [the Faul: it inWas his hand? gun]” after the first five shots were fired. I
Babino, contrast, figure. Garcia: Best as can states once Mr. ground only Mason was on the she saw Masons, individually The and on behalf “pick up put him his head and it back son, Mason, Faul, of their Mr. sued Chief and that down” she never saw Mr. Mason Craft,, Lafayette. They brought body, body.” § “move his the trunk of his claims under 42 alleging U.S.C. (1) Faul used excessive force violation of Faul fired two shots into Mr. Mason’s Amendments; the Fourth and Fourteenth back, and Mason stopped moving. Mr. (2) deprived Mr. Mason of substantive due Babino shooting states after the end- process under the Fourteenth Amendment ed, Mr. Mason’s arms were not above his engaging actions that “shock the head but at his side. (3) conscience;” and violated Mr. Mason’s for an put radioed ambulance and Eighth process Amendment and due rights into a vehicle. When Faul by acting with deliberate indifference to returned, Mr. Mason had been moved to a his medical shooting. needs after the The nearby breezeway, and Faul saw brought other Masons against Monell3 claims Lafayette and administering complaint officers were Craft. The first aid to Mr. included state law claims the three Mason. A civilian combat medic also Faul pled qualified immunity. defendants. Mason, helped care for Mr. but he died at granted The district court the defendants’ the scene. motion summary judgment and dis- allege irregularities Masons several missed all appeal. claims. The Masons in Lafayette’s investigation shooting. of the First, police II eighth later recovered an bul- let lodged in a wall that did not strike Mr. We review the district grant court’s Mason. Murphy Riggs, a relative of Mr. summary judgment novo, applying de Mason, testified that when he arrived at the same standards as the district court.4 scene, a bullet hole in a structure had Summary judgment is appropriate when patched, been and the area had been “the movant genu shows there is no *7 Second, cleaned dispute any with bleach. ine as to before material fact and the Garcia, movant is judgment Frank entitled to as a investiga- State Police matter of tor, law.”5 scene, arrived at the Mr. Mason’s gun moved,
had been
magazine
and the
had
reviewing
When
a motion
summary
for
been
Finally,
removed.
after Faul’s inter-
judgment, we must “must view the facts in
ended,
view with
formally
Garcia
the Ma-
light
most
non-moving
favorable to the
allege
sons
captured
the video camera
party and draw all reasonable inferences
following
exchange:
genuine
its favor.”6 No
disput-
issue of
Servs.,
658,
Newman,
Dep’t
3. Monell v.
Soc.
436 U.S.
(quoting
to (cid:127)oi at right “whether the determine court to is sufficient there fact exists “unless ed the time established’ at ‘clearly for issue was nonmoving party favoring evidence alleged misconduct.”14 of defendant’s party.”7 for a verdict jury to return a IV III the Masons’ begin We § 1983 under suing plaintiff A against Officer claim right se Fourth Amendment “(1) of a a violation allege must officer uses force a of the Faul. When or laws by the Constitution cured “seizure,” analyze a claim (2) a we the makе demonstrate that United States the Fourth the officer against a under was committed deprivation alleged reasonable “objective Amendment law.”8 color of state acting under person 15 on an excessive-force prevail ness.” To against a may brought § be A 1983 suit “(1) injury claim, an plaintiff must show official or in his or her individual person (2) from the use of force resulted which governmental well as capacity the need and clearly excessive to that was entities.9 (3) objec the excessiveness which suit, a individual-capacity In an tively unreasonable.”16 quali the defense may raise defendant Gamer, the In Tennessee v. Su immunity “[Qualified immunity.10 fied reasonably explained that preme Court acting within officials government shields force, must, at the deadly an officer liability use authority from discretionary their least, cause to believe “probable have clearly very violate their conduct does a threat of serious suspect poses that the law or constitutional statutory established harm, or to to the officer either physical have would person of which reasonable reasonableness The officer’s as others.”17 a defendant’s analyze We known.”11 ana non-deadly&emdash;is force&emdash;deadly or using under two- immunity qualified sertion light “in objective standard lyzed under whether The first asks test.12 prong confronting and circumstances of the facts sufficient facts has shown plaintiff officer], regard her] to [his without [the a constitutional out violation “make In intent or underlying motivation.”18 requires the prong The second right.”13 232, Inc., S.Ct. 808. 129 Lobby, U.S. 13. Id. Liberty v. 477 7. Anderson 242, 249, 91 L.Ed.2d 106 S.Ct. (1986). 14. Id. Dist., 386, 388, Connor, F.3d Indep. Sch. 490 U.S. v. Willis
8. Moore
15. Graham
(5th Cir.2000)
(1989).
(citing
v. Dall.
whether he is arrest or obligation courts have an to “slosh by attempting flight.”19 to evade arrest our way through the factbound morass of ”23 We consider reasonableness “from per- Additionally, ‘reasonableness.’ the Su spective of a reasonable officer on preme recently Court has emphasized that scene, than rather with the vision of in an summary excessive-force case on 20/20 hindsight.”20 Additionally, we must judgment, case, make like any other a court “allowance for the fact police that accept must as true the evidence of the split-second are often forced to judg- make nonmoving party and justifiable draw all tense, ments—in circumstances are party’s inferences favor.24 The dis uncertain, and rapidly evolving to, trict court failed give credence —about amount of force that is necessary of, in a even make note Babino’s conflicting particular inquiry situation.”21 Our lim- acсount of shooting, which perhaps ited to whether the officer in danger “was constitutes strongest the Masons’ evi at the moment of the threat” that resulted give dence. We must full credence to in the use of force.22 testimony.25 Babino’s
The district court did
matter,
not correct
As an initial
the Masons do not
ly analyze the summary judgment
argue
record.
canine,
Faul’s use of
The district
appears
itself,
court
to have relied
violated the Fourth Amendment.
entirely
Rather,
on the officers’ account of events.
they argué that a Fourth Amend-
For example, the
accepts
district court
as ment violation
through
arose
Faul’s use of
position
“uncontroverted” Faul’s
that Mr. his firearm and assert that the use of the
Mason’s hand went toward the gun in his
canine
Mr. Mason while the shots
waistband before Faul released the canine.
being
were
fired is relevant to
question
Babino’s account of
shooting,
which of Faul’s reasonableness. Accordingly, we
conflicts with the officers’ accounts in sev
do not address the constitutional standards
key respects,
eral
is absent from the dis-
use of a
canine.
396,
-
Cotton,
19. Id. at
-,
21.
Id. at
277 “move Mr. not Mason did see but of down” “an exercise that explained haveWe body.” his trunk of body, the his can moment one at is reasonable that force if the the next record, unreasonable become viewed in in the evidence Other has of force Masons, the use for justification to the favorable light most the reflects record Although the testimony. Al- ceased.”26 Babino’s corroborates first expert, break between Traylor, was the defense that there though Dr. Mr. that struck shots be able to might last two Mr. Mason five and that indicated on the lay right his Mason Mason, Mr. slight and that movement make were it “would two shots that elbow, explained the final also he ground Mr. been, Ma- expressly extremely painful” court did fired, the district have Although Dr. right arm. of his firearm his Faul’s use to use whether son address favorable support can testimony Traylor’s the encounter. throughout justified whether about parties for both of materi- issues inferences genuine that conclude We arm, the sum- his moved two shots Mason final Mr. regarding arise al fact we must conclude mary stage, Mason, judgment re- requires which Mr. that struck while was immobile arm Mr. part, Mason’s that summary judgment of the versal ground. lay on as to opinion an express do not and we im- qualified entitled Faul was whether Traylor’s Dr. Babino’s light In of five shots. first of the munity for each jury could con- a reasonable testimony, lay on incapacitated Mason that Mr. clude that conclude jury could A reasonable a threaten- move in and did not ground would position in Faul’s officer reasonable final two Faul fired the before ing manner that to believe cause “probable not have jury a reasonable Accordingly, shots.28 serious a threat pose[d] Mason] [Mr. objectively Mason that conclude Mr. could the final two at the time harm”27 physical threat, that such immediate no posed Faul and Gal- Although fired. were shots firing Fourth Amendment violated in a moved that Mr. Mason land indicated final shots. two on he was after threatening manner whether must determine testimony contradicts therefore We Babino’s ground, immunity on qualified Ba- Faul is entitled accounts. the officers’ this portion clearly violate he did not that grounds to see able she was indicated bino clearly estab- law is law. The Mr. established that struck shots all seven Faul fire similar, control- factually is if once lished there explained She further Mason. or the Su- this court law ling case she saw ground, on Mason was Mr. case an present preme Court.29 it back put head and pick up “him of shots a second round 404, (5th initiated "had 413 Cnty., F.3d Lytle v. 560 Bexar incapacitat- clearly had round after an initial Cir.2009). Strain, decedent); v. also Bush see ed” Cir.2008) (holding 492, (5th 11, 502 Garner, 105 471 U.S. v. 27. Tennessee non-deadly force use further cannot officer (1985) (providing L.Ed.2d S.Ct. suspect). and subdued” "restrained against a fleeing faces a an offic'er standard when this Knoulton, 542 v. suspect); see Ramirez Howards,-U.S.-, Cir.2008) Reichle (applying 29.See F.3d (2012) L.Ed.2d S.Ct. non-fleeing suspect). ato standard same controlling circuit arguendo that (assuming dispositive — "be U.S.-, could precedent Rickard, court 28. See Plumhoff the cir- law clearly established (2014) 2022; source 188 L.Ed.2d case”); McClendon dicta, cumstances Amend that a Fourth cf. (suggesting, in Columbia, City defendant if the might occur violation ment *10 278 Graham,
“obvious one where
rights
Gamer
under the Fourteenth Amendment
alone offer a basis for decision.”30 The because his actions “shocked the con-
constitutionality of the
two
final
shots can
Graham,
science.”
In
Supreme
issue&emdash;under
be decided on the threshold
Court held:
Gamer&emdash;ofwhether
force
deadly
per-
[A]ll claims
law enforcement offi-
missible, i.e., whether Mr. Mason objec-
cers have used excessive force&emdash;deadly
tively posed an immediate threat.31 The
not&emdash;in
arrest,
the course of an
inves-
second,
complex inquiry
more
by
dictated
tigatory stop, or other “seizure” of a free
Graham&emdash;balancingseverity
of the
citizen should
analyzed
be
under
factors32&emdash;is
threat
other
not nec-
Fourth Amendment and its “reasonable-
essary
A
jury
here.
reasonable
could con-
standard,
ness”
rather
than under a
clude that when Faul fired the final two
process”
“substantive due
approach.35
shots, Mr. Mason
have appeared
would
While
process
substantive due
applies to
incapacitated to an objectively reasonable
police conduct,
some
the Supreme Court
officer. Shooting a clearly incapacitated
has refused
beyond
to look
the Fourth
suspect is inconsistent with Gamer’s com-
Amendment when
“seize” a sus-
deadly
mand that
force is unconstitutional
pect.36 A seizure
“only
occurs
when there
a “suspect
poses no immediate threat
governmental
is a
termination of freedom
to the officer and no
threat
others.”33
of movement through
intentionally
means
We therefore conclude that there are ma-
applied.”37
terial fact questions as to
whether
Faul “seized” Mr. Mason when he
entitled to qualified immunity
firing
for
terminated Mr. Mason’s
freedom move
final two shots. The district court erred in
ment using the canine and
gun.38
The
granting Faul’s motion
summary
judg-
Masons substantive
process
due
claim fails
ment on
Fourth
Amendment and state
as a matter of law.
law claims.
V
VI
argue
The Masons
that Faul vio
argue
Masons
that Faul violated the
lated Mr. Mason’s
process
substantive due
Eighth and Fourteenth
Amendments
Cir.2002) (en banc) (“[I]n the absence
Cnty.
Lewis,
of di-
34. See
Sacramento v.
523 U.S.
rectly controlling authority, a
833, 849,
consensus of
1708,
118 S.Ct.
.care Faul’s indifference.44 finding of deliberate po apprehended being while jured 40 had been dog, which place to decision an must show plaintiff “[T]he lice.” car, Mason, police attacking Mr. knowledge of subjective acted with officer to Mr. to attend to other to defer harm, medical of serious risk a substantial as show Mason, fairly be cannot described indif of deliberate response aby followed 41 Mason’s] for disregard [Mr. “a ing wanton is “an indifference Deliberate ference.” Additionally, needs.”45 A medical meet.”42 serious extremely high standard indifference, addressing ‘re deliberate that the officials show “must plaintiff indi an official’sconduct him, complaints, must evaluate ignored treat we fused incorrectly, collectively long so him than vidually treated intentionally rather would in unison.46 acting conduct any similar are not multiple officials engaged any disregard drag wanton Mr. clearly evince a decision other officers’ ”43 indifference, needs.’ medical cannot Mason, serious if deliberate is enti Faul. Faul liability for rise to give indiffer deliberate The Masons’ on the law matter of as a to judgment tled The Masons is narrow. argument ence claims. indifference deliberate re policy Lafayette’s police allege that “immediately ... de an officer quires in any physical conditions termine VII They first aid.” render person
jured against bring claims The Masons shooting, Faul called after the note that Craft, official in his and Chief Lafayette dog into ambulance, put left in his sued Because Craft capacity. first to render vehicle, returned him is against claim capacity, Ma- official addressing Mr. others found aid but (quoting Johnson Domino, F.3d at 756 239 Hosp., 463 43. v. Mass. Gen. City Revere 39. See Cir.1985)). (5th Treen, 1238 F.2d 77 L.Ed.2d U.S. (1983). Dep’t, W. Feliciana 44. See Jacobs Sheriffs 40. Id. Cir.2000). (5th 228 F.3d 230, 238 F.3d Cnty., v. Carroll 41. Hill Domino, at 756. 239 F.3d Cir.2009). 45. (5th Gonzales, 42. United States Jacobs, F.3d at Cir.2006) (citing Domino v. Tex. 574-75 Justice, Dep’t Criminal Cir.2001)).
treated as a Lafayette, claim constitute a custom that fairly repre- municipality.47 sents municipal policy.52 “Isolated violations persistent, are In Department Monell v. Social repeated, often constant violations that Services,48 Supreme Court held that a constitute custom and policy.”53 municipality cannot be held liable under The “moving force” inquiry re § solely employee because its com quires plaintiff to make two showings: mitted a constitutional tort.49 In other *12 causation and culpability.54 A plaintiff words, plaintiff cannot prevail aon theo must show a “direct causal connection ... ry of respondeat superior.50 Accordingly, the policy between alleged and the consti to hold a municipality 1988, § liable under deprivation.”55 tutional “moving plaintiff prove must three elements: inquiry force” imposes a causation stan (1) (2) policymaker; an policy; official higher dard than “but for” causation.56 (3) a “violation of rights constitutional Under culpability requirement, if the whose ‘moving force’ policy is the or cus 51 lawful, policy facially plaintiff must tom.” also show that the municipality “promul We have defined policy” “official gated policy] [the with deliberate indiffer to mean: ence to the ‘known or obvious conse quences’ that 1. A policy statement, constitutional ordinance, violations regu- result.”57 would lation, Even' a showing or of decision that is officially heightened negligence is insufficient to adopted and promulgated by the show the deliberate indifference needed to municipality’s lawmaking officers or prove municipal liability.58 by an official to whom the lawmak- ers delegated have policy-making The Masons point to numerous authority; or acts they that claim policy evince a 2. A persistent, widespread practice of First, custom. argue Masons that the city employees, which, officials or three approached officers Mr. Mason with
although not
by officially
authorized
out sufficient information. They allege
adopted
promulgated
policy, is
that the three
“agree
officers
they
that
do
so common and well settled as to
not listen to
computer
routinely” and
Melo,
21, 25,
47. See
502 U.S.
Slidell,
762,
112
53.
City
Bennett v.
Hafer
728 F.2d
768
of
358,
(1991) (“Suits
S.Ct.
116
(5th
L.Ed.2d 301
Cir.1984) (en banc).
n. 3
against state officials in their
capacity
official
therefore should be
treated as suits
Brown,
Cnty.
54. Bd.
Comm'rs
520 U.S.
State.'').
397, 404,
1382,
117 S.Ct.
provide using training about receive they retain the information need officers identify a not does However, does This еvidence dog. the record dispatch. con- To the or custom. municipal policy In his assertion. the Masons’ support not most, shows, Faul in that Police it Garcia, trary, the State statement failed read policy. that he did said follow vestigator, about in his vehicle on the screen *13 one at the rather than a showing of their burden not met have all did [sic] and computer “the stated that policy. or custom to no attention stuff, paid I never but this impose to Masons seek Similarly, the judgment, summary On computer.” the other by alleging several liability Monell inferences “justifiable” must make we the point to They by officers. the errors Faul Because favor.59 nonmovant’s the conflicting negotiate and to failure officers’ infor the received that he stated plainly and Babino Mr. Mason commands than verbally rather dispatch mation from Mason shoot Mr. Faul’s decision aswell call, no on *14 but have not thoroughly issue, briefed the police and his dog together Qua- attacked assume,
we without deciding, that Louisi- maine, Faul shooting him seven times at ana law employs the same reasonableness point-blank range as he fell down strug- standаrd as the Fourth Amendment. gling to fend off dog. the No other officer Therefore, we the reverse district court’s fired a shot. I concur in rejection the of grant of summary judgment on the Ma- immunity for the final two shots the and sons’ claims Faul under Louisiana disposition of Appellants’ claims, other but state law and remand. I dissent from majority’s the refusal
address the district grant court’s of quali- reasons, For the foregoing we AFFIRM fied immunity for the first five shots that the district judgment court’s with regard Quamaine’s led to senseless death. 379, Fed.Appx. Cir.2010)
62. 390 385-86 64. Compare Kyle City Orleans, New of curiam) (per (citing City Reneau New (La. 1977) ("Whether So.2d of the force Orleans, 03-1410, No. Civ.A. 2004 WL depends used is upon reasonable totality the (E.D.La. 2, 2004)). at *4 July of the facts and circumstances in each case. A court must evaluate the officers' actions See Howe ex rel. Howe v. Scottsdale Ins. against those ordinary, prudent, of and rea Co., (5th Cir.2000) ("If the placed sonable men position in the same as Supreme Louisiana Court has not ruled on the officers and with the same knowledge issue, as this then this Court must make an 'Erie officers.”), the with Mathieu Imperial Toy guess’ and 'determine as best it can’ what the Corp., (La. 1994) ("The 646 So.2d Supreme Louisiana Court would decide.” Hobbs, (quoting employed reasonableness we test Kyle Krieser v. Cir.1999))); upon based the see text the Fourth also 19 Amendment Wright, Miller, & Constitution, to the § United States as well as Cooper, Federal Practice and Procedure (explaining that applies (second the Erie doctrine even La.Code Cr.P. emphasis art. 220." jurisdiction the basis added) (footnote diversity). is not omitted)). a offi- police to be wanted Quamaine, who I. agencies actively applying was cer and most fa- of facts version the Accepting area, on his waistband. gun had a in the must,1 I offer we as Appellants, vorable carry gun.3 permit He had reason- which of events a narrative up no reasonable hands find that with still his Quamaine could stood jury able an im- perceived police all in- could have with complying officer police empty, the life life or dog by his own holding his its threat to minent But structions.4 charged dog the collar, Faul and another. Officer separated less two were Quamaine Martin —the Officer December On thirty-six-inch dog’s of the length the than working the officer—was Faul —a canine “Gun!,” Faul shoutеd tether. Officer reported to a Responding night shift. Quamaine. When onto dog the launched store, Offi- department at a robbery armed began falling to he Quamaine, hit dog armed of another report heard cer Faul fend off reflexively trying to ground apartment Babino’s Racquel robbery at Quamaine As his hands. with the attack immediately “vol- Faul Officer complex. him. In- began shooting fell, Faul Officer Arriving on the call.” for the unteered nearly firing began si- deed, Officer offi- two other time same scene of the deployment multaneously with ran toward cers, officers all three attacking throughout dog, continued which When guns with drawn. apartment Officer shooting. This means lead, quickly gained officers other . range and point-blank firing at Faul was “Y’all behind yelling, charge, took dog, not man that the assault dog.” of the other two man. Neither dog then apartment at the arrived officers The single fired a shot. scene on the walking Mason Quamaine complex see paths that the confirms autopsy apartment of an front door out the ex- Quamaine are hit shots which the de- matched Quamaine young woman. struggle with by his only plained call suspeсt, and scription of the *15 ground. and to the to his left falls the he armed.2 When was had that stated Quamaine hit shots the seven or None fleeing him, he was officers saw downward him in striking head-on, instead walking quiet- he was anyone; threatening closest The the side and paths a com- back.. female door with the front ly out Qua- hit which the shot him, to head-on is upon with young woman panion. angle, sharp downward at a maine’s chin already- the seeing (never exit- neck through his then traveled immediately out shouted weapons, drawn Traylor, Dr. body) to his chest. ing his nothing wrong. had done Quamaine that efforts to enough their Co., search not confident Ins. Liberty Fire Mut. Ferraro 1. See Quamaine definitely did not Cir.2015). represent that ("[E]ven assum- id. permit. See a have such inci- preceding the characterization 2. The [Quamaine] a valid held arguendo that ing by made robbery an error was as armed dent is dis- fact the extent this permit....”). To dispatcher. the dispute in favor resolve puted, we must Ferraro, at 531. See Appellants. they performed represent Appellees that any to find unable and were records search Quamaine never did Quamaine stated that also concealed 4.Babino held a evidence including threatening, presumably at but at anything Brief Appellees’ weapons permit, seeing people fighting recall docu- taking up a stance. different least two Appellees also are permit. of this mentation who gave “plausible order of shots fired Officer Galland reported Quamaine statements,” based on the [witness] be- made a rolling motion similar to that re- lieved this shot was the first to hit. How- ported by Faul, Officer only but all after ever, this account is by contradicted other fired, the shots were Qua- stated that evidence;5 indeed, Babino stated that she maine’s hands were above his head at the Quamaine’s believed the first shot hit chest suggesting that Officer Faul’s time- time — or shoulder rather than chin. his Whenev- might line be mistaken. Finally, if the last struck, er the chin shot its downward tra- Quamaine’s two shots hit back, as suggest- jectory explained be only by can Qua- by ed testimony from Officer Faul and maine’s struggle with the dog. witness, another then both his humeri were While dog Quamaine, already by was on fractured point Officer Quamaine shot which point- reports seven times at Officer Faul that he tried to (recall blank range spin was himself on over. Though he may still thirty-six-inch tether held Officer have been arms, Faul’s able to move his “it would left gun hand and his was being fired with have been extremely painful” and they right). his Quamaine If did move on the were going “not to help him at all” to turn ground prior to Officer Faul firing the last over. majority As correctly concludes, shots, may two it have due to been a reasonable trier of fact could find that dog, “tearing which was still Qua- at” Quamaine never moved threateningly once maine’s hip, “grabbing pulling him and him on the ground.7 However, back.” there is evidence that Quamaine did not move during pause II.
between the first five and the last two shots to hit him. deposition Babino’s indi- A. cates that her attention was fixed Qua- on throughout maine reviewing “[W]hen shooting, grant of summary officer judgment provide accounts support further the Fourth Amendment con- —she text, watching Quamaine. after When if first construing asked she disputed histori- Quamaine saw cal move once he facts non-movant, was on favor of ground, she stated that he court picked must then up his ask how a reasonable head, but she did not see him officer perceived “move would havе his those histori- body, the trunk of body.” cal She facts.”8 On the narrative sketched stated Quamaine above, that she did not see make Officer Faul and the dog together “any threatening action ... towards any- Quamaine attacked though even the young one” once the apartment opened door or man made no threatening movement what- *16 make “any effort whatsoever :.. fight to soever. Even if Officer actually be- against back the police.”6 Quamaine lieved going was fight him— to 5. Traylor's Dr. version trajecto- of the bullet’s mony pushed that Michael attempted him and ry right as "slightly to left" differs from the to drown by Nero was contradicted medical autopsy, reported which trajectory the as "left evidence and witness testimony that Michael's right.” to right ‘virtually arm was useless' gun due to a shot wound only prior suffered three months 6. Babino here refers to all times the first after healed.”); yet which had not v. Fra Sanchez shot; Quamaine also she stated made no ley, Fed.Appx. (5th Cir.2010). 376 452 threatening prior movement any to shots. 7. See Goodman v. County, Harris 571 8. Hill County, F.3d v. Carroll 587 F.3d (5th Cir.2009) ("Ashabranner’s (5th Cir.2009). testi- to Officer Faul is entitled whether facing stance” compliance complete despite the first five shots police immunity for reasonable guns qualified drawn three —no testimony.” as life light behavior of Babino’s perceive such “in the could officer that Offi- Moreover, no doubt partial There is this remand cannot be threatening. force these of lethal use majority Faul’s' the fact that the squared cer with Amend- Fourth violated the shots, circumstances final two where address the does no imme-. poses the suspect ment. “Where I am at testimony critical. Babino’s was to and no threat the threat to officer diate a why majority single the slices as to sea not deadly force is others,” the use shots segments into distinct event —seven the not dwell” on also “need We justified.9 prop- the performs five and two—then into long immunity. “It has qualified issue analysis respect segment— with to one er that, any absent clearly established been then orders the final two shots—and the force, it is for the use justification other again respect with to try court to district use officer to for a unreasonable first five shots. segment other the —the does a ... felon who deadly force puzzling especially decision is This hаrm to the a sufficient threat pose immunity. As we qualified is issue or others.”10 officer context, there is no before in this have said anal- with this majority fully agrees The court to ad- require to district reason shots, final two but to the respect with ysis this again legal question dress grant of sum- it leaves the district court’s And inevita- reviews de novo.11 we Court respect to place with mary judgment before this appeal face another bly will refusing to address first five shots— trial, to at which evidence go can case is, it That judgment. appeal jury hardly segment- be to the can offered qualified to Faul entitled Officer leaves ed. shots, electing to “re- immunity for these majority simply that the upshot The instance in the first consideration mand for with re- “express opinion” to an declines actions are other Officer Faul’s whether main issue of legal to a issue—the gard immunity light in the qualified entitled by addressed squarely case—that this vacating testimony” Babino’s —without court, by par- fully briefed district all summary judgment. With grant of this case. ties, the heart of and remains inexplicable ás this result is respect, due to vacate majority also declines The court con- district unexplained. it is rеspect judgment court’s district Faul was entitled that Officer cluded that is eyes, these five shots. To first for all seven shots—it immunity qualified opinion in its in- Nowhere “in the first indefensible.12 already addressed has Intervoice-Brite, Inc., 1, 11, Garner, Barrie 471 U.S. Tennessee v. (5th Cir.2005) ("While proce- the normal (1985). L.Ed.2d 1 consid- has not where the lower court dure case, County, pertinent to remand Lytle Bexar issue is ered Cir.2009); Zachary, economy judicial can dic- Graves see considerations of these, ("It (5th Cir.2008) such as Fed.Appx. tate otherwise in circumstances legal question specific purely case for officer is a does not take where issue court.”). compliant sus subject plenary that he cannot shoot review know *17 again at someone fire pect and that he cannot court remanding the district because 12.When incapacitat objectively who is 'downed error, practice uniform legal our committed ”). ed.’ See, e.g., Veaseyv. judgment. vacate the is to Cir.2015); 487, (5th Abbott, F.3d 503-04 Dep’t, 86 Livingston Police Nerren v. 11. See Corp., 1996); v. Flowserve 469, (5th Pension Fund Alaska Elec. see also Cir. 473 n. 25 F.3d majority explain from it dog, Quamaine does the where reacted —in a reflexive at- authority a single tempt derives the to slice event dog by fend off the moving his — resulting parts and choose from the of the hands downward and unintentionally clos- appeal which to decide. We duty- gun are er to the in his waistband. But that bound to the issues essential to principle decide does not address the situation here, appeal. appellate “Federal courts’ twin where an officer used both a appeals gun together attack, duties are to decide and to articu- part of the same majority’s late the law.”13 The opinion the same direct and intentional deploy- respect does neither with to the deadly first five ment of force. complicates shots and path future of The doctrine regarding negligent cre- thing long delay
this case. One is sure — ation of the circumstances requiring dead- majority already a trial that the has con- ly necessary force is collapse to avoid of ceded must occur. jurisprudence deadly of into force action, negligence but it is not without
B. limit—for it would then blur and ultimate- majority’s reasoning, ly Whatever the erase the effort of the law to limit thе with all I respect, due cannot concur in deadly its use of force. And I do not read the opinion leaving open the door for another say extant cases to otherwise. In Young, decision in Officer Faul’s favor. This “re- negligently the officer increased the back- mand for consideration” implicitly ground holds level of risk failing to maintain cover, that on this record the court failing district could help to radio for or wait for conclude that Faul enjoys qualified Officer backup, placing patrol car in danger- immunity as a matter of law for position, the first ous and directing suspects five shots eyes and to these that cannot be exit their car.15 We Young have followed rely so. Appellees upon principle in cases where officers failed to maintain may deadly cover,16 use force when threat- identify failed to themselves as they officers,17 ened even if negligently create cir- or otherwise increased the riski- leading cumstances to the need for force.14 ness of the situation.18 following Also is, That Appellees argue that Officer Faul Young, we have said that “[t]he excessive justified in using deadly force because inquiry force is confined to whether the
even if negligently released his attack in danger [officer] was at the moment of 221, (5th Cir.2009) (per Houston, 572 F.3d 183, Carnaby City cu 16. 636 F.3d of riam); Prairie, City (5th Cir.2011). Gros v. Grand 181 F.3d 613, (5th Cir.1999). This is sensible. If judgment predicated the district court's on City Arlington, Fraire v. 957 F.2d determination, legal (5th erroneous Cir.1992). we should 1275-76 not, plage. not leave it in If it is there is no part basis to return a Brown, of the case to 18. See Rockwell v. 664 F.3d 992- district court. Cir.2011) (officers broke into room upset, mentally where ill man had barricaded McFarland, himself); United Knoulton, States v. 542 F.3d Ramirez (5th Cir.2002) (Jones, J., dissenting (5th Cir.2008) (officer 129-30 "fail[ed] to banc). rehearing the denial en consider the use of non-lethal force or employ negotiator” response a crisis to a Killeen, Young City 14. See non-complying suspect); City Owens v. (5th Cir.1985). Austin, Fed.Appx. 624 n. 2 Cir.2007) (officer proper pro- failed to follow cedures). 15. Id. at 1351.
287
in
eager
engage
an officer
force,
picture
the
of
in” the
but
resulted
threat
that
deadly
a
confrontation.
that earlier
continued
immediately
we
followed”
stage for what
“set
events
cases,
Young
Second,
officers’ ac-
in the
regarding
disputes
factual
held that
and
situations, but
sus-
risky
created
tions
material.19
were
them
intervening
to commit
pects then chose
fact
highly
cases are
force
Excessive
the officers.21 The
threatened
acts which
distin-
key circumstances
two
and
specific,
scene,
tragic
out-
set the
but
officers
Young and its
proge-
from
this case
guish
inevitable; suspects were
come was not
dog to
First,
officer’s use
ny.
comply with officer commands22—
free to
risky
set a
merely
not
Quamaine did
attack
attack, flee, or reach
chose to
but instead
was at
fired.
It
shots were
scene before
officers’ view. Officers
objects
for
out of
The
gun.
and
assault of
all times an
newly developed threats
faced with these
trained,
Officer
dog did
moment the
reasonably in the moment.
responded
then
That
contin-
firing away.
he
began
in
intervening act
this case.
There was no
back
rounds
his
two more
put
ued
hands,
his
Quamaine moved
To the extent
lying on his stomach
Quamaine was
after
reflexively
at-
cannot be faulted
as an
signifies
It
both
doubly relevant.
is
dog.
from
himself
tempting
protect
observes,
act,
majority
as the
independent
per-
have
officer would
No reasonable
that
powerful suggestion
also for its
but
reflexive movements as threat-
ceived his
to be dead-
his force
intended
Officer Faul
Indeed,
sequence
given
firing
ening.
Faul’s
Officer
beginning.20
from
ly
jury could
trajectories, a reasonable
and
protocol
police
multiple breaches
—in-
had
that hand movement
easily conclude
killing
...
into
cluding “rush[ing]
shooting.
nothing to do with
cover,
failing to take
plan,
a
zone” without
Ramirez do not
Young and
provide
despite
taking the lead
insisting on
and
recognized
have
answer here. We
dog suggest
attack
to an
being tethered
—
properly
summary judgment
denied
be
Faul cannot
Though Officer
the same.
actions,
about whether
exist[ ]
fact issues
“where
negligent
for these
held liable
justified
force was
officer’s use of
paint
police
infer
they
certainly
jury could
(suspect
knives); Carnaby,
F.3d at 186
636
Hidalgo County, 246
ex rel.
Bazan
Bazan
chase,
Fraire,
get out
Cir.2001)
refused to
police on car
(citing
led
F.3d
window,
1276;
police
bent down
until
Young,
F.2d at
smashed
at
hands, and
Rockwell,
could not see
where
1353).
car
v. III. OF BOARD LOUISIANA STATE EDUCATION, Defendant- facts, version of Appellants’ Under Appellee Mason Quamaine nothing that there his matching in the area anyone or indeed Quamaine’s escape could do description Dillon; Dillon; Le Michael Titus Mitzi police were as soon He was dead as fate. Mary Edler; Fuselier; mane; Lakisha until with all orders complied He called. Alliance for Edu Black Louisiana officer dog by he was attacked Movants-Appellants. Options, cational point-blank times seven at
who shot him 14-31010. No. pro- responsibility have the range. We in the guidance all arresting officers viding Appeals, Court of United States can, these that we deadly force use of Fifth Circuit. close and difficult—and are often cases 10, 2015. Nov. difficult, we close and cases are
when these immunity. post-hoc the officers with clothe far from is of man
This attack this ought not decide genre. We jury. belongs to a case—that decision component important Avoiding a trial quali- immunity, but denial qualified deny Officer immunity fied does It liability. immunity defense judged that he must be only concludes should Appellants jury peers.30 of his expense the time and go through not have get this interlocutory appeal of another join I cannot as much. recognize Court abstention, and newly form of minted respectfully I dissent. BRUMFIELD; al, et Plaintiffs Oless course, 1994) curiam) ("Of officer] (per See, [the Livingston Sch. e.g., Par. Swindle trial.''). (5th Cir.2011); Bd., Harper immunity may qualified assert still 655 F.3d (5th Cir. County, Harris notes three that the Third, note Masons at Babino’s reported robbery the armed ap- cover failed to maintain the dis rather, he listened apartment; Mason; allege experts their Mr. proaching him, de the comments read patcher systemic prac- aof is “evidence the location. suspect scribing the pro- However, have not the Masons tice.” after he says statement Faul’s fail- officers’ that the any evidence duced going dispatcher told than more cover was to maintain ure robbery apartment at Babino’s armed Therefore, they violation.”60 “isolated Marshall’s, Faul
Notes
notes written reading the But, ground. the already on he was when la infer that Faul’s jury could reasonable that proof no provide the again, Masons no atten paid he “never that statement ter of custom level rise to the practices these in context—: computer” tion —read policy. or infor of aware he was not that meant suspect that describing the mation to defects point Finally, Masons Alternatively, as verbally. communicated disciplinary investigatory Lafayette’s dispatch ignored suming the Lafayette allege that They proceedings. custom, the level of ignorance reached that ma- scene and the crime cleaned police on met their burden not have the Masons They also gun. Mason’s nipulated Mr. any to’ pointed not They have causation. Faul on keeping Lafayette fault on the dispatch provided that information the incident he discussed because job Faul, would by that, if known computer investigator after state-police with of events. the course have altered have We terminated. official interview to im- nearly impossible that “it held Faul’s use focus on Second, the Masons [a to munici- policy disciplinary lax pute that They note dog. abus- showing pattern without pality] Lafayette’s knowing of to not admitted ain made error transcends es canines and use of policies on have Here, the Masons single case.”61 to use it is unusual admitted that problems evidence provided contend They also weapon. firing Slidell, City Inc., 60. Bennett v. 477 U.S. Liberty Lobby, 59.Anderson Cir.1984). n. 3 91 L.Ed.2d (1986). Piotrowski, 237 F.3d at Lafayette’s disciplinary and investigatory to the Masons’ process substantive due procedures outside present case. Ac- claims; deliberate indifference RE- we cordingly, Lafayette and Chief Craft can- VERSE the judgment district court’s not be held liable under Monell. Officer Faul is qualified immu- entitled nity with respect to the Fourth Amend- VIII ment and claims, state law as to the final shots; two and REMAND for consider- The Masons bring claims under ation in the first instance whether Officer Louisiana state law. The parties agree Faul’s other actions are entitled to quali- that the Fourth Amendment’s reasonable- fied immunity in the'light of Babino’s testi- ness applies standard to the state-law mony. claims, such that the state-law claims rise fall with the Fourth Amendment claim. For proposition, parties and the PATRICK E. HIGGINBOTHAM, district court have to our unpublished cited Judge, Circuit concurring in part and opinion in City Winston v. Shreveport62 dissenting part: but pointed have not any published Quamaine As Mason and his girlfriend, directly cases that proposi- establish this Racquel Babino, stepped outside of her tion63 from our court or the Louisiana apartment, they were met three officers Supreme Court.64 with guns Quamaine drawn. put his hands Because parties agreement are in up and stood still. Officer Martin Faul