Lead Opinion
This lawsuit arises from the death of Jeremy W. Vann, who was shot and killed by police in a retail parking lot in Southa-ven, Mississippi during a small-scale drug sting operation. Because there are genuine issues of material fact that preclude the qualified-immunity determination as to one of the defendants, we AFFIRM in part, VACATE in part, and REMAND to the district court.
I.
The City of Southaven used prior arres-tees as confidential informants to buy small amounts of drugs from non-residents who agreed to sell them. When the drug sale was intercepted by police, the police would seize cash and property from the would-be drug sellers.
Around 6:00 a.m. on May 28, 2014, Teon Katchens agreed through an online chat system to sell one ounce of marijuana for $150 to someone in Southaven, Mississippi. Later that morning, Katchens’s friend, Jeremy W. Vann, drove Katchens and Katchens’s three-year-old son from Memphis, Tennessee, to a parking lot in Sou-thaven for the exchange. Neither Vann nor Katchens was armed.
Shortly after Vann arrived at the lot, his car was boxed in by unmarked civilian cars driven by undercover Southaven police officers! The officers exited their cars, and Vann reversed his car, trying to escape the cars that surrounded him. During Vann’s escape attempt, Vann’s car moved forward toward Sergeant Jeff Logan, who shot Vann before being knocked to the ground by Vann’s car. While Logan was on the ground, and as Vann’s car approached him for a second time, Lieutenant Jordan Jones fired a second shot at Vann. Vann died as a result of the shots fired by Logan and Jones. Katchens and his son survived.
The parties agree that Vann maneuvered his car in an attempt to escape, was shot first by Logan, and was shot second by Jones. The parties disagree, however, on the precise sequence and intent behind certain events between Vann’s arrival at the parking lot and the moment Logan fired his weapon. The parties also disagree on whether the police officers used lights and sirens, wore police vests or badges, and shouted, “Police!” thus informing Vann of their status as officers.
According to the officers, in the course of Vann’s efforts to escape the cars boxing him in, Vann’s car slammed into Logan’s and another officer’s cars multiple times. As Logan was running between his own car and Jones’s car away from Vann, Vann’s car struck him, causing Logan to shoot in self-defense before rolling over the hood of the car and falling to the ground. In contrast, Plaintiff, who is Vann’s representative, argues that rather than Vann’s car striking Logan and causing him to shoot, Logan moved in front of the car and shot Vann as Vann attempted to escape through a gap between the cars'. It was only then that Vann’s car hit Logan. As Plaintiff puts it; the disputed central fact is therefore whether Logan ran to the opening and shot Vann to prevent him from fleeing or whether, instead, Logan was hit as he ran out of the way of Vann’s car.
Plaintiff supports his account by noting that investigators found no evidence of tire tracks or burnt rubber on the pavement and the fact that any damage to the officers’ cars was either minimal or pre-exis-tent. Plaintiff also points to the testimony of Logan and Jones, both of whom agree that Vann was trying to escape. In Plaintiffs view, this concession forecloses the notion that Vann intentionally drove toward Logan and instead suggests Logan purposefully placed himself between Vann’s car and' his escape route.
Plaintiff sued the officers and the City of Southaven under 42 U.S.C. § 1983, claiming that the officers violated Vann’s Fourth Amendment right to be free from unreasonable seizure, excessive force, and deadly force, and that the City had failed properly to train its officers and had permitted an official practice or custom that violated the constitutional rights of the public at large. The officers and the City simultaneously moved for summary judgment.
The district court granted the officers’ and the City’s summary-judgment motion. With respect to the officers, the district court concluded that Plaintiff failed to show the violation of a clearly established right under either factual scenario: Logan attempting to dodge Vann’s .oncoming car or Logan attempting to stop Vann from fleeing.
II.
“This court reviews de novo the district court’s resolution of legal issues on a motion for summary judgment on the basis of qualified immunity.” Hanks v. Rogers,
“A qualified immunity defense alters the usual summary judgment burden of proof. Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct violated clearly established law.” Hanks,
III.
Because there are genuine disputed issues of material fact regarding Logan’s actions, we vacate the district court’s grant of summary judgment to Logan.
It is also material. The Supreme Court has “repeatedly told courts ... not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd,,
In this case, with respect to the reasonableness of Logan’s conduct, the district court, to conclude that Logan’s conduct was reasonable, primarily considered the fact that Logan was in the way of Vann’s accelerating car when he shot at Vann. Vann v. City of Southaven,
When viewing the facts in the light most favorable to Plaintiff, however, Logan’s running into the way of Vann’s car and shooting at Vann are not distinct acts. Plaintiff contends that “Logan ran to the opening and shot Vann to prevent him from fleeing.” Id. at 1134 (emphasis added) (quoting Pl.’s Br. at -6-7). As Logan himself admits, describing the moment when he ran, turned to face Vann, and shot, “it all happened at one time.”
It .has long been .settled that “[w]here [a fleeing] suspect.poses no.immediate threat to the officer and .no threat to others, the harm resulting, from failing to apprehend him does not justify the use of deadly force to do so.” Tennessee v. Garner,
On the one hand, if Logan was running away from Vann’s moving' car and thus being threatened by it at the time he shot Vann, this case could fall in line with other car-related cases where courts have determined that a reasonablé officer would have resorted to deadly force. See, e.g., Mullenix,
On the other hand, this case could fall into a group of “factually distinct” cases involving “suspects who may have done little ■ more.- than flee at relatively low speeds.” Mullenix,
“[C]ourts must take care not to define a case’s ‘context’ in a manner'that imports genuinely disputed factual propositions,” Tolan,
IV.
The district court granted summary judgment to the City as to Vann’s municipal liability claims. Finding no error in the district court’s analysis regarding the City, we AFFIRM.
V.
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to the City, Jones, Yoakum, and Long; VACATE the district court’s grant of summary judgment.to Logan; and REMAND for further proceedings consistent with this opinion.
Notes
. Although Katchens states in a sworn affidavit that he did hear Logan yell, “Freeze!” and that Vann revved' the engine of his car at some point after that, he also states that he never heard anyone yell, "Police!” and he did not know that the two men in front of Vann’s car were police officers. In fact, in his affidavit, Katchens states he "remember[s] thinking that the guy [Vann and him] were supposed to meet had set [them] up to be robbed.” Plaintiff further supports the position that Vann and Katchens did not know that the people surrounding them were 'police officers with the fact that the officers were in plain clothes, the fact that neither Jones nor Logan wore a police vest, and additional testimony from Katchens that he did not see any flashing lights on either of the vehicles in front of Vann's car arid never heard a siren.
. The City and the officers were and continue to be represented by the same counsel in single briefs and motions.
. Though acknowledging Logan’s and Plaintiff’s differing accounts and claiming to accept Plaintiff's account, the district court concluded it was unclear that Logan “did anything other than his job duties required.” Vann v. City of Southaven,
. See White v. Pauly, -U.S.-,
. The following is the relevant portion of Logan’s deposition:
Q. Let’s take it this way. You're—are you running I guess between your vehicle and the Jones vehicle? Are you walking? Describe it.
A. It’s kind of a run. I’m not really a runner. I’ve had surgery. I was old. I wouldn't call it running, but I was going as fast as I could. You may call it a run, yes, sir.
Q. So you’re going as fast as you can. What happens next?
A. I know—I mean, I’m at kind of like an angle. I can see this is—he's fixing to hit me and push me forward. So I turn and face him; and as a reaction, don’t know why I did it, instead of two handed grip and shoot like you’re supposed to, my left hand hit the hood of the car at the same time as I—I mean, it all happened at one time; and I fired one round into the windshield.
Furthermore, while Katchens’s affidavit seems to suggest by the order of his statements that Logan yelled, "Freeze!” after Logan was already in front of Vann's car, this timing is inconsistent with Logan’s description of the relevant events. During his deposition, Logan stated that he yelled, "Police Department,” before Vann allegedly backed his car into another officer’s car and before he ran to the spot at which he was hit by Vann’s car. In the excerpts provided from Logan's deposition, Logan does not mention yelling, “Freeze!” at any point between running in the way of and shooting at Vann. He also does not mention hearing the engine rev at this time. In fact, in a signed statement by Logan, he states that he heard the car’s engine rev before he started to move out of its way,
. The dissenting opinion disagrees as to the "moment” that is relevant to our inquiry. In Bazan ex rel. Bazan v. Hidalgo County,
For the same reason, this decision does not implicate the "provocation doctrine,” which, as the dissenting opinion explains, is “a. theory that an earlier Fourth Amendment violation can transform an otherwise reasonable use of force into a constitutional violation.”
. With respect to Plaintiff’s burden of showing that Logan violated Vann’s clearly established rights, see Cass v. City of Abilene,
Concurrence Opinion
concurring in part and dissenting in part:
I concur -in the judgment of the court as to the City, Jones, Yoakum, and Long. The majority- opinion’s denying Logan qualified immunity under the undisputed facts here, however, effectively creates a • “stand down” rifle for law-enforcement. -I respectfully dissent from the judgment vacating and remanding as to Logan.
This is an excessive force case under the Fourth Amendment. ' In such cases, “a court must'judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer.” Kingsley v. Hendrickson, — U.S. -,
Early in the morning of May 28, 2014, one of Logan’s colleagues received , a report from a confidential informant. The Cl had arranged a meeting with a drug dealer in a convenience store parking lot to purchase one ounce of marijuana. Logan was asked to be part of a team of five officers who planned to bust the dealer. Neither Logan nor anyone on the team had any indication about how much drugs the dealer had on him, who would be with him, or whether he would be armed. When they arrived at the meet-up point, the Cl approached from the behind the store, moving to the front of it, while officers staked out the parking lot in their vehicles. Waiting in a car were two men (Vann, the driver, and Katchens, the passenger), one of whom waved to the Cl to come to the ear. At that point, Logan and others stepped in to arrest the dealers. They used their vehicles to comer in the dealers’ vehicle, leaving it only one escape route.
The precise details and sequence of events are disputed from there. Because we are reviewing a motion for summary judgment, I accept the evidence in the light most favorable to Plaintiff. At least one of the officers wore a vest that said “POLICE” on it. Plaintiff contends (as the majority opinion puts it) that Logan “purposefully placed himself between Vann’s car and [Vann’s] escape route.” Maj. Op. at 135. Once there, Logan yelled, “Freeze!” loudly enough that it could be heard in Vann’s car. In response, Vann revved the engine.
This expanded summary shows Logan used reasonable force. Analyzing excessive force claims “requires careful attention to the facts and circumstances of each particular case, including 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.” See Graham v. Connor,
Those factors all favor Logan, taking as true the facts alleged by Plaintiff but viewing them from the perspective of a reasonable officer in Logan’s shoes. Illegally dealing controlled substances is a serious crime. See 21 U.S.C. §§ 841(a), 846 (criminalizing distribution and conspiracy to distribute marijuana); Miss. Ann. Code § 41-29-139(b)(2)(A) (criminalizing possession with intent to distribute marijuana); see also United States v. Christie,
The majority opinion concludes that Logan is not entitled to summary judgment because of a dispute over facts. I agree with the well-worn statement that if there are material disputes of fact, then summary judgment is improper. However, the key word here is “material.” Not all factual disputes qualify. This one does not.
The majority opinion intently focuses on a fact that our precedent says is irrelevant—why Logan was in front of Vann’s vehicle in the first place. The cases cited from the Supreme Court and our court by the majority opinion and the parties do not hold that an officer’s actions prior to the use of deadly force are relevant to the inquiry of whether the use of deadly force was reasonable. Quite the opposite: “The excessive force inquiry is confined to whether the [officer] was in danger at the moment of the threat that resulted in the [officer] shooting [an individual].” Bazan ex rel. Bazan v. Hidalgo County,
Indeed, the majority opinion runs afoul of the Supreme Court’s reasoning rejecting the Ninth Circuit’s “provocation doctrine,” a theory that an earlier Fourth Amendment violation can transform an otherwise reasonable use of force into a constitutional violation. See County of L. A. v. Mendez, — U.S.-,
The majority opinion tries to collapse the inquiry by “viewing these steps [i.e., the decision to get in front of the vehicle and the decision to shoot] together as the relevant conduct.” Maj. Op. at 137.
A recent unpublished decision from our court demonstrates well the proper analysis. See Davis v. Romer,
The majority opinion effectively adopts a “stand down” rule for law enforcement. Sadly, officers are required to put themselves in harm’s way in a lot of situations where most people would run away. Society lauds honest police officers precisely because they put themselves in harm’s way by engaging dangerous people to keep us safe. It is hard to imagine that the majority opinion is suggesting officers are required to stand down or face a lawsuit. But to' require Logan to stand trial for his alleged decision to step in front of Vann’s vehicle does just that.
Even assuming, arguendo, that Logan used excessive force, the question then becomes, was there law that put Logan on notice that shooting in this situation violated the constitution? The majority opinion says this law should not be viewed at a “high level of generality” but turns that against Logan, essentially requiring him to' find a case in his favor. The law is just the opposite: it is Plaintiff who must find a cáse in his favor that does not define the law at a “high level of generality.” Cass v. City of Abilene,
Supreme Court precedent provides no support to Plaintiff and, indeed, counsels the opposite result. All of the recent cases from the Supreme Court involving suspects in moving vehicles have found qualified immunity, even despite disputes over facts: Mullenix v. Luna, — U.S. -,
The majority opinion is similarly unhelpful. It cites the following cases: Tennessee v. Garner,
However, even assuming Lytle survives these cases, it does not support the majority opinion’s decision as to Logan. As we acknowledged then, if the vehicle had presented a threat of harm, the officer would “likely [have been] entitled to qualified immunity. This is due to the threat of immediate and severe physical harm that the reversing [vehicle] likely posed to [the officer] himself.” Lytle,
The majority opinion tries to nestle this case into a single line from Mullenix categorizing certain cases as “involving ‘suspects who may have done little more than flee at relatively low speeds.’ ” Maj. Op. at 138 (quoting Mullenix,
In sum, even assuming the facts in a light most favorable to Plaintiff, I conclude that, from the perspective of what Logan knew and could have reasonably believed, he used reasonable force. At the very least, Logan is entitled to qualified immunity because no clearly established law notified Him that his actions violated the Constitution. Accordingly, I respectfully dissent from the portion of the judgment denying qualified immunity and remanding the case as to him.
. Katchens' affidavit makes these facts abundantly clear:
14. The man in the red shirt [i.e., Logan] was léaníng at about the center of the hood and I [i.e., Katchens] think he may have had one hand on the hood and in his other hand he had the gun pointed at us. The gun was about three feet away from us.
15. I did hear the man in the fed shirt yell FREEZE!
16. I never heard anyone yell POLICE! Just FREEZE!
17. I put my hands up in the air. [Vann] looked scared and I was scared too.
18. This next part happened very fast, [sic] [Vann] tapped the gas and the engine revved but the car did not move and I told [Vann] "stop fool" meaning don’t rev the engine.
Later.in the same affidavit Katchens acknowledged that one of the officers at the scéne "had on a vest that said POLICE on it,” even if Katchens did not see him originally.
The district court ignored Katchens’ affidavit because it directly contradicted Katchens’ earlier statements that the officers approached with sirens on and that Katchens told Vann in the moment that the Cl "done called the police on you." See Vann v. City of Southaven,
The majority opinion, however, considers Katchens’ affidavit only from Katchens’ perspective. Maj. Op. at 135 n.1. The proper analysis is to assume the facts in Katchens' affidavit are true and then determine from Logan's perspective whether his actions were reasonable. Whether Katchens or Vann subjectively believed tire police were ordering them to stop is irrelevant.
. The majority opinion also seemingly tries to transmute this legal issue into a factual one by claiming that the evidence can be interpreted so that Logan's alleged running in front of the car and shooting were "not distinct acts.” See Maj. Op. at Í37. But as Katch-ens’ affidavit confirms, Logan at the very least yelled, "Freeze!” and heard a revving engine before he fired. (On the officers' versions of the events, Vann acted far more aggressively and Logan never moved in front of the vehicle.) No evidence even implies that Logan's alleged movement in front of the vehicle and his shot occurred at the same moment.
The majority opinion's citations do not support interpreting these alleged actions as a single moment. It first cites a statement from Plaintiff’s brief in the district court that "Logan ran to the opening and shot Vann to prevent him from fleeing.” Maj. Op. at 137— 38 (emphasis omitted). Regardless of how that statement is interpreted, it was made in a brief without citation to any record evidence supporting it, which means we must ignore it, See Garcia v. LumaCorp, Inc.,
The majority opinion also.cites a statement from Logan’s deposition that "it all happened at one time.” The majority opinion depicts this statement as applying to "the moment when [Logan] ran, turned to face Vann, and shot.” Maj. Op. at 137. The biggest hole in that citation is that Logan maintained that he was in front of the vehicle because Vann positioned the vehicle toward him; any running Logan did was only to get out of the way of the vehicle, not into its path. Thus, his deposition testimony could not support the notion that his (1) decision to run in front of the car and (2) decision to fire happened at the same time, because he never said he decided to run in front of the car.
But even assuming Logan had admitted that he decided to run in front of the car, his statement does not support the majority opinion’s reasoning. The "it” in "it all happened at one time” was the car making contact with Logan and Logan firing his weapon—not his decision to move in front of the car and his decision to fire. The excerpt of the deposition included in the majority opinion makes this clear. Logan indicated that he began running; the attorney deposing him then asked, "What happens next?” indicating that Logan’s next answer followed the beginning of his run. Then, as Logan described the car coming down on him, he reported that "my left hand hit the hood of car at the same time” and then stopped mid-sentence to re-phrase his sentence, "I mean, it all happened at one time; and I fired one round into the windshield,” The majority opinion grasps at other variations between Logan’s description of the events and Katchens’ affidavit, but no matter whose story is believed, Logan faced a vehicle acting aggressively, which ultimately hit him, when he fired. . „ .
. Again, while the amount to be sold pursuant to the staged buy was one ounce, there is no indication that the officers reasonably be- , lieved Vann’s drug dealing to be limited to this one ounce. Furthermore, possession with intent to sell even one ounce of marijuana is punishable as a felony under state law, including up to three years of imprisonment. See Miss. Code. Ann. § 41-29-139(b)(2)(A).
. The majority opinion also discusses the Sixth Circuit case of Godawa v. Byrd,
. Tennessee v. Garner,