Jackson v. Gautreaux

Case: 20-30442     Document: 00515920865        Page: 1     Date Filed: 06/30/2021

           United States Court of Appeals
                for the Fifth Circuit                                 United States Court of Appeals
                                                                               Fifth Circuit

                                                                         June 30, 2021
                                 No. 20-30442                           Lyle W. Cayce

   Carrington Jackson, on behalf of the minor child Travon
   Carter; Travis Watson, on behalf of the minor child Travon
   Carter; Phyllicia Carter, on behalf of the minor child Travon
   Carter; Cassandra Carter, on behalf of the minor child Travon



   Sidney J. Gautreaux, III, Sheriff, East Baton Rouge Parish;
   Shannon Broussard, Detective; Charles Montgomery,
   Detective; Scott Henning, Detective; Christopher Masters,
   Detective; Verner Budd, Sergeant; Michael Birdwell,


                  Appeal from the United States District Court
                      for the Middle District of Louisiana
                            USDC No. 3:17-CV-105

   Before Davis, Duncan, and Oldham, Circuit Judges.
   Andrew S. Oldham, Circuit Judge:
         Travis Stevenson repeatedly slammed his vehicle into a police cruiser
   and a concrete pillar in front of an apartment building while yelling “Kill
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                                    No. 20-30442

   me!” to officers who were trying to control the scene. After making repeated
   but unsuccessful efforts to deescalate the situation and to disable Stevenson’s
   vehicle, officers shot and killed him. At summary judgment, the district court
   granted the officers qualified immunity. We affirm.
          At approximately 8:30 p.m. on February 23, 2016, Kimula Porter
   called 911 to report that her boyfriend, Travis Stevenson, physically assaulted
   her and her daughter with pepper spray, smashed a hole in the wall with a
   beer bottle, took her wallet, and fled from their shared apartment. After
   Stevenson left, he called and texted Porter to say he was going to commit
          Around 9:50 p.m., Michael Birdwell, a lieutenant in the East Baton
   Rouge Sherriff’s Office, located Stevenson. Stevenson was in a car, which
   was turned off and parked next to an apartment building. An SUV was parked
   to the left of Stevenson, an industrial-sized dumpster was on his right, and
   the building was directly in front of him. The Louisiana State Police (“LSP”)
   Criminal Investigation Division created a scale diagram of the scene:

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                                     No. 20-30442

   Lieutenant Birdwell parked his patrol unit behind and perpendicular to
   Stevenson’s car, approached the driver’s side where Stevenson was seated,
   and knocked on the window. Stevenson ignored him at first, so Birdwell kept
   knocking. But then Stevenson turned on the car as if to drive away.
   Lieutenant Birdwell attempted to end the confrontation peacefully by using
   his pocketknife to break the driver’s-side window and remove Stevenson
   from the vehicle. Before Lieutenant Birdwell could remove Stevenson,
   however, Stevenson placed his car in reverse and slammed into the patrol
   unit so hard that it caused the patrol unit to crash into a nearby parked car
   and deployed its airbags.
          Detective Scott Henning arrived on the scene. He ordered Stevenson
   to exit the vehicle. Stevenson refused to comply and repeatedly yelled “Kill
   me!” By this time, Lieutenant Birdwell was positioned in front of
   Stevenson’s car—between the car and the apartment building. Stevenson
   then shifted the car into drive and accelerated toward Lieutenant Birdwell.
   Believing Stevenson was trying to run over Birdwell and that Birdwell was in
   a position to be injured or killed, Detective Henning shot his firearm toward
   Stevenson. The bullet didn’t hit Stevenson; it hit one of the windows, and
   some of the shattered glass hit Lieutenant Birdwell. As Stevenson accelerated
   toward him, Lieutenant Birdwell jumped back and hit the parked SUV.
   Stevenson crashed into a pole in front of the apartment building. He then
   shifted back into reverse and slammed into the patrol unit again.
          Shortly thereafter, several other deputies arrived on the scene. One
   fired two or three shots into the driver’s-side tire in an attempt to disable the
   vehicle. The shots didn’t stop Stevenson, who accelerated forward and then
   back into the patrol unit again and again. While Stevenson was oscillating
   between the apartment building and the patrol unit, Lieutenant Birdwell was
   trapped in Stevenson’s path.

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                                     No. 20-30442

          Eventually, officers opened fire on the vehicle. Stevenson sustained
   seven gunshot wounds and was pronounced dead on the scene. The entire
   episode—from the time Lieutenant Birdwell spotted the car to the time
   officers notified dispatch that Stevenson was down—lasted 85 seconds.
          After the incident, the Sheriff’s Office contacted the LSP Criminal
   Investigations Division to study the shooting. The LSP interviewed Porter,
   her daughter, and each of the officers. The LSP ultimately concluded there
   was no criminal misconduct, as the officers’ actions were consistent with
   those of a reasonably prudent police officer facing the same circumstances.
          Stevenson’s survivors sued the officers under 42 U.S.C. § 1983.
   Plaintiffs alleged that six officers used excessive force to seize Stevenson in
   violation of the Fourth Amendment. Plaintiffs further alleged that a seventh
   defendant, Sheriff Gautreaux, violated the Fourth Amendment by
   unreasonably failing to train his officers. At summary judgment, the district
   court held that Plaintiffs failed to overcome the officers’ qualified immunity.
   Plaintiffs timely appealed.

          Our review is de novo. Morrow v. Meachum, 

917 F.3d 870

, 874 (5th Cir.
   2019). “Qualified immunity includes two inquiries. The first question is
   whether the officer violated a constitutional right. The second question is
   whether the right at issue was clearly established at the time of the alleged


 (quotation omitted). Here we need only decide the first
   question: Plaintiffs cannot show a Fourth Amendment violation for
   (A) excessive force or (B) failure to train.
          We start with excessive force. “To establish excessive force under the
   Fourth Amendment, a plaintiff must demonstrate (1) an injury, which

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   (2) resulted directly and only from the use of force that was clearly excessive
   to the need; and the excessiveness of which was (3) objectively
   unreasonable.” Hutcheson v. Dallas County, 

994 F.3d 477

, 480 (5th Cir. 2021)
   (quotation omitted). When an injury is uncontested, the court need only
   consider the second two elements—asking whether each officer’s “resort to
   deadly force was unreasonable and excessive when the facts are viewed ‘from
   the perspective of a reasonable officer on the scene, rather than with the
   20/20 vision of hindsight.’” Ratliff v. Aransas County, 

948 F.3d 281

, 287–88
   (5th Cir. 2020) (quoting Graham v. Connor, 

490 U.S. 386

, 396 (1989)). The
   “excessive” and “unreasonable” inquiries require the court to exercise
   “cautio[n] about second-guessing a police officer’s assessment, made on the
   scene, of the danger presented by a particular situation.” Ryburn v. Huff, 

U.S. 469

, 477 (2012) (per curiam).
          The “reasonableness” inquiry always requires the court to consider
   “the crime’s severity, the suspect’s threat, and whether the suspect is
   actively resisting arrest or trying to flee.” Hutcheson, 994 F.3d at 480. But
   courts assess the reasonableness of using deadly force by considering whether
   a “suspect poses a threat of serious physical harm, either to the officer or to
   others.” Tennessee v. Garner, 

471 U.S. 1

, 11 (1985). “Stated differently, ‘[a]n
   officer’s use of deadly force is not excessive, and thus no constitutional
   violation occurs, when the officer reasonably believes that the suspect poses
   a threat of serious harm.’” Batyukova v. Doege, 

994 F.3d 717

, 725 (5th Cir.
   2021) (alteration in original) (quoting Manis v. Lawson, 

585 F.3d 839

, 843 (5th
   Cir. 2009)).
          While conducting this analysis, we must remain ever mindful that
   “Fourth Amendment reasonableness is predominantly an objective inquiry.”
   Ashcroft v. al-Kidd, 

563 U.S. 731

, 736 (2011) (emphasis added) (quotation
   omitted). If “the circumstances, viewed objectively, justify the challenged
   action,” then subjective intent doesn’t matter. 


 (quotation omitted).

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   “This approach recognizes that the Fourth Amendment regulates conduct
   rather than thoughts; and it promotes evenhanded, uniform enforcement of
   the law.” 


 (citation omitted).
          Although our inquiry is necessarily fact-intensive, three of our
   precedents all but determine today’s outcome. The first is Fraire v. City of

957 F.2d 1268

 (5th Cir. 1992). There, an officer chased a car until
   it struck a curb. 

Id. at 1270

–71. The driver then backed up toward the officer’s
   car and sped away. 

Id. at 1271

. The officer chased again; the driver crashed
   again; and the driver sped away again. 


 Eventually, the driver turned
   around and drove toward the officer. 


 The officer fired one shot and
   killed the driver. 

Id. at 1271

–72. We held the officer did not violate the Fourth
   Amendment because he reasonably attempted to defend himself against the

Id. at 1274

          Second, consider Hathaway v. Bazany, 

507 F.3d 312

 (5th Cir. 2007).
   There, an officer stopped a car and started walking to the driver’s-side

Id. at 316

. When the officer got about 8 to 10 feet from the car, the
   driver suddenly accelerated toward him. 


 As soon as the officer realized
   he wasn’t going to be able to get out of the car’s path, he drew his firearm
   and fired one bullet at the car. 


 The bullet went straight through the
   driver’s lungs and heart, and he died of his wounds. 


 We held the officer
   responded reasonably “in firing his weapon when threatened by a nearby
   accelerating vehicle, even if, owing to the limited time available to respond,
   the shot was fired when or immediately after the officer was hit.” 

Id. at 322

          Third, take Ramirez v. Guadarrama, 

2021 WL 257199

, --- F.4th --- (5th
   Cir. Feb. 8, 2021). That case did not involve a driver using a vehicle as a
   weapon against an officer. But Ramirez held that an officer’s conduct cannot
   be held “unreasonable” under the Fourth Amendment in the absence of
   allegations or evidence regarding an “alternative course the defendant

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                                     No. 20-30442

   officers should have followed that would have led to an outcome free of
   potential tragedy.” 

Id. at *4

. We rejected the plaintiffs’ Fourth Amendment
   claim because it was “not apparent what might have been done differently to
   achieve a better outcome under these circumstances.” 


          Fraire, Hathaway, and Ramirez require us to find no Fourth
   Amendment violation here. That’s for three independent reasons. First, like
   the drivers in Fraire and Hathaway, Stevenson was using his car as a weapon.
   See Fraire, 

957 F.2d at 1271

–72; Hathaway, 

507 F.3d at 316

. It does not matter
   whether Stevenson (unlike the drivers in our precedents) “ha[d] not
   threatened or attempted to harm any of the deputies.” Blue Br. 34. Suppose
   a small child finds his parents’ loaded pistol and plays with it, not intending
   to shoot anyone. Is the pistol any less a weapon when the child doesn’t intend
   to shoot it? Obviously not. Does the pistol constitute a deadly threat to others
   when the child doesn’t intend to shoot it? Obviously. So too with
   Stevenson’s car.
          Second, Stevenson and the drivers in our precedents exhibited volatile
   behaviors that contributed to the officers’ “justifi[cation] in firing to prevent
   . . . death or great bodily harm.” Fraire, 

957 F.2d at 1276

; see 

id. at 1276 n.30

   (stating the driver was “drinking while driving, erratic[ally] driving, [driving
   at a] high speed through a residential subdivision, [and] twice crashing the
   car”); Hathaway, 

507 F.3d at 315

–16 (stating the driver was swerving while
   he and his passengers were hanging out the window, making gang signs, and
   yelling the name of a well-known gang). Before the incident, Stevenson was
   drinking and using drugs; he pepper sprayed his girlfriend and her daughter
   in a fit of rage; he stole his girlfriend’s wallet and drove away while
   intoxicated; he repeatedly told his girlfriend and the officers that he was
   suicidal; he repeatedly yelled “Kill me!” at one officer while ignoring
   commands from other officers; and he repeatedly rammed his car into a
   patrol unit and a concrete pillar while inches away from hitting Lieutenant

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                                         No. 20-30442

   Birdwell. Stevenson’s immunity to reason was patent; the risk of injury or
   death to the Lieutenant was equally patent.
           Third, Plaintiffs have not produced any evidence that suggests the
   officers might’ve had a reasonable alternative course of action. See Ramirez,

2021 WL 257199

, at *4. When asked at oral argument for a reasonable
   alternative, Plaintiffs’ counsel said that officers should’ve “step[ped] back
   and allow[ed] Mr. Stevenson to finish the episode, and then they could have
   acted.” Oral Arg. at 42:33–41. That’s absurd. Lieutenant Birdwell was inches
   from the front left bumper of Stevenson’s car while he was repeatedly driving
   it backwards and forwards and violently crashing into things. Whatever
   reasonable alternatives officers might’ve had, doing nothing and praying for
   the best is not one of them. And without a reasonable alternative to the
   officers’ conduct, Plaintiffs are without a Fourth Amendment claim that the
   officers behaved “unreasonably.” See Ramirez, 

2021 WL 257199

, at *4.
           The district court therefore correctly held, in accordance with our
   precedent, that Plaintiffs’ excessive-force claim fails as a matter of law.*
           Plaintiffs also contend that the district court erred by granting
   summary judgment on their failure-to-train claim against the Sheriff. The
   district court held that Plaintiffs forfeited this claim by failing to plead it in

              For the first time at oral argument, Plaintiffs attempted to distinguish between
   the officers’ first four shots and their subsequent ones. As we’ve repeatedly and
   emphatically held, we cannot and will not consider arguments raised for the first time at
   oral argument. See, e.g., Hoyt v. Lane Constr. Corp., 

927 F.3d 287

, 297 (5th Cir. 2019);
   Martinez v. Mukasey, 

519 F.3d 532

, 545–46 (5th Cir. 2008); United States v. Bigelow, 

F.3d 378

, 383 (5th Cir. 2006); United States v. Ogle, 

328 F.3d 182

, 191 n.9 (5th Cir. 2003);
   Comsat Corp. v. FCC, 

250 F.3d 931

, 936 n.5 (5th Cir. 2001); Whitehead v. Food Max of Miss.,

163 F.3d 265

, 270 (5th Cir. 1998).

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                                     No. 20-30442

   their complaint and raising it only in response to the officers’ motion for
   summary judgment. We agree with the district court.
          It is well settled in our circuit that “[a] claim which is not raised in the
   complaint but, rather, is raised only in response to a motion for summary
   judgment is not properly before the court.” Cutrera v. Bd. of Supervisors of
   La. State Univ., 

429 F.3d 108

, 113 (5th Cir. 2005) (citing Fisher v. Metro. Life
   Ins. Co., 

895 F.2d 1073

, 1078 (5th Cir. 1990)). We’ve repeatedly emphasized
   this rule. See, e.g., Pittman v. U.S. Bank, N.A., 840 F. App’x 788, 789–90 (5th
   Cir. 2021) (per curiam); Price v. Wheeler, 834 F. App’x 849, 859 n.8 (5th Cir.
   2020); Park v. Direct Energy GP, LLC, 832 F. App’x 288, 295 (5th Cir. 2020)
   (per curiam); Lumar v. Monsanto Co., 795 F. App’x 293, 294 n.1 (5th Cir.
   2020) (per curiam); Brown v. Wilkinson Cnty. Sheriff Dep’t, 742 F. App’x
   883, 884 (5th Cir. 2018) (per curiam); Sims v. City of Madisonville, 

894 F.3d

, 643 (5th Cir. 2018) (per curiam); Strong v. Green Tree Servicing, Inc., 716
   F. App’x 259, 265 n.7 (5th Cir. 2017) (per curiam); Jones v. Wells Fargo Bank,

858 F.3d 927

, 935 (5th Cir. 2017); United Motorcoach Ass’n v. City of

851 F.3d 489

, 492 n.1 (5th Cir. 2017); Byrnes v. City of Hattiesburg,
   662 F. App’x 288, 290 n.1 (5th Cir. 2016) (per curiam).
          Plaintiffs alleged that Sheriff Gautreaux failed to adequately train his
   officers to avoid excessive force. After the officers moved for summary
   judgment, Plaintiffs argued for the first time that the Sheriff failed to
   adequately train his officers to deal with mentally unstable individuals. This is
   precisely the sort of surprise switcheroo that our precedents forbid.
          Plaintiffs contend that the district court should have construed their
   new summary-judgment argument as an implied motion to amend their
   complaint under Federal Rule of Civil Procedure 15. It’s true that we’ve done
   that in the past, see, e.g., Pierce v. Hearne Indep. Sch. Dist., 600 F. App’x 194,
   200 (5th Cir. 2015) (per curiam), although it’s unclear how cases like Pierce

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                                      No. 20-30442

   are consistent with our rule of orderliness and our numerous published
   precedents holding litigants forfeit arguments raised for the first time at
   summary judgment. Moreover, the sort of relief mentioned in Pierce—
   construing a request for X as an implied request for Y—is normally reserved
   for pro se litigants. See, e.g., United States v. Riascos, 

76 F.3d 93

, 95 (5th Cir.
   1996) (“conclud[ing] that the district court’s failure to construe [the pro se
   plaintiff’s] ‘traverse’ as a motion to amend was an abuse of discretion”);
   Cooper v. Sherriff, Lubbock Cnty., 

929 F.2d 1078

, 1081 (5th Cir. 1991)
   (“Under the liberal construction given to pro se pleadings, the magistrate
   judge should have construed Cooper’s reply to the defendant’s new answer
   as a motion to amend the complaint.”). Of course, Plaintiffs in this case did
   not appear pro se; they were represented by experienced counsel. Plaintiffs’
   counsel never moved to amend under Rule 15. Their failure to do so forfeited
   the issue and prevented the district court from considering the merits of their
   summary-judgment argument.


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