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Douglas v. Dephillips

United States District Court, E.D. Louisiana

October 13, 2017


         SECTION I



         In March 2016, Joshua Douglas led law enforcement officers on a car chase through the streets of St. Tammany Parish. By the end of it, he was dead as a result of an officer's use of force. This case is about whether such use of force, and other actions taken by officers at the time, violated the U.S. Constitution and Louisiana law.

         Defendants have filed a joint motion[1] to dismiss all of plaintiffs' claims in the amended complaint (“complaint”).[2] Because plaintiffs untimely filed their opposition, the Court could have treated the motion as unopposed.[3] The Court nevertheless read plaintiffs' untimely filings and considered the arguments presented therein. For the following reasons, the Court grants defendants' joint motion to dismiss.


         At approximately 5:00 pm on March 19, 2016, a National Crime Information Center camera detected a license plate that had been reported stolen.[4] The license plate was attached to a silver, four-door Infiniti sedan.[5]

         The camera relayed the detection to the St. Tammany Parish sheriff's office (“Sheriff's Office”), whose dispatch alerted officers to the sighting.[6] Deputy James Kelly responded.[7] At the time, Deputy Kelly was in a “fully-marked” cruiser.[8]

         Deputy Kelly spotted the Infiniti near the intersection of Interstate 12 and Highway 59 “[a]lmost immediately.”[9] Deputy Kelly noticed a male driver, later identified as Joshua Douglas (“Douglas”).[10] Jessica Sheppard (“Sheppard”) was also in the Infiniti, sitting in the front passenger seat.[11] Deputy Kelly turned on his cruiser's emergency lights and began to pursue the Infiniti on the basis of the stolen license plate.[12] Douglas refused to stop.[13]

         Deputy Kelly pursued Douglas north on Highway 59.[14] Douglas then took a series of turns, eventually ending up on 3rd Avenue.[15] From 3rd Avenue, Douglas entered “the dead-end square of Judy Avenue to the north, Barbara Avenue to the south, Bode Avenue to the east, and Janice Avenue to the west.”[16]

         Deputy Kelly stopped on 3rd Avenue, and was joined by Deputies Matthew DePhillips and Jacob Jenkins, who drove their own “fully-marked” vehicles.[17]Deputies Kelly, DePhillips, and Jenkins then drove into the square to pursue Douglas.[18] Deputies Kelly and Jenkins went south on Janice Avenue; Deputy DePhillips went east on Judy Avenue.[19] After Deputy DePhillips turned from Judy Avenue onto Bode Avenue, he encountered Douglas, who was driving the Infiniti in reverse down Bode Avenue at a “high rate of speed.”[20] The complaint suggests that Douglas may have struck one or more of the deputies' vehicles in the process, although in no “appreciable manner.”[21]

         Douglas then backed the Infiniti into a ditch on Bode Lane, which “juts out like a scorpion's tail” from the corner of Bode and Barbara Avenues.[22] The Infiniti's driver's side was leaning against the embankment, which allegedly prevented Douglas from being able to exit the Infiniti through the driver's door.[23]

         Deputies DePhillips, Kelly, and Jenkins pulled up to Bode Lane.[24] The three officers left their vehicles and “rushed” the Infiniti with firearms drawn.[25] Deputy DePhillips “positioned himself at the rear passenger door, ” Deputy Kelly at the front passenger door, and Deputy Jenkins at the passenger side front fender.[26] The time was on or about 5:12 pm, and the weather was clear with “sufficient natural daylight.”[27]

         As the officers positioned themselves, Sheppard's hands were “in the air, ” and Sheppard was screaming that she was pregnant.[28] Douglas “put his hand(s) near the top” of Sheppard's arms.[29] Douglas's face was “within inches” of Sheppard's face.[30]

         Deputy DePhillips opened the Infiniti's rear passenger door and “immediately fired one shot” with his firearm, hitting Douglas near his right eye.[31] According to the complaint, “Deputy DePhillips claimed with certainty that he assessed and concluded . . . that he believed” Douglas had a firearm in his hand, which was hidden underneath Sheppard's hair.[32] No firearm was recovered from the scene.[33]

         After Deputy DePhillips discharged his firearm at Douglas, Deputy Jenkins removed Sheppard from the Infiniti as Sargent[34] Alex Dantaghan and Deputy Cristen Graham arrived on the scene.[35] Deputy Jenkins allegedly “threw” Sheppard face-down on the ground, and then either he or Deputy Graham handcuffed her and placed her in the back seat of his vehicle.[36]

         Paramedics arrived twelve to fourteen minutes later.[37] Deputy Graham recalled that the paramedics “‘came out after' the scene was ‘declared safe.'”[38] One of the paramedics “checked [Douglas's] pulse with an EKG patch on his right arm, consulted with a physician, and declared death.”[39] According to the complaint, an examination of Douglas's body after these events suggests that Douglas lived for some time after he had been shot.[40]

         In addition to checking Douglas, the paramedics attended to Sheppard, who was transported to Lakeview Regional Medical Center (“Lakeview”) at approximately 5:46 pm.[41] Deputy Grey Thurman accompanied her.[42] Both before and until she arrived at Lakeview, Sheppard “repeatedly asked for her purse, ” which no officer provided to her.[43]

         Sheppard arrived at Lakeview around 5:56 pm, where she remained “against her will.”[44] Upon arrival, Sheppard was isolated from the general population.[45] She chose to end her medical treatment at approximately 8:35 pm.

         After ending her treatment, Sheppard gave a statement at the St. Tammany Parish Law Enforcement Center, beginning at 9:48 pm and ending at 10:22 pm.[46]Sheppard alleges that the statement was “effectively forced.”[47] She was then taken home.[48]

         At some point either during or after this incident, law enforcement discovered that the Infiniti driven by Douglas had been stolen.[49] The St. Tammany Parish sheriff's office returned the Infiniti to its lawful owner before plaintiffs' counsel had an opportunity to inspect it.[50]

         In response to these events, plaintiffs filed this lawsuit, alleging over a dozen theories of liability against a dozen defendants. Defendants now jointly move[51] to dismiss all claims against them for failure to state a claim. Defendants also assert qualified immunity as a defense to certain claims.



         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court may dismiss a complaint, or any part of it, where a plaintiff has not set forth well-pleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's factual allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)).

         A facially plausible claim is one where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. If the well-pleaded factual allegations “do not permit the court to infer more than the mere possibility of misconduct, ” then “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original).

         On a Rule 12(b)(6) motion to dismiss, a court limits its review “to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In assessing the complaint, the Court must accept all well-pleaded factual allegations as true and liberally construe all such allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).

         Where “the complaint ‘on its face show[s] a bar to relief, '” then dismissal is the appropriate course. Cutrer v. McMillan, 308 Fed. App'x. 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). Where applicable, qualified immunity can operate as such a bar.


         The doctrine of qualified immunity “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). In striking this balance, qualified immunity shields “government officials performing discretionary functions” from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”).

         Where a public official invokes qualified immunity as a defense to a civil action against him, the plaintiff then has the burden “to demonstrate the inapplicability of the defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)). To meet this burden, a plaintiff must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc). “Courts have discretion to decide which prong of the qualified-immunity analysis to address first.” Id.

         “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'” Turner v. Lieutenant Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in original). Once a plaintiff alleges that an official's conduct violated a clearly established right, the court must then determine “whether the official's conduct was objectively reasonable under the law at the time of the incident.” Michalik v. Hermann, 422 F.3d 252, 258 (5th Cir. 2005); see also Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 2001).

         An official's conduct is not objectively unreasonable “unless all reasonable officials in the [official's] circumstances would have then known that the [official's] conduct violated the plaintiff's rights.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015). When denying qualified immunity, a court must point to “controlling authority-or a robust consensus of persuasive authority-that defines the contours of the right in question with a high degree of particularity.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013). Precedent existing at the time of the challenged conduct “must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

         When the defense of qualified immunity is raised in a motion filed pursuant to Rule 12(b)(6), “it is the defendant's conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.'” McClendon, 305 F.3d at 323 (emphasis in original) (quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)). A court must determine that a plaintiff's pleadings “assert facts which, if true, would overcome the defense of qualified immunity.” Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014). The allegations must be pleaded with “sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts.” Clayton v. Columbia Cas. Co., No. 11-845, 2012 WL 2952531, at *2-*3 (M.D. La. July 19, 2012) (Africk, J.) (internal quotation marks omitted).


         Plaintiffs assert numerous federal and state law claims against numerous defendants, including: 1) Fourth Amendment claims for use of excessive force, 2) Fourth Amendment claims for unreasonable seizure, 3) a Fourteenth Amendment claim for failure to render medical care, [52] 4) Monell claims against the Sheriff of St. Tammany Parish, 5) claims against Sheriff Rodney Jack Strain, Jr. in his individual capacity, 6) a Fourteenth Amendment claim for “deprivation of [plaintiff Richard Douglas's] right of familial association and parenthood, ”[53] 7) survival claims, 8) wrongful death claims, and 9)-13) claims for false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, battery, and intentional spoliation of evidence.[54] With respect to their state law theories, plaintiffs seek to impose both respondeat superior liability and joint-and-several liability.[55] Plaintiffs also seek costs and attorney's fees.[56]

         Before considering the viability of these claims, the Court must address the issue of standing. Defendants allege that plaintiff Richard Douglas does not have standing to sue on behalf of Douglas, his deceased son.[57] However, a review of the complaint reveals that Richard Douglas does not assert any claims on behalf of Douglas. Rather, the only plaintiff who asserts claims on behalf of Douglas is L.C., on behalf of her minor child, G.D.[58]


         The Court will now turn to whether plaintiffs have successfully pleaded federal law claims against any defendant. The Court will first address Richard Douglas's Fourteenth Amendment claim for “deprivation of [plaintiff Richard Douglas's] right of familial association and parenthood.”[59] The Court will then address plaintiffs' Monell claims against the Sheriff of St. Tammany Parish and the claims against Sheriff Strain in his individual capacity. Next, the Court will consider the federal law claims at the heart of the case: the Fourth Amendment claims for use of excessive force, the Fourth Amendment claims for unreasonable seizure, and the Fourteenth Amendment claims for failure to render medical care.


         Richard Douglas contends that his son's death has deprived him of his “right of familial association and parenthood in violation of the Fourteenth Amendment.”[60]Worded differently, Richard Douglas asserts a federal constitutional right to recover damages for the death of his adult son at the hands of a state actor.[61] To this end, he seeks recovery from Deputies DePhillips, Kelly, and Jenkins.[62] The deputies counter that they are entitled to qualified immunity.

         The Court concludes that the deputies are entitled to qualified immunity from Richard Douglas's putative constitutional right. “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear' that every ‘reasonable official would have understood that what he is doing violates that right.'” al-Kidd, 563 U.S. at 741 (quoting Anderson, 483 U.S. at 640) (alterations in original). In short, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id.; see also Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009) (“Qualified immunity shields government officials from civil damages liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Harlow, 457 U.S. at 818)).

         With respect to Richard Douglas's putative constitutional right, neither the U.S. Supreme Court nor the Fifth Circuit has held that such a right exists. See Irvin v. Foti, No. 99-1526, 2000 WL 280026, at *4 (E.D. La. Mar. 13, 2000) (Duval, J.) (“[N]either the Supreme Court nor the Fifth Circuit has directly addressed the issue of whether the parent of an adult child has a cause of action under section 1983 for injury to the [Fourteenth Amendment] right of intimate association with that child.”); see also Bedingfield v. Deen, No. 09-369, 2011 WL 3206872, at *15-*16 (W.D. La. July 27, 2011) (Hicks, J.) (same). In other words, the “constitutional question”-whether the Fourteenth Amendment protects the relationship between a parent and his adult child from state intrusion-is far from “open and shut.” Irvin, 2000 WL 280026, at *4.

         The Fifth Circuit case on which Richard Douglas relies to support his putative right-Logan v. Hollier, 711 F.2d 690 (5th Cir. 1983)-does not assist him with respect to the qualified immunity issue. In Logan, the Fifth Circuit vacated a district court's opinion and remanded the case “for the determination by the district court whether [the plaintiff] has a cognizable claim under § 1983 for the injury to her constitutionally protected liberty interest in parenthood, separate and apart from the state law created wrongful death action.” 711 F.2d at 690. In the process of remanding the case, the Logan panel “share[d] a few observations” on the question that it posed to the district court. Id. at 691. These observations seem to suggest that the panel believed that the district court should endorse such a claim. See id.

         However, observations are not conclusions of law. Despite at least one district court's conclusion to the contrary in Guilbeaux v. City of Eunice, No. 16-1464, 2017 WL 1305254, at *3 (W.D. La. Jan. 6, 2017) (Whitehurst, M.J.), adopted in relevant part by 2017 WL 889742 (W.D. La. Mar. 2, 2017) (James, J.), the Fifth Circuit's Logan opinion did not hold-and in fact expressly declined to hold-that a parent may bring a claim to recover damages under § 1983 for violation of a Fourteenth Amendment right to familial association and parenthood arising from the death of an adult child. See Grandstaff v. City of Borger, Tex., 767 F.2d 161, 173 (5th Cir. 1985) (Garwood, J., dissenting) (observing that “whether a nondependent parent can recover under section 1983 for grief over the death” of an independent adult child “is an open question in this Circuit” and citing Logan).

         Plaintiffs also point the Court to a slew of out-of-circuit cases that recognize a parent's ability to recover damages under § 1983 for a child's death, [63] implying that “a robust consensus of persuasive authority” demonstrates that the right asserted by Richard Douglas is clearly established. Wyatt, 718 F.3d at 503. Yet the circuits vary widely in how they define parents' constitutional right to recover damages for a child's death.[64] As such, the contours of a parent's putative Fourteenth Amendment right to familial association with an adult child-and ability to bring a § 1983 claims for damages where a state actor infringes on the right-are not “sufficiently clear” to label the right “clearly established” on the basis of persuasive authority. al-Kidd, 563 U.S. at 741 (quoting Anderson, 483 U.S. at 640) (internal quotation marks omitted). As such, Deputies DePhillips, Kelly, and Jenkins are entitled to qualified immunity from Richard Douglas's Fourteenth Amendment claims and so those claims will be dismissed.


         Plaintiffs assert Monell claims against the Sheriff of St. Tammany Parish for, among other things, failure to train.[65] Under Monell v. Department of Social Services, municipalities and local governing bodies are subject to liability for constitutional violations involving official policies or practices. See 436 U.S. 658, 690 (1978). Monell claims consist of three elements: “(1) a policymaker; (2) an official policy [or custom]; and (3) a violation of constitutional rights whose ‘moving force' is the policy or custom.” Davis v. Tarrant Cty, Tex., 565 F.3d 214, 227 (5th Cir. 2009) (citing Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003)). In their complaint, plaintiffs do nothing more than articulate the elements of a Monell claim; they do not support those elements with factual allegations.[66] In particular, plaintiffs identify no policy or custom of the Sheriff that resulted in a violation of anyone's constitutional rights, let alone their own.

         Further, to the extent that they ground their Monell claims in a failure to train on the part of the Sheriff, “the Supreme Court has held that a single incident, standing alone, is usually insufficient as a matter of law to establish a failure to train violation.” Batiste v. Theriot, 458 Fed. App'x 351, 358 (5th Cir. 2012). “Nowhere in their [complaint] do the Plaintiffs assert a pattern of incidents or incompetence on the part of the [Sheriff] which would be a prerequisite to proving a failure to train claim.” Id. at 358-59. Therefore, the Monell claims will be dismissed.

         Plaintiffs also assert claims against Sheriff Strain in his individual capacity.[67](Sheriff Strain was serving as the Sheriff of St. Tammany Parish at the time that the events in this case unfolded.) To the extent that plaintiffs seek to hold Sheriff Strain responsible for the actions of his subordinates, they may not do so. It is long settled that “supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability” under § 1983. Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (quoting Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987)) (emphasis added); see also Thompson v. L.A. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement is an essential element of a civil rights cause of action.”). As such, “[i]n order to state a cause of action under section 1983, the plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged.” Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995); see also Thompkins, 828 F.2d at 304 (same).

         The factual allegations in the complaint barely mention Sheriff Strain at all, referring to him only as one of the recipients of a letter from plaintiff's counsel in which counsel made certain requests.[68] Plaintiffs' allegation that the requests made in the letter were not honored is far from sufficient to plead that Sheriff Strain was “personally involved” in violating any plaintiffs' constitutional rights or that his actions were “causally connected” to any alleged constitutional violations. Woods, 51 F.3d at 583 (5th Cir. 1995). All claims against Sheriff Strain in his individual capacity will be dismissed.


         L.C., on behalf of G.D., asserts Fourth Amendment claims for use of excessive force on behalf of Douglas against Deputies DePhillips, Kelly, and Jenkins.[69]

         The excessive force claims asserted on behalf of Douglas derive solely from Deputy DePhillips's use of deadly force against Douglas.[70] While Deputies Kelly and Jenkins did not use deadly force against Douglas, they were present at the scene, and so the Court reads the complaint as asserting bystander liability claims against them.

         The Court will first address the excessive force claims asserted on behalf of Douglas against Deputy DePhillips. The Court will then consider such claims against Deputies Kelly and Jenkins.


         “Deadly force is a subset of excessive force.” Bazan v. Hidalgo Cty., 246 F.3d 481, 487 (5th Cir. 2001). To state a Fourth Amendment excessive force claim, a plaintiff must allege “(1) an injury, (2) which resulted directly and only from the use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (internal quotation marks omitted). Where death is the injury caused by the use of deadly force, the only issue for a court “is whether the use of that deadly force was unreasonable.” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).

         An officer's use of deadly force “is not unreasonable when [the] officer would have reason to believe the suspect poses a threat of serious harm to the officer or others.” Id. at 188 (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)) (internal quotation marks omitted). A court's “primary concern” in the use-of-deadly-force context, then, is whether the officer who used force was, “[at] the moment of the shooting, reasonably trying to prevent serious injury or death.” Carnaby, 636 F.3d at 188 n.4 (internal quotation marks omitted); see also Rockwell v. Brown, 664 F.3d 985, 993 (5th Cir. 2011) (observing that the inquiry is “confined to whether the [officer or another person] was in danger at the moment of the threat that resulted in the [officer's use of deadly force]” (internal quotation marks omitted) (alterations and emphasis in original)). “If the officer reasonably believes the suspect poses a threat of serious harm, the use of deadly force is not excessive.” Guerra v. Bellino, No. 15-51252, 2017 WL 3397430, at *3 (5th Cir. Aug. 8, 2017) (per curiam).

         The U.S. Supreme Court has instructed that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). “A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.” Ramirez v. Knoulton, 542 F.3d 124, 129-30 (5th Cir. 2008) (quoting United States v. Sharpe, 470 U.S. 675, 686-87 (1985)) (internal quotation marks omitted). Thus “[t]he ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

         Moreover, “[i]t is a question of objective reasonableness in light of the facts and circumstances confronting [the officer], without regard to [the officer's] underlying intent or motivation.” Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382-83 (5th Cir. 2009) (internal quotation marks omitted) (alteration in original). In other words, “the proper inquiry is an objective one”; officers' “subjective beliefs” are “irrelevant.” Hudspeth v. City of Shreveport, 270 Fed. App'x 332, 337 (5th Cir. 2008) (per curiam) (emphasis in original).


         Plaintiffs argue that the factual allegations in the complaint state an excessive force claim on behalf of Douglas against Deputy DePhillips. However, the Court need not decide this issue to determine the viability of the claim.

         As the Court previously explained, plaintiffs carry the burden of demonstrating that the defense of qualified immunity does not apply. See Club Retro, 568 F.3d at 194 (citing McClendon, 305 F.3d at 323). To meet this burden, not only must plaintiffs state a violation of a constitutional right, but plaintiffs must also show that, “at the time of the incident, the law clearly established that [the officer's] conduct would violate the [plaintiff's] right” to be free from use of deadly force. Ontiveros, 564 F.3d at 383 n.1. “This inquiry focuses not on the general standard- when may an officer use deadly force against a suspect?-but on the specific circumstances of the incident-could an officer have reasonably interpreted the law to conclude that the perceived threat posed by the suspect was sufficient to justify deadly force?” Id.

         “[U]nless the violation is ‘obvious, ' there must be relevant case law that ‘squarely governs' the situation with which the officers were presented and gives ‘fair notice' that such conduct would violate the law.” Reyes v. Bridgewater, 362 Fed. App'x 403, 408 (5th Cir. 2010) (quoting Brosseau v. Haugen, 543 U.S. 194, 200 n.4, 201 (2004)). More specifically, “[e]xcessive force incidents are highly fact-specific and without cases squarely on point, officers receive the protection of qualified immunity.” Ontiveros, 564 F.3d at 383 n.1.

         Yet the cases need not involve “exactly the same facts.” Reyes, 362 Fed. App'x at 408. “The central concept is that of ‘fair warning': The law can be clearly established ‘despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.'” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).

         In this case, Douglas was “set on avoiding capture through . . . vehicular flight.” Mullenix v. Luna, 136 S.Ct. 305, 309 (2015). After a car chase that included Douglas driving the Infiniti backwards at a “high rate of speed” in an apparent attempt to avoid capture, [71] Douglas drove the Infiniti into a ditch.[72] Douglas, as well as Sheppard, remained in the vehicle.

         Deputy DePhillips left his cruiser and “positioned himself at the rear passenger door.”[73] At this time, Sheppard's hands were “in the air, ” and Sheppard was screaming that she was pregnant.[74] Douglas “put his hand(s) near the top” of Sheppard's arms.[75] Douglas's face was “within inches” of Sheppard's face.[76] This is the scene that Deputy DePhillips confronted.

         Plaintiffs have failed to point to any precedent existing as of the date of the events in this case that “placed the conclusion that [Deputy DePhillips] acted unreasonably in these circumstances beyond debate.” Id. (internal quotation marks omitted). The cases on which plaintiffs rely in their opposition to defendants' first motion to dismiss-which plaintiffs purport to incorporate by reference in their untimely opposition to the present motion-involve excessive force claims by suspects who were handcuffed at the time that force was used against them.[77] Yet the factual allegations in the complaint show that Douglas was not handcuffed when Deputy DePhillips discharged his firearm. Douglas remained free to move within the Infiniti, and “[a]s long as [Douglas] remained in [the Infiniti], he posed a potential danger to the officers and others.” Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016). After all, even a purportedly immobilized motor vehicle “can be used as a dangerous weapon.” Id. This is to say nothing of Douglas's movements inside the Infiniti.[78]

         Plaintiffs have not met their burden of demonstrating that, at the time that the events in this case occurred, “adequate authority at a sufficiently high level of specificity [ ] put [Douglas] on notice that his conduct [was] definitively unlawful.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015); see also Thompson, 245 F.3d at 460 (“[I]t is the plaintiff's burden to demonstrate that all reasonable officials similarly situated would have then known that the alleged acts of the defendants violated the United States Constitution.”). As such, Deputy DePhillips is entitled to qualified immunity from the excessive force claim asserted on behalf of Douglas.


         L.C., on behalf of G.D., also asserts excessive force claims on behalf of Douglas against Deputies Kelly and Jenkins. “[A]n officer who is present at the scene and does not take reasonable measures to protect a suspect from another officer's use of excessive force may be liable under section 1983.” Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). To state a bystander liability claim, a plaintiff must show that an officer “(1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).

         Even assuming that Deputy DePhillips's use of deadly force against Douglas amounted to constitutionally excessive force, the factual allegations illustrate that Deputies Kelly and Jenkins still cannot be held liable for this use of force under a bystander theory of liability. According to the complaint, “mere seconds” passed between the time that Deputy DePhillips exited his cruiser and the time that he discharged his firearm at Douglas.[79] The complaint further alleges that Deputy DePhillips “immediately fired” his weapon “[u]pon reaching and opening the rear passenger door.”[80]

         Given the alleged speed with which the incident unfolded, the factual allegations cannot be reasonably construed to support the inference that Deputies Kelly and Jenkins “acquiesced in the alleged use of excessive force.” Hale, 45 F.3d at 919. The excessive force claims asserted on behalf of Douglas against Deputies Kelly and Jenkins are dismissed.


         Sheppard, both for herself and on behalf of M.S., asserts Fourth Amendment claims for unreasonable seizure and for use of excessive force.[81] Specifically, she asserts excessive force claims against Deputies DePhillips, Kelly, and Jenkins, and unreasonable seizure claims against Deputies DePhillips, Kelly, Jenkins, Graham, and Thurman, as well as Corporal Williams.[82]


         As an initial matter, M.S. was in utero when the events in this case took place.[83] Pointing to this fact, the named law enforcement officers contend that the Court should dismiss all claims asserted on behalf of M.S. for alleged injuries[84]sustained in utero, because “no cause of actions exists for an alleged constitutional ...

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