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Vann v. City of Southaven

United States Court of Appeals, Fifth Circuit

November 22, 2017

ROGERS VANN, As Personal Representative and on Behalf of the Wrongful Death Beneficiaries of Jeremy W.Vann, Plaintiff - Appellant,
v.
CITY OF SOUTHAVEN, MISSISSIPPI; LIEUTENANT JORDAN JONES, Individually and in His Official Capacity as a Police Officer; SERGEANT BRETT YOAKUM, Individually and in His Official Capacity as a Police Officer; POLICE CHIEF TOM LONG, Individually and in His Official Capacity as a Police Officer and Chief of Police; SERGEANT JEFF LOGAN, Individually and in His Official Capacity as a Police Officer, Defendants - Appellees.

         Appeal from the United States District Court for the Northern District of Mississippi

          Before SMITH, ELROD, and HAYNES, Circuit Judges.

          JENNIFER WALKER ELROD, Circuit Judge:

         This lawsuit arises from the death of Jeremy W.Vann, who was shot and killed by police in a retail parking lot in Southaven, 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 arrestees 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 Southaven 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.[1]

         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-existent. Plaintiff also points to the testimony of Logan and Jones, both of whom agree that Vann was trying to escape. In Plaintiff's 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.[2]

         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.[3] The district court concluded that Plaintiff's alleged causes of action against the City were insufficient, first, because Plaintiff failed to show an underlying constitutional violation according to clearly established law, and, second, because he failed to bring sufficient evidence or make adequate arguments regarding a particular policy that led to the events at issue. Plaintiff now appeals.

         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, 853 F.3d 738, 743 (5th Cir. 2017) (quoting Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016)). Summary judgment is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. (quoting Griggs, 841 F.3d at 311-12); see also McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc). "[W]e view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Hanks, 853 F.3d at 743 (quoting Griggs, 841 F.3d at 312); see also Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) ("Our qualified-immunity cases illustrate the importance of drawing inferences in favor of the nonmovant . . . .").

         "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, 853 F.3d at 744 (citation omitted) (quoting Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)).

         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.[4] The central disputed fact is whether Logan ran to the opening and shot Vann to stop him from fleeing or whether Logan ran between the cars to get out of Vann's way and then shot Vann because Vann was going to hit him. Viewing the evidence in the light most favorable to Plaintiff, this fact is in dispute.

         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, 563 U.S. 731, 742 (2011). "The dispositive question is 'whether the violative nature of particular conduct is clearly established.'" Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 742). In Brosseau v. Haugen, 543 U.S. 194 (2004), for example, the specific conduct at issue was "shoot[ing] a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight." 543 U.S. at 200. In Mullenix, a qualified-immunity case involving a fatal shooting, the relevant circumstances included "a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer . . . ." 136 S.Ct. at 309.

         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, 199 F.Supp.3d 1129, 1140, 1143, 1146 (N.D. Miss. 2016). This conclusion, the district court suggested, is supported by this circuit's precedent. See, e.g., id. at 1147 (citing Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007)) ("The Fifth Circuit has thus made it clear that, in situations where an officer feels threatened by an oncoming vehicle and has little time to react, courts owe a great deal of deference to that officer's decision regarding whether . . . to fire his weapon.").

         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 Van 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."[5] Id. at 1132 (quoting Defs.' Br. at 12-14). Viewing these steps together as the relevant conduct, before a car was headed in Logan's direction, Logan was confronted with the following situation: whether to shoot a misdemeanor suspect quickly maneuvering his car to escape surrounding cars and driving in the direction of an area with no officers.[6]

         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, 471 U.S. 1, 11 (1985). Put simply, "[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead." Id. The district court here rejected Garner's application, determining instead that "a more particularized, and hence more relevant" example is required to guarantee that "[t]he contours of the right . . . [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Vann, 199 F.Supp.3d at 1138 (citing Brosseau, 543 U.S. at 199). This court has held, however, that Garner's proposition "holds as both a general matter and in the more specific context of shooting a suspect fleeing in a motor vehicle." Lytle v. Bexar Cty., 560 F.3d 404, 417-18 (5th Cir. 2009) (citations omitted). The outcome in the present case therefore depends on the facts.

         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 reasonable officer would have resorted to deadly force. See, e.g., Mullenix, 136 S.Ct. at 311-12 (holding the officer acted reasonably where the suspect "was speeding towards a confrontation with officers he had threatened to kill"); Plumhoff v. Rickard, 134 S.Ct. 2012, 2021-22 (2014) (holding the officer acted reasonably where the suspect's reckless driving "posed a grave public safety risk"); Scott v. Harris, 550 U.S. 372, 385-86 (2007) (holding the officer acted reasonably where the car chase "posed a substantial and immediate risk of serious physical injury to others"); Brosseau, 543 U.S. at 197-201 (holding the officer did not violate clearly ...


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