United States District Court, W.D. Louisiana
HENRY LEE MALBROUGH, Individually and on behalf of his son, ANTHONY CAMPBELL
v.
CITY OF RAYNE, ET AL.
RULING
SHELLY
D. DICK CHIEF JUDGE
This
matter is before the Court on the Re-Urged Joint Motion
for Summary Judgment[1] filed by Defendants, Wayne A. Melancon
(“Melancon”), in his official capacity as former
Sheriff of Acadia Parish, Louisiana; Acadia Parish
Sheriff's Department (“APSD”); Jackie Boddye
(“Boddye”), in her official and individual
capacities as an Acadia Parish Sheriff's Department
Deputy; George Bradford Ware (“Brad Ware”), in
his official and individual capacities as an Acadia Parish
Sheriff's Department Deputy; the City of Rayne; Officer
Christopher Cormier (“Cormier”), in his
individual and official capacities as a police officer for
the City of Rayne; Chief Carroll Stelly
(“Stelly”), in his official capacity as Chief of
Police of the City of Rayne; and Joseph Credeur
(“Credeur”), in his individual and official
capacities as a police officer for the City of Rayne.
Plaintiff, Henry Lee Malbrough (“Plaintiff”),
individually and on behalf of his son, Anthony Campbell
(“Campbell”), has filed an Opposition
[2] to this motion, to which Defendants
filed a Reply.[3]For the reasons set forth below, the
Defendants' motion shall be granted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On
February 10, 2009, the Rayne Police Department
(“RPD”) obtained a search warrant for a residence
located at 715 Malvern Avenue in Rayne, Louisiana. This
residence was co-owned by Plaintiff, and his son Campbell
lived at this residence. Defendants contend Campbell was
“well known to local law enforcement as a drug dealer
with numerous prior arrests.”[4] Indeed, on January 11, 2009,
one month prior to the incident giving rise to this
litigation, Defendants contend Campbell was arrested at the
Malvern residence for various charges. Defendants claim that
illegal narcotics were recovered from this residence on
January 11, 2009; that Campbell admitted he was selling drugs
from the residence; that weapons were also found in the
residence; and that multiple persons in the residence at the
time were observed attempting to destroy the
drugs.[5] Chief Stelly testified that Campbell
attempted to prevent the officers from entering the residence
by holding the door shut as the officers tried to
enter.[6]
Considering
this background, and based on alleged new information from
informants that a large shipment of drugs had arrived, the
RPD requested assistance from the APSO and the Louisiana
State Police (“LSP”) in executing the February
10, 2009 warrant.[7] Defendants maintain that all officers,
regardless of agency, were either in “Class A”
regular law enforcement uniforms or apparel with clear
insignia indicating they were police officers. The officers
arrived at the residence in both marked and unmarked
vehicles.[8]
When
the officers arrived at the residence, Campbell's 2003
GMC Yukon was parked in the driveway; because of the darkly
tinted windows, the officers could not determine if there
were occupants in the vehicle. Officers surrounded the
vehicle and ordered any occupants to exit. Brian Smith
(“Smith”) was seated in the passenger seat, and
the officers claim he exited immediately from the passenger
seat and was handcuffed.[9] Officers then observed Campbell in the
driver's seat through the open passenger door. A third
occupant, Ricky Monceaux (“Monceaux”) was seated
in the back seat on the passenger side; however, he remained
in the vehicle for the duration of the
incident.[10]
Although
Defendants claim Campbell was instructed repeatedly to exit
the vehicle with his hands up, officers claim he did not
comply and began to reach behind the driver's seat for an
unknown object.[11] Suddenly, Campbell allegedly put the
vehicle in reverse and pressed on the
accelerator.[12] Accordingly to the Louisiana State
Police Report, [13]Campbell's vehicle struck a RPD
patrol unit parked intentionally behind the Yukon to block
Campbell's exit, then Campbell put the car in forward and
accelerated even though several officers had surrounded the
vehicle and were in close proximity to the vehicle based on
the small size of Plaintiff's yard.[14] Campbell then
allegedly revved the engine, made a hard left turn, and
struck APSO deputy Brad Ware, who was in front of the vehicle
screaming for Campbell to exit.[15]
The
other Defendants witnessed the Yukon strike Ware and
testified that, after Ware was struck, the officers could not
see him and believed that he was being dragged underneath the
Yukon, which caused three officers to open fire on
Campbell.[16] The Defendants maintain that no officer
opened fire until Campbell had disobeyed all police orders,
put the Yukon in gear and accelerated towards Brad Ware, and
apparently struck Deputy Ware.[17] It was later discovered that
Ware was not dragged by the Yukon or seriously injured,
although Ware testified that Campbell knocked him to the
ground and “kept coming at [him], ” which forced
Ware to “get out from underneath in front of the
vehicle.”[18] Once out of the way of the Yukon, Ware
“jumped up and attempted to stop the vehicle, disable
it by shooting out the back tires.”[19] Campbell
continued driving out of the Malvern residence and came to a
stop in an adjoining block containing a graveyard. At this
point, the officers determined that Campbell had been struck
by a bullet.[20]
Backseat
passenger Monceaux was the only witness to the incident from
inside the vehicle, and he essentially confirmed the
Defendants' account of the incident. Monceaux gave a
recorded statement to police on February 10, 2009, the day
after the incident, which was recorded and attached to the
Police Report.[21] The Court listened to Monceaux's
February 10 statement several times. Monceaux told police no
less than twenty times that Campbell “ran over the
cop.” At the 12:20 mark, Monceaux states that Campbell
“reached around the back of the seat like he was trying
to hide something.” At the 15:00 mark, Monceaux states
it “was all his [Campbell's] fault - they [the
police] was doing their job professionally.” Monceaux
also stated that both he and Campbell heard the cops
“hollering, ” and “none of the cops were in
the wrong.”
Several
weeks later, Monceaux gave a statement to Plaintiff's
counsel on or about March 3, 2009, which was audio recorded
and transcribed.[22] Monceaux was asked to tell what happened
from the moment everything started on February 9, 2009.
Monceaux stated: “we pulled up in the driveway, we
sitting right there and we eating some hot tamales and um,
they just said something about the cops hitting the
house.”[23] Monceaux further explained that Smith
made this comment.[24] Monceaux explained that one cop removed
Smith from the vehicle, and another cop came off the porch
and pointed a rifle at the windshield, and another cop was at
the driver's side door, and “Anthony is reaching
behind the seat, ” to which the office ordered Campbell
to “move your hand, move your
hand!”[25] Monceaux also stated that Campbell did
not carry a gun; however, he confirmed that Campbell reached
behind his seat as the officers approached the vehicle.
Monceaux offered the following narrative:
And they had another cop come off the porch, in front of the
truck, he got a rifle pointed at the windshield. This one at
the side door and Anthony is reaching behind the seat, but he
don't have no gun. The man don't carry no gun.
(laughs) And they said move your hand, move your hand! So he
moved his hand back to the front, and when he moved his hand,
he put it in reverse and he backed, he backed up. He
didn't know they had a car behind him, couldn't see,
I couldn't see it and I'm sitting in the back seat
here and I'm looking around, look, look to see whose
around ‘cause, ‘cause that cop got the gun
pointed a foot from us all, leaning in the door. When he went
to back up, the cop backed up. They backed out of the door,
the door did bump him and when they hit the car, the door
slammed closed, and he cut a hard left, dropped it in drive,
and I hollered at him, Anthony no, don't do this,
don't do it. You know, tell him not to run and um, he
laid on the gas, when I heard pop, pop, pop. There three
shots. And when I heard the three shots, I heard the glass
breaking, I slid to the side, he got bucket seats in the
back, I slid in between the bucket seats, put my head behind
the seat and pray to god the bullet wouldn't hit me in
the head, ‘cause I knew they were shooting at the
windows, not at the tires. The first three shots, that was
the dude, the cop that they hit, that he bumped with the
door.[26]
Curiously,
however, Monceaux claimed during this interview that he did
not see Campbell hit Brad Ware with the vehicle; rather, he
stated that he saw “a cop trip and fall in the bushes,
” but he observed the cop fall on the left side of the
bush while the vehicle “caught the right side” of
the bush.[27] Monceaux stated that he did not believe
or see Campbell try to threaten a cop or deliberately run
anyone over.[28] Monceaux did confirm that the shooting
did not start until Campbell “took a hard left, ”
“stepped on the gas, … and the cop fell in the
bushes.”[29] Monceaux again stated: “When that
cop fell down in the bushes, they started
shooting.”[30] Although Monceaux did not know the cop
that fell, he stated that the cop was taken from the scene in
an ambulance, which confirms that Monceaux identified
“the cop that fell” as Brad Ware.[31] Monceaux also
stated that “[a]ll the cops were in uniform and they
was all in blue, ”[32] and he did not see any cops in plain
clothes until after the incident was over.
Monceaux
was asked by Plaintiff's counsel if he heard the police
give Campbell any verbal commands, to which Monceaux
responded: “Yep. … Halt, halt … and
don't, don't, don't …
.”[33] When counsel suggested that an officer
had busted the passenger side window before the shooting
started, Monceaux explained that “they punched it out
after the truck stopped.”[34] Counsel asked about the
statement Monceaux had given to the police regarding the
incident, and Monceaux responded: “I told them the
same, he, he backed up, the door bumped that cop and that cop
fell in the bushes, I don't know if he run over him or
not, you know --” at which point counsel interrupted
Monceaux and stated: “Come on now, you, you know nobody
run over him you were in the truck.”[35]Monceaux
responded: “I don't know!”[36] Monceaux was
asked if he saw the man go under the truck, to which he
responded: “I, well we was so close, the man fell in
the bushes and the truck passed right
there.”[37]
Plaintiff
offers a much different version of these events. Plaintiff
claims that the Defendants showed up “mostly in
unmarked vehicles and, despite their testimony, unmarked
uniforms.”[38] Plaintiff points to Campbell's
deposition testimony, given 6 years after the incident
occurred, that Campbell did not know it was a police officer
that approached his vehicle on February 11, 2009, and claims
Campbell thought he was being robbed.[39] Plaintiff
notes that witnesses testified that Officer Adam Ware did not
announce that he was a police officer when he approached the
Yukon, and Mose Milson (“Milson”), a neighbor who
allegedly lived across the street from Malbrough and
witnessed the event, testified that he heard an officer
threaten Campbell's life before approaching the
Yukon.[40]Plaintiff claims Deputy Brad Ware has
given inconsistent testimony about his location during the
incident and cites to witnesses who testified that Ware was
not struck by the Yukon but instead slipped near an air
conditioner. Plaintiff contends that it was unreasonable for
the officers to continue to shoot at Campbell after the
officers were no longer in the path of the vehicle and they
knew that Ware was unharmed. Plaintiff maintains that
Campbell had no idea that police officers were executing a
search warrant and that “all he was trying to do was to
get away from people point[ing] guns at him with no
justification.”[41]
Plaintiff
filed this lawsuit[42] against Defendants, individually and on
behalf of his son, pursuant to 42 U.S.C. §1983 for
several alleged constitutional violations, inter
alia: freedom from excessive use of force; right to life
and liberty; right to equal protection; and right to due
process, application of law. Plaintiff also asserts a variety
of state law claims. Plaintiff has asserted a
“bystander” claim against Defendants for the
heart attack he suffered on the day of the shooting.
Defendants have moved for summary judgment on all of
Plaintiff's claims, and the Defendants sued in their
individual capacities have asserted the defense of qualified
immunity to Plaintiff's claims.
II.
LAW AND ANALYSIS
A.
Summary Judgment Standard
“The
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.”[43] “When assessing whether a dispute
to any material fact exists, we consider all of the evidence
in the record but refrain from making credibility
determinations or weighing the evidence.”[44] A party
moving for summary judgment “must ‘demonstrate
the absence of a genuine issue of material fact,' but
need not negate the elements of the nonmovant's
case.”[45] If the moving party satisfies its
burden, “the non-moving party must show that summary
judgment is inappropriate by setting ‘forth specific
facts showing the existence of a genuine issue concerning
every essential component of its
case.'”[46] However, the non-moving party's
burden “is not satisfied with some metaphysical doubt
as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of
evidence.”[47]
Notably,
“[a] genuine issue of material fact exists, ‘if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'”[48] All
reasonable factual inferences are drawn in favor of the
nonmoving party.[49] However, “[t]he Court has no duty
to search the record for material fact issues. Rather, the
party opposing the summary judgment is required to identify
specific evidence in the record and to articulate precisely
how this evidence supports his claim.”[50]
“Conclusory allegations unsupported by specific facts
… will not prevent the award of summary judgment;
‘the plaintiff [can]not rest on his allegations
… to get to a jury without any “significant
probative evidence tending to support the
complaint.”'”[51]
B.
Section 1983 Claims and Qualified Immunity
To
state a claim under Section 1983, a plaintiff must (1) allege
a violation of rights secured by the Constitution or laws of
the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of
state law.[52] Plaintiff alleges that Defendants
violated Campbell's Fourth Amendment right to be free
from excessive force and his Fourteenth Amendment right to
due process. The Court turns to these claims.
1.
Excessive Force
“To
prevail on an excessive force claim, a plaintiff must
establish: (1) injury (2) which resulted directly and only
from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly
unreasonable.”[53] The reasonableness inquiry
“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.”[54] The key question before the Court based
on the facts of this case is whether Campbell “posed an
immediate threat to the safety of the officers or
others.”[55] The “[u]se of deadly force is not
unreasonable when an officer would have reason to believe
that the suspect poses a threat of serious harm to the
officer or others.”[56] Courts must “balance the
amount of force used against the need for force, ”
paying “careful attention to the facts and
circumstances of each particular case.”[57]
The
Fifth Circuit has held that “[t]he excessive force
inquiry is confined to whether the [officer] was in danger at
the moment of the threat that resulted in the [officer's]
shooting.”[58] Thus, the officers' actions leading
up to a shooting are irrelevant for the purposes of an
excessive force inquiry in the Fifth Circuit.[59] This Court is
bound to consider the “moment of the threat” that
resulted in the Defendants' use of deadly
force.[60]
Defendants
maintain that they surrounded Campbell's vehicle in order
to execute a search warrant for the premises, which included
the vehicle in question, in police uniforms and/or clothing
that clearly displayed law enforcement insignia. Defendants
further contend that, after ordering Campbell out of the car
with his hands up repeatedly, he not only failed to comply,
but he reached behind the driver's seat for an unknown
object. Contemporaneously, Campbell is alleged to have
quickly backed into the RPD patrol unit parked behind the
Yukon in the driveway, revved his engine and made a hard left
turn, then put the Yukon in forward and accelerated directly
into the path of Brad Ware. The officers testified that they
believed that Brad Ware was being dragged underneath the
Yukon and that Campbell continued to disobey orders and drive
erratically outside the yard before coming to a stop in the
graveyard in the adjoining block. Defendants testified that
that shots were not fired until after Campbell had
refused to exit the car, reached behind his seat, backed into
a patrol car, aimed his vehicle and possibly struck Ware, and
continued to erratically drive with Ware possibly stuck
underneath the vehicle. Under the circumstances, Defendants
maintain that Campbell posed an immediate threat to the
safety of the officers and others, Campbell was actively
attempting to resist or evade arrest by flight, and the
officers reasonably used deadly force at the “moment of
the threat.”
Plaintiff
argues that several genuinely disputed material facts call
into question the reasonableness of the officers' conduct
during this incident such that summary judgment is not
appropriate, and qualified immunity does not shield the
officers' conduct. Plaintiff presents the following
alleged disputed facts which he maintains preclude summary
judgment: witnesses to the event have testified that the
Defendants were not in uniform and were in unmarked cars when
they approached Campbell's vehicle; the officers did not
identify themselves as police officers, thus Campbell
believed that he was being robbed and was just trying to
escape; Milson testified that he heard an officer say prior
to the incident that he was going to kill Anthony Campbell
when he saw him; there is conflicting testimony about where
Brad Ware was located at the time Campbell accelerated; and
there is testimony that Brad Ware was not struck by the Yukon
but rather slipped in front of the vehicle.
Plaintiff
contends the Court must evaluate whether the Defendants
themselves created the situation wherein they had to resort
to deadly force - by appearing in plain clothes, mostly
unmarked cars, and failing to announce themselves as police
officer - as described by the Tenth Circuit in Allen v.
Muskogee.[61] However, as Defendants note, the law of
the Fifth Circuit, not the Tenth Circuit, applies in this
case, and the Fifth Circuit has expressly held that,
“[i]n this circuit, § 1983 liability cannot be
premised on the fact that an officer ‘creates the
need' to use excessive force by failing to follow police
procedure.”[62]
a.
Officers' Clothing/Appearance
Nevertheless,
the Court also finds that Plaintiff has failed to demonstrate
an issue of fact regarding the Defendants' appearance on
the scene as police officers. Although Plaintiff offers the
testimony of Milson, [63] Campbell, [64] and Smith, [65] all deposed
more than six years after the incident, that Defendants were
in plain clothes and mostly unmarked cars at the time of the
incident, Plaintiff's own stipulated evidence undermines
this claim. The record reflects that the Parties introduced
the Louisiana State Police Report with Attachments as Joint
Exhibit 1 for all purposes in this matter.[66] Indeed,
Plaintiff and Defendants have heavily cited this Exhibit in
briefing the summary judgment motion. The Police Report sets
forth that: “Photographs of Sgt. Boddye (as dressed
during incident) were taken by S/T Frank Garcia and me (S/T
Morel)”;[67] “Photographs of Officer Cormier
(as dressed during this incident) were taken by S/T Frank
Garcia”;[68] “Photographs of Officer Adam Ware
(as dressed during incident) were taken by S/T Frank
Garcia”;[69] and “Photographs of Officer
Creduer [sic] (as dressed during incident) were taken by S/T
Frank Garcia.” The corresponding photographs reflect
that Adam Ware was dressed in his “Class A”
regular uniform, [70] Boddye was dressed in khaki pants and a
shirt with clear police insignia, [71] and both Cormier and
Credeur wore shirts with “RAYNE POLICE” in large
block letters across the front.[72] The record indicates that
Deputy Brad Ware was brought straight to the hospital from
the scene, and the hospital collected his
uniform.[73]In his deposition, Brad Ware confirmed
that the photographs of a “Class B” uniform
collected at the hospital, depicting his name, badge, and
police insignia on both sleeves, are of the uniform he was
wearing during the incident.[74] Trooper Katie Morel testified
under oath that the photographs of the officer were taken
immediately after the incident at Rayne PD, and the officers
were not allowed to go home and/or change.[75] Moreover, by
jointly moving admission of the Police Report and all
attachments, Plaintiff has conceded the authenticity and
admissibility of the photographs. Additionally, in both his
February 10 and March 3, 2009 statements, Monceaux
acknowledged that it was clearly police officers that
surrounded Campbell's vehicle, and Malbrough testified
that there were marked police cars at the scene as well as
some officers in uniform.[76]
In
Green v. Entrekin, [77] the district court for the
Western District of Louisiana addressed a suit brought by a
plaintiff alleging several constitutional violations pursuant
to Section 1983, including unlawful arrest and excessive
force. The plaintiff argued that she ignored the
officer's traffic orders in part because he did not
identify himself as a police officer, and she could not tell
from his clothing that he was a police officer as his
reflective vest allegedly concealed his badge and name
tag.[78] The Court rejected this contention,
finding that the plaintiff failed to demonstrate a fact issue
based on the photographs submitted by the defendants:
[P]hotographs submitted by the defendants show that the
reflective vest did not cover the sleeves on Officer
Entrekin's uniform, both of which have SPD insignias.
See Record Document 26, Ex. 17. Additionally, Green
encountered Officer Entrekin directing traffic at the
intersection of a major highway and an interstate near the
location of the state fair.
The court finds that, under the circumstances, it was
reasonable for Officer Entrekin to conclude that Green knew
he was a police officer, even assuming that she truthfully
did not know that he was.[79]
This
conclusion by the Green court is critical: the
question is not whether Campbell truthfully knew that the
individuals surrounding his vehicle were officers; rather,
the question is, based on the record evidence of their attire
on the date of the incident, the officers reasonably
concluded that Campbell knew or should have known they were
police officers under the circumstances.[80]
Indeed,
when ruling on a motion for summary judgment, the Court
evaluates the evidence in the light most favorable to the
nonmovant and does not weigh evidence or judge
credibility.[81] Nevertheless, any factual disputes
raised by Plaintiff must be genuine.[82] Where a video recording,
or conceivably some other unquestionable form of evidence,
contradicts a plaintiff's recollection to such a degree
that no reasonable juror could credit the plaintiff's
testimony, the court must accept the facts as shown in the
recording.[83] Based on the photographic evidence
submitted and stipulated to by all Parties in this matter,
the Court finds that the photographs of the officers in the
Police Report establish unquestionably that the Defendants
were dressed in a manner by which it was reasonable for them
to conclude Campbell knew or should have known they were
police officers at the time he was ordered to exit the
vehicle.
b.
Reaching for an unknown object
The
testimony of officers on the scene and the statement given by
Monceaux, who was the only witness in the vehicle at the
relevant time, established that Campbell reached behind his
seat after the officers advised him to exit the vehicle. The
evidence that Campbell reached behind his seat is
uncontroverted. Whether Campbell owned a gun, carried a gun
generally, or was reaching for a gun at that moment is
irrelevant to the question before the Court. The Fifth
Circuit has repeatedly found an officer's use of deadly
force to be reasonable when “a suspect moves out of the
officer's line of sight such that the officer could
reasonably believe the suspect was reaching for a
weapon.”[84]
c.
Alleged threat to kill Campbell
Plaintiff
is likewise not aided by the deposition testimony of Milson,
almost six years after the incident, that he observed a
pickup truck “with some white boys” stop in front
of Plaintiff's house on the date in
question.[85] Milson testified that he heard an
unidentified “little short fellow … say
‘When I see that son of a bitch, I'm going to kill
him.' He was talking about Anthony.”[86] This
testimony is insufficient to create an issue of fact as to
use of force reasonableness for several reasons. First,
Milson does not know who made this alleged statement; Milson
admitted that he did not provide this statement to the police
when he was interviewed soon after the incident because he
only remembered it “when [he] was talking” in the
deposition taken on October 29, 2015, [87] over six
years after the incident and a week after Milson was visited
by Campbell.[88] Further, Milson speculates that this
alleged statement was made in reference to Anthony, although
the alleged statement itself contains no specific reference.
The
Court listened to the audio recording of the statement given
to the police by Milson on March 4, 2009. In this statement,
given less than a month after the incident occurred, Milson
is specifically asked what he heard the officers say, and
this alleged statement of a threat to kill Campbell is not
mentioned at all. Moreover, although Milson states initially
in the interview, as he testifies later in his deposition,
that the officers did not arrive on the scene in marked
vehicles or police attire, at the 2:55 mark of the recording,
the interviewer asks Milson how he knew it was cops, and he
replied that he could see “COPS” written on the
car. While the Court may not make credibility determinations
at the summary judgment stage, the Court “need not
permit a case to go to a jury … when the inferences
that are drawn from the evidence, and upon which the
non-movant relies, are
“implausible.”[89] Furthermore, “[e]ven
where facts are disputed, the nonmoving party must offer
evidence to enable a reasonable jury to return a verdict in
its favor.”[90] The Court must be satisfied “that
the evidence favoring the nonmoving party is insufficient to
enable a reasonable jury to return a verdict in her
favor.”[91] The Court finds that Milson's
testimony as to the “fact” of an alleged threat
to kill Campbell implausible and insufficient to reach a
jury.[92]
Nevertheless,
the Court finds in the alternative that, even accepting
Milson's testimony as true, such a statement does not
change the fact that the uncontroverted evidence in this case
shows that no officer opened fire on Campbell's vehicle
until after he had refused to obey orders, he reached behind
his driver's seat, he aimed the vehicle in the direction
of Brad Ware, the officers believed Brad Ware was being
dragged under the vehicle, and Campbell continued to
accelerate the vehicle. The evidence demonstrates that at no
time did Campbell comply with police orders or stop his
attempted flight. Thus, Milson's testimony does not
create an issue of fact as to the reasonableness of the force
used.
d.
Campbell's testimony
Campbell
testified that he recalled nothing at all after he placed the
vehicle in reverse.[93] Because the uncontroverted evidence
establishes that the officers did not open fire until after
the vehicle accelerated forward and ostensibly struck Brad
Ware, Campbell's testimony fails to demonstrate a
materially disputed fact regarding the objective
reasonableness of the officers' use of force.
e.
Brad Ware's position during the incident
Plaintiff
also contends there are genuine issues of material fact
regarding the location of Brad Ware at the time Campbell
accelerated his vehicle and whether Campbell's vehicle
actually struck Brad Ware or he slipped near the vehicle.
Plaintiff claims Adam Ware testified that he saw Brad Ware
leave the house and approach the vehicle as it was backing
up;[94] yet, Plaintiff claims Brad Ware
testified that he was in the house when he heard the crash of
Campbell backing into the police car, [95] and several
other officers testified that Campbell immediately put the
car in drive and accelerated and turned left. Thus, Plaintiff
contends the timing creates an issue of fact because Brad
Ware did not have time to place himself in front of
Campbell's vehicle when it began moving forward if he was
still in the house when Campbell backed into the police car.
The Court disagrees.
Notwithstanding
the fact that the Court does not see the conflict between the
testimony of Adam Ware and Brad Ware, the stipulated
photograph of the residence and driveway reveals that Brad
Ware could have exited the back door and would have been
immediately in front of the vehicle within one or two
steps.[96] Brad Ware testified that he was at the
back door.[97] The photographic evidence undermines
Plaintiff's claim that it would have taken too much time
for Brad Ware to exit the house when he heard the crash and
place himself in front of the vehicle when Campbell began
accelerating. Moreover, Adam Ware testified that, between
Campbell backing into the police car and “before he
jammed it back in drive … there was a time delay
between when he saw Brad in front of the vehicle …
.”[98] In the LSP Report, Officer Lance
Arsement reported that, after Campbell put the vehicle in
reverse and hit the police car, “[h]e then tried to go
but the truck would not move. Campbell finally manipulated
the shift into drive, accelerated forward and struck Deputy
Brad Ware.”[99] This alleged discrepancy in testimony
about Brad Ware's location is not material to the
question before the Court and is, in the Court's view,
not a discrepancy.
It is
likewise irrelevant whether other witnesses or bystanders
claim that Brad Ware fell near the bushes rather than being
struck by Campbell's vehicle. The uncontroverted facts
establish that shooting did not start until Ware had fallen,
ostensibly beneath the vehicle, and the officers'
perception of what happened is relevant to the reasonableness
of the force used. Once it was announced that an officer was
down, it was objectively reasonable for the officers to
respond with force in light of the circumstances. As the
Fifth Circuit instructs, “[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 to the officer or
to others. The question is one of ‘objective
reasonableness,' not subjective intent, and an
officer's conduct must be judged in light of the
circumstances confronting him, without the benefit of
hindsight.”[100]
f.
Alleged prolonged shooting
Finally,
Plaintiff maintains that the officers continued shooting
after Campbell and/or his vehicle were no longer a threat,
and this constitutes excessive force. This claim is likewise
without merit. The testimony of witnesses to this event was
wide-ranging in both the number of shots witnesses heard
fired and the length of time the officers allegedly fired at
Campbell's vehicle. Plaintiff claims that the “vast
majority” of the shots were fired after Brad Ware was
up and off the ground and shooting at Campbell's
vehicle.[101] Plaintiff cites to the deposition
testimony of Smith;[102] however, in the pages cited by
Plaintiff, Smith does not offer testimony to this effect.
In
Plumhoff v. Rickard, the United States Supreme Court
considered a Section 1983 action brought by the estate of a
suspect who was killed by police officers in a highspeed car
chase.[103] The Court held that the officers acted
reasonably in using deadly force in an attempt to terminate a
dangerous high-speed car chase that threatened the lives of
innocent bystanders. Like Plaintiff herein, the claim was
made that, even if the use of deadly force was permissible,
firing a total of 15 shots was unreasonable. The Court
rejected this argument, finding: “It stands to reason
that, if police officers are justified in firing at a suspect
in order to end a severe threat to public safety, the
officers need not stop shooting until the threat has
ended.”[104] The Court noted that,
during the 10-second span when all the shots were fired,
Rickard never abandoned his attempt to flee. Indeed, even
after all the shots had been fired, he managed to drive away
and to continue driving until he crashed. This would be a
different case if petitioners had initiated a second round of
shots after an initial round had clearly incapacitated
Rickard and had ended any threat of continued flight, or if
Rickard had clearly given himself up. But that is not what
happened.[105]
The
facts of this case demonstrate that, throughout the incident,
Campbell never stopped the vehicle or gave himself up. In
this moment in time, the officers could not know at what
point Campbell was hit; thus, they continued shooting until
the vehicle came to a stop. The Court finds that the
officers' shooting at the vehicle until it came to a stop
was not unreasonable under the circumstances of this case.
g.
Jurisprudence
The
facts of this case are similar to those in Sanchez v.
Edwards, [106] wherein the Fifth Circuit considered
an appeal of summary judgment granted in favor of police
officers who shot a suspect who refused to exit his vehicle
and instead accelerated his vehicle in the direction of one
of the officers. Several police officers were conducting a
surveillance operation of a residence for suspected drug
activity.[107] The officers began searching the
premises for drugs and questioning individuals who approached
the residence.[108]Sanchez pulled into the driveway of the
residence in a Toyota Camry, and two officers approached the
vehicle.[109] Both officers were wearing clothing
that identified them as law enforcement. The officers
identified themselves as police and verbally ordered Sanchez
to stop the vehicle; however, Sanchez reversed into the
street despite officers' continued orders to
stop.[110]
One
officer followed the car on the driver's side, and the
other officer crossed in front of the car; however, while the
officer was positioned directly in front of the vehicle,
Sanchez then accelerated in his direction.[111] Witnesses
in the neighboring yards heard the officers shouting at
Sanchez to stop and heard spinning tires on the gravel
driveway.[112] As the vehicle accelerated towards the
officer, both officers fired their weapons at
Sanchez.[113] The vehicle struck one of the officers
and continued down the road, eventually coming to a stop in a
ditch.[114] Sanchez was hit by three of the shots
fired and pronounced dead at the scene.[115]
Sanchez's
family filed a Section 1983 action against the officer
alleging they violated Sanchez's right to be free from
excessive force. The district court granted summary judgment
in favor of the officers, and the family appealed. The
officers asserted the defense of qualified immunity on
appeal.[116] However, because the court concluded
that Sanchez's constitutional rights were not violated,
the court did not reach the issue of qualified
immunity.[117] The Fifth Circuit stated:
“The use of deadly force for apprehension is a seizure
subject to the reasonableness requirement of the Fourth
Amendment.” Hathaway v. Bazany, 507 F.3d 312,
320 (5th Cir.2007) (citing Tennessee v. Garner, 471
U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). In
Garner, the Supreme Court defined the circumstances
under which an officer's use of deadly force to stop a
fleeing suspect is constitutionally reasonable:
Where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to
the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force. Thus,
if the suspect threatens the officer with a weapon or there
is probable cause to believe that he committed a crime
involving the infliction or threatened infliction of serious
physical harm, deadly force may be used if necessary to
prevent escape, and if, where feasible, some warning has been
given.
471 U.S. at 11-12, 105 S.Ct. 1694. “The reasonableness
of an officer's use of deadly force is therefore
determined by the existence of a credible, serious threat to
the physical safety of the officer or to those in the
vicinity.” Hathaway, 507 F.3d at 320. In
making this determination, we must allow “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, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989).[118]
The
court discussed its previous decision in Hathaway v.
Bazany, which it noted contained “facts that are
legally indistinguishable from the facts of this
case.”[119]
In Hathaway v. Bazany, we applied the Garner
standard to facts that are legally indistinguishable from the
facts in this case. See 507 F.3d at 315- 16. In
Hathaway, a police officer stopped a vehicle in order to
investigate a gang-related altercation in the area.
Id. at 315. When the officer, who was on foot, was
approximately eight-to-ten feet from the front right corner
of the vehicle, the vehicle suddenly accelerated towards him.
Id. at 316. He attempted to get out of the way, but
when he realized that he would not be able to do so, he
decided to fire his weapon. Id. The vehicle struck
the officer on the left leg, and the officer fired his
weapon, although he could not recall whether he fired it
before, during, or immediately after he was struck by the
vehicle. Id. The shot hit the driver of the vehicle
and killed him. Id.
On these facts, we held that the officer's use of deadly
force was justified even though he could not specifically
recall when he fired his weapon. See id. at 321-22.
In doing so, we surveyed the relevant case law and identified
two “central” factors in the reasonableness
inquiry in these kinds of cases: (1) “the limited time
[an] officer[ ] ha[s] to respond” to the threat from
the vehicle; and (2) “ ‘the closeness of the
officer[ ] to the projected path of [the]
vehicle.'” Id. at 321 (quoting
Waterman v. Batton, 393 F.3d 471, 479 (4th
Cir.2005)) (final alteration in Hathaway). Given the
officer's “close proximity” to the vehicle
and the “extremely brief period of time” in which
he had to react to the vehicle's movement towards him, we
found that the officer was objectively reasonable in his
perception of a threat of serious physical harm to himself
and in his decision to respond to that threat with deadly
force. Id. at 322.
Based
on the same reasoning and analysis in Hathaway, the
Sanchez court held that the officers acted
reasonably in their use of deadly force on
Sanchez.[120] The court held:
Like the officer in Hathaway, Banquer and Schwebel
had to take action quickly and decisively in response to an
oncoming vehicle that was threatening an officer's
safety. Sanchez ignored numerous commands from the officers
to bring his vehicle to a stop. Both Banquer and Schwebel,
who were the only eyewitnesses to the shooting, testified
that Banquer was in front of Sanchez's Camry when Sanchez
put the car into drive and drove forward. Because of the
short period of time in which the officers had to react to
Sanchez's abrupt change of direction and Banquer's
obvious peril given his position in front of the vehicle, we
have absolutely no trouble finding that the officer's
decision to use deadly force was reasonable under the
circumstances.[121]
The
Court acknowledges that the case at bar involves more
eyewitnesses to the incident and conflicting testimony
regarding the officers' clothing and whether Brad Ware
fell or was struck by the vehicle. However, the Court has
already addressed these conflicts and determined that these
disputed facts are either immaterial to the issue at hand or,
in the case of the police officers' clothing, blatantly
contradicted by the stipulated photographs in the record.
Thus, for the same reasoning and analysis given by the Fifth
Circuit in both Sanchez and Hathaway, the
Court finds no constitutional violation in this case.
Accordingly,
for the reasons set forth above, the Court finds that
Plaintiff has failed to present summary judgment evidence
demonstrating genuine issues of material fact regarding the
reasonableness of the force used by the Defendants under the
circumstances. Defendants are entitled to summary judgment on
Plaintiff's excessive force claim. In the alternative,
the Court finds that the individual Defendants are shielded
by qualified immunity, as set forth below.
2.
Qualified Immunity
All
Defendants sued in their individual capacities argue that
they are entitled to qualified immunity. Qualified immunity
shields government officials from liability in their
performance of discretionary functions unless their conduct
violated a clearly established constitutional
right.[122] “Once raised, a plaintiff has
the burden to rebut the qualified immunity defense... We do
not require that an official demonstrate that he did not
violate clearly established federal rights; our precedent
places that burden upon plaintiffs.”[123]
The
qualified immunity defense presents a two-part inquiry:
“(1) whether the facts alleged or shown by the
plaintiff made out a violation of a constitutional right, and
(2) whether that right was ‘clearly established' at
the time of the defendant's alleged
misconduct.”[124] A court may address either part of the
two-part inquiry first.[125] “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?”[126]
In
Brosseau v. Haugen, [127] a Supreme Court decision
reached five years before the incident before the Court, a
police officer (Brosseau) responded to reports of a fight in
a residential neighborhood. Haugen ran to hide from Brosseau,
and several officers searched for him. When the officers saw
Haugen, he jumped into his Jeep, and Brosseau believed he was
looking for a weapon. She pointed her gun at Haugen and
ordered him to exit the car, but he ignored her and they
scuffled for the keys.[128] He started the car, the officer
jumped back, then she shot Haugen in the back through the
rear driver's side window.[129] The Court of Appeals
for the Ninth Circuit reversed the district court's grant
of summary judgment, holding that the Fourth Amendment had
been violated and that Haugen's rights were clearly
established. The Supreme Court did not decide whether the
shooting was unconstitutional; rather, it held that Brosseau
was entitled to qualified immunity. Because cases with
similar factual patterns had yielded different results, this
case was at the “hazy border between excessive and
acceptable force.”[130]
In the
present case, Defendants were on the scene to execute a
search warrant that included Campbell's vehicle. The
uncontroverted evidence demonstrates that Campbell reached
behind his seat after failing to comply with orders to exit
the vehicle. Further, Campbell actively fled the scene,
without consideration to the officers and innocent bystanders
in the area, before Defendants opened fire. Plaintiff has not
met his burden of demonstrating that, at the time that the
events in this case occurred, “adequate authority at a
sufficiently high level of specificity [ ] put [the
Defendants] on notice that [their] conduct [was] definitively
unlawful.”[131] As such, the individual Defendants are
entitled to qualified immunity.
Even if
Plaintiff could establish a constitutional violation, the
Court finds that the officers' conduct was objectively
reasonable for purposes of qualified immunity for the same
reasoning and analysis set forth above in the Court's
finding that the excessive force was reasonable. The question
here is whether the officers perceived that the threat posed
by Campbell was sufficient to justify deadly force. That the
officers' perceptions may have later been found to be
incorrect - for example, if Brad Ware was not struck by the
vehicle but simply fell near the bushes[132] - is not
the question. The uncontroverted evidence establishes that
the officers heard “officer down” after seeing
Campbell accelerate his vehicle in the direction of Deputy
Ware; thus, considering Campbell's refusal to obey
orders, reaching behind his seat, attempt to flee the
premises, and possible intent to run over Deputy Ware, the
Court finds that the officers' decision to open fire at
that point was reasonable under the circumstances.
It is
also relevant that, in addition to several law enforcement
officers in the yard, there were numerous bystanders in
neighboring yards watching this incident. The officers'
actions are also reasonable in light of their obligation to
protect innocent bystanders from Campbell's conduct.
While this case does not involve a lengthy, highspeed car
chase, it was reasonable for officers to conclude that
Campbell's erratic driving and acceleration in the
direction of an officer constituted a danger to all officers
in the yard and innocent bystanders. The photographic
evidence of the residence demonstrates the small size of the
yard and the close proximity to neighboring houses and
yards.[133]
In
Plumhoff v. Rickard, [134] the Supreme Court
found that police officers did not violate the Fourth
Amendment by fatally shooting a suspect after a high-speed
chase because “during the 10-second span when all the
shots were fired, [the suspect] never abandoned his attempt
to flee.”[135] The suspect had led the police on a
chase that “exceeded 100 miles per hour and lasted over
five minutes.”[136] The suspect's car then collided
with a police car and came to a standstill for three
seconds.[137] Then, the suspect pushed down on the
accelerator so that his tires spun, managed to break free
from the police car with which he had collided, “threw
the car into reverse, ” and drove away.[138]The
officers fired three shots while the suspect was trying to
break free and twelve more shots as he drove
away.[139] The Court found that “all that a
reasonable police officer could have concluded was that ...
[the suspect] would once again pose a deadly threat for
others on the road.”[140] Thus, the police officers
were justified in firing at the suspect and were not required
to cease firing until the threat had ended.[141]
For the
reasons set forth above, the Court finds in the alternative
that, had Plaintiff demonstrated excessive force in violation
of the Constitution, the individual Defendants would
nevertheless be shielded by the defense of qualified
immunity.
3.
Fourteenth Amendment Claims - Due Process/Equal
Protection
Plaintiff
has also asserted claims that his Fourteenth Amendment rights
of due process, life and liberty, and equal protection were
violated by the Defendants.[142]Defendants have moved for
summary judgment on these claims.
“The
Due Process Clause of the Fourteenth Amendment was intended
to prevent government from abusing its power [] or employing
it as an instrument of oppression.”[143]Its
substantive component “protects individual liberty
against certain government actions regardless of the fairness
of the procedures used to implement
them.”[144] However, it “does not transform
every tort committed by a state actor into a constitutional
violation.”[145]“[T]he substantive component of
the Due Process Clause is violated by executive action only
when it ‘can properly be characterized as arbitrary, or
conscience shocking, in a constitutional
sense.'”[146]
A
plaintiff may bring a substantive “due process”
claim under the Fourteenth Amendment only if the claim
alleged is not susceptible to proper analysis under a
specific constitutional source.[147] Consequently, if the
Fourth Amendment applies to the Plaintiff's excessive
force claim, then his substantive “due process”
claim is precluded.[148] This determination hinges on
whether the Defendants intentionally fired their weapons. It
is undisputed that the officers intentionally fired their
weapons at Campbell's vehicle; therefore, the Court may
not entertain the Plaintiff's Fourteenth Amendment
“substantive due process” claim because the
Fourth Amendment will appropriately apply.[149]
As
Plaintiff has asserted an excessive force claim under the
Fourth Amendment, Plaintiff's Fourteenth Amendment due
process claim is not viable. Furthermore, Plaintiff's
focus in his Opposition is almost entirely on the
excessive force claim. Indeed, the words “due
process” do not appear in his brief. Plaintiff's
conflates his constitutional claims under both the Fourth and
Fourteenth Amendments; however, this ignores the
jurisprudence set forth above that demonstrates different
standards for these claims. Plaintiff's only argument
regarding his Fourteenth Amendment claims is: “In a
light most favorable to the plaintiff, a reasonable jury
could come to the determination that the officers'
actions were not reasonable under the 4th and
14th Amendments.”[150] However, as set forth
above, reasonableness is not the standard for the Fourteenth
Amendment due process claim. As such, Plaintiff has failed to
offer substantive arguments or evidence in opposition to
Defendants' motion on his Fourteenth Amendment claims,
and Defendants are entitled to summary judgment on
Plaintiff's Fourteenth Amendment claims.[151]
C.
Official Capacity Monell [152]
claims
Since
the filing of this motion, the official capacity claims
asserted against Cormier, Stelly, Boddye, Brad Ware, and
Credeur have been dismissed.[153] The only remaining
Monell claims are asserted against the City of Rayne
and Sheriff Melancon. Because Plaintiff has failed to
establish an underlying constitutional violation, the
municipal Defendants cannot be held liable under
Monell.
The
Fifth Circuit has held that a municipality is not liable when
its employee did not commit a constitutional
violation.[154] In Rios v. City of Del Rio,
the Fifth Circuit upheld the dismissal of the plaintiff's
claims against the defendant police chief who had supervised
the defendant officer.[155] The plaintiff, a border guard who
had been struck by a prisoner driving a stolen police car,
asserted that the officer had violated his Fourteenth
Amendment right to be free from state deprivation of his
bodily integrity liberty interest. The Fifth Circuit found
that no such violation occurred. Turning to the
plaintiff's claims against the police chief, the court
stated that “[a] plaintiff must show either the
supervisor personally was involved in the constitutional
violation or that there is a sufficient causal connection
between the supervisor's conduct and the constitutional
violation.”[156] “It is facially evident that
this test cannot be met if there is no underlying
constitutional violation.”[157] The Rios
court also noted that, in Collins v. City of Harker
Heights, the Supreme Court stated that, “if a city
employee violates another's constitutional rights, the
city may be liable if it had a policy or custom of failing to
train its employees and that failure to train caused the
constitutional violation.”[158]
Because
the Court has already found that the use of force by the
Defendants was reasonable, and therefore not in violation of
the Fourth Amendment, it follows that the City of Rayne and
Sheriff Melancon are also not liable for the use of force or
its purported failure to properly train the officers.
Accordingly, summary judgment is granted in favor of the City
of Rayne and Sheriff Melancon.
D.
State ...