Harris et al v. New Orleans Police Department et al
Filing
137
ORDER & REASONS granting dfts' 49 Motion for Summary Judgment on all claims. Signed by Chief Judge Sarah S. Vance. (bbc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TYRALYNN HARRIS, ET AL.
CIVIL ACTION
VERSUS
NO: 11-752
NEW ORLEANS POLICE DEPARTMENT, ET AL.
SECTION: R(4)
ORDER AND REASONS
Before the Court is a motion for summary judgment filed by
defendants the City of New Orleans, Superintendent Ronal Serpas,
Officers Eric Geisler, James Kish, Stephen McGee, Jonathan
Parker, and Stuart Smith (the Officers).1 Having reviewed the
motion, briefs, evidence and applicable law, the Court finds that
summary judgment in favor of the defendants is proper and GRANTS
the motion for summary judgment on the grounds that defendant
officers are entitled to qualified immunity.
I. Background
In April 2010, Plaintiff Tyralyn Harris lived with her
former husband Brian Harris, along with their two children,
plaintiffs Jalen Aubert and Jai Harris, at 7731 Allison Road in
New Orleans, Louisiana.2 On April 9, 2010, Tyralyn Harris had
become concerned about the well being of Brian Harris. She called
1
R. Doc. 49.
2
R. Doc. 1 at 1, 13.
911 to ask for assistance after she observed Mr. Harris lock
himself in their bedroom.3 The following is a transcript of the
pertinent parts of Tyralyn Harris’s 911 call:
Complaint Operator: Police operator 104
Tyralyn Harris:
Hi. I um, need some, uh, some, uh,
my, um husband barricaded himself
in a room, and I don’t think he
want to live no more. I need
somebody to come help him.
CO:
Okay, does your husband have mental
problems?
TH:
He have...Yeah, he do. He have
drug...He trying to not use drugs
and I just think he messed up. I
don’t know what else to do...
CO:
Okay, but other than that, he
hasn’t been diagnosed, like
schizophrenic or bipolar or
anything like that, huh?
TH:
No. No ma’am.
...
CO:
Are there any weapons inside of the
house? Like do he have any kind of
guns or anything?
TH:
No guns, but I think he got a, a
probably a knife or something in
there like you know, from the
kitchen, I don’t know what he got.
CO:
And he’s inside your bedroom?
TH:
Yeah. We outside. I think he took
some pills or something. He told me
take the children away from here.
3
R. Doc. 1 at 13.
2
...
CO:
Okay. We’re going to send the
police over there, okay?
TH:
They need to send an ambulance,
too, or somebody. They need to
bring him to the hospital because
something’s wrong with him.
CO:
Okay. Alright.4
The 911 dispatcher relayed the call to the New Orleans
Police Department (NOPD) and several units responded, including
Sergeants Stuart Smith and Eric Geisler, and NOPD officers
Stephen McGee, Jonathon Parker, James Kish, and Patrick Hartman.5
When the officers arrived at about 10:22 p.m., Tyralyn Harris was
standing with her and Mr. Harris’s two children near her Ford F150 truck parked directly in front of her residence.6 Before the
officers entered the home, Tyralyn Harris told them that Mr.
Harris was depressed after recently losing his job, that he had
locked himself inside their bedroom, that she believed he may
have taken an overdose of sleeping pills, the quantity and type
of which were unknown, and that he was most likely armed with a
knife that he always carried because of his former employment as
4
R. Doc. 49-3 at 44-45.
5
Id. at 24-25.
6
Id. at 3.
3
a welder.7 She expressed concern for the well-being of her former
husband but did not express fear for her own, or the children’s
health or safety. The officers obtained keys to the bedroom from
Tyralyn Harris and the officers attempted to gain access to the
room.
Defendants have submitted videos captured by the tasers used
by officers Kish and Parker at the scene in support of their
motion for summary judgement.8 The tasers are designed to
automatically record audio and video by way of a small camera
mounted on the front of the device when the safety on the device
is disengaged.9 The taser video captured by Officer Kish’s device
began when the officers were outside of the bedroom door. The
video begins aimed at the floor. The legs of some of the officers
are visible. Then an officer called out the name “Brian,” to no
response. One of the officers, presumably Sergeant Smith, said,
“Come here, I want one gun and one taser right here, alright.”
Sergeant Smith made several unsuccessful attempts to unlock the
door.10 The officers then unlocked the door and found it
barricaded. Two large dressers had been moved into the path of
7
Id. at 3-4, 47.
8
Defendant’s exhibits 11, 12.
9
R. Doc. 49-3 at 39.
10
R. Doc. 49-3 at 4.
4
the doorway.11 The video shows the officers forcing the door
open, calling out "Brian" and then entering the room. Officers
McGee, Kish, and Parker entered the bedroom and Sergeant Smith,
Sergeant Geisler, and Officer Hartman observed the incident from
the hallway.12 The bedroom was a square, approximately twelve
feet by twelve feet, with two large dressers and a queen-sized
bed.13 The bed was centrally positioned against the wall opposite
the door. Once they entered the room, the officers began yelling
“let me see your hands.” The officers did not verbally identify
themselves as police to Mr. Harris, but they were wearing police
uniforms.14 Mr. Harris was lying in the bed under a blanket, not
moving. The officers repeatedly demanded to see his hands. When
Mr. Harris did not respond, Officer McGee removed the blanket
revealing Mr. Harris, dressed in boxer shorts and a tank top,
lying on his bed. Mr. Harris was holding a folding knife in his
right hand. The officers repeatedly yelled at him to “put it
down, put it down! Put down the knife!” Mr. Harris responded,
“It’s not coming down.” Mr. Harris waived and crossed his arms.
The video shows that at that point in time, Mr. Harris was lying
on his back in bed with the knife in his right hand waiving his
11
Id. at 4.
12
Id. at 4.
13
R. Doc. 55 at 5.
14
R. Doc. 49-3 at 24-27.
5
hands back and forth above his chest. His head was raised
slightly off of his pillow, and he did not otherwise move. Mr.
Harris continued to not comply with the officers’ repeated
commands to put the knife down. Sergeant Smith then ordered
Officer Kish to “tase him.” Officer Kish deployed his taser,
about 26 seconds after the officers first entered the bedroom.
One of the two steel darts that Officer Kish shot at Mr. Harris
did not hit him, and it appears that no shock was administered.
Mr. Harris sat up and made a swinging motion with the knife as
the first video, from Officer Kish's taser, cut out.
After Officer Kish deployed his taser, Mr. Harris got out of
bed and stood up.15 The next taser video lasts only six seconds.16
As it begins, Mr. Harris is standing up and Officer Parker is
using his taser on him. Mr. Harris appeared agitated and defiant.
Officer Parker's taser attempt apparently failed to work because
Mr. Harris did not become incapacitated. Mr. Harris lifted his
right hand, holding the knife above his right shoulder in a
stabbing position. An officer yelled "Drop the knife!" Mr. Harris
responded, “I’m not dropping nothing." Mr. Harris was then told
again to drop the knife. During this exchange, Mr. Harris was
waiving his arms at the taser wires and moving forward toward the
officers. An instant later, gun shots rang out. Officer McGee had
15
R. Doc. 106 at 8 n. 14.
16
Defendant's exhibit 12.
6
fired three shots at Harris, two of which hit his torso, and one
his thigh.17 McGee used a departmentally-issued Glock model 22
semi-automatic handgun.18 After the gun shots, an officer yelled
“Get back! Get back! Get back!” The second video ended at that
point.
After being shot, Mr. Harris slumped to the floor. Officer
Parker attempted to provide medical care to Harris until the EMT
unit arrived. According to the EMT, Mr. Harris repeated “I’m
going to die, I’m going to die.”19 She specifically denied that
Harris said, “I want to die,” as was Sergeant Smith’s
recollection.20 Mr. Harris was transported to University Hospital
where he died from the gun shot wounds.
Plaintiffs are Tyralyn Harris, on behalf of herself and her
two minor children with Brian Harris, Jai Harris and Jalen
Aubert; Shannon Grace, on behalf of herself and her minor child
with Brian Harris, Branin Harris; and Brian Jourdan and Briankika
Jourdan, grown children of Brian Harris. Plaintiffs bring suit
under 42 U.S.C. § 1983, alleging that defendants violated Brian
Harris’s constitutional rights. Specifically, plaintiffs allege
that the officers involved in the incident used excessive force
17
R. Doc. 55 at 6.
18
R. Doc. 49-3 at 29.
19
R. Doc. 55 at 6.
20
R. Doc. 49-3 at 57.
7
against Brian Harris in violation of the Fourth Amendment and
that the officers are not entitled to qualified immunity.
Plaintiffs further allege that the City of New Orleans is liable
under Monell for the inadequate policies and procedures which
allegedly led to Brian Harris's death. Plaintiffs also seek
relief under Louisiana’s wrongful death and survival statutes,
Louisiana Civil Code article 2315.
II. Legal Standard
Summary judgment is appropriate when “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.” Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). When assessing whether a dispute as to any material fact
exists, the Court considers “all of the evidence in the record
but refrains from making credibility determinations or weighing
the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to
either support or defeat a motion for summary judgment.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985);
8
Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324. The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075; Isquith ex rel.
Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir.
1988), cert. denied, 488 U.S. 926 (1988). Although a nonmovant’s
9
failure to respond to a motion for summary judgment does not
permit the entry of a “default” summary judgment, the court may
accept the movant’s evidence as undisputed. Eversley v. Mbank
Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
III. Discussion
A. Standing
Plaintiffs filed suit alleging violations of 42 U.S.C. §
1983 and Louisiana’s wrongful death and survival statutes, La.
C.C. art. 2315.1; art. 2351.2. Defendants contend that each of
the plaintiffs lacks standing to bring these claims in this court
because they have not established that they are Mr. Harris’s
child or spouse. Plaintiffs argue that defendants have waived
their standing defense by failing to raise the issue until their
motion for summary judgment and that plaintiffs have nevertheless
established standing.
Defendants have not waived their standing defense. Rule 9 of
the Federal Rules of Civil Procedure states that a party seeking
to challenge capacity “must do so by a specific denial, which
must state any supporting facts that are peculiarly within the
party's knowledge.” Fed.R.Civ.P. 9(a)(2). If the defendant fails
to plead that the plaintiff lacks capacity in a timely manner,
the objection is waived and the defense is lost. Lang v. Tex. &
Pac. R.R. Co., 624 F.2d 1275, 1277 (5th Cir.1980). However, a
10
challenge to capacity is untimely only when raised on the eve of,
during, or after trial. See, e.g., Henderson v. Turner, CIV.A.
11-39, 2012 WL 3109482 (M.D. La. July 31, 2012)(allowing
defendants to challenge plaintiffs capacity to sue in a wrongful
death and survival action when challenge to capacity first raised
in pretrial order). None of the cases plaintiffs cite support
waiver when the capacity defense is raised more than a few days
before trial. See, e.g., Lang v. Texas & P. Ry. Co., 624 F.2d
1275, 1277 (5th Cir.1980)(challenge to capacity is waived when
raised for first time in a motion for new trial after a jury
verdict and judgment are entered); Garbincius v. Boston Edison
Co., 621 F.2d 1171, 1174 (1st Cir. 1980)(defendants waived any
defects as to plaintiff's standing by not making a specific
negative averment prior to trial); Ralston Oil and Gas Co. v.
Gensco, Inc., 706 F.2d 685, 692 (5th Cir.1983)(defendants waived
the capacity challenge because they did not include capacity as
an issue in the pre-trial order); MTO Maritime Transp. Overseas
v. McLendon Forwarding Co., 837 F.2d 215, 218 (5th Cir.1988)
(stating that trial court could legitimately have found waiver
when party did not raise issue of capacity until eve of trial).
Plaintiffs cite no case and the Court finds none in which a
capacity defense was waived when it was raised in a motion for
summary judgment before trial. Defendants' challenge to capacity,
made before the pre-trial order deadline and before trial, has
11
not been waived.
Filiation under Louisiana Tort Law
Pursuant to 42 U.S.C. § 1988, the state wrongful death
statute determines who has capacity to bring a wrongful death
claim under § 1983. Aguillard v. McGowen, 207 F.3d 226, 231 (5th
Cir. 2000). Louisiana Civil Code article 2315.1 provides for
survival actions and article 2315.2 provides for wrongful death
actions. Both statutes allow the “surviving spouse and child or
children of the deceased, or either the spouse or the child or
children” the right to bring suit to recover damages. Neither
Tyralyn Harris nor Shannon Grace allege that they were Mr.
Harris’s spouse at the time of his death and plaintiffs do not
argue that either woman is entitled to spousal standing.
Accordingly, to the extent they bring lawsuits in their personal
capacity, claims brought by Tyralyn Harris and Shannon Grace are
dismissed.
Louisiana law defines “children” as “those persons born of
the marriage, those adopted, and those whose filiation to the
parent has been established in the manner provided by law, as
well as descendants of them in the direct line.” La. C.C. art.
3506(8) (2012). A man is presumed to be a child's father when the
child is born during his marriage to the mother or “within three
hundred days from the date of the termination of the marriage.”
12
La. C.C. art. 185 (2012). If the child's filiation is not
presumed, the child can initiate an action to establish paternity
under Louisiana Civil Code article 197 to prove paternity in a
lawful manner. The law states that “if the [paternity action] is
instituted after the death of the alleged father, a[n]
[illegitimate] child shall prove paternity by clear and
convincing evidence.” Id. If the illegitimate child was not
formally acknowledged by the father, such as by being named on
the child's birth certificate or performing a notarial act
acknowledging paternity, the child must prove paternity by
informal acknowledgment. Id.; See La. C.C. art. 197(c) (2012).
The child must provide clear and convincing evidence that the
deceased parent informally acknowledged the child when the parent
was alive in order to bring a successful filiation claim. Jenkins
v. Mangano Corp., 774 So.2d 101, 103 (La.2000); See La. C.C. art.
197(d) (2012).
Evidence of filiation through informal acknowledgment “must
be continuous, habitual, unequivocal, and leave little doubt that
the alleged father considered himself to be the father of the
child.” Jordan, 568 So.2d at 1098. Informal acknowledgments of
paternity take many forms, such as writings, “living in
concubinage with the mother in his home at the time of the
child's conception,” having the same surname, consistently making
representations to others that the child is his own, and naming
13
the child in his succession. Jenkins, 774 So.2d at 103. For
example, in Jenkins v. Mangano Corporation, an illegitimate child
successfully established filiation with her deceased father when
she and her mother provided testimony amounting to clear and
convincing evidence of filiation. Id. at 104–05. Her mother
testified that she had exclusive sexual relations with the father
when the child was conceived and that the father later
acknowledged his paternity by addressing the child as his
daughter within his community. Id. at 104. The daughter testified
that she visited her father each summer, was publicly
acknowledged as his daughter, and received her father's Social
Security benefits. Id. Such evidence met the clear and convincing
evidence threshold to prove that the father “continuously and
unequivocally recognized” his illegitimate child to establish
filiation. Id.
“A filiation action inherently accompanies an illegitimate
child's wrongful death and survival action.” Henderson v. Turner,
CIV.A. 11-39, 2012 WL 3109482 (M.D. La. July 31, 2012). An
illegitimate child plaintiff need not specifically plead a
filiation action in a wrongful death and survival action claim;
filiation is still an issue despite lack of a formal caption in
the complaint. Lollis v. Concordia Parish, No. 1:05–cv–01474,
2010 WL 454721 (W.D.La. Feb. 9, 2010). A wrongful death and
survival action claim brought by children born out of wedlock
14
gives “fair notice of the factual situation out of which ...
filiation[ ] arises.” Id. Therefore, illegitimate children acting
as plaintiffs in wrongful death and survival action claims may
amend and supplement complaints to establish paternity because
filiation must be proved for successful litigation. Id.
Here, the adult and minor child plaintiffs argue that their
pleadings establish that they are the children of Mr. Harris. The
issue of capacity as to each of the child plaintiffs is addressed
in the following paragraphs.
1. Brian and Brianka Jourdan
Plaintiffs state that Brian and Brianika Jourdan were born
to Brian Harris and Anita Jourdan, in 1990 and 1991. Mr. Harris
and Ms. Jourdan were not married and Brian and Brianika were not
formally acknowledged by Mr. Harris, so plaintiffs must prove
paternity by informal acknowledgment.21 Plaintiffs submit Mr.
Harris’s obituary and funeral programs which list Brian and
Brianika as his children.22 Plaintiffs also submit affidavits
from 1) Brian and Brianika, 2) their mother Anita Jourdan, 3)
their maternal grandmother, 4) the mothers of Mr. Harris’s other
children, Shannon Grace and Tyralyn Harris, and 5) a family
friend, which state that Brian Harris openly and continuously
21
R. Doc. 55 at 19.
22
R. Docs. 55-3, 55-4 at 4.
15
acknowledged Brian and Brianika as his own children.23 Brian and
Brianika testify in their affidavits that Mr. Harris paid courtordered child support for Brian Jourdan and that Brianika Jourdan
was awarded social security surviving benefits after Mr. Harris’s
death.24 Brian and Brianika also have the same or similar first
names as Brian Harris. The evidence meets the clear and
convincing evidence threshold to prove that Mr. Harris
“continuously and unequivocally recognized” Brian and Brianika so
as to establish filiation. See Jenkins, 774 So.2d at 103-104.
2. Branin Harris
Branin Harris was legitimately born of the marriage of Mr.
Harris and Shannon Grace in 1995 and Mr. Harris is listed on
Branin’s birth certificate as his father.25 Filiation is thus
established. See La. C.C. art. 185 (2012).
3.
Jalen Aubert
Plaintiffs state that Jalen Aubert was born to Mr. Harris
and Tyralyn Harris on June 24, 2001, before the couple was
married. Mr. Harris is not listed on the birth certificate but
plaintiffs submit a notarized acknowledgment of paternity signed
23
R. Docs. 55-5, 55-6, 55-7, 55-8, 55-9, 55-10, 55-11.
24
R. Docs. 55-5, 55-6, 55-7.
25
R. Docs. 55-12, 55-13.
16
by Mr. Harris and Tyralyn Harris.26 This notarial act is
sufficient to establish formal acknowledgment of filiation. See
Jordan v. Taylor, 568 So.2d 1097, 1098 (La.Ct.App.1990).
4. Jai Harris
Plaintiffs state that Jai Harris was born on May 28, 2008,
of the union of Mr. Harris and Tyralyn Harris after they had
married and divorced. Plaintiffs have established formal
acknowledgment of filiation through Jai’s birth certificate which
lists Mr. Harris as his father.27
B. Excessive Force Claims
As public officials, the NOPD officers are entitled to
qualified immunity on plaintiffs' § 1983 excessive force claims
unless "(1) [plaintiffs] have "adduced sufficient evidence to
raise a genuine issue of material fact suggesting their conduct
violated an actual constitutional right, and (2) the officers'
actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question."
Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (internal
quotation omitted); see also Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Even if the evidence supports a conclusion that
26
R. Doc. 55-16.
27
R. Doc. 55-14 at 8.
17
Plaintiffs' rights were violated, qualified immunity may still be
invoked unless “the government official violated clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Manis v. Lawson, 585 F.3d
839, 845 (5th Cir. 2009). “Qualified immunity shields from civil
liability all but the plainly incompetent or those who knowingly
violate the law.” Id. (internal quotations omitted). "Although
qualified immunity is nominally an affirmative defense, the
plaintiff bears a heightened burden to negate the defense once
properly raised." Newman, 703 F.3d at 762.
Plaintiffs allege that the NOPD officers used excessive
force in violation of their Fourth Amendment right against
unreasonable seizure. See Colston v. Barnhart, 130 F.3d 96, 102
(5th Cir.1997). To prevail on an excessive force claim,
plaintiffs 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.’”
Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)(quoting Tarver
v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)). Claims of
excessive force are fact intensive and they depend on "the facts
and circumstances of each particular case." Graham v. Connor, 490
U.S. 386, 396–97 (1989). The Supreme Court has directed lower
courts to consider three factors in this inquiry: (1) the
severity of the crime at issue; (2) whether the suspect poses an
18
immediate threat to the safety of officers or others; and (3)
whether the suspect is actively resisting arrest by flight. Id.
at 396.
“The ‘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 v.
Connor, 490 U.S. 386, 396 (1989). This is an objective standard:
“the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.”
Id. at 397; see also Tennessee v. Garner, 471 U.S. 1, 9 (1985)
(court must determine whether “the totality of the circumstances
justified” the particular use of force). This test “allow[s] 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.” Id.
The NOPD officers contend that their use of deadly force was
objectively reasonable. They assert that Brian Harris was
noncompliant with their commands that he drop his knife, that
they tried less severe use of force, that he got out of bed and
was coming toward them with the knife in a menacing position, and
that Officer McGee's use of his firearm was necessary to prevent
serious injury or death to themselves. Plaintiffs argue that
19
taken as a whole, the officers actions were unreasonable. They
point to the officers’ awareness that Mr. Harris had not
threatened his wife or children, was depressed, and had possibly
taken sleeping pills. They also argue that to the extent Mr.
Harris became agitated and threatening, it was due to provocation
by the NOPD officers who roused him from his bed by bursting into
his bedroom yelling, and seconds later firing taser darts at him.
Although the Court finds NOPD's whole approach to this type of
situation troubling, in light of controlling law, the Court
concludes that the use of the firearm was objectively reasonable
under the circumstances.
The defendants concede that Brian Harris was not being
placed under arrest for any suspected crime. Therefore, the only
applicable Graham consideration is whether he posed an immediate
threat to the safety of the officers or others. Graham, 490 at
396. All of the Graham factors need not "be present for an
officer's actions to be reasonable; indeed, in the typical case,
it is sufficient that the officer reasonably believed that the
suspect posed a threat to the safety of the officer or others."
Rockwell, 664 F.3d at 992 (5th Cir. 2011) cert. denied, 132 S.
Ct. 2433, 182 L. Ed. 2d 1062.
In the Fifth Circuit, the Court’s inquiry of an officer’s
use of deadly force must focus on the situation at the moment
that he fired his weapon. See e.g. Rockwell v. Brown, 664 F.3d
20
985, 991 (5th Cir. 2011) cert. denied, 132 S. Ct. 2433 (U.S.
2012). In Rockwell, for example, a mother called the police for
help dealing with her mentally ill son who had threatened her and
was demonstrating suicidal behavior. Id. at 988. After talking to
the son through the locked door of his room, the police officers
decided to arrest him and breached the door. Id. at 989. The son
then charged at the officers with two eight-inch knives, pushing
one officer and slashing another before the officers shot and
killed him. The plaintiffs in that case relied on case law from
other circuits to argue that the grant of qualified immunity to
the officers was improper because the court failed to consider
the impropriety of the officers forcing entry into the bedroom in
evaluating the reasonableness of the officer's use of deadly
force. Id. at 992. The Fifth Circuit unequivocally rejected this
argument.
It is well-established that the excessive force 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. At the time of
the shooting, Scott was engaged in an armed struggle
with the officers, and therefore each of the officers
had a reasonable belief that Scott posed an imminent
risk of serious harm to the officers. We need not look
at any other moment in time.
Accordingly, the officers' use of deadly force was
objectively reasonable.
Id. at 992-993 (quotations omitted); See also Fraire v. City of
Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of
what had transpired up until the shooting itself, [the suspect's]
21
movements gave the officer reason to believe, at that moment,
that there was a threat of physical harm.”); Young v. City of
Killeen, 775 F.2d 1349, 1353 (5th Cir.1985) (finding that an
officer's use of deadly force was reasonable even where the
arrest was “negligently executed”); Ramirez v. Knoulton, 542 F.3d
124, 129 (2008) ("the magistrate judge improperly criticized
[Officer] Knoulton's failure to consider the use of non-lethal
force or to employ a crisis negotiator").
When looking at "the moment of the threat that resulted in
the officer's use of deadly force," Officer McGee's shooting of
Brian Harris was objectively reasonable. Rockwell, 664 F.3d at
993. It is clear from the taser videos that at the moment shots
were fired, Mr. Harris had stood up out of bed, was raising the
knife above his head, and was moving toward the officers. It is
also undisputed that the bedroom was small and cramped. Mr.
Harris appeared agitated and defiant.28 The officers had twice
discharged tasers at Mr. Harris, and he nonetheless continued to
refuse to comply with their commands to drop his knife. In their
depositions, Officers Kish and Parker testify that immediately
before the shooting, Harris was coming at them and was within
striking distance of Officer Kish.29 Officer Kish, who was
28
Defendant’s Exhibit 12 (“I’m not dropping nothing.").
29
R. Doc. 104-2 at 13 ("At that point, he was close,
yes."); R. Doc. 104-3 at 11 ("He began to step towards Officer
Kish with the knife and attempted to stab officer Kish").
22
holding the taser and had not drawn his gun, testified that he
remembers "looking up at him and seeing him coming at me thinking
this is gonna hurt."30 Even drawing all reasonable inferences in
favor of the plaintiffs, in the moment he was shot, Brian Harris
was moving toward the officers in a small space after being
unsuccessfully shot at twice with tasers, and was brandishing a
knife that the officers had repeatedly commanded him to drop.
Under these circumstances, the Court accepts that the officers
reasonably feared for their safety at the moment when Officer
McGee shot Brian Harris. See Elizondo v. Green, 671 F.3d 506, 510
(5th Cir. 2012) cert. denied, 133 S. Ct. 409, 184 L. Ed. 2d 31
(U.S. 2012) (deadly force against a suicidal and intoxicated teen
was not clearly unreasonable where teen ignored repeated
instructions to put down the knife he was holding, and was
hostile, in close proximity to the officer, and moving closer).
Like the plaintiffs in Rockwell, the plaintiffs in this case
urge the Court to zoom out from the moment of Mr. Harris's
shooting and to focus on the actions of the NOPD before that
moment. Plaintiffs argue that an officer's defensive use of
deadly force should not be sanctioned when the officers
"recklessly provoked a violent confrontation that led to the
shooting." They rely on several Ninth Circuit cases in which the
court held that “where an officer intentionally or recklessly
30
R. Doc. 104-2 at 13.
23
provokes a violent confrontation, if the provocation is an
independent Fourth Amendment violation, he may be liable for his
otherwise defensive use of deadly force.” Billington v. Smith,
292 F.3d 1177 (9th Cir. 2002); see also Espinosa v. City & County
of San Francisco, 598 F.3d 528, 538 (9th Cir. 2010) ("[E]ven
though the officers reasonably fired back in self-defense, they
could still be held liable for using excessive force because
their reckless and unconstitutional provocation created the need
to use force."). The Ninth Circuit held in Espinosa and Alexander
v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir.
1994), that when police officers' entry into a dwelling amounts
to an independent constitutional violation, which leads to a
situation where officers are required to use deadly force, the
use of deadly force is rendered unreasonable by the initial
illegal entry. See Espinosa, 598 F.3d at 538-39 ("If an officer
intentionally or recklessly violates a suspect's constitutional
rights, then the violation may be a provocation creating a
situation in which force was necessary and such force would have
been legal but for the initial violation.") (citing Billington,
292 F.3d at 1189). Because the Fifth Circuit has rejected this
approach, the Court cannot apply it here. See Rockwell, 664 F.3d
at 992-93 (refusing to follow the Ninth Circuit and holding that
"the excessive force inquiry is confined to ... the moment of the
threat that resulted in the officer's use of deadly force.")
24
Plaintiffs also argue that the first tasering was excessive
force amounting to a separate constitutional violation. They
argue that the officers' decision to use the taser on Mr. Harris
when he did not appear to be a threat to others, without first
attempting to use non-violent methods, was clearly unreasonable.
But regardless of whether it was unreasonable, any excessive
force claim based on the first taser discharge must fail because
the plaintiffs have not established a resulting injury. See
Newman v. Guedry, 483 F.3d at 416. In fact, plaintiffs aver that
the taser was not effective in administering a shock to Mr.
Harris. The record contains no evidence that the first taser
caused pain or other injury to Harris in the moments before he
was shot. Moreover, in similar circumstances, the Fifth Circuit
has rejected arguments that unreasonable police actions leading
up to a victim's confrontation with police were the necessary
cause of the death of the victim. See e.g. Rockwell, 664 F.3d at
992. In disposing of such an argument in Rockwell, the Fifth
Circuit said:
[T]he Rockwells urge this Court to view the officers'
breach of the locked door to Scott's room as the actual
moment of the use of deadly force because it “carried a
substantial risk of causing serious bodily harm” and
was the immediate but-for cause of the resulting
altercation between Scott and the officers. ... [T]he
Rockwells' argument that the breach of the door
necessarily caused the shooting that followed is
nothing more than speculation. Thus, the magistrate
judge correctly found that the “breach of the door was
neither the moment where deadly force was employed nor
did Scott's death result directly and only from the
25
breach of the door.”
Id. Like the breach of the door in Rockwell, the unsuccessful use
of the first taser here was not the direct cause of Brian
Harris's death.
Accordingly, because of the threat of serious injury or
death to the officers at the moment Officer McGee shot Brian
Harris, the Court finds the use of deadly force objectively
reasonable. Because the Court holds that Mr. Harris's Fourth
Amendment right to be free from the use of deadly force was not
violated, there is no need to consider whether that right was
clearly established. Rockwell, 664 F.3d at 993. The Court
therefore grants defendants' motion for summary judgment.
While the bounds of the law dictate this holding, the Court
notes its serious concern with the officers' actions in this
incident. The NOPD’s approach to handling a call for medical help
was outsized and inappropriate. Tyralyn Harris called 911 for
help with a depressed loved one, and NOPD treated the operation
as if it were a crime scene. Instead of tasing Mr. Harris within
seconds of entering his bedroom, the officers could have kept a
safe distance from him, avoided provocative displays of force,
made it clear that they were there to help him, and taken as much
time as necessary to talk him into putting down his knife,
including waiting for mental health professionals to arrive. See
Buchanan v. City of Milwaukee, 290 F. Supp. 2d 954, 961 (E.D.
26
Wis. 2003) (describing best practices for police officers in
encounters with emotionally disturbed persons).
Judge DeMoss of the Fifth Circuit Court of Appeals has
repeatedly urged a change in law enforcement procedures to
prevent the deaths of emotionally disturbed people in
circumstances similar to those seen here. See Rockwell, 664 F.3d
at 996-97 (DeMoss, J., concurring); Elizondo, 671 F.3d at 511
(DeMoss, J., concurring). In his concurrence in Rockwell, Judge
DeMoss, while finding the majority to be correct in its legal
judgments, noted that "the state of the law in these particular
circumstances remains relatively primitive," and wrote separately
to express his disappointment with the actions of the officers in
that case. Id. He described that case as follows:
It is undisputed that Scott was in no position to harm
any other person while locked in his bedroom. Yet the
officers escalated the situation before even 30 minutes
had passed by breaching his bedroom door without a
warrant and with firearms drawn. As I see it, they
provoked a man they knew to be mentally ill into a
violent reaction. They did not allow for any time to
defuse the situation or implement the safest procedures
possible to take him into custody. Preventing a
possible suicide is a worthy goal, but an armed entry
that heightens the risk to the potential victim's life
certainly is not the best way to accomplish that goal.
Id. at 996-97 (concurrence); see also Elizondo, 671 F.3d at 511
(DeMoss, J., concurring) (agreeing that the officer's use of
deadly force against noncompliant suicidal teen did not amount to
a Fourth Amendment violation, but noting that "[f]orcing Ruddy's
27
bedroom door open, yelling orders at him, and immediately drawing
a firearm and threatening to shoot was a very poor way to
confront the drunk, distraught teenager who was contemplating
suicide with a knife."). The Court agrees with Judge DeMoss's
conclusion in Elizondo, supra: "Either law enforcement procedures
or our law must evolve if we are to ensure that more avoidable
deaths do not occur at the hands of those called to 'protect and
serve.'" Id.
D. Monell Claims
In the absence of a constitutional violation, there can be
no municipal Monell liability for the City of New Orleans. James
v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009). Thus the
Court grants summary judgment for the City of New Orleans.
C. State Law Claims
Having determined that plaintiffs' federal claims must be
dismissed, the Court declines to exercise supplemental
jurisdiction over their remaining state law claims. See 28 U.S.C.
§ 1367(c)(3) (“The district court may decline to exercise
supplemental jurisdiction over a claim ... if ... the district
court has dismissed all claims over which it has original
jurisdiction.”). “When a court dismisses all federal claims
before trial, the general rule is to dismiss any [supplemental]
28
claims.” Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.1999)
(emphasis in original). Further, “the Supreme Court has counseled
that the dismissal of all federal claims weighs heavily in favor
of declining jurisdiction.” McClelland v. Gronwaldt, 155 F.3d
507, 519 (5th Cir.1998), overruled on other grounds by Arana v.
Ochsner Health Plan, 338 F.3d 433 (5th Cir.2003)).
E. Unsealing of Sealed Evidence
In accordance with its previous orders,31 the Court, having
relied upon the video evidence in deciding this motion for
summary judgment, orders the three video recordings, Exhibits 11,
12, and 15, unsealed.
IV. Conclusion
For the forgoing reasons, the Court GRANTS defendants motion
for summary judgment on all claims.
New Orleans, Louisiana, this
day of March, 2013.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
31
R. Doc. 64; R. Doc. 107.
29
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