Joseph et al v. Unidentified Parties

Filing 165

ORDER AND REASONS granting in part and denying in part Defendants' 72 Motion for Summary Judgment Based Upon Qualified Immunity, as stated herein. Signed by Judge Susie Morgan on 1/3/2019. (tsf)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATIE JOSEPH, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 17-5051

JOHN DOE, ET AL.,
Defendants

SECTION “E” (4)
ORDER AND REASONS

Before the Court is a motion for summary judgment filed by Defendants Damond
Bartlett, Duston Costa, Shannon Dugas, Robert Faison, Brandon Leduff, Eddie Martin,
Arthur Morvant, James Price, Julius Rolland, Thomas Thompson, Angelo Varisco, Steven
Verrett, and Dustin Vinet. 1 Plaintiffs Katie Joseph and Sheresa Jackson oppose the
motion. 2 Defendants have filed a reply and a surreply. 3 For the reasons that follow, the
motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
BACKGROUND 4
On February 7, 2017 at approximately 11:40 a.m., Kendole Joseph (the “Decedent”)
made two phone calls to the Jefferson Parish Emergency Communications 9-1-1 Call
Center requesting assistance because he believed “fake police” were trying to harm him. 5
The Decedent’s calls were made from the Wal-Mart on Manhattan Boulevard, in Harvey,
Louisiana. 6 About two hours later, at approximately 1:31 p.m., the Decedent’s mother,

R. Doc. 72.
R. Docs. 106 and 149.
3 R. Docs. 110 and 154.
4 The factual background is derived from Plaintiffs’ Third Amended complaint, R. Doc. 53; the parties’
statements of material fact, R. Docs. 82, 106-41, 106-42; and video surveillance footage of the incident, R.
Doc. 72-4 (manual attachment). The Court construes all facts and makes all inferences in the light most
favorable to Plaintiffs as the non-movants. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Hibernia Nat.
Bank, 997 F.2d at 98; Byrd v. City of Bossier, 624 F. App’x 899, 902 (5th Cir. 2015) (“When the movant
and the non-movant's version of the facts diverge, we must accept the non-movant's version.”) (citing Scott
v. Harris, 550 U.S. 372, 378–79 (2007)).
5 R. Doc. 53 at ¶¶ 8, 9; R. Doc. 106-41 at ¶ 1.
6 R. Doc. 53 at ¶ 8.
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Debra Guillory, contacted the Gretna Police Department seeking assistance for her son,
explaining that the Decedent was a paranoid schizophrenic with bipolar disorder who was
experiencing a mental health crisis. 7 Ms. Guillory explained that the Decedent believed
the “fake police” had killed her and the Plaintiff’s stepfather and that the “fake police”
were now trying to kill him. 8 She provided the dispatcher with a description of what the
Decedent was wearing and warned the dispatcher that the Decedent would likely run if
approached by uniformed police officers. 9 Although Ms. Guillory called the Gretna Police
Department, her call was immediately transferred to the Jefferson Parish Sheriff’s Office
because she reported the Decedent was in Harvey rather than in Gretna. 10
Later that day, on February 7, 2017, D’Amica George, the Assistant Principal of
Gretna Middle School, notified Defendant Thompson, a Gretna Police officers who served
as school resource officer, that a “strange guy,” later identified as the Decedent, was
standing in front of the school. 11 According to George, “[The] Decedent appeared really
nervous and shaky, he was staring, and he was not walking straight but rather weaving[,]
. . . talking to himself,” shaking his leg, and biting his fingernails. 12 Officer Morvant stated
that the assistant principal advised him that the Decedent was acting suspicious, talking
to himself, and saying “stuff she couldn’t make out.” 13 Officer Morvant heard the Decedent
yelling “help me from the police.” 14 When Officer Morvant approached, the Decedent ran

R. Doc. 53 at ¶ 10; R. Doc. 106-41 at ¶ 2.
R. Doc. 106-41 at ¶ 2.
9 R. Doc. 53 at ¶ 10.
10 Ms. Guidry told the dispatcher that her son was on Manhattan Boulevard near the Best Buy, which is in
Harvey, Louisiana, not Gretna. R. Doc. 72-11 (manual attachment).
11 R. Docs. 106-41 at ¶ 6, 106-2 at 5, 106-2 at 5. Officer Thompson confirmed that this occurred. R. Doc. 10631 at 24.
12 R. Doc. 106-41 at ¶¶ 4, 5.
13 R. Doc. 106-11 at 1-2.
14 Id. at 2.
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away from and not toward the school, 15 and “began pulling on the locked door handles of
random vehicles stopped on Gretna Boulevard and pleading with them to ‘help [him]
from the police.’” 16 Officer Morvant observed the Decedent running in the traffic pleading
for help and the officer stopped the traffic. 17 Officer Morvant found Decedent’s behavior
to be off and erratic and knew there was a possibility that Decedent was an emotionally
disturbed person. 18 Officer Morvant radioed other officers in the area, reporting “a
suspicious person who was fleeing.” 19 Officer Morvant did not indicate in his radio
transmission that the Decedent had committed or was suspected of committing a crime,
that he had any weapons, or that he was a threat to anyone. 20 Officer Leduff testified that
he heard Officer Morvant’s transmission and that he and Officer Martin were in radio
contact with Officer Morvant while they drove about two miles to the convenience store. 21
Officer Leduff stated that Officer Morvant related that he got word from the school’s
principal that “a subject [was] coming on and off the property” and that he had “tried to
talk to the guy at which time the guy uh took off on him uh head down uh Gretna
Boulevard.” 22
Defendants Martin and Leduff 23 located the Decedent approximately two blocks
from where Officer Morvant had encountered him. 24 When Officers Martin and Leduff
approached, the Decedent ran into a Save-A-Dollar convenience store. Officer Martin did
not see a weapon in the Decedent’s hands or a bulge in his waistband and did not see the
R. Docs. 72-1 at ¶ 2, 106-42 at ¶ 2.
R. Doc. 106-41 at ¶ 12, 106-28 at 18.
17 R. Doc. 106-11 at 3.
18 R. Doc. 106-27, p. 19, lines 4-9, p. 23 lines 22-p. 24 lines 21-23, p. 25 lines 17-25.
19 R. Docs. 72-1 at ¶ 3, 106-42 at ¶ 3.
20 R. Doc. 106-20 at 60.
21 R. Doc. 106-26 at 46.
22 R. Doc 106-6 at 2.
23 Officer Martin is a field training officer and Officer Leduff was his trainee. R. Doc. 106-20 at 57.
24 R. Doc. 106-41 at ¶ 19.
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Decedent reach for his waistband. 25 Officer Morvant knew that the Decedent was acting
in a strange manner, was screaming for help from the police, was running down the street
in active traffic, and had fled from an officer. 26 Outside the store, Officers Martin and
Leduff exited their vehicle and gave the Decedent loud voice commands to come to them,
but the Decedent entered the store. 27
The officers followed the Decedent into the store. Officer Martin drew his weapon
before he went into the store and, once inside, immediately pointed his gun at the
Decedent. 28 The Decedent was shouting “help me, help me, somebody call the cops . . .
they’re trying to kill me.” 29 Officer Martin told the Decedent to get on the ground. 30 The
Decedent reacted by jumping behind the checkout counter, landing on his back. 31 Sharon
Walker, the clerk in the convenience store, testified that the Decedent “went face down”
as soon as he jumped over the counter, that he looked scared, and that the police
immediately were “on top of him.” 32 The Decedent held his hands up over his face and
assumed the fetal position. 33 Officer Martin then followed the Decedent over the counter
and immediately went “hands on with him.” 34 Officer Martin, who at the time weighed
300 pounds, immediately placed his body on top of the Decedent, who was lying on the
floor with his legs bent to his chest. 35 Officer Brandon Leduff followed Officer Martin over
the counter; Officer Leduff said in his recorded statement that the Decedent “goes straight

R. Doc. 106-20 at pp. 72-73.
Id. at p. 94.
27 R. Doc. 106-26 at 55.
28 R. Doc. 106-41 at ¶ 29, 106-20 at p. 71 and p. 74.
29 R. Docs. 72-1 at ¶¶ 5–6, 106-42 at ¶¶ 5–6, 106-41 at ¶ 27.
30 R. Doc. 106-20 at p. 78.
31 R. Docs. 72-1 at ¶ 6, 106-42 at ¶ 6, 106-41 at ¶ 30.
32 R. Doc. 106-23 at 13-14.
33 R. Docs. 72-1 at ¶ 8, 106-42 at ¶ 8; R. Doc. 72-4 at 1:08–11 (camera 9).
34 R. Doc. 106-20 at p. 85
35 Id. at p. 92, R. Doc. 72-4 at 1:08–11 (camera 9).
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to the ground and he is uh he’s saying all types of things some I really don’t remember I
don’t remember what he was saying at the time the only thing I can recall is him saying
he’s about to be killed or something of that nature.” 36 Officer Leduff testified at his
deposition that the Decedent was screaming that the officers were going to kill him
“before we even made contact,” 37 “as soon as we made it to the ground.” 38 Officer
Morvant, the officer who had direct communication with the assistant principal
personally observed the other unusual behavior of the Decedent, was the third officer
behind the counter, 39 just seconds after Martin and Leduff, and assisted in holding down
the Decedent’s. 40 Officer Morvant had received training about dealing with emotionally
disturbed people, understood the importance of using de-escalation techniques in dealing
with them, and understood that the use of violence against such an individual can escalate
to more violence. 41
Sharon Walker testified that the Decedent repeatedly said, “My name is Kendole
Joseph and I do not have a weapon.” 42 Officer Faison testified that, after the Decedent
was handcuffed, he heard him “ask people to call the real police” and heard him
screaming, “They’re killing me, they’re killing me. Get them off of me. Somebody call the
police.” While the officers were on top of him, the Decedent pleaded with bystanders to
“call the real police,” asked for his mother, yelled “My name is Kendole Joseph and I do
not have a weapon,” and exclaimed the officers were “killing [him].” 43 Officer Faison

R. Doc 106-6 at 5.
R. Doc. 106-26 at 22.
38 Id. at 24.
39 R. Doc. 106-11 at 4.
40 R. Doc. 72-4, at 1:03-1:13 (camera 6).
41 R. Doc. 106-28 at 11-12.
42 R. Doc. 106-23 at 16.
43 Id. at ¶ 41.
36
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admitted that this was an unusual occurrence. 44 Officer Faison testified that the
Decedent’s behavior “could have been mental. It could have been drug induced.” 45 Officer
Damond Bartlett testified that the Decedent was “yelling random things,” 46 and that he
was saying “call the police” and that he called out for his mother,

47as

he lay behind the

counter.
Officer Leduff in his recorded statement said that the Decedent was laying “kinda
on his front side” with his hands “kinda like crossed” underneath him. 48 Officer Bartlett
testified that the Decedent was “laying face down with his hands under his chest near his
waist line.” 49 Sharon Walker, the store clerk, testified that the Decedent was wiggling his
body and struggling with the police. 50 Several other officers appeared on the scene—
fourteen Gretna Police officers in total—many of whom came behind the counter in an
attempt to hold down the Decedent’s arms and legs. 51
Approximately thirty seconds into the encounter, Officer Martin tased the
Decedent in the back for eleven seconds “while [the] Decedent was laying on his stomach
and partially on his right side with Officer Leduff controlling his shoulder area/upper
body beforehand and Officer Morvant holding down his lower body.” 52 Shortly thereafter,
Officer Martin struck the Decedent twice with the pointed-end of his baton. 53
Approximately one minute later, Officer Martin tased the Decedent again, this time for

R. Doc. 106-21 at p. 27- 29 and p. 83.
R. Doc. 106-25 at 88.
46 Id. at 77.
47 Id. at 102.
48 R. Doc 106-6 at 5.
49 R. Doc. 106-25 at 91.
50 R. Doc. 106-22 at 25.
51 R. Doc. 72-4 (cameras 4, 9); R. Doc. 72-18 at 8.
52 R. Doc. 106-41 at ¶¶ 60, 62.
53 Id. at ¶ 66.
44
45

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three seconds. 54 Officer Costa kicked the Decedent between twelve and thirteen times,
holding the counter for leverage, 55 after which Officer Martin punched the Decedent in
the head three times, before the officers moved the Decedent to a larger area behind the
counter, whereupon Officer Martin again struck the Decedent in the face approximately
three times. 56 Officer Costa then punched the Decedent in his head six times. Other
officers who were behind the counter holding the Decedent down were Officers Dugas,
Rolland, and Verrett. 57 Three and a half minutes later, Officers Costa, Verrett, and Martin
placed the Decedent in handcuffs and leg shackles. 58
Throughout the course of the encounter inside the store, which lasted for
approximately eight minutes, the Decedent sustained twenty-six blunt force impact
injuries to his face, chest, back, extremities, scrotum, and testes. 59 At no point did the
Decedent attempt to strike the officers 60 and, although he was at times flailing his legs,
he did not make contact with any officer. 61 The surveillance footage shows several officers
sitting on top of the Decedent throughout the incident. For substantial portions of the
video, it does not appear the Decedent is struggling with the officers. At no point did any
officer take any action, physical or oral, to intervene in the use of force or attempt to deescalate the encounter to reduce the need for force.
The Decedent was placed in arm and leg restraints and carried face down, by the
handcuffs and leg shackles, out to Officer Martin’s patrol car by Officers Varisco, Martin,

Id. at ¶ 60.
R. Doc. 72-4 at 3:50–4:12 (camera 9).
56 R. Doc. 106-41 at ¶ 81.
57 Id.-41 at¶ ¶ 31, 74, and 86.
58 Id. at¶ 90; R. Doc. 72-4 at 5:05–8:30.
59 R. Doc. 106-41 at ¶ 174.
60 Id. at ¶¶ 43–44, 47.
61 Id. at ¶ 47.
54
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Rolland, and Verrett. 62 Officers Martin, Faison, Dugas, Morvant, Verrett, Rolland, Vinet,
Varisco, Leduff and Costa placed the Decedent feet-first into the car and pulled him
“across the seat from the other side, bent his legs up, and shut the doors with [the]
Decedent in a prone position on the seat facedown.” 63 By this time, Emergency Medical
Services (“EMS”) had arrived on the scene. Although the Decedent had been tased twice
and was bleeding, the officers “did not procure aid for [the] Decedent and instead had
EMS assist them with cleaning their own bodies of [the] Decedent’s blood while [he] . . .
lay improperly restrained in the car in a position that limited his ability to breathe.” 64
After being in the squad car for a period of time, the Decedent became unresponsive. 65
Upon being discovered unresponsive in the unit, the Decedent was examined by
emergency medical personnel. 66 EMS began performing cardiopulmonary resuscitation
(“CPR”) on the Decedent and took him to the hospital, where he arrived at approximately
2:12 p.m. 67 Although eventually there was a return of spontaneous blood circulation, the
Decedent remained comatose, and ultimately died from his injuries on February 9,
2017. 68
Based on these events, Plaintiffs bring five claims against all Defendants, unless
otherwise noted:
(1) Fourth Amendment claim for excessive force/failure to intervene,
pursuant to 42 U.S.C. § 1983;
(2) Fourteenth Amendment claim for deliberate indifference to the
Decedents severe medical needs, pursuant to 42 U.S.C. § 1983;
Id. at¶ 100.
R. Docs. 53 at ¶ 27, 106-42 at ¶ 16.
64 R. Doc. 106-42 at ¶ 28.
65 The amount of time the Decedent was unresponsive in the squad car before being discovered is disputed
but is not material to the Court’s decision. R. Doc. 106-42 at ¶¶ 17, 19.
66 R. Docs. 72 at ¶ 19, 106-42 at ¶ 19.
67 R. Doc. 106-41 at ¶ 165.
68 Id. at ¶ 170. The Decedent’s cause of death is disputed. For purposes of this order, the Court views the
facts in the light most favorable to the Plaintiffs, as it must. See n.4, supra.
62
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(3) State law based claim for battery, pursuant to Louisiana Revised Statutes
14:33, which Plaintiffs bring against Officers Martin and Costa only;
(4) State law-based claim for wrongful death, pursuant to Louisiana Civil
Code article 2512.2;
(5) State law-based survival action, brought pursuant to Louisiana Civil Code
article 2315.1. 69
On August 7, 2018, Defendants filed the instant motion, asserting a qualified
immunity defense and seeking judgment as a matter of law on Plaintiffs’ Fourth and
Fourteenth Amendment claims against them. 70
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only “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.” 71
“An issue is material if its resolution could affect the outcome of the action.” 72 When
assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.” 73 All reasonable inferences are drawn in favor of the non-moving party.74
There is no genuine issue of material fact if, even viewing the evidence in the light most

Plaintiffs filed their original complaint on May 18, 2017. R. Doc. 1. On June 20, 2017, Plaintiffs filed their
First Amended Complaint, R. Doc. 7, followed by their Second Amended Complaint on November 7, 2017,
R. Doc. 40. On April 23, 2018, Plaintiffs dismissed Claims I–VI of their Second Amended Complaint, with
prejudice, with respect to Defendants Jason Dufrene, Todd Henry, Kolby Arabie, Brad Cheramine, and
Vincent Paz. R. Docs. 51, 56. On April 23, 2018, Plaintiffs filed their Third Amended Complaint. R. Doc. 53.
In their Third Amended Complaint, Plaintiffs included a Monell claim against the City of Gretna, which
they dismissed, with prejudice, on August 6, 2018. R. Doc. 69. Plaintiffs also dismissed Count III of the
Third Amended Complaint, a state law-based claim for battery, with respect to Defendants Bartlett,
Morvant, Thompson, Leduff, Vinet, Dugas, Rolland, Verrett, Faison, Varisco, and Price only. Id. The Court
notes that, having dismissed Count VI of Plaintiff’s Second Amended Complaint with respect to Defendants
Dufrene, Henry, Arabie, Cheramine, and Paz only, the claim of False Arrest has not been dismissed with
prejudice with respect to the remaining Defendants, Bartlett, Costa, Dugas, Faison, Leduff, Martin,
Morvant, Price, Rolland, Thompson, Varisco, Verrett, and Vinet. Plaintiffs did not reurge this claim in their
Third Amended Complaint; as a result, no claim is pending against any Defendant based on false arrest.
70 R. Docs. 72, 82.
71 FED. R. CIV. P. 56; see also Celotex, 477 U.S. at 322–23.
72 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
73 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
74 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 75
Government officials may assert a qualified immunity defense in a Rule 56 motion
for summary judgment. Once a defendant asserts qualified immunity as a defense, the
plaintiff bears the burden of demonstrating the defendant is not entitled to its
protections. 76 The qualified immunity defense serves to shield government officials, sued
in their individual capacities and performing discretionary functions, “from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 77
For a right to be clearly established, “‘existing precedent must have placed the
statutory or constitutional question beyond debate.’” 78 “[T]he contours of the right must
be sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” 79 “Officials should receive the protection of qualified immunity ‘unless
the law is clear in the more particularized sense that reasonable officials should be put on
notice that their conduct is unlawful.’” 80 “In other words, immunity protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”81 “The court’s focus, for
purposes of the ‘clearly established’ analysis should be on ‘fair warning’: qualified
immunity is unavailable ‘despite notable factual distinctions between the precedents

75 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell

Energy,
Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
76 Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013).
77White v. Pauly, 137 S. Ct. 548, 549 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam)); Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir. 2004).
78 Id.
79 Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)).
80 Id. at 393 (quoting Kinney, 367 F.3d at 350).
81 White, 137 S. Ct. at 549.
10

relied on and the cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional rights.’” 82
LAW AND ANALYSIS
Defendants seek summary judgment on Plaintiffs’ 1983 claims made under the
Fourth and Fourteenth Amendments. Because the Defendants have properly invoked the
doctrine of qualified immunity, 83 the burden has shifted to the Plaintiff to show that the
Defendants are not immune from suit in their individual capacities. In resolving questions
of qualified immunity at the summary judgment stage, courts engage in a two-pronged
inquiry. 84 It is within the Court’s discretion to decide which of the two prongs should be
addressed first in light of the circumstances of the case. 85
The first prong of the inquiry asks whether the facts, taken in the light most
favorable to the Plaintiff, show the officer’s conduct violated a constitutional right. “When
a plaintiff alleges excessive force during an investigation or arrest, the federal right at
issue is the Fourth Amendment right against excessive seizures.” 86 When a pre-trial
detainee alleges deliberate indifference to a serious medical need, the federal right at issue
is the Eighth Amendment right not to be subjected to cruel and unusual punishment made
applicable to the states through the Fourteenth Amendment. 87 The second prong of the
inquiry asks whether the right in question was clearly established at the time of the
violation. 88 The state actor’s conduct must be objectively reasonable in light of the clearly
Wernecke, 591 F.3d at 392 (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).
R. Docs. 72, 82.
84 See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).
85 Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017).
86 Graham v. Connor, 490 U.S. 386, 394 (1989).
87 See Hinojosa v. Livingston, 807 F.3d 657, 665 (5th Cir. 2015) (citing Robinson v. California, 370 U.S.
660, 666–67 (1962)).
88 Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S.
223, 232–36 (2009); see also Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (citing Brown v.
Strain, 663 F.3d 245, 249 (5th Cir. 2011)).
82
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established legal rules that existed at the time of his or her actions. 89 This standard, even
on summary judgment, “gives ample room for mistaken judgments by protecting all but
the plainly incompetent or those who knowingly violate the law.” 90 Under either prong,
courts may not resolve genuine disputes of fact in favor of the party seeking summary
judgment. 91
To prevail on an excessive force claim against Officers Martin and Costa, the
Plaintiffs must show (1) an injury (2) that resulted directly and only from the use of force
that was clearly excessive to the need and that (3) the force used was objectively
unreasonable. 92 To prevail on a failure to intervene claim against an officer, the Plaintiffs
must prove that the Defendants (1) knew that a fellow officer was violating an individual's
constitutional rights; (2) were present at the scene of the constitutional violation; (3) had
a reasonable opportunity to prevent the harm; and (4) choose not to act. 93 To prevail on
a claim of deliberate indifference to a serious medical need, the Plaintiffs must
demonstrate an Eighth Amendment violation by showing that a prison official “refused to
treat [the Decedent], ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.” 94
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).
Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (citing Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008)); see also Malley v. Briggs, 475 U.S. 335, 343 (1986); Mendenhall v. Riser, 213 F.3d
226, 230 (5th Cir. 2000).
91 See Brosseau v. Haugen, 543 U.S. 194, 195, n.2 (2004) (per curiam); Hope, 536 U.S. at 733 n.1; Saucier
533 U.S. at 201.
92 Linicomn v. Hill, 902 F.3d 529, 539 (5th Cir. 2018) (citing Goodson v. City of Corpus Christi, 202 F.3d
730, 740 (5th Cir. 2000)). The Defendants do not contest that an injury occurred from the use of force.
93 Adams v. City of Shreveport, 269 F.Supp.3d 743 (W.D. La. 2017).
94 Easter v. Powell, 467 F.3d 459, 465 (5th Cir. 2006); see also Estelle v. Gamble, 429 U.S. at 104 (1976)
(“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.” (internal quotation and
citation omitted)); Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (“Since Estelle v. Gamble, state
officers have been on notice that deliberate indifference to a prisoner's serious medical needs violates the
Eighth Amendment.”).
89

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I. Plaintiffs’ Fourth Amendment Claim
A. First Prong: The Plaintiffs Have Asserted a Claim that Decedent’s
Fourth Amendment Rights Were Violated by Officers Costa and
Martin.
In Pearson v. Callahan, the Supreme Court determined that “while the [two-step]
sequence . . . is often appropriate, it should no longer be required as mandatory,” and gave
lower courts permission to “exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” 95 Although courts may engage in an
analysis of the second prong first, and if that prong is not met are not required to address
the first prong, the Supreme Court in Pearson recognized that undertaking the two-step
procedure “is often beneficial . . . [because it] promotes the development of constitutional
precedent and is especially valuable with respect to questions that do not frequently arise
in cases in which a qualified immunity defense is unavailable.” 96 The Court considers the
inquiry into the first prong to be valuable in this case to promote the development of
constitutional precedent.
When a plaintiff alleges excessive force during an investigation or arrest the federal
right at issue is the Fourth Amendment right not to be subjected to an unreasonable
seizure. 97 The Plaintiffs allege this right has been violated. It is undisputed that only
Officers Martin and Costa exerted force against the Decedent by punching, tasing, or
kicking the Decedent. 98 Thus, the remaining Defendants—Bartlett, Dugas, Faison, Leduff,
Morvant, Price, Rolland, Thompson, Varisco, Verrett, and Vinet—may be held liable only

555 U.S. at 236.
Linicomn, 902 F.3d at 535 (quoting id.).
97 See Graham, 490 U.S. at 394.
98 R. Doc. 72-18 at 22; R. Doc. 69 (dismissing battery claim against all officers other than Officers Martin
and Costa).
95

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to the extent their failure to intervene in Officers Martin and Costa’s treatment of the
Decedent violates the Fourth Amendment.
The “’reasonableness’ inquiry in an excessive force case is an objective one: the
question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them.” 99 The totality of the circumstances must justify the
search or seizure. 100 The Court must evaluate the reasonableness of each officer’s actions
separately. 101 “Excessive force claims are fact-intensive.
As set forth in the background section above, it is undisputed the officers followed
the Decedent into the store and Officer Martin immediately pointed his gun at the
Decedent. 102 The Decedent reacted by jumping behind the checkout counter, landing on
his back. 103 The Decedent held his hands up over his face and assumed the fetal
position. 104 Officers Martin and Leduff immediately followed the Decedent over the
counter. Once behind the counter, Officer Martin immediately placed his body on top of
the Decedent, who was lying on the floor with his legs bent to his chest. 105 Many other
officers appeared on the scene—fourteen Gretna Police officers in total—many of whom
came behind the counter in an attempt to hold down the Decedent’s arms and legs. 106
It also is undisputed that approximately thirty seconds into the encounter, Officer
Martin tased the Decedent in the back for eleven seconds “while [the] Decedent was laying
on his stomach and partially on his right side with Officer Leduff controlling his shoulder

Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)(quotations omitted).
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
101 Poole, 691 F.3d at 628.
102 R. Doc. 106-41 at ¶ 29.
103 R. Docs. 72-1 at ¶ 6, 106-42 at ¶ 6, 106-41 at ¶ 30.
104 R. Docs. 72-1 at ¶ 8, 106-42 at ¶ 8; R. Doc. 72-4 at 1:08–11 (camera 9).
105 R. Doc. 72-4 at 1:08–11 (camera 9).
106 R. Doc. 72-4 (cameras 4, 9); R. Doc. 72-18 at 8.
99

100

14

area/upper body beforehand and Officer Morvant holding down his lower body.” 107
Shortly thereafter, Officer Martin struck the Decedent twice with the pointed-end of his
baton. 108 Approximately one minute later, Officer Martin tased the Decedent again, this
time for three seconds. 109 Officer Costa kicked the Decedent between twelve and thirteen
times, holding the counter for leverage, 110 after which Officer Martin punched the
Decedent in the head three times, before the officers moved the Decedent to a larger area
behind the counter, whereupon Officer Martin again struck the Decedent in the face
approximately three times. 111 Officer Costa then punched the Decedent in his head six
times. Three and a half minutes later, the officers placed the Decedent in handcuffs and
leg shackles. 112 Throughout the course of the encounter inside the store, which lasted for
approximately eight minutes, the Decedent sustained twenty-six blunt force impact
injuries to his face, chest, back, extremities, scrotum, and testes. 113
The Fifth Circuit has explained that, to determine whether the use of force is
excessive, the Court must apply factors the Supreme Court laid out in Graham v.
Connor. 114 First, the Court first must consider the severity of the crime the suspect
committed or is suspected of committing. In this case, it is undisputed that the Decedent
had not committed and was not suspected of committing any crime. Officer Morvant
reported “a suspicious person who was fleeing” and did not identify at that time or later
any crime that person had committed or was suspected of having committed. 115 The fact

R. Doc. 106-41 at ¶¶ 60, 62.
Id. at ¶ 66.
109 Id. at ¶ 60.
110 R. Doc. 72-4 at 3:50–4:12 (camera 9).
111 R. Doc. 106-41 at ¶ 81.
112 R. Doc. 72-4 at 5:05–8:30.
113 R. Doc. 106-41 at ¶ 174.
114 Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (citing Graham, 490 U.S. at 396).
115 R. Docs. 72-1 at ¶ 3, 106-42 at ¶ 3.
107

108

15

that the Decedent had not committed and was not suspected of having committed a crime
made the need for force substantially lower than if he had been suspected of a serious
crime. 116
Second, the Court must consider whether the suspect posed an immediate threat
to the safety of the officers or others. At the very inception of this incident, D’Amica
George relayed to Officers Thompson and Morvant the peculiar and troubling behavior of
the Decedent. Officer Leduff stated that Officer Morvant relayed information gained from
Ms. George to him and Officer Martin, along with his report of a suspicious person fleeing.
In fact, Officers Leduff and Martin were in constant radio communication with Officer
Morvant as they approached the convenience store. They saw the Decedent running and
entering the convenience store and heard him plead for help from the police and indicate
that he was afraid of the police. 117 The Defendants deny that they knew the Decedent was
experience a mental health crisis, 118 but for purposes of this analysis the Court must
accept as true the Plaintiffs’ position that the officers were aware of the Decedent’s excited
mental state. Upon entering the store Officer Martin immediately pointed his gun at the
Decedent, even though the officers had not observed a weapon in the Decedent’s hands
or a bulge in his waist band to indicate he might be armed 119 and they had not seen him
harm or threaten to harm anyone. When the Decedent jumped behind the counter, within
seconds Officers Martin and Leduff followed him over the counter. 120 It is undisputed that
the convenience store clerk also was in the area behind the counter at that time. 121 The

See Hanks v. Rogers, 853 F.3d 738, 745 (5th Cir. 2017) (finding the need for force for a minor traffic
violation substantially lower than for a serious crime).
117 R. Doc. 106-41 at ¶¶ 27, 41.
118 R. Doc. 111 at 14.
119 R. Doc. 106-41 at ¶¶ 24–25.
120 Id. at ¶¶ 30–31.
121 The convenience store clerk can be seen in footage of the incident. R. Doc. 72-4 (cameras 4 and 9).
116

16

Defendants argue that the Decedent’s actions posed an immediate threat to the clerk’s
safety. The video confirms that the Decedent approached the counter near where the clerk
was standing and then moved well down the counter, 122 to an area removed from the
clerk, before he jumped over 123. The video also confirms that the Decedent did not
approach or threaten to harm the clerk before he was forcefully pinned to the floor by the
officers. Instead, the Decedent immediately fell to the floor and assumed a fetal, or
defensive, position. “Although virtually all arrestees pose some level of threat to
officers,” 124 the question is whether a reasonable officer could think it appropriate to apply
the force used in light of the nature of the resistance. Taking the facts in the light most
favorable to the Plaintiffs, there was no immediate threat to the safety of the officers or
others.
Third, the Court must consider whether the Decedent attempted to evade arrest by
flight or resisted arrest. First, it is clear from the video that the Decedent did not attempt
to evade arrest by flight. Although the Decedent jumped over the counter in the
convenience store, he did not attempt to leave the store and the Defendants have pointed
to no evidence that he did. After jumping over the counter, the Decedent immediately
dropped to the floor in a fetal position. Second, the Plaintiffs’ version of the facts is that
the Decedent did not resist arrest and, that if he did resist, his resistance was passive
rather than active. In excessive force cases, the Fifth Circuit does distinguish between
active and passive resistance. 125 Officers may consider a suspect’s active or passive failure

From the video, the distance appears to be approximately eight feet.
R. Doc. 72-4 at 13:37:02 to 13:37:05 (camera 9).
124 Poole, 691 F.3d at 639.
125 See Hanks v. Rogers, 853 F.3d 739, 746 (5th Cir. 2017); Poole v. City of Shreveport, 691 F.3d 624, 640
(5th Cir. 2012); Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012); Deville v. Marcantel, 567 F.3d 156,
167 (5th Cir. 2009).
122
123

17

to comply with instructions in assessing whether physical force is necessary to effectuate
the suspect’s compliance. 126 In doing so, officers must assess both the need for force and
the relationship between the need and the amount of force used. 127 Passive resistance does
not justify a significant use of force. 128 For example, in Hanks v. Rogers, the Fifth Circuit
found an officer’s “half-spear” blow was excessive in light of the suspect’s passive
resistance to a command to kneel. 129 In Newman v. Guedry, the Fifth Circuit found a
plaintiff did not actively resist arrest when he made an off-color joke, pushed his body off
the cop car and into the officers who were searching him, and did not fall to the ground
after being tased. 130 Similarly, in Deville v. Marcantel, the Fifth Circuit found that a
suspect passively resisted when she refused to get out of her car before her husband
arrived on the scene. 131
According to the Plaintiffs, at no point did the Decedent attempt to strike the
officers 132 and, although he was at times flailing his legs, he did not make contact with any
officer. 133 For substantial portions of the video, the Decedent is seen lying on the floor
and does not appear to be struggling with the officers. At other times, he appears to be
struggling against the officers but at no point can he be seen striking or attempting to
strike an officer. 134
At the time the Decedent jumped over the counter in the convenience store he had
committed no crime and was not suspected of having committed a crime, he was unarmed
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
Id.
128 Trammel v. Fruge, 868 F.3d 332, 341 (5th Cir. 2017); Shreve v. Jessamine County Fiscal Court, 453
F.3d 681 (6th Cir. 2006).
129 Hanks, 853 F.3d at 746.
130 Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012).
131 Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
132 R. Doc. 106-41 at ¶¶ 43–44, 47.
133 Id. at ¶ 47.
134 R. Doc. 72-4 (cameras 4 and 9).
126
127

18

and was not suspected of being armed, he had not used or threatened violence against
anyone, and he was obviously acting in an irrational manner. Importantly, after jumping
over the counter, the Decedent immediately fell to the floor and assumed a fetal position,
held his hands up over his face, 135 pleaded with bystanders to “call the real police,” asked
for his mother, yelled “My name is Kendole Joseph and I do not have a weapon,” and
exclaimed the officers were “killing [him].” 136 Rather than attempting to decrease the
need for the use of force, Officer Martin immediately pointed his gun at the Decedent 137
and jumped over the counter and forcefully placed his body on top of him. 138 In assessing
the need for force, and the relationship between the need and the amount of force used,
the officers should have taken into consideration the mental health crisis being
experienced by the Decedent. Considering the facts in the light most favorable to the
Plaintiffs, any resistance offered by the Decedent at the inception of the encounter was
passive and did not justify the immediate use of force upon him. Nevertheless, Officers
Martin and Costa immediately used force to pin him to the floor, and ultimately tased him
twice, beat him with a baton, punched him in the head, and kicked him in the groin and
elsewhere on the body. The officers made no attempt to negotiate with the Decedent in an
attempt to de-escalate the confrontation prior to using force on him. The abruptness of
the use of force may be considered by the Court in determining whether a constitutional
violation has occurred. 139

R. Docs. 72-1 at ¶ 8, 106-42 at ¶ 8; R. Doc. 72-4 at 1:08–1:11 (camera 9).
Id. at ¶ 41.
137 R. Doc. 106-41 at ¶ 29.
138 R. Doc. 72-4 at 1:08–1:11 (camera 9).
139 Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017).
135

136

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On a motion for summary judgment, the Court must view the evidence in the light
most favorable to the Plaintiffs. 140 Doing so, the Court concludes the Plaintiffs have
asserted a violation of the Decedent’s Fourth Amendment right not to be subjected to an
unreasonable seizure. The Decedent had not committed and was not suspected of
committing any crime, he posed no immediate threat to the safety of the officers or others,
he did not attempt to evade arrest by flight, and any resistance he offered before the use
of force was passive and did not justify a significant use of force. Officers Martin and Costa
immediately resorted to force, without any attempt to de-escalate the volatile situation,
despite their knowledge that the Decedent was mentally disturbed. Accordingly,
Defendants Bartlett, Costa, Dugas, Faison, Leduff, Martin, Morvant, Thompson, Rolland
and Stephen Verrett are not entitled to judgment as a matter of law on the basis of the
first prong because they did violate the Decedent’s Fourth Amendment right. 141
B. Prong Two: Disputed Issues of Fact Preclude Summary
Judgment on Whether Officers Martin and Costa’s Conduct Was
Objectively Unreasonable in Light of Clearly Established Law.
Finding a Fourth Amendment violation has been asserted is not the end the
inquiry. Officers Martin and Costa are nevertheless entitled to qualified immunity under
the second prong of the test unless their conduct was objectively unreasonable in light of
clearly established law at the time of the violation. 142 A court considers only the
information available to the officers at the time of the use of force. “The ‘reasonableness’

While courts may give greater weight to video recordings taken at the scene, Griggs V. Brewer, 841 F.3d
308 (5th Cir. 2016), the video evidence in this case does not clearly reveal the officers’ version of events to
be correct. Chacon v. Copeland, 577 Fed.Appx. 355 (5th Cir. 2014). As a result, the Court must accept the
Plaintiffs’ version of the facts as true for purposes of this motion.
141 The Plaintiffs raise no factual disputes with respect to Fourteenth Amendment claims against Defendants
James Price, Dustin Vinet, and Angelo Verisco. R. Doc. 106-41. Summary judgment on Fourth Amendment
claims against these Defendants is granted.
142 Saucier, 533 U.S. at 200; see also Ramirez, 716 F.3d at 375 (citing Brown, 663 F.3d at 249).
140

20

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.” 143 A court must also recognize
that officers often must make split-second decisions in stressful situations. 144
As the Fifth Circuit has explained, it “could plausibly be asserted that any violation
of the Fourth Amendment is clearly established,” but the right violated “must be defined
at the appropriate level of specificity before a court can determine if it was clearly
established.” 145 To be a clearly established right does not require that the exact conduct
in question has previously been held to be unlawful, but prior decisions must have given
reasonable warning that the conduct in question violated constitutional rights. 146 The
Plaintiffs acknowledge this rule of law but fail to comply with it in their briefing. 147 The
Court ordered the Plaintiffs to file a supplemental memorandum in opposition to the
Defendants’ motion for summary judgment based on qualified immunity showing with
the appropriate level of specificity that the right violated was clearly established at the
time of the violation. 148 Despite the Court’s instruction, the Plaintiffs failed to articulate
the specific contours of the clearly established Fourth Amendment right they claim has
been violated. 149 Instead, they continue to describe the right on a high level as the right to
be free of unreasonable seizures and argue the “right to be free from excessive force during
an investigatory stop or arrest was clearly established at the time of the incident.” 150 The
Court will undertake this inquiry.

Connor, 490 U.S. at 396.
Id.
145 Wernecke, 591 F.3d at 399 (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).
146 See id.
147 R. Doc. 72-18 at 20.
148 R. Doc. 149.
149 R. Doc. 152.
150 Id. at 2 (internal brackets omitted) (citing Chacon v. City of Copeland, 577 F. App’x. 355, 363 (5th Cir.
2014)).
143

144

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Even if Officers Martin and Costa’s actions violated the Decedent’s Fourth
Amendment rights, to determine the second prong of the inquiry “[w]here constitutional
guidelines seem inapplicable or too remote, it does not suffice for a court simply to state
that an officer may not use unreasonable and excessive force, deny qualified immunity,
and then remit the case for a trial on the question of reasonableness.” 151 For a court to
deny an officer’s assertion of qualified immunity based on the second prong, “existing
precedent must have placed the statutory or constitutional question beyond debate.” 152
“The defendant's acts are held to be objectively reasonable unless all reasonable officials
in the defendant's circumstances would have then known that the defendant's conduct
violated the United States Constitution or the federal statute as alleged by the plaintiff.” 153
Use of excessive force is an area of the law “in which the result depends very much on the
facts of each case,” and thus police officers are entitled to qualified immunity unless
existing precedent “squarely governs” the specific facts at issue. 154 Thus, the liability of
Officers Martin and Costa turns on whether the legal contours of the right were
sufficiently clear at the time of the use of force and whether the violation would have been
clear to a reasonable officer under the circumstances.
The Court must consider the state of the clearly established law on this point as of
February 7, 2017 and determine whether it gave these officers fair warning that their
conduct was unconstitutional. Under Fifth Circuit case law, an officer’s use of force is
excessive if she or he responds to resistance with a greater degree of force than is
reasonably necessary. “Although officers may need to use ‘physical force . . . to effectuate

Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018).
White, 137 S. Ct. at 551 (internal quotation marks omitted).
153 Thompson v. Upshur Cty., TX, 245 F.3d 447, 457 (5th Cir. 2001) (citing Anderson, 483 U.S. at 641).
154 Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam) (internal quotation marks omitted).
151

152

22

[a] suspect’s compliance’ when he refuses to comply with commands . . . the officers still
must assess ‘the relationship between the need and the amount of force used.’” 155 The
Fifth Circuit has considered efforts to reduce the severity of a forceful response to be a
factor to consider in deciding whether an office is entitled to qualified immunity on an
excessive force claim. It is clearly established that a police officer uses excessive force
when the officer strikes, punches or violently slams a suspect who is not resisting arrest.156
In Newman v. Guedry 157 the Fifth Circuit affirmed the district court’s denial of
qualified immunity when the Defendant officers “immediately resorted to taser and
nightstick without attempting to use physical skill, negotiation, or even commands” to
“‘effectuate [the] suspect’s compliance.’” 158 The plaintiff in Guedry was a passenger in a
car that had been pulled over; he himself had committed no crime and was not suspected
of committing one. The officers nevertheless searched the plaintiff. During the search, the
searching officer’s “hand remained on [the plaintiff’s] crotch for an uncomfortable length
of time,” 159 causing the plaintiff to make an “off-color joke.” 160 The officer responded by
shoving the plaintiff, who “pushed himself off from the car and back onto the officers.”161
Thereafter, the officers tased the plaintiff and stuck him with a baton, contending the
plaintiff failed to comply with a verbal command to get on the ground. Based on these
facts, the Fifth Circuit affirmed the district court’s denial of summary judgment on
qualified immunity, explaining that, because the plaintiff had not committed any crime,

155 Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th
Cir. 2009)).
156 Darden v. City of Fort Worth, Texas, 880 F.3d 722 (5th Cir. 2018).
157 Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th
Cir. 2009)).
158 Id. at 763.
159 Id. at 760.
160 Id. at 762.
161 Id.

23

did not pose an immediate threat to himself or others, and offered only minimal
resistance, the officers’ use of force in arresting the plaintiff was unreasonable and
therefore violated his Fourth Amendment rights. 162
Similarly, in Hanks v. Rogers, the Fifth Circuit recently considered whether an
officer’s use of force was objectively reasonable in light of clearly established law at the
time the conduct occurred. 163 Officer Rogers stopped Hanks for driving 20 miles per hour
below the posted speed limit. Hanks was unable to provide proof of insurance. Hanks was
facing away from the officer with his hands on the trunk of his car, on the back of his head,
and then behind his back. Hanks’ resistance consisted mostly of remaining on his feet for
twenty seconds after the officer told him to kneel. The Fifth Circuit found that his
resistance was at most passive and he made no attempt to flee. 164 The Fifth Circuit held
that “clearly established law demonstrated that an officer violates the Fourth Amendment
if he abruptly resorts to overwhelming physical force rather than continuing verbal
negotiations with an individual who presents no immediate threat or flight risk, who
engages in, at most, passive resistance, and whom the officer stopped for a minor traffic
violation.” 165

Id. at 763.
853 F.3d 739, 747 (5th Cir. 2017). It is important to note that this opinion is dated April 5, 2017, before
the incident at issue occurred.
164 Hanks, 853 F.3d at 747 (describing clearly established law as of February 2013) (citing Deville, 567 F.3d
at 167–69 (denying qualified immunity where an officer making a minor traffic stop pulled the plaintiff out
of her car and threw her up against the car because she passively resisted commands and presented no
safety threat or flight risk)); see also Trammell v. Fruge, 868 F.3d 332, 343 (5th Cir. 2017) (“[T]he law [as
of January 2013] clearly established that it was objectively unreasonable for several officers to tackle an
individual who was not fleeing, not violent, not aggressive, and only resisted by pulling his arm away from
an officer's grasp.”) (citing Ramirez, 716 F.3d at 379; Goodson, 202 F.3d at 740).
165 Id. at 747; see also Brothers v. Zoss, 837 F.3d 513, 520 (5th Cir. 2016) (“In denying qualified immunity,
we have placed weight on the quickness with which law enforcement personnel have escalated from
negotiation to force.”) (citing Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012); Deville, 567 F.3d at
167–68); Doss v. Helpenstell, 626 F. App’x. 453, 459–60 (5th Cir. 2015) (unpublished) (construing Deville
as clearly establishing that an officer should receive no qualified immunity if he “quickly escalate[s]” an
encounter with a non-threatening, passively-resisting driver who posed little risk of escape by employing
overwhelming force “rather than continu[ing] to negotiate); Deville, 567 F.3d at 167–168 (finding qualified
162
163

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In Keele v. Leyva, the Fifth Circuit listed the factors integral to the analysis of
whether the force used was excessive to the need as: “(1) the extent of the injury suffered;
(2) the need for the application of force; (3) the relationship between the need and the
amount of force used; (4) the threat reasonably perceived by the responsible officials; and
(5) any efforts made to temper the severity of a forceful response.” 166 In Galvan v. City
of San Antonio, the Fifth Circuit held the use of force was reasonable when it involved
“measured and ascending” actions that corresponded to escalating verbal and physical
resistance. 167 In the Newman case, the Fifth Circuit also explained that police are entitled
only to “measured and ascending responses” to the actions of a suspect, “calibrated to
physical and verbal resistance” shown by that suspect. 168 Most recently, in Pratt v. Harris
County, Texas, the Fifth Circuit again endorsed the use of “measured and ascending
action” when it considered an appeal from a district court’s order granting summary
judgment in favor of the defendants on qualified immunity. 169 In Pratt, the plaintiff
ignored multiple requests and warnings from the officers, aggressively evaded attempts
to apprehend him, and only after he continuously failed to comply did the officers deploy
their tasers. The court found it “important that neither officer used their taser as the first
method to gain Pratt’s compliance. The record shows that both officers responded ‘with
measured and ascending actions that corresponded to [Pratt’s] escalating verbal and
physical resistance.’” 170

immunity appropriate where, taking the facts in the light most favorable to the plaintiff, an officer making
a minor traffic stop overpowered an individual who displayed, at most, passive resistance and presented no
safety threat or flight risk).
166 Keele v. Leyva, 69 F. App’x 659, 2003 WL 21356063 at *1 (5th Cir. May 30, 2003) (citing Hudson v.
McMillian, 503 U.S. 1, 6–7 (1992)).
167 435 F. App’x 309, 311 (5th Cir. 2010).
168 Newman v. Guedry, 703 F.3d at 767 (citing Galvan, 435 F. App’x. at 311).
169 822 F.3d 174 (5th Cir. 2016).
170 Id. at 182 (quoting Poole, 691 F.3d at 629).
25

The Fifth Circuit has focused on the alternative methods, besides physical force,
that are available to the officers when there is no active resistance to arrest. These are the
measured and ascending actions that correspond to the escalating verbal and physical
resistance described in Galvan, Newman and Pratt. Such alternative measure have come
to be known as negotiation or de-escalation techniques. 171 De-escalation of conflict is not
a new concept to police departments or to the courts. How and why police officers use
force, and how and why citizens resist police, has been studied for many years. Recent
instances of excessive uses of force, particularly against minorities, has intensified
interest in the topic. In particular, the use of de-escalation techniques to stop ongoing
conflict or to prevent it altogether, has gained attention. Former President Barack
Obama’s 2015 Task Force on 21st Century Policing suggested that, to address the problem
of eroding citizen trust in law enforcement, law enforcement agencies implement better
de-escalation training and policies and adopt de-escalation as an organizational
philosophy. 172 The New Orleans Police Department requires that “when feasible based on
the circumstances, officers will use de-escalation techniques, disengagement; area
containment; surveillance; waiting out a suspect; summoning reinforcements; and/or
calling in specialized units such as mental health and crisis resources, in order to reduce
the need for force, and increase officer and civilian safety.” 173 Many other police agencies,
including the New York, Seattle, and Dallas police departments, have implemented de-

Interestingly, Officer Morvant testified that he had received de-escalation training. R. Doc. 106-28 at 1112. Officer Martin testified that he received training dealing with mentally ill people in field training officer
school. R. Doc. 106-20 at 47-48. He also testified he was familiar with the concept of de-escalation and has
used this tactic many times. R. Doc. 106-20 at 54-55.
172 PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING, FINAL REPORT OF THE PRESIDENT’S TASK FORCE ON
21ST CENTURY POLICING (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
173
NEW ORLEANS POLICE DEPARTMENT, OPERATIONS MANUAL, CHAPTER 1:3 USE OF FORCE,
https://www.nola.gov/nopd/policies/.
171

26

escalation training. 174 In 2015, the Seattle Police Department adopted an official policy
requiring that de-escalation tactics and techniques be used when safe and without
compromising law enforcement priorities. 175 Seattle’s police officers are required by
policy to seek to minimize the likelihood of the need to use force by attempting to “slow
down or stabilize the situation so that more time, options, and resources are available for
incident resolution.” 176 The authors of a 2017 study published in Police Quarterly
analyzing police-citizen interactions found that, in fact, officers already routinely employ
de-escalation tactics, explaining the ones commonly used are: the respect tactic, the calm
tactic, the honesty tactic, the empathy tactic, the compromise tactic, the listening tactic,
the reducing the power differential tactic, and the empowering tactic. 177
By the date of this incident, it was clearly established law in the Fifth Circuit that
police must have a measured and ascending response that corresponds to the resistance
encountered, rather than immediately resorting to force every time they encounter any
resistance. In this case, there are disputed issues of fact as to whether the Decedent was
actively resisting arrest when Officers Martin and Costa initially took him to the ground
or when they tased, kicked, and punched him. There also are disputed issues of fact as to
whether and when Officers Martin and Costa became aware that the Decedent was
mentally disturbed. These facts are crucial to a determination of whether Officers Martin
and Costa’s conduct was objectively reasonable in light of clearly established law. On
summary judgment, the Court may not determine disputed facts in determining whether

David Griffith, De-Escalation Training: Learning to Back Off, POLICE MAGAZINE, March 2, 2016,
https://www.policemag.com/341981/de-escalation-training-learning-to-back-off.
175 SEATTLE POLICE DEPARTMENT, SEATTLE POLICE DEPARTMENT MANUAL, 8.100 DE-ESCALATION,
http://www.seattle.gov/police-manual/title-8---use-of-force/8100---de-escalation.
176 Id.
177 Natalie Todak & Lois James, A Systematic Social Observation Study of Police De-Escalation Tactics,
21(4) POLICE QUARTERLY 509, 516–17 (2018).
174

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the offices’ conduct was, or they reasonably believed it was, constitutional. Because there
are material facts in dispute, the Court denies Defendants’ motion for summary judgment
with respect to the Fourth Amendment claims against Defendants Martin and Costa.
To be clear, the Court does not hold that Martin and Costa acted in an objectively
unreasonable manner or whether they ultimately will be entitled to qualified immunity.
Instead, the Court holds only that it cannot determine at the summary judgment stage,
when the evidence must be viewed in the light most favorable to the Plaintiffs, whether
Officers Martin and Costa acted in an objectively reasonable manner. At trial, the
Plaintiffs must prove the issues the Court assumes in their favor and the jury may credit
certain witnesses’ testimony over others. 178 The witnesses may have their own differing
recollections and perceptions of the events. “It is in part for that reason that genuine
disputes are generally resolved by juries in our adversarial system.” 179
C. Disputed Issues of Fact Also Preclude Summary Judgment on
Claim for Failure to Intervene Against Officers Bartlett, Dugas,
Faison, Leduff, Morvant, Rolland, and Thompson.
With respect to the Defendants Bartlett, Dugas, Faison, Leduff, Morvant, Rolland,
and Thompson, the Plaintiffs contend they were present and observed the
unconstitutional use of force but failed to intervene despite having the reasonable
opportunity to do so. 180 To be found liable for their failure to intervene under § 1983, the
Court must find the officers: (1) knew a fellow officer was violating an individual’s
constitutional rights; (2) was present at the scene of the constitutional violation; and (3)
had a reasonable opportunity to prevent the harm; but nevertheless (4) chose not to act. 181

Goodson v. City of Corpus Christi, 202 F.3d 730 (5th Cir. 2000).
Tolan F. Cotton, 134 S.Ct. 1861 (2014).
180 R. Doc. 53 at ¶¶ 6, 11, 16–23; R. Doc. 106.
181 Adams v. City of Shreveport, 269 F. Supp. 3d 743, 758 (W.D. La. 2017) (citing Whitley, 726 F.3d at 646).
178
179

28

In support of their motion for summary judgment, the Defendants argue only that,
because there was no violation of the Decedent’s rights, there could be no claim for failure
to intervene to prevent the harm. 182 The Court has determined that the Plaintiffs asserted
a violation of Fourth Amendment rights against Officers Martin and Costa and that
disputed issues of fact preclude summary judgment on the defense of qualified immunity.
As a result, Officers Bartlett, Dugas, Faison, Leduff, Morvant, Rolland, and Thompson’s
motion for summary judgment that they are entitled to qualified immunity on the failure
to intervene claim is denied.
II. Defendants are Entitled to Summary Judgment on Plaintiffs’
Fourteenth Amendment Claim.
The Eighth Amendment to the United States Constitution prohibits the infliction
of “cruel and unusual punishment.” 183 This prohibition is made applicable to the states
through the Fourteenth Amendment. 184 The law is clearly established that prison officials
inflict cruel and unusual punishment when they are deliberately indifferent to an inmate’s
serious medical needs. 185 A prison inmate may demonstrate an Eighth Amendment
violation by showing that a prison official “refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs.” 186 Because the Court finds this

R. Doc. 72-18 at 35.
U.S. CONST. amend. VIII.
184 See Hinojosa v. Livingston, 807 F.3d 657, 665 (5th Cir. 2015) (citing Robinson v. California, 370 U.S.
660, 666–67 (1962)).
185 Victoria W. v. Larpenter, 369 F.3d 475, 483 (5th Cir. 2004).
186 Easter, 467 F.3d at 465; see also Estelle, 429 U.S. at 104 (“We therefore conclude that deliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain,
proscribed by the Eighth Amendment.” (internal quotation and citation omitted)); Austin v. Johnson, 328
F.3d 204, 210 (5th Cir. 2003) (“Since Estelle v. Gamble, state officers have been on notice that deliberate
indifference to a prisoner's serious medical needs violates the Eighth Amendment.”).
182
183

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right is clearly established, the Court’s analysis will focus on the issue of whether
Defendants violated Plaintiff’s clearly established Constitutional right. 187
It is well-settled that “a state official’s episodic act or omission violates a pretrial
detainee’s due process rights to medical care [and protection from harm] if the official
acts with subjective deliberate indifference to the detainee’s rights.” 188 To demonstrate
deliberate indifference, a plaintiff must present evidence: “(1) that each defendant had
subjective knowledge of facts from which an inference of substantial risk of serious harm
could be drawn, (2) that each defendant actually drew that inference; and (3) that each
defendant’s response to the risk indicates that the [defendant] subjectively intended that
harm occur.” 189 Deliberate indifference cannot be inferred merely from a negligent, or
even a grossly negligent response to a substantial risk of serious harm. 190 “Deliberate
indifference is an extremely high standard to meet.” 191
Plaintiffs contend Defendants acted with deliberate indifference when they left the
Decedent unsupervised in the back of Officer Martin’s squad car in a prone position, with
his hands handcuffed behind his back and his legs shackled. 192 When handcuffs and leg
restraints are connected with a “hog-tie loop,” the method of restraint is referred to as
hog-tying or a four-point restraint. It is important to note that, in this case, it is

The parties dispute whether this right is clearly established. Defendants “assert that based on the
jurisprudence and record, it is clearly established that their conduct did not violate any constitutional
rights.” R. Doc. 74-2 at 33. Plaintiff argues his right to constitutionally adequate medical care was clearly
established. R. Doc. 86 at 17.
188 Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 (5th Cir. 2000) (quoting Nerren v. Livingston
Police Dep’t, 86 F.3d 469, 473 (5th Cir. 1996)).
189 Tamez v. Manthey, 589 F.3d 764, 770, (5th Cir. 2009).
190 Estate of Allison v. Wansley, 524 F. App’x 963, 970 (5th Cir. 2013) (citing Hare v. City of Corinth, 74
F.3d 633, 645, 649–50 (5th Cir.1996) (en banc) (citations omitted)).
191 Id. (citing Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)).
192 In Gutierrez v. City of San Antonio, 139 F.3d 441, 451 (5th Cir. 1998), the plaintiff was handcuffed behind
his back and placed in leg restraints with a “hog-tie loop” connecting his leg restraints to his handcuffs,
referred to as “hog-tying.” This method of restraint is also referred to herein as a “four-point restraint.”
187

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undisputed that the Decedent’s handcuffs and leg restraints were not connected to each
other. According to Plaintiffs, although the Decedent was bleeding and had been tased
twice, the officers chose to leave him unsupervised in the car, in a position that obstructed
his breathing and ultimately caused the Decedent to asphyxiate.
Defendants argue the scientific literature involving positional asphyxia has been
largely disproven and that, therefore, even assuming the Decedent died from positional
asphyxia, the officers could not have known that placing the Decedent in the vehicle in
the prone position with his hands cuffed behind his back and his legs shackled posed a
substantial risk of death. 193 In opposition, Plaintiffs argue “positional asphyxia has been
accepted as a cause of death by every United States Court of Appeals in the country,
including the Fifth Circuit,” 194 and that the officers in this case received training on the
dangers of placing someone in a face down position in a police car. 195
In support of their argument, Plaintiffs point to cases from the Fifth Circuit in
which the plaintiff alleged the decedent died of asphyxiation as a result of being “hogtied.” 196 These cases hold only that hog-tying a detainee is not a per se constitutional
violation. They do not support Plaintiffs’ position in this case. 197 For example, in Khan v.
Normand, 198 officers responded to reports of a man “running around inside a Winn–

R. Doc. 72-18 at 38.
R. Doc. 106 at 31.
195 R. Doc. 106-41 at ¶ 134.
196 The Court notes that in these cases, the Fifth Circuit considered whether placing a detainee in a fourpoint restraint constituted excessive force in violation of the Fourth Amendment.
197 Khan v. Normand, 683 F.3d 192 (5th Cir. 2012) (finding that officers’ conduct in placing arrestee in a
four-point restraint did not amount to excessive force); Hill v. Carroll Cty., 587 F.3d 230, 235 (5th Cir.
2009) (explaining that, although the use of a four-point restraint in some cases might violate an arrestee’s
constitutional rights, it does not constitute a per se constitutional violation); Gutierrez v. City of San
Antonio, 139 F.3d 441, 451 (5th Cir. 1998) (reversing the district court’s grant of summary judgment, but
noting that the holding was “very limited,” and stating that a four-point restraint may constitute excessive
force in a only “limited set of circumstances”).
198 683 F.3d 192.
193

194

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Dixie store at closing time [who was] screaming that people outside were trying to kill
him.” 199 The officers apprehended the man and placed him in a four-point restraint.
“Almost immediately [after placing him in the four-point restraint], the officers noticed
[the man had] stopped breathing.” 200 The officers removed the restraint and
administered CPR. Although he “began to breathe again by the time he arrived at the
hospital . . . he died later that night.” 201 The district court granted summary judgment in
favor of the officers, finding they were entitled to qualified immunity. The Fifth Circuit
affirmed, stating the officers’ use of the four-point restraint “did not violate a clearly
established right.” 202
Similarly, in Hill v. Carroll County, police officers responded to a fight between
two women. 203 After apprehending the women, the officers placed one of them, Loggins,
in a four-point restraint, face-down in the squad car. 204 Once the officers arrived at the
jail, they discovered Loggins was unresponsive with no pulse. She was soon pronounced
dead. 205 The Fifth Circuit affirmed summary judgment, stating the plaintiff “failed to
develop a material fact issue that the deputies’ use of four-point restraints was
unnecessary, excessively disproportionate to the resistance they faced, or objectively
unreasonable in terms of its peril.” 206
In this case, the Decedent was not “hog-tied” or placed in a four-point restraint.
Rather, the decedent was placed in handcuffs and leg shackles that were not connected to

Id. at 193.
Id.
201 Id.
202 Id. at 195.
203 587 F.3d at 232.
204 Id. at 233.
205 Id.
206 Id. at 237.
199

200

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each other. The Court notes that, although Plaintiffs assert the Decedent’s legs were bent
when the officers placed him in the squad car, they do not assert his legs were held in that
position, nor do they assert the manner in which the Decedent was positioned in the car
prevented him from straightening his legs in the way a four point restraint or “hog-tie”
would. Thus, the issue in this case is whether: (1) the officers had subjective knowledge,
i.e., that the Decedent’s hands were handcuffed behind his back and his legs were in
shackles and he was placed face-down in the back seat, from which an inference of
substantial risk of serious harm could be drawn, (2) each Defendant actually drew that
inference, and (3) Defendants subjectively intended for the Decedent to asphyxiate.
Plaintiffs have not met their burden of presenting evidence to establish any of these three
elements.
Even accepting the Plaintiffs’ assertion that the Decedent was placed face-down in
the squad car, the officers’ placement of the Decedent amounts to negligence at worst.
The Decedent was conscious when the officers placed him in the car, and he continued
“screaming his name” and shouting the police were “trying to hurt him and kill him” while
the officers placed him into the vehicle. 207 Other than offering evidence that Defendants
received training on placing someone in a face-down position in a police car, Plaintiffs
offer no evidence that the officers knew placing the Decedent face-down in the back-seat
of the squad car presented a “significant risk” of asphyxiation, nor do they offer any
evidence the officers intended for the Decedent to asphyxiate, other than to argue it can
be inferred that Defendants intended to “punish” the Decedent.

207

R. Doc. 106-41 at ¶ 124.
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Even taking the facts in the light most favorable to the Plaintiffs, the Court is
unable to conclude the officers’ actions amounted to deliberate indifference. 208 Even
assuming the officers should have known placing the Decedent face-down in the squad
car posed a significant risk of harm, “the failure to alleviate a significant risk that [the
officer] should have perceived, but did not[,] is insufficient to show deliberate
indifference.” 209 Thus, Plaintiffs have failed to bear their summary judgment burden of
proving Defendants are not entitled to qualified immunity. As a result, Defendants’
motion for summary judgment with respect to Plaintiffs’ claim of violation of Decedent’s
Fourteenth Amendment rights is GRANTED.
CONCLUSION
IT IS ORDERED that the motion for summary judgment filed by Defendants
Damond Bartlett, Duston Costa, Shannon Dugas, Robert Faison, Brandon Leduff, Eddie
Martin, Arthur Morvant, Julius Rolland, Thomas Thompson, and Stephen Verrett with
respect to the Fourth Amendment claims against them be and hereby is DENIED.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Defendants James Price, Angelo Verisco, and Dustin Vinet with respect to the Fourth
Amendment claims against them be and hereby is GRANTED.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Defendants Damond Bartlett, Duston Costa, Shannon Dugas, Robert Faison, Brandon
Leduff, Eddie Martin, Arthur Morvant, James Price, Julius Rolland, Thomas Thompson,

208 To the extent Plaintiffs contend the way in which Defendants placed the Decedent in the squad car
constitutes excessive force, the Court finds Defendants are entitled to qualified immunity. See Khan, 683 at
195; Hill, 587 F.3d at 235; Gutierrez, 139 F.3d at 451.
209 Domino, 239 F.3d at 756 (citations omitted).

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Angelo Varisco, Steven Verrett, and Dustin Vinet with respect to the Fourteenth
Amendment claim against them be and hereby is GRANTED.
New Orleans, Louisiana, this 3rd day of January 2019.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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