Whitfield v. Riley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ARABIA WHITFIELD, et al. CIVIL ACTION

VERSUS NO. 09-1877 c/w 09-8074

PERTAINS TO 09-1877

WARREN RILEY, et al.

SECTION M (2)

ORDER & REASONS

Before the Court is the motion of defendants Warren Riley, Joseph Meisch, Daniel Scanlan,

Greg Lapin, Steven Keller, Marcellus White, Julio Alonzo, Larisa Austin, Regina Barr, Colette

Booth, and the City of New Orleans (collectively, “Defendants”) for summary judgment on

qualified immunity.1 In anticipation of Defendants’ motion, plaintiff Arabia Whitfield filed a

supplemental brief on the procedure and applicability of qualified immunity.2 Whitfield also filed

an opposition to the motion.3 Defendants filed a reply in further support of their motion.4 Having

considered the parties’ memoranda, the record, and the applicable law, the Court issues this Order

& Reasons denying the motion for summary judgment.

I. BACKGROUND

This case arises from the fatal police shooting of Adolph Grimes, III in the early-morning

hours of January 1, 2009. Around 2:43 a.m. that morning, NOPD dispatch issued a general alert

1 R. Doc. 198. Defendants also request reconsideration of this Court’s May 4, 2021 Order & Reasons (R.

Doc. 180) denying Defendants’ motion for summary judgment regarding Whitfield’s Monell claims. R. Doc. 198-1

at 1. Defendants argue that “there is ample evidence in the record to support that the City did not maintain a policy,

practice or custom that was the moving force behind any alleged constitutional deprivation of Adolph Grimes’ rights.”

Id. In response, Whitfield correctly notes that “Defendants offer no additional evidence, law or analysis in support of

their re-urged Motion for Summary Judgment on Plaintiffs’ Monell claim.” R. Doc. 215 at 6. Accordingly, the Court

sees no reason to revisit its earlier ruling and the request for reconsideration is denied.

2 R. Doc. 188.

3 R. Doc. 215.

4 R. Doc. 254.

regarding a 911 call reporting a possible shooting at Club Fabulous on North Claiborne Avenue.5

It was reported that the suspected shooter “fled in white Bonneville.”6 Police officers Lapin, Barr,

and Keller investigated inside the club.7 No evidence was found related to the alleged shooting.8

However, officers Scanlan and Meisch inspected the parking lot across the street where they

testified that they observed a small dark or black vehicle flee the scene.9 Scanlan and Meisch did

not report the sighting to anyone else,10 nor did any other officers observe the dark or black

vehicle.11

There were two cars on patrol that night. The lead vehicle was an unmarked white Ford

Expedition driven by Scanlan with Meisch in the passenger seat.12 Lapin (behind the driver), Barr

(in the center), and Keller (behind the passenger) were in the backseat (collectively, Scanlan,

Meisch, Lapin, Barr, and Keller will be referred to as “the Expedition Group”).13 White drove a

red Taurus with Alonzo as his passenger and Austin (behind the driver) and Booth (behind the

passenger) in the backseat (collectively, White, Alonzo, Austin, and Booth will be referred to as

“the Taurus Group”).14 The Expedition Group departed Club Fabulous to continue their

5 R. Doc. 198-2 at 2.

6 Id.

7 Id.

8 R. Docs. 198-2 at 2; 215-1 at 4.

9 R. Docs. 198-2 at 2; 215-1 at 4.

10 R. Doc. 215-1 at 4.

11 Id.

12 R. Docs. 198-2 at 1-2; 215-1 at 4. Defendants state that the Expedition was equipped with a blue light and

siren. R. Doc. 198-2 at 1-2. Whitfield states that the vehicles had “no markings, sirens, or police lights visible to Mr.

Grimes.” R. Doc. 215-1 at 1. She further notes that the photographs taken that day at the scene show that the knob

used to control the Expedition’s siren was broken. Id. at 3. Whitfield asserts that McMullen confirmed this fact in

his report. Id. at 4. She cites to “Exhibit P-2 report McMullen” which presumably corresponds to R. Doc. 215-11 as

it was labelled as P-2 by Whitfield in the Court’s docket. However, the report makes no mention of the Expedition’s

knob or its functionality.

13 R. Doc. 198-2 at 1-2.

14 Id. at 2. Defendants state that the Taurus had a blue light, but make no mention of whether it had a siren.

Id. Whitfield states that the Taurus did not have a siren. R. Doc. 215-1 at 3.

investigation, meeting the Taurus Group at the corner of North Claiborne and Esplanade

Avenues.15 From there, they proceeded south on North Claiborne.

Spotting a dark or black car on Governor Nicholls Street, the Expedition Group turned right

onto the street with the Taurus Group following behind.16 Meanwhile, Grimes was sitting in the

car, which was parked on Governor Nicholls facing North Claiborne, when the two unmarked

police vehicles pulled alongside it.17

What happened next is the subject of much debate. Defendants assert that Grimes turned

off his dome light and pointed a gun at the Expedition.18 It is undisputed that officer Keller shouted

something to the effect of “Gun!”19 In a matter of seconds, the defendant officers accelerated their

vehicles forward to a position past the rear of the parked car and the officers began firing at

Grimes.20 Defendants state that Grimes fired his gun through the rear window of his vehicle in the

direction of the Expedition.21 They assert that Grimes exited his car and “then took off toward and

then onto Claiborne Avenue, all while pointing his weapon at the Officers.”22 In contrast,

Whitfield attests that Grimes “never fired any shots at officers” and a gunshot wound to his finger

rendered “him incapable of firing his Glock 9mm semiautomatic pistol.”23 Additionally, Whitfield

notes that “[t]here are no photographs of a 9mm pistol on the body or under the body of Adolph

Grimes, III.”24

15 R. Doc. 198-2 at 2.

16 Id. at 3.

17 R. Doc. 198-2 at 3; 215-1 at 1.

18 R. Doc. 198-2 at 3.

19 Id.

20 Id.

21 Id.

22 Id.

23 R. Doc. 215-1 at 6.

24 Id. at 3.

The defendant officers fired a total of 82 shots at Grimes with 14 reaching their target.25

Grimes sustained injuries to the front of his body, including to his right lower chest, right liver,

both kidneys, adrenal glands, and right lung, and multiple hits to his back.26

All nine officers were in plain clothes.27 Defendants maintain that they activated the blue

lights of their vehicles as they approached Grimes’s vehicle,28 while Whitfield says that neither of

the officers’ cars utilized its flashing lights in approaching Grimes.29 Officers Meisch and Barr

did not fire their guns,30 and Riley, the NOPD superintendent, was not present at the scene.31

II. PENDING MOTION

While waiting until after the deadline for dispositive motions to file their qualified-

immunity motion, albeit without objection from Whitfield, Defendants pronounce that “Qualified

Immunity is effectively lost if a case is erroneously permitted to go to trial.”32 For the officers

who fired their weapons at Grimes, Defendants argue that their behavior was reasonable, violating

no constitutional right, because they were threatened when Grimes pointed his gun at them.33 Even

taking the facts in the light most favorable to Whitfield, Defendants state that “to seize an unarmed,

non-dangerous suspect by shooting him dead … is not however, unconstitutional on its face” if the

officers believed the suspect posed a threat of serious physical harm to them or others.34

Defendants argue further that Meisch and Barr could not have violated any constitutional right of

25 Id. at 1, 5.

26 Id. at 1.

27 R. Doc. 198-2 at 2. Defendants state that they were wearing NOPD badges. Id. Whitfield asserts that they

did not have “any uniforms or badges visible to Mr. Grimes … and did not identify themselves as police officers.” R.

Doc. 215-1 at 1.

28 R. Doc. 198-1 at 3.

29 R. Doc. 215-1 at 3.

30 R. Docs. 198-2 at 3-4, 215-1 at 2.

31 R. Doc. 198-2 at 3.

32 R. Doc. 198-1 at 6-7.

33 Id. at 25.

34 Id. at 15-16.

Grimes because they did not fire their weapons.35 Defendants also seek to distinguish Riley

because he was not present when the shooting took place.36

In her opposition, Whitfield contends that there are genuine disputes of material fact that

must be resolved by the jury before deciding whether qualified immunity applies.37 She explains

that in an attempt to pass over highly disputed issues, Defendants only cite to their own statements

while ignoring documents and testimony to the contrary.38

III. LAW & ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates

the entry of summary judgment, after adequate time for discovery and upon motion, against a party

who fails to make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.” Id. A party moving

for summary judgment bears the initial burden of demonstrating the basis for summary judgment

and identifying those portions of the record, discovery, and any affidavits supporting the

conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets

that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate

35 Id. at 12-14, 22-23.

36 Id. at 10-12. After reexamining the issue (which was raised by Defendants’ earlier motion for summary

judgment regarding Whitfield’s Monell claims), the allegations Whitfield makes against Riley are more properly

understood to relate to her Monell claims and Riley’s role as superintendent, acting in an official capacity on behalf

of the City of New Orleans, than to any amorphous, unspecified claim against him in his individual capacity. As

Whitfield has alleged no identifable claim against Riley in his individual capacity, any such claim against him is

dismissed.

37 R. Doc. 215 at 7-12.

38 Id. at 12-13.

the existence of a genuine issue of material fact. Id. at 324.

A genuine issue of material fact exists if a reasonable jury could return a verdict for the

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive

law identifies which facts are material. Id. Material facts are not genuinely disputed when a

rational trier of fact could not find for the nonmoving party upon a review of the record taken as a

whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); EEOC

v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory

allegations, and merely colorable factual bases are insufficient to defeat a motion for summary

judgment. See Anderson, 477 U.S. at 249-50; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment

motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co.

v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court

must assess the evidence, review the facts, and draw any appropriate inferences based on the

evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton,

572 U.S. 650, 656-57 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet,

a court only draws reasonable inferences in favor of the nonmovant “when there is an actual

controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37

F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

After the movant demonstrates the absence of a genuine issue of material fact, the

nonmovant must articulate specific facts showing a genuine issue and point to supporting,

competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v.

Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such

facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475

U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue,

the moving party may simply point to insufficient admissible evidence to establish an essential

element of the nonmovant’s claim in order to satisfy its summary-judgment burden. See Celotex,

477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could

support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37

F.3d at 1075-76.

B. Analysis

1. Qualified immunity

Qualified immunity “provides ample protection to all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The defense

provides that “government officials performing discretionary functions generally are shielded 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.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). It “balances two important interests – the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The Supreme Court has repeatedly “stressed the importance

of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502

U.S. 224, 227 (1991).

Qualified immunity requires a two-step analysis. “The first asks whether the facts, taken

in the light most favorable to the party asserting the injury, show the officer’s conduct violated a

federal right.” Tolan, 572 U.S. at 655-56 (quotation and alterations omitted). “The second prong

of the qualified-immunity analysis asks whether the right in question was ‘clearly established’ at

the time of the violation.” Id. at 656. The steps can be analyzed in any order. Pearson, 555 U.S.

at 236 (“On reconsidering the procedure required in Saucier [which called for the violation inquiry

to be addressed first], we conclude that, while the sequence set forth there is often appropriate, it

should no longer be regarded as mandatory.”).

“The salient question is whether the state of the law at the time of an incident provided fair

warning to the defendants that their alleged conduct was unconstitutional.” Tolan, 572 U.S. at 656

(quotations and alterations omitted). “The relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Lytle v. Bexar Cty., 560 F.3d 404, 410 (5th Cir. 2009)

(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). If both questions are answered in the

affirmative, qualified immunity does not apply. Id.

2. Excessive force under the Fourth Amendment

The constitutional right in question is the right to be free from excessive force. “To state

a violation of the Fourth Amendment’s right to be free from excessive force, a plaintiff must show

a seizure, plus: (1) an injury (2) resulting directly and only from the use of force that was excessive

to the need; and (3) that force was objectively unreasonable.” Hudspeth v. City of Shreveport, 270

F. App’x 332, 336 (5th Cir. 2008) (emphasis in original). In an excessive force claim, the key

inquiry is whether an “officer reasonably believes that the suspect poses a threat of serious harm

to the officer or to others.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). “In making this

determination, [courts] must be mindful that police officers are ‘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.’” Mace v. City of Palestine, 333 F.3d 621, 624

(5th Cir. 2003) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)). As the Fifth Circuit

has explained:

Under the Fourth Amendment, it is unreasonable for an officer to seize an unarmed,

nondangerous suspect by shooting him dead. It is not, however, unconstitutional

on its face. Where the officer has probable cause to believe that the suspect poses

a threat of serious physical harm, either to the officer or to others, it is not

constitutionally unreasonable to prevent escape by using deadly force.

Winzer v. Kaufman Cty., 916 F.3d 464, 474 (5th Cir. 2019) (quotations and citations omitted).

However, “‘an exercise of force that is reasonable at one moment can become unreasonable in the

next if the justification for the use of force has ceased.’” Mason v. Lafayette City-Par. Consol.

Gov’t, 806 F.3d 268, 277 (5th Cir. 2015) (quoting Lytle, 560 F.3d at 413).

3. Resolution of qualified immunity must await trial

On a motion for summary judgment involving qualified immunity, courts must “accept the

plaintiff’s version of the facts as true and review it through the lens of qualified immunity.”

Samples v. Vadzemnieks, 900 F.3d 655, 660 (5th Cir. 2018).39 In this case, when taking the

evidence “in the light most favorable to the party asserting the injury, … the officer’s conduct

violated a federal right.” Tolan, 572 U.S. at 655-56 (quotation and alterations omitted). Here,

Whitfield maintains that Grimes was sitting in his car, waiting on his cousin, when the defendant

officers pulled up beside him in unmarked vehicles and opened fire.40 Whitfield asserts that

Grimes never fired a shot at the officers,41 nor was Grimes running or pointing a gun when the

defendant officers continued to shoot at him.42 She explains that “[t]he officers clearly shot the

39 See also Cole v. Carson, 935 F.3d 444, 452 (5th Cir. 2019) (“Like the district court, we must view the facts

and draw reasonable inferences in the light most favorable to the plaintiff and ask whether the defendant would be

entitled to qualified immunity on those facts.”); Williams v. Bramer, 180 F.3d 699, 702 (5th Cir. 1999) (“We then

review the evidence bearing on those issues, viewing the facts and inferences to be drawn in a light most favorable to

the non-moving party.”).

40 R. Doc. 215 at 2.

41 R. Doc. 215-1 at 6.

42 Id. at 5.

Deceased Grimes multiple times once he was on the ground and was clearly no threat what-so-

ever to anyone.”43 Under Whitfield’s version of the incident, if the key inquiry is whether “an

officer would have reason to believe that the suspect poses a threat of serious harm to the officer

or others,” Mace, 333 F.3d at 624, the Court would be hard pressed to conclude that Defendants

did have such reasonable belief and that their deadly force was not unreasonable. “Where the

suspect poses no immediate threat to the officer and no threat to others, the harm resulting from

failing to apprehend him does not justify the use of deadly force to do so.” Tennessee v. Garner,

471 U.S. 1, 11 (1985). As the Fifth Circuit notes: “The Supreme Court has stated that this rule can

be sufficient in obvious cases, and this court has applied it in such cases, without dependence on

the fact patterns of other cases.” Cole, 935 F.3d at 453. Taking the facts in the light most favorable

to Whitfield, officers firing 82 shots at a man sitting in a parked car, and then at him when fleeing

the car after the shooting commenced, would constitute an obvious violation of a clearly

established right. Alone, this requires that the Court deny Defendants’ motion for summary

judgment, but it does not foreclose Defendants’ qualified immunity for purposes of the case.

Defendants claim they had reason to believe Grimes posed a threat of serious harm because

he pointed a gun at them, fired on them, and ran from them while continuing to point a gun at

them. Defendants argue that officer Keller’s shout of “Gun!” or “He has a gun!,” and their own

observations, made reasonable such belief and prompted the ensuing gunfire from the officers.

Defendants correctly insist that “[t]he ‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight,” and “its proper application requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at issue, whether the suspect poses an

43 Id. at 1-2.

immediate threat to the safety of the officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Graham, 490 U.S. at 396-97. Thus, Whitfield’s version

of the facts and circumstances of the incident are hotly disputed by Defendants.

“Objective reasonableness is a matter of law for the courts to decide, not a matter for the

jury. However, underlying historical facts may be in dispute that are material to the reasonableness

determination.” Williams, 180 F.3d at 703 (citation omitted). “If a factual dispute must be resolved

to make the qualified immunity determination, that fact issue is material.” Amador v. Vasquez,

961 F.3d 721, 727 (5th Cir. 2020) (quotation and alteration omitted). When there are genuine

issues of fact that are material, the case should proceed to trial. Id.; see also Cole, 935 F.3d at 446

(“When those [qualified immunity] processes do not yield pretrial resolution, as with competing

factual narratives, the full reach of qualified immunity gives way to a trial, the first point at which

its application is determinable.”); Williams, 180 F.3d at 703 (reversing in part district court’s

finding of qualified immunity when “the relevant facts are hotly contested”).

In this case, the Court cannot decide whether the officers acted in an objectively reasonable

manner without the jury’s resolution of the underlying factual disputes.44 Like the Fifth Circuit in

Amador, the Court “find[s] that if a jury accepts Plaintiffs’ version of the facts as true, particularly

as to what occurred in the moments before the deputies shot [the decedent], the jury could conclude

that the officers violated [the decedent’s] clearly established right to be free from excessive force.”

961 F.3d at 730; see also Cole, 935 F.3d at 457 (“What [officers] knew before shooting at

44 This is as true for defendants Meisch and Barr, who are said not to have fired their weapons, as for the rest

of the Defendants. Whitfield alleges that the officers essentially acted as a single unit in the events leading to Grimes’s

death. The application of qualified immunity to the officers can be analyzed collectively. The Fifth Circuit has

explained that “[b]ecause it is alleged that the officers acted in unison, we need not separately address the qualified

immunity analysis for each officer.” Amador v. Vasquez, 961 F.3d 721, 727 n.5 (5th Cir. 2020). But see Darden v.

City of Fort Worth, 880 F.3d 722, 731 (5th Cir. 2018) (“In cases where the defendants have not acted in unison,

‘qualified immunity claims should be addressed separately for each individual defendant.’”) (quoting Kitchen v. Dall.

Cty., 759 F.3d 468, 480 (5th Cir. 2014)).

[plaintiff], whether they warned him before doing so, and what actions [plaintiff] took before being

shot are all disputed.”). In another such case, the Fifth Circuit, sitting en banc, has likewise

observed: “We conclude that it will be for a jury, and not judges, to resolve the competing factual

narratives as detailed in the district court opinion and the record as to the … excessive-force

claim.” Cole, 935 F.3d at 447. Because there are hotly contested issues of material fact concerning

the incident involving Grimes and Defendants, summary judgment is not appropriate and qualified

immunity cannot now be determined, but must await resolution of the underlying historical facts

at trial.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that the motion of defendants Warren Riley, Joseph Meisch, Daniel

Scanlan, Greg Lapin, Steven Keller, Marcellus White, Julio Alonzo, Larisa Austin, Regina Barr,

Colette Booth, and the City of New Orleans for summary judgment on qualified immunity (R.

Doc. 198) is DENIED.

IT IS FURTHER ORDERED that any claims against Warren Riley in his individual

capacity are DISMISSED.

New Orleans, Louisiana, this 24th day of June, 2021.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE