Aples v. Administrators of the Tulane Educational Trust

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TAIVON APLES, ET AL. CIVIL ACTION

VERSUS NO. 20-2451

ADMINISTRATORS OF THE TULANE SECTION: D (4)

EDUCATIONAL TRUST, ET AL.

ORDER AND REASONS

Before the Court is a Motion for Summary Judgment1 filed by the Tulane

Defendants.2 The Plaintiffs, Taivon Aples3 and T.A., Jr., oppose the Motion.4 The

Tulane Defendants filed a Reply in support of their Motion.5 After careful

consideration of the parties’ memoranda, the record, and the applicable law, the

Court GRANTS the Motion for Summary Judgment.

1 R. Doc. 65.

2 The Tulane Defendants include The Administrators of the Tulane Educational Fund d/b/a Tulane

University (“Tulane” or “Tulane University”); Kirk Bouyelas (“Bouyelas”) in his official capacity as

Chief of Police for Tulane Police Department; Lieutenant Denis Serena (“Serena”), individually and

officially; Detective David Harris (“Harris”), individually and officially; Sergeant Brian Dew (“Dew”),

individually and officially; Officer Joseph Elfer (“Elfer”), individually and officially; and Officer

Matthew Winchester (Winchester”), individually and officially. Since the filing of this Motion, the

Court granted the Tulane Defendants’ Motion to Dismiss, see R. Doc. 110, dismissing all of Plaintiffs’

claims except the excessive force claims against Harris. However, for clarity, the Court refers

throughout to “Tulane Defendants” or “Defendants.”

3 Plaintiff Aples passed away on October 25, 2022. See R. Doc. 104-4. This Court subsequently granted

the Plaintiffs’ Motion to Substitute Proper Party Plaintiffs on July 31, 2023, substituting Alneshia

Polite, on behalf of her minor child, T.A., Jr., and Paulina Bryant, on behalf of her minor child, T.B.,

as the Plaintiffs in this matter. See R. Doc. 109. Both T.A., Jr. and T.B. are the minor children of

Taivon Aples. For the purpose of clarity, the Court refers to the deceased, Aples, as the “Plaintiff” in

this matter.

4 R. Doc. 73.

5 R. Doc. 81.

I. FACTUAL AND PROCEDURAL BACKGROUND

This Court has previously detailed the factual background of the events

germane to this lawsuit in prior Orders.6 Accordingly, the Court provides relevant

background only as it relates to the instant Motion for Summary Judgment.

This civil rights action arises out of an incident that took place on Tulane

University’s campus on September 6, 2019 when Plaintiff Taivon Aples (“Aples”), a

former employee of Sodexo, Inc., was on Tulane’s campus to pick up his final paycheck

from Sodexo.7 Earlier, on August 23, 2019, the Tulane University Police Department

(“TUPD”) received a report that Aples had masturbated in front of another male

Sodexo employee.8 Aples allegedly threatened the employee to not contact the police,

telling the employee “Don’t f---ing do anything,” ejaculated in the employee’s office,

and then left the office.9 Following the report, TUPD officers, including Lieutenant

Dennis Serena, Sergeant Brian Dew, and Officer Joseph Elfer, investigated the

incident and subsequently secured an arrest warrant for Aples on charges of

obscenity and simple assault.10

On September 5, 2019, a Sodexo employee informed Serena that Aples had

returned to Tulane’s campus to pick up his final paycheck, apparently without

success.11 Serena arranged with Sodexo to have Aples return the following day—

September 6, 2019—under the guise of picking up his paycheck so that TUPD officers

6 See, e.g., R. Docs. 42, 110.

7 See R. Doc. 65-1 at p. 6.

8 See id. at p. 2; R. Doc. 65-7, Affidavit for Arrest Warrant, at p. 1.

9 See R. Doc. 65-7, Affidavit for Arrest Warrant, at p. 1.

10 See R. Doc. 65-2, Declaration of Dennis Serena (“Serena Decl.”), at ¶¶ 5–10; R. Doc. 65-7, Arrest

Warrant, at p. 3.

11 See R. Doc. 65-2, Serena Decl., at ¶¶ 11–12.

could effectuate his arrest.12 Serena crafted a plan whereby Aples would enter with

his car into an alleyway adjacent to Yulman Grill, where Aples had worked, and then

an unmarked TUPD truck would block the entrance to the alleyway, trapping Aples

and allowing TUPD officers to arrest him.13 To execute the arrest plan, Serena

recruited Sgt. Dew, Officers Elfer and Winchester, and Detective David Harris.14

Dew and Harris were tasked with blocking the alleyway with the truck while Serena,

Elfer, and Winchester were charged with confronting Aples on foot, with Elfer and

Winchester providing Serena cover for Aples’s arrest.15 Serena informed the other

officers of the warrant and the charges against Aples and of Aples’s criminal history,

including a second-degree murder conviction.16

At around 1:00 p.m. on September 6, 2019, Aples arrived on campus to pick up

his paycheck, driving a white sedan with dark tinted windows.17 Aples turned right

into the alleyway off Ben Weiner Drive and collected his paycheck.18 At that moment,

Serena ordered Dew and Harris to block the alleyway entrance with their unmarked

police truck.19 Dew and Harris exited the parking garage adjacent to the alleyway

where they had been waiting and immediately turned around to blockade the

alleyway.20 Dew and Harris then activated the truck’s strobe lights and exited the

12 See id.

13 See id. at ¶ 13.

14 See id. at ¶ 14.

15 See id.

16 See id.

17 See id.; R. Doc. 65-11, Yulman Video, at 0:00–0:12; R. Doc. 73-3.

18 See R. Doc. 65-11, Yulman Video, at 0:00–0:12.

19 See R. Doc. 65-2, Serena Decl., at ¶ 15.

20 See id.; R. Doc. 65-11, Yulman Video, at 0:39–0:52.

vehicle, both in full police uniform.21 Although the TUPD truck blocked the entrance

to the alleyway, Aples successfully backed his car out of the alleyway by driving over

the curb and the sidewalk and around the truck, brushing Harris in the process.22

Aples narrowly missed hitting a female bystander as he reversed out of the

alleyway.23

At this moment, with Aples having evaded the truck blockade, Serena, Elfer,

and Winchester arrived on scene with guns drawn.24 Elfer and Winchester were

wearing full police uniform while Serena was wearing a police badge.25 Serena and

Winchester, both with guns drawn, banged on Aples’s driver’s side windows with the

intent to break them to physically remove Aples from his car.26 Meanwhile, Dew and

Harris both had their guns drawn and were standing in front of Aples’s car, Harris

just several steps away from the car.27 Within a second, while both Dew and Harris

were still in front of the vehicle, Aples placed his car in drive and began

accelerating.28 As Aples accelerated—the squealing of tires audible on the body worn

cameras of Elfer and Winchester29—Harris maneuvered to the passenger side of

Aples’s vehicle and, within a split second, fired two rounds into Aples’s car, hitting

21 See R. Doc. 65-4, Declaration of David Harris (“Harris Decl.”), at ¶ 4; R. Doc. 65-11, Yulman Video,

at 0:50–0:57.

22 See R. Doc. 65-4, Harris Decl., at ¶ 4; R. Doc. 65-11, Yulman Video, at 0:56–0:59.

23 See R. Doc. 65-2, Serena Decl., at ¶ 16; R. Doc. 65-9, Elfer Video, at 1:40–1:44.

24 See R. Doc. 65-2, Serena Decl., at ¶ 17; R. Doc. 65-9, Elfer Video, at 1:40–1:45.

25 See R. Doc. 65-2, Serena Decl., at ¶ 17.

26 See id. at ¶ 18; R. Doc. 65-6, Declaration of Matthew Winchester (“Winchester Decl.”), at ¶ 7; R. Doc.

65-9, Elfer Video, at 1:44–1:46.

27 See R. Doc. 65-9, Elfer Video, at 1:45.

28 See id. at 1:45–1:46; R. Doc. 65-2, Serena Decl., at ¶ 19; R. Doc. 65-10, Winchester Video, at 1:45–

1:46.

29 See R. Doc. 65-9, Elfer Video, at 1:45–1:48; R. Doc. 65-10, Winchester Video, at 1:46–1:48; R. Doc. 65-

2, Serena Decl., at ¶ 19.

Aples in the abdomen.30 Just as Harris fired his gun, Dew jumped out of the way of

Aples’s car as Aples sped away.31 Neither Harris nor any other officer subsequently

fired their weapon.32

The TUPD officers then entered their truck in an attempt to follow Aples.33

Aples crashed his car into an unrelated vehicle at an intersection and then exited the

vehicle.34 Aples was eventually taken to an emergency room and underwent surgery

as a result of the gunshot wound.35

On September 9, 2020, Plaintiffs filed a Complaint against various defendants

regarding the incident.36 Plaintiffs’ Complaint alleges civil rights claims for false

arrest, illegal seizure, and excessive force under 28 U.S.C. § 1983 arising out of the

incident.37 This Court previously granted Defendant Sodexo, Inc.’s Motion to

Dismiss38 and the Tulane Defendants’ Rule 12(b)(6) Motion to Dismiss.39

Accordingly, only the excessive force claims against Defendant Harris in his

individual capacity remain at this stage.

The Tulane Defendants now move for summary judgment on the remainder of

Plaintiffs’ remaining claims.40 Specifically, Defendants’ Motion for Summary

30 See R. Doc. 65-9, Elfer Video, at 1:46–1:47; R. Doc. 65-10, Winchester Video, at 1:46–1:47; R. Doc. 65-

4, Harris Decl., at ¶ 5.

31 See R. Doc. 65-9, Elfer Video, at 1:46–1:47; R. Doc. 65-10, Winchester Video, at 1:46–1:47; R. Doc. 65-

11, Yulman Video, at 1:02–1:04; R. Doc. 65-5, Declaration of Brian Dew (“Dew Decl.”), at ¶ 8.

32 See R. Doc. 65-4, Harris Decl., at ¶ 7.

33 See R. Doc. 65-2, Serena Decl., at ¶ 20; R. Doc. 65-10, Winchester Video, at 2:00–5:29.

34 See R. Doc. 65-13, at 0:09–0:11.

35 See R. Doc. 73-9. It is the Court’s understanding that Aples’s death years later was unrelated to his

incident. See R. Doc. 100.

36 See R. Doc. 1.

37 See id.

38 R. Doc. 37.

39 R. Doc. 110.

40 R. Doc. 65.

Judgment seeks summary judgment on Plaintiffs’ claims for excessive force brought

against Defendant Harris.41 The Defendants argue that they are entitled to qualified

immunity on Plaintiffs’ excessive force claims because the Plaintiffs cannot

demonstrate that the Defendants violated a clearly established right. The

Defendants contend that the undisputed facts show that Harris’s use of force against

Aples was not objectively unreasonable and not excessive because Harris reasonably

believed that Aples “posed an immediate threat to officers and others.”42 Harris’

belief in the threat posed by Aples was reasonable under the totality of the

circumstances, the Defendants maintain, given Aples’s evasion of uniformed officers

and his quick acceleration of his car in the direction of Officer Dew. They further

argue in the alternative that Plaintiffs cannot identify any clearly established law

that the Defendants supposedly violated. Accordingly, Defendants contend that the

excessive force claims should be dismissed on the basis of qualified immunity even if

the officers’ use of force could be characterized as clearly excessive or objectively

unreasonable.

Plaintiffs oppose the Motion.43 Plaintiffs maintain that consideration of the

Graham factors shows that the force employed by the Defendants was unreasonable

and clearly excessive. First, they argue that the force employed against Aples was

clearly excessive because “[t]here were no ongoing violations in the instant case”44

41 The Motion also addresses Plaintiffs’ since-dismissed claims against each Defendant for false arrest,

unreasonable seizure, and excessive force (with the exception of the claim against Harris) and the

Monell claims against Tulane University. Because those claims have been dismissed, the Court does

not address Defendants’ arguments as to them.

42 R. Doc. 65-1 at p. 21.

43 R. Doc. 73.

44 Id. at p. 8.

and because the alleged criminal conduct for which Aples was being arrested—the

August 23, 2019 masturbation—was not a “major crime.”45 Next, the Plaintiffs

contend that Aples did not pose an immediate safety threat to either the officers or

the public. The Plaintiffs argue that the officers “were not in harm’s way” and that

the video footage shows that the officers were not in front of Aples’s vehicle and that

the first shot occurred while the car was stationary.46 The Plaintiffs next argue that

Aples “did not actively resist TUPD deputies,” offered only “passive” resistance to

TUPD officers, and that the TUPD officers made no attempt to use any de-escalation

measures before employing deadly force.47

Further, Plaintiffs argue that the Defendants’ use of force was objectively

unreasonable under clearly established law. In support of this assertion, Plaintiffs

largely reiterate their argument regarding the Graham factors. Plaintiffs assert that

Aples “was suspected of a lower grade offense,” that the officers “were not in harm’s

way” when the deadly force was applied, and that the TUPD officers failed to employ

“measured and ascending responses” in response to Aples’s resistance.48 Plaintiffs

also contend that there are disputed issues of fact, although they do not specify which

issues are genuinely disputed.

Finally, Plaintiffs assert that “[n]o reasonable person would say that a traffic

stop should be conducted by numerous officers trying to shatter glass onto a six-year-

45 Id.

46 Id. at pp. 9, 15.

47 Id. at pp. 9–14.

48 Id. at pp. 14–17.

old and then shoot through the passenger side, where said six-year-old is.”49

Plaintiffs also extensively cite to a report from their use of force expert, Paul Lozada,

who opines on the credibility of the TUPD officers as well as the reasonableness of

their uses of force.50 Accordingly, Plaintiffs argue that the Motion for Summary

Judgment should be denied due to alleged outstanding factual disputes.

The Defendants filed a Reply in support of their Motion.51 First, they argue

that Plaintiffs misconstrue the facts in denying that Harris discharged his weapon as

Aples was accelerating towards Dew. According to the Defendants, the video evidence

clearly establishes that “Detective Harris discharged his gun as Aples completed a ‘k-

turn’ and began driving, with screeching tires, in the direction of Brian Dew.”52

Second, the Defendants argue that the Plaintiffs have waived any argument

pertaining to any claims under the Fourteenth Amendment and to the claims for false

arrest and unreasonable seizure.53 Next, the Defendants contend that the Plaintiffs

misconstrue the Graham factors and have failed to provide any evidence to rebut the

sworn declarations of the Defendant officers. Further, the Defendants argue that the

Plaintiffs have failed to identify any clearly established law that the Defendants

purportedly violated. Finally, the Defendants argue that the Court should disregard

the materials referenced in footnotes 8 through 12 of the Plaintiffs’ response in

49 Id. at p. 19.

50 Id. at pp. 19–21.

51 R. Doc. 81.

52 Id. at p. 2.

53 Id. at p. 3. This Court has already dismissed any and all claims for false arrest and unreasonable

seizure apart from the excessive force claim against Defendant Harris. To the extent that the Plaintiffs

have also stated any claims under the Fourteenth Amendment, such claims have not been developed

or pressed by the Plaintiffs and therefore have been waived.

opposition because those materials were not previously disclosed by the Plaintiff and

are inadmissible at trial and should also disregard Plaintiffs’ list of alleged factual

disputes because Plaintiffs provided no support for their assertions. Furthermore,

the Defendants ask the Court to disregard the opinions of Plaintiffs’ expert, Paul

Lozada, for the reasons expressed in their separate motion in limine.54

I. LEGAL STANDARD

Summary judgment is appropriate under Federal Rule of Civil Procedure 56

“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.”55 A dispute is “genuine” if it is

“real and substantial, as opposed to merely formal, pretended, or a sham.”56 Further,

a fact is “material” if it “might affect the outcome of the suit under the governing

law.”57 When assessing whether a genuine dispute regarding any material fact

exists, the Court considers “all of the evidence in the record but refrain[s] from

making credibility determinations or weighing the evidence.”58 While all reasonable

inferences must be drawn in favor of the nonmoving party, a party cannot defeat

summary judgment with conclusory allegations, unsubstantiated assertions or “only

54 See R. Doc. 66.

55 Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986).

56 Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell,

149 F.2d 335, 337 (5th Cir. 1945)).

57 Liberty Lobby, 477 U.S. at 248.

58 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)

(citations omitted).

a scintilla of evidence.”59 Instead, summary judgment is appropriate if a reasonable

jury could not return a verdict for the nonmoving party.60

If the dispositive issue is one on which the moving party will bear the burden

of proof at trial, the moving party “must come forward with evidence which would

entitle it to a directed verdict if the evidence went uncontroverted at trial.”61 The

non-moving party can then defeat summary judgment by either submitting evidence

sufficient to demonstrate the existence of a genuine dispute of material fact or by

“showing that the moving party’s evidence is so sheer that it may not persuade the

reasonable fact-finder to return a verdict in favor of the moving party.”62 If, however,

the nonmoving party will bear the burden of proof at trial on the dispositive issue,

the moving party may satisfy its burden by merely pointing out that the evidence in

the record is insufficient with respect to an essential element of the nonmoving

party’s claim.63 The burden then shifts to the nonmoving party who must go beyond

the pleadings and, “by her own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’”64 “When there is video evidence in the record, courts are

not bound to accept the nonmovant’s version of the facts if it is contradicted by the

video.”65 However, “a court should not discount the nonmoving party’s story unless

59 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks

omitted).

60 Id. at 399 (citing Liberty Lobby, 477 U.S. at 248).

61 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).

62 Id. at 1265.

63 See Celotex, 477 U.S. at 322–23.

64 Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

65 Crane v. City of Arlington, No. 21-10644, 2022 WL 4592035, at *4 (5th Cir. Sept. 30, 2022) (citing

Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014)).

the video evidence provides so much clarity that a reasonable jury could not believe

his account.”66

“A qualified immunity defense alters the usual summary judgment burden of

proof.”67 “Once an official pleads the defense, the burden then shifts to the plaintiff,

who must rebut the defense by establishing a genuine fact issue as to whether the

official’s allegedly wrongful conduct violated clearly established law.”68 However,

when considering a qualified immunity defense, the court must still view the evidence

in the light most favorable to the nonmoving party and draw all inferences in the

nonmoving party’s favor.69

II. ANALYSIS

Title 42 U.S.C. § 1983 creates a damages remedy for the violation of federal

constitutional or statutory rights under color of state law. Specifically, § 1983

provides that:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected, any . . . person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured.70

Because § 1983 merely provides a remedy for designated rights without creating any

substantive rights, “an underlying constitutional or statutory violation is a predicate

66 Darden v. City of Fort Worth, 880 F.3d 722, 730 (5th Cir. 2018) (citing Ramirez v. Martinez, 716 F.3d

369, 374 (5th Cir. 2013)).

67 Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

68 Id.

69 Rosado v. Deters, 5 F.3d 119, 122–23 (5th Cir. 1993).

70 42 U.S.C. § 1983.

to liability.”71 To establish § 1983 liability, the plaintiff must establish the following

three elements: (1) deprivation of a right secured by the United States Constitution

or federal law; (2) by a state actor; (3) that occurred under color of state law.72

As a defense to § 1983 claims, government officials may invoke qualified

immunity, which shields “government officials 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.”73 “Qualified immunity 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.”74 The Supreme Court has made clear that qualified immunity

functions as an immunity from suit, rather than a mere defense to liability.75 “[T]he

qualified immunity standard ‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”76

“This means that even law enforcement officials who reasonably but mistakenly

commit a constitutional violation are entitled to immunity.”77 “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

71 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).

72 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).

73 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

74 Pearson v. Callahan, 555 U.S. 223, 231 (2009).

75 Id. at 237 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal quotation marks omitted)).

76 Brumfield v. Hollins, 551 F.3d 322, 326–27 (5th Cir. 2008) (quoting Mendenhall v. Riser, 213 F.3d

226, 230 (5th Cir. 2000)).

77 Bazan, 246 F.3d at 488 (quoting Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001) (internal

quotation marks omitted)).

‘squarely governs’ the specific facts at issue.”78 Once the government official asserts

the defense of qualified immunity, the burden shifts to the plaintiff to negate the

defense.79

To overcome a claim of qualified immunity, a plaintiff must demonstrate: (1)

that the official violated a statutory or constitutional right; and (2) that the right was

“clearly established” at the time of the challenged conduct.80 Put differently, a

government official’s liability “generally turns on the ‘objective legal reasonableness’

of the action . . . assessed in light of the legal rules that were ‘clearly established’ at

the time it was taken.”81 When deciding whether the right allegedly violated was

‘clearly established,’ [a] court asks whether the law so clearly and unambiguously

prohibited the conduct that every reasonable official would understand that what he

is doing violates the law.”82 In other words, precedent existing at the time of the

challenged conduct “must have placed the statutory or constitutional question beyond

debate.”83

It is within the district courts’ discretion to decide which of the two prongs of

the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case.84 Because a plaintiff’s failure to demonstrate a

78 Kisela v. Hughes, 138 S. Ct 1148, 1153 (2018) (quoting Mullenix v. Luna, 577 U.S. ––, 136 S. Ct. 305,

309 (2015)).

79 Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citation omitted).

80 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).

81 Anderson v. Creighton, 483 U.S. 635, 639 (1987).

82 Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013); see also Carroll v. Ellington, 800 F.3d 154, 169

(5th Cir. 2015) (“A government official’s acts are not objectively unreasonable unless all reasonable

officials in the defendant’s circumstances would have then known that the defendant’s conduct

violated the plaintiff’s rights.”).

83 al-Kidd, 563 U.S. at 741.

84 Pearson v. Callahan, 555 U.S. 223, 236 (2009).

violation of their constitutional rights ends the qualified immunity inquiry, the Court

first addresses whether the Plaintiffs have demonstrated that the Defendants

violated Aples’s right against excessive force under the Fourth Amendment.85

The sole remaining claim in this action is one for excessive force against

Defendant Harris, the only Defendant to have shot Aples. To prevail on the Fourth

Amendment excessive force claim, Plaintiffs must demonstrate “(1) an injury, (2)

resulting directly and only from excessive force, (3) that was objectively

unreasonable.”86 It is undisputed that Aples suffered an injury at the hands of

Harris. Instead, the parties dispute whether Harris’s use of deadly force was

excessive and whether it was reasonable. For the following reasons, the Court

concludes that Harris’s use of deadly force—the shooting of Aples—was not excessive

and was objectively reasonable and therefore grants summary judgment in favor of

the Defendants.

At issue here is whether Defendant Harris’s shooting of Aples was excessive

and unreasonable. An officer’s use of deadly force is both excessive and unreasonable

“unless the officer has probable cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or to others.”87 The Fifth Circuit has noted

that the questions of whether force was excessive and unreasonable are “often

85 See Lytle v. Bexar Cnty., 560 F.3d 404, 410 (5th Cir. 2009) (“If we determine that the alleged conduct

did not violate a constitutional right, our inquiry ceases because there is no constitutional violation for

which the government official would need qualified immunity.”).

86 Argueta v. Jaradi, No. 22-40781, ––F. 4th––, 2023 WL 7974744, at *3 (5th Cir. Nov. 17, 2023) (citing

Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018)).

87 Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021) (quoting Romero v. City of Grapevine, 888 F.3d

170, 176 (5th Cir. 2018)); see also Argueta, 2023 WL 7974744, at *3 (“An officer’s use of deadly force is

not unreasonable when the officer has reason to believe that the suspect poses a threat of serious harm

to the officer or to others.” (citing Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003))).

intertwined.”88 The answer to these “intertwined” questions thus depends on

whether Aples posed a serious threat of physical harm to the TUPD officers or others

at the moment Harris discharged his firearm.89 If yes, then Harris’s use of deadly

force was neither excessive nor unreasonable. But if not, then Aples has proven that

Harris violated his Fourth Amendment right against excessive force. At the

summary judgment stage, if either of those questions involve genuine disputed issues

of fact, summary judgment should be denied.

Determining whether the force used by an officer was objectively unreasonable

“requires careful attention to the facts and circumstances of [the] particular case.”90

A district court may consider “(1) the severity of the crime at issue, (2) whether the

suspect pose[d] an immediate threat to the safety of the officers or others, and (3)

whether [the suspect] is actively resisting arrest or attempting to evade arrest by

flight.”91 In considering these factors, referred to as the Graham92 factors, the

overarching question is “whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them.”93 The Court is mindful that

the “‘reasonableness’ of a particular use of force must be judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”94

After all, “police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of

88 Roque, 993 F.3d at 333 (quoting Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)).

89 See id.

90 Argueta, 2023 WL 7974744, at *3 (quoting Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017)).

91 See id.; see also Romero v. City of Grapevine, 888 F.3d 170, 177 (5th Cir. 2018).

92 Graham v. Connor, 490 U.S. 386 (1989).

93 Trammell, 868 F.3d at 340 (quoting Graham, 490 U.S. at 397).

94 Id. (quoting Graham, 490 U.S. at 396) (emphasis added).

force that is necessary in a particular situation.”95 The Court considers only the facts

“knowable to the defendant officers” at the moment the officers used force and avoids

“second-guessing a police officer’s assessment, made on the scene, of the danger

presented by a particular situation.”96

Plaintiffs dispute the TUPD officers’ “claims of fearing being hit by a vehicle”

and instead contend that the officers were “not in harm’s way” at the time of the

shooting because no officers were either in front of Aples’s car or on a collision course

with his vehicle and because Harris first fired while Aples’s car was stationary.97

Plaintiffs argue that Aples offered, “at most, only passive resistance” which did not

justify the immediate use of force.98 Plaintiffs further argue that these factual

disputes, i.e., the timing of the shots and the direction of Aples’s car, are genuine

factual disputes precluding summary judgment at this time.99 The Court disagrees.

To the extent that the Plaintiffs claim a factual dispute as to whether Aples’s flight

from arrest posed any risk to the officers or to the public, the Court notes that that is

a question of law left to the Court, not a question of fact.100 Plaintiffs have only

generically claimed the existence of a factual dispute as to whether Aples was fleeing

throughout their response in opposition to the Motion without providing sufficient

95 Graham, 490 U.S. at 397.

96 Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021) (quoting Garza v. Briones, 943 F.3d 740, 745 (5th

Cir. 2019)).

97 R. Doc. 73 at pp. 9, 15.

98 Id. at pp. 1, 9, 10.

99 See id.

100 See Argueta v. Jaradi, No. 22-40781, ––F. 4th––, 2023 WL 7974744, at *6 (5th Cir. Nov. 17, 2023)

(“[W]hether the suspect’s flight posed a threat to the officers or onlookers is a question of law left to

the court.”).

record evidence to contradict the Defendants’ version of events.101 Likewise, the

Plaintiffs’ generic assertions in response to the Defendants’ Local Rule 56.1

Statement of Undisputed Facts fail to provide the Court with any sufficient record

support.102 Plaintiffs have identified several factual allegations that they dispute but

do not supply any evidence to support their contentions. Rule 56(c)(1) requires a

party asserting that a fact is genuinely disputed to support the assertion by “citing to

particular parts of materials in the record, including depositions, documents,

electrotonically stored information, affidavits or declarations, stipulations . . .

admissions, interrogatory answers, or other materials.”103 Plaintiffs have failed to do

so and, instead, simply labelled various of Defendants’ Statement of Uncontested

Facts as “Disputed.”

Aples has provided only his own characterization of the events in his briefing,

unsupported by—and indeed contrary to—record evidence. Aples’s reliance on his

use of force expert, Paul Lozada, is unhelpful to his case. Lozada’s expert report does

not demonstrate any genuine factual dispute as Lozada’s characterization of the

events is contradicted by the video evidence. The Court will not defer to an expert’s

version of events that is unsupported by record evidence.104 Moreover, the Court

disregards Lozada’s report insofar as he opines on the legal questions of whether the

officers reasonably feared for their own safety and whether the force utilized was

101 See, e.g., R. Doc. 73 at p. 17 (“In this case, there are disputed issues of fact.”); id. at p. 21 (“The

evidence and arguments discussed above creates a genuine fact issue . . . .”).

102 See R. Doc. 73-10.

103 Fed. R. Civ. P. 56(c)(1).

104 See Fed. R. Evid. 701(b) (noting that an expert’s opinion must be based on “sufficient facts or data”).

reasonable. Such opinions go beyond the purview of expert testimony and infringe

on the province of the Court to resolve questions of law.105 The Court views the

evidence in the light most favorable to the Plaintiff and draw all inferences in his

favor.

To the extent that the Plaintiffs rely on the video evidence in the record to

bolster their claim of a factual dispute, the Court finds that the video evidence does

not support Plaintiffs’ account of events. “When there is video evidence in the record,

courts are not bound to accept the nonmovant’s version of the facts if it is contradicted

by the video.”106 While viewing the evidence in a light most favorable to Plaintiffs,

the Court has viewed and considers the following videos in its review of the events at

issue here: body-worn camera (“BWC”) footage from Defendants Elfer (the “Elfer

Video”)107 and Winchester (the “Winchester Video”)108 and surveillance footage from

Yulman Plaza (the “Yulman Video”).109 As Defendants Elfer and Winchester were

next to or near each other during the relevant portion of events, their respective BWC

footage is largely similar albeit from slightly different perspectives.

The video evidence supports Harris’s claim that he reasonably believed that

Aples posed a serious threat to Officer Dew and others as Aples sped away in his car.

Specifically, and contrary to the Plaintiffs’ contentions, the videos reflect that Harris

105 See Renfroe v. Parker, 974 F.3d 594, 598 (5th Cir. 2020) (“Experts cannot ‘render conclusions of law’

or provide opinions on legal issues. . . . It is therefore error to allow expert testimony on whether an

officer used unreasonable force.”) (citations omitted).

106 Crane v. City of Arlington, No. 21-10644, 2022 WL 4592035, at *4 (5th Cir. Sept. 30, 2022) (citing

Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014)).

107 R. Doc. 65-9, Elfer Video.

108 R. Doc. 65-10, Winchester Video.

109 R. Doc. 65-11, Yulman Video.

fired his weapon as Aples’s car was accelerating and that Officer Dew was in the

direct path of Aples’s accelerating car within a split second of the shots. The Yulman

Video shows Tulane officers attempting to block Aples’s exit from the parking garage

by stopping a dark colored truck with a flashing red light in the front window at the

exit.110 In both the Elfer and Winchester Videos, Aples can be seen reversing his car

out of the alleyway near Yulman Grill, over the sidewalk, and around the blockade

set up by Harris and Dew, nearly hitting a female bystander in the process.111

Several other cars drive by within seconds of the shooting, with one car being within

feet of Aples’s car at the time of the shooting.112 The video shows that, as Aples drives

in reverse, Serena, Elfers, and Winchester rush towards Aples’s car.113 The female

bystander can be seen very near the back of Aples’s car within seconds of the car

reversing and before the car is driven away.114 One of the officers can be heard yelling

“watch out.”115 Serena approaches Aples’s front driver’s side window while Aples is

still reversing.116 Serena points his firearm at the driver’s side of the car and bangs

on the window.117 Winchester is a few steps behind Serena at this point.118

Meanwhile, both Harris and Dew are several feet in front of Aples’s car, with Harris

a few steps in front of Dew.119 Aples quits reversing and comes to a brief stop for a

110 R. Doc. 65-11, Yulman Video, at 0:51–1:40.

111 See R. Doc. 65-9, Elfer Video, at 1:40–1:43; R. Doc. 65-10, Winchester Video, at 1:36–1:43; R. Doc.

65-2, Serena Decl., at ¶ 16; see also R. Doc. 65-11, Yulman Video, at 0:56–0:59.

112 R. Doc. 65-11, Yulman Video, at 0:59–1:05.

113 See R. Doc. 65-9, Elfer Video, at 1:40–1:43; R. Doc. 65-10, Winchester Video, at 1:36–1:43.

114 R. Doc. 65-10, Winchester Video, at 1:42–1:43.

115 Id.

116 See R. Doc. 65-9, Elfer Video, at 1:43–1:44; R. Doc. 65-10, Winchester Video, at 1:43–1:44.

117 See R. Doc. 65-9, Elfer Video, at 1:43–1:45; R. Doc. 65-10, Winchester Video, at 1:43–1:45.

118 See R. Doc. 65-9, Elfer Video, at 1:43–1:45; R. Doc. 65-10, Winchester Video, at 1:41–1:45.

119 See R. Doc. 65-9, Elfer Video, at 1:43–1:45; R. Doc. 65-10, Winchester Video, at 1:43–1:45.

fraction of a second.120 Less than a second later, and just as Winchester reaches the

rear driver’s side door with his gun drawn, Aples begins to accelerate his vehicle.121

At this moment, Aples’s car wheels are turned to the right in the direction of both

Dew and Harris.122 Aples’s tires squeal as he accelerates.123 As Aples is accelerating,

Harris maneuvers from the front of the car to the passenger side, still only a few feet

away at most.124 In addition to other cars driving by within seconds of this

interaction, another car drives within feet of Aples’s car as the latter car speeds

forward.125 Right as Harris reaches the passenger side of Aples’s car, Harris fires his

weapon at the car.126 Contrary to Aples’s contention, the videos show that Aples’s car

was moving forward and was not “stationary” at the moment Harris fired his

weapon.127 Moreover, and again contrary to Aples’s argument, the videos show that

Officer Dew was in front of Aples’s car just as Harris discharged his firearm.128

Although somewhat obscured by trees, the Yulman Video clearly shows that Dew was

standing directly in the path of Aples’s car and that Harris fired nearly simultaneous

to Dew’s dodging of Aples’s car.129 The Yulman video also clearly shows another

vehicle very close to the path of Aples’s car as the car is quickly driven away.130 Aples

then speeds away and no further shots are fired.131

120 See R. Doc. 65-9, Elfer Video, at 1:44; R. Doc. 65-10, Winchester Video, at 1:44–1:45.

121 See R. Doc. 65-9, Elfer Video, at 1:45; R. Doc. 65-10, Winchester Video, at 1:45.

122 See R. Doc. 65-9, Elfer Video, at 1:45.

123 See R. Doc. 65-9, Elfer Video, at 1:45–1:48; R. Doc. 65-10, Winchester Video, at 1:46–1:48.

124 See R. Doc. 65-9, Elfer Video, at 1:45–1:46; R. Doc. 65-10, Winchester Video, at 1:44–1:46.

125 R. Doc. 65-10, Yulman Video, at 0:59–1:05.

126 See R. Doc. 65-9, Elfer Video, at 1:45–1:47; R. Doc. 65-10, Winchester Video, at 1:46–1:47.

127 See R. Doc. 73 at pp. 9, 15.

128 See R. Doc. 65-9, Elfer Video, at 1:44–1:47; R. Doc. 65-10, Winchester Video, at 1:46–1:47.

129 See R. Doc. 65-11, Yulman Video, at 1:02–1:04.

130 R. Doc. 65-10, Yulman Video, at 0:59–1:05.

131 See id. at 1:04–1:08.

In sum, the video evidence clearly shows that Aples (1) evaded a police

blockade, (2) ignored several armed officers pointing firearms at him and attempting

to break his windows, and (3) accelerated his car in the direction of two officers, Dew

and Harris. Moreover, the video evidence shows that Harris discharged his firearm

while Aples’s car was moving forward in Dew’s direction.132 Plaintiffs’ version of

events is not supported by the video evidence. While a “warning must be given, when

feasible, before the use of deadly force,”133 here, no such warning was feasible under

the circumstances given the “rapidly evolving”134 and quick situation; it is undisputed

that the relevant events took place within a matter of seconds. Harris had no time

to issue any warning with Aples’s car accelerating towards Dew.

Moreover, Plaintiffs’ contention that the officers failed to use “measured and

ascending responses” is belied by the video and is meritless.135 The TUPD officers

attempted to stop Aples by aiming their firearms at the car and by attempting to

break his car windows to physically apprehend him.136 Further, Harris only

employed lethal force once it became clear that Aples was evading arrest and posed

a threat to other officers and perhaps bystanders by quickly accelerating his car in

the officer’s direction. Police are not allowed to use unreasonable excessive force;

there is no requirement that they bring a knife to a gun fight. Officers are not

required to meet deadly force with minimal force in the vain hope that a suspect

132 See R. Doc. 65-9, Elfer Video, at 1:44–1:47; R. Doc. 65-10, Winchester Video, at 1:46–1:47.

133 Poole v. City of Shreveport, 13 F.4th 420, 425 (5th Cir. 2021) (citing Cole v. Carson, 935 F.3d 444,

453 (5th Cir. 2019) (en banc)).

134 Graham v. Connor, 490 U.S. 386, 397 (1989).

135 R. Doc. 73 at pp. 13–14, 16–17 (quoting Newman v. Guedry, 703 F.3d 757, 767 (5th Cir. 2012)).

136 See R. Doc. 65-9, Elfer Video, at 1:43–1:45; R. Doc. 65-10, Winchester Video, at 1:43–1:45.

changes their mind and backs down. Given that Aples was accelerating a vehicle

while the TUPD officers were on foot, Harris’s use of force was both proportional and

appropriate under the circumstances.137 Plaintiffs have failed to demonstrate that

any lesser force would have been appropriate.

As Harris explains in his Declaration, he “fired [his] gun because [he] saw that

Dew was in front of Aples’ car, had seen Aples’ reckless operation of the vehicle,

observed that Aples was accelerating his car in the wrong lane and towards Dew, and

believed that Aples and his car posed a risk of killing or seriously injuring Dew or

others in the vicinity.”138 Both the video evidence as well as the declarations of the

other officers support Harris’s version of events. Indeed, all other officers on scene

state that Harris fired his gun at Aples while Aples was accelerating the car towards

Dew.139 Dew, in particular, explains that “as Aples placed his car in drive, [he] was

in front of the car and in the direction of the car’s path” and that, before he was able

to get out of the car’s way, and “with Aples’ car pointed at me and accelerating, Harris

fired his gun at Aples’ car.”140 The record and video evidence does not support

Plaintiffs’ claim that Aples offered, “at most, only passive resistance.”

137 Cf. Joseph v. Lopinto, No. 21-30672, 2023 WL 4198884, at *3 (5th Cir. June 27, 2023) (“Here, the

officers’ use of force was reasonable under the Graham factors. . . . [W]hen Joseph threw his car into

reverse, he ‘weaponized’ it against the JPSO personnel at the scene—and against others who were in

the vicinity.”).

138 R. Doc. 65-4, Harris Decl., at ¶ 6; see also id. at ¶ 7 (“I only fired my gun while Aples’ car was

accelerating towards Dew.”).

139 See R. Doc. 65-2, Serena Decl., at ¶¶ 19–20 (“Harris only fired his gun while Aples’ car was

accelerating towards Dew.”); R. Doc. 65-5, Dew Decl., at ¶¶ 8–9 (“[A]s Aples placed his car in drive, I

was in front of the car and in the direction of the car’s path. . . . Harris only fired his gun while Aples’

car was accelerating towards me.”); R. Doc. 65-3, Declaration of Joseph Elfer (“Elfer Decl.”), at ¶¶ 11–

12 (“[W]ith Aples’ car pointed at Dew and accelerating, Defendant Harris fired his gun at Aples’ car.”);

R. Doc. 65-6, Winchester Decl., at ¶¶ 8–9 (same).

140 R. Doc. 65-5, Dew Decl., at ¶ 8.

Given the foregoing, the Court finds that Harris reasonably believed that Aples

posed a serious risk of harm to Officer Dew at the moment he employed deadly

force.141 The videos support that Harris was forced to make a “split-second judgment”

in a “tense, uncertain, and rapidly evolving” situation.142 Recognizing that the

“reasonableness of a particular use of force must be judged from the perspective of a

reasonable officer on the scene” and not “with the 20/20 vision of hindsight,”143 the

Court finds Harris’s use of deadly force against Aples was reasonable and not

excessive under the circumstances. The foregoing facts and circumstances, when

viewed in their entirety and in a light most favorable to Plaintiff, created a scenario

sufficiently “tense, uncertain, and rapidly evolving” to place Detective Harris’s use of

force within the acceptable use of force realm.144 Accordingly, because Harris did not

violate Plaintiffs’ Fourth Amendment rights, the Court grants summary judgment to

Harris on the basis of qualified immunity.

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that the Tulane Defendants’ Motion for

Summary Judgment145 is GRANTED.

141 The severity of the underlying offense also points toward a finding of reasonableness, although not

as strongly as the other Graham factors. Here, the TUPD was attempting to arrest Aples on charges

of felony obscenity and misdemeanor simple assault. While not the most severe offenses, the Court

rejects Plaintiffs’ characterization of these offenses as minor and a “ridiculous, fantastical, and

bombastic story.” R. Doc. 73 at p. 8.

142 Graham v. Connor, 490 U.S. 386, 397 (1989).

143 Id. at 396.

144 Tucker v. City of Shreveport, 998 F. 3d 165, 171 (5th Cir. 2021) (quoting Graham, 490 U.S. at 396–

97).

145 R. Doc. 65.

IT IS FURTHER ORDERED that any and all remaining claims asserted by

the Plaintiffs against all Defendants are DISMISSED with prejudice.

New Orleans, Louisiana, December 28, 2023.

WENDY B. 15

United States District Judge