Perron v. Travis

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SARAH PERRON CIVIL ACTION

VERSUS

NO. 20-00221-BAJ-EWD

JEFF TRAVIS, ET AL.

RULING AND ORDER

On April 12, 2019, Myron Flowers was shot and killed by two law enforcement

officers during a traffic stop for a failed license plate light. In this action, Flowers’

daughter seeks damages from the officers that shot him—Deputy Sheriff Cullen

Wilson of the East Feliciana Parish Sheriff’s Office (“EFPSO”), and Sergeant Richard

Baudoin of the Town of Clinton Police Department (“Clinton PD”)—as well as their

employers, the EFPSO and the Clinton PD, respectively. Now Deputy Wilson and the

EFPSO (collectively, the “Sheriff Defendants”), and the Clinton PD each move for

summary judgment, arguing that Plaintiff has failed to produce evidence to support

her remaining constitutional claims of excessive force and inadequate training, and

her various related state-law claims.1 Plaintiff opposes Defendants’ motions.

For the following reasons, Defendants’ motions will each be granted in part:

Plaintiff’s municipal liability claim under Monell v. Dep't of Soc. Servs. of City of New

1 The Clinton PD and Sergeant Baudoin are each represented by the same attorneys, yet

Sergeant Baudoin does not move for summary judgment. Presumably, this is because he died

in May 2021, seventeen months before the dispositive motion deadline. (Doc. 74). To date,

Plaintiff’s efforts to substitute a successor in Sergeant Baudoin’s place have failed. (See Doc.

109, Doc. 122, Doc. 127). The Court has afforded Plaintiff one more opportunity to properly

serve and substitute Sergeant Baudoin’s heirs, and will consider that issue separately. (See

Doc. 124, Doc. 125, Doc. 127, Doc. 128).

York, 436 U.S. 658 (1978) against the Clinton PD will be dismissed with prejudice;

Plaintiff’s municipal liability claim against the EFPSO will be dismissed in part, to

the extent Plaintiff contends that the EFPSO failed to maintain an excessive force

policy; in all other respects, Defendants’ motions will be denied.

I. BACKGROUND

A. Summary Judgment Evidence

The facts set forth below are drawn from the parties’ competing statements of

material fact,2 and the competent summary judgment evidence submitted in support

of these pleadings.

Undisputed: The Events Before And After The Shooting

This much is undisputed. At approximately 9:30 p.m. on April 12, 2019, Deputy

2 Defendants urge the Court to disregard entirely Plaintiff’s opposing statements of material

fact, and to deem admitted all facts set forth in their original statements of material fact, due

to counsel’s flagrant failure to conform Plaintiff’s opposition papers to this Court’s Local

Rules. (Doc. 99 pp. 1-2; Doc. 108 pp. 1-2). Certainly, this option is available to the Court. E.g.,

Transportation & Logistical Servs., Inc. v. H & E Equip. Servs., Inc., No. 21-cv-00118, 2022

WL 842858, at *1 n.1 (M.D. La. Mar. 21, 2022) (Jackson, J.) (deeming plaintiff’s proposed

uncontested material facts admitted under Local Rule 56(f) where defendant failed to submit

an opposing statement of material facts meeting the requirements of Local Rule 56(c)).

Arguably, it is appropriate here, particularly because Plaintiff’s counsel submitted a virtually

identical (non-conforming) opposition to the Sheriff Defendants’ summary judgment papers

one week after the Clinton PD filed its reply memorandum specifically identifying these

deficiencies, (see Doc. 99; compare Doc. 103-2 with Doc. 93-2), and even to this day counsel

has not attempted to fix her original errors. Under almost any other circumstances, there

would be harsh consequences for counsel’s failures.

But this case is different. Myron Flowers is dead, and not here to tell his side of the

story. Interests of justice demand a review of the competent evidence submitted in support

of Plaintiff’s serious claims, and the Court will not allow counsel’s shortcomings to short-

circuit its adjudicatory role. Accordingly, the Court has conducted an independent review of

the summary judgment evidence, and sets forth that evidence above. E.g., Berry v. Williams,

No. CV 20-599-SDD-RLB, 2022 WL 2073079, at *5 (M.D. La. May 23, 2022) (Bourgeois, M.J.)

(exercising discretion to review plaintiff’s evidence submitted in support of his excessive force

claim despite plaintiff’s failure to conform his summary judgment opposition to Local Rule

56), adopted, 2022 WL 2070884 (M.D. La. June 8, 2022) (Dick, C.J.).

Wilson was patrolling Clinton, Louisiana, when he observed a tan Chevrolet Tahoe

driving with a failed license plate light. (Doc. 86-2 ¶ 2, hereinafter “Sheriffs’ SOF”).

Deputy Wilson initiated a traffic stop, and the Tahoe’s driver—non-party Kyle

Bryant—pulled over into the parking lot of RKM Primary Care, a medical clinic. (Id.

¶ 3). Deputy Wilson parked his patrol unit seven to ten feet directly behind the Tahoe.

(Doc. 86-4 p. 31:14-18, hereinafter “Wilson Depo.”).

Deputy Wilson got out, approached the Tahoe’s driver door, recognized Bryant

from prior encounters, and asked him to step out and come to the back of the truck

so that he could see the failed license plate light. (Sheriffs’ SOF ¶ 5). Bryant complied.

Along the way, Deputy Wilson further informed Bryant that he smelled marijuana.

(Wilson Depo. p. 29:20-22). Bryant denied possessing marijuana, and consented to a

search of the Tahoe. (Sheriffs’ SOF ¶ 7). Deputy Wilson also frisked Bryant, revealing

no contraband. (Wilson Depo. p. 30:7-9).

At about this time, Sergeant Baudoin arrived at the scene, and parked his

patrol unit at a diagonal position to Deputy Wilson’s unit. (Sheriffs’ SOF ¶ 8).

Sergeant Baudoin conferred with Deputy Wilson, and then assisted by taking control

of Bryant as Deputy Wilson searched the Tahoe. Sergeant Baudoin relocated Bryant

to the far (passenger) side of Deputy Wilson’s unit, and remained there with Bryant

during the duration of Deputy Wilson’s vehicle search. (Id. ¶ 9).

Deputy Wilson’s search of the Tahoe began in the driver’s compartment, where

he opened the center console. (Sheriffs’ SOF ¶¶ 10-11). The console lid came off its

hinge, and fell to the rear passenger compartment. (Id. ¶ 11). Tracing the console lid’s

trajectory, Deputy Wilson unexpectedly saw “a leg.” (Wilson Depo. p. 36:13). Wilson

“immediately quit searching the vehicle and opened the … back left passenger door”

revealing Myron Flowers, who was sitting directly behind the driver’s seat. (Id. p.

36:13-15).

In the next 13 seconds, Deputy Wilson and Sergeant Baudoin collectively shot

Flowers seven times. (Doc. 93-4 pp. 9-10; see Sheriffs’ SOF ¶¶ 24, 27, 28). When he

emerged from the Tahoe, Flowers immediately fell, and died on the ground in the

RKM parking lot. Crime scene investigators later recovered two loaded firearms

located near Flowers’ body—a .38 caliber revolver, and a 9mm semiautomatic pistol,

(Sheriff’s SOF ¶ 31)—but found no evidence indicating that either weapon had been

fired. (Doc. 86-6 p. 7).

After the shooting, the Louisiana State Police (LSP) and the EFPSO conducted

a joint criminal investigation to determine whether probable cause supported

criminal charges against Deputy Wilson and Sergeant Baudoin. (Sheriffs’ SOF ¶¶ 32-

34). This investigation included observing the scene and gathering physical evidence

in the immediate aftermath of the shooting; taking unsworn, recorded, custodial

interviews of Deputy Wilson, Sergeant Baudoin, and Bryant in the days to follow;

obtaining security camera video footage of the traffic stop from RKM Primary Care;

and reviewing Flowers’ autopsy report. (See Doc. 86-6 pp. 5-9). On April 15, 2019—

three days after the shooting—the LSP issued its investigation report, finding (1)

Deputy Wilson “fired his service handgun toward Flowers five times, striking Flowers

several times”; (2) Sergeant Baudoin “fired his service handgun twice toward Flowers,

striking him in the left shoulder”; and (3) “Flowers succumbed at the scene to wounds

caused by the gunfire.” (Id. p. 10). Still, the LSP concluded that “[n]o evidence was

discovered or developed … that established probable cause to move forward with

criminal charges.” (Id.).

Deputy Wilson was placed on paid “administrative leave pending investigation

of the shooting,” but was not suspended and did not face any other disciplinary

measures. (Wilson Depo. p. 65:11-17; see also Doc. 86-8 p. 99:13-22). The EFPSO

“welcom[ed] him back” after the LSP concluded its investigation. (Doc. 86-8 p. 99:13-

22). Similarly, the Clinton PD immediately placed Sergeant Baudoin on a mandatory

14-day paid administrative leave following the shooting. (Doc. 82-6 pp. 34:25-35:7).

However, unlike Deputy Wilson, Sergeant Baudoin was not allowed to return to work

after his paid leave expired, and he resigned from the Clinton PD approximately one

month after the shooting. (Doc. 82-6 pp. 34:14-22). At his deposition, Clinton PD Chief

Ned Davis affirmed that Sergeant Baudoin was “suspend[ed]” for his involvement in

“the shooting of Myron Flowers.” (Id. p. 35:1-7).

At the time the officers shot Flowers, the EFPSO maintained a policy

prohibiting “unnecessary force or violence,” which provided:

6. UNNECESSARY FORCE OR VIOLENCE.

Every member of the [EFPSO] must refrain from using unnecessary

force or violence and shall not strike a prisoner or any other person

except in self-defense.

(Sheriffs’ SOF ¶¶ 36-37). Yet, despite this policy, Deputy Wilson stated at his

deposition that he was not trained in the use of excessive force:

Q. … Are you trained in the use of excessive force?

A. No, ma’am.

…

Q. And you said, “No, ma’am?”

A. No, ma’am.

(Wilson Depo. pp. 16:16-23).

Similarly, when the shooting occurred, the Clinton PD maintained a policy

establishing “[p]arameters for use of deadly force,” which provided:

1. Police officers are authorized to use deadly force in order to:

a. Protect the police officer or others from what is believed [sic]

reasonably believed to be threat [sic] of death or serious bodily

harm.

(Doc. 82-2 ¶¶ 23-24, hereinafter “Town SOF”). At his deposition, Chief Davis testified

that all Clinton PD officers are required to participate in an annual defensive tactics

training course, which includes training on the use of excessive force. (Town SOF

¶ 28).

Disputed: The 13 Seconds Surrounding The Shooting

As stated, the foregoing facts are undisputed, and supported by competent

summary judgment evidence. But the devil is in the details—here, the blur of events

that occurred in the 13 seconds between when Deputy Wilson opened the Tahoe’s rear

door, and when Flowers lay expiring in the RKM parking lot. Despite four witnesses

having been at the scene for this critical interval—Deputy Wilson, Sergeant Baudoin,

Bryant, and Flowers—only two competent accounts are included in the summary

judgment record: Deputy Wilson’s deposition testimony; and a real-time video

recorded by a security camera mounted to RKM’s wall, “in which the entire incident

was captured.”3 (Doc. 82-2 ¶ 22; accord Doc. 86-2 ¶ 30). The U.S. Court of Appeals for

the Fifth Circuit instructs that “we assign greater weight, even at the summary

judgment stage, to the facts evident from video recordings taken at the scene.”

Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (citing Scott v. Harris,

550 U.S. 372 (2007)). Accordingly, the Court describes what is depicted in the RKM

security video first.

Unfortunately, the security video does not offer a clear picture of what occurred

in those fateful 13 seconds. The version provided to the Court lacks audio, and the

picture quality is poor—grainy, low-lit, and repeatedly flooded by blue-light

3 Defendants’ summary judgment papers also cite extensively to the unsworn, recorded

statements provided by Deputy Wilson, Sergeant Baudoin, and Bryant during the LSP’s

investigation into Flowers’ death, purportedly to show that Deputy Wilson and Sergeant

Baudoin acted reasonably during their encounter with Flowers. (See Doc. 82-8 ¶ 2; Doc. 86-5

¶ 2). The “gist” of these statements is also transcribed in the LSP investigation report. (Doc.

82-4 pp. 3-5). The problem with this evidence is obvious: these statements are unsworn, and

they are hearsay. Absent any briefing from Defendants regarding the admissibility of these

statements, the Court will not consider them for present purposes. Bellard v. Gautreaux, 675

F.3d 454, 461 (5th Cir. 2012) (district court may sua sponte exclude hearsay evidence at

summary judgment even in the absence of any objection or briefing by the opposing party);

see Manis v. Lawson, 585 F.3d 839, 844 n.3 (5th Cir. 2009) (“Third party statements included

in a police report are not admissible under the public records exception to the hearsay rule.”);

e.g., Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 515 (5th Cir. 2001)

(refusing to consider witness’s unsworn statement at summary judgment because it did not

comply with the requirements of Rule 56 and, thus, was “not competent summary judgment

evidence”); Harper v. McAndrews, 499 F. Supp. 3d 312, 318 (E.D. Tex. 2020) (the prior

statement of a dead person, even if sworn, “may not be considered on a motion for summary

judgment” (citing authorities)); Goldston v. City of Fort Worth, No. 17-cv-105, 2017 WL

11349538, at *6 (N.D. Tex. Nov. 1, 2017) (Means, J.) (audio recordings of witness statements

made during a police interview were “not admissible for proof of their substance, inasmuch

as [the] statements on the audio recording are hearsay” (citing authorities)), aff’d, 775 F.

App’x 772 (5th Cir. 2019).

In any event, the Court’s analysis would not change even if these additional

statements were taken into account because they are cumulative of Deputy Wilson’s sworn

deposition testimony, and the rules of summary judgment prohibit the Court from weighing

the evidence to “determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).

interference from the officers’ patrol units. (Doc. 82-8 ¶ 2 (Attachment 7), hereinafter

“RKM Video”).4 What it shows is this: Approximately two minutes and fifteen seconds

into the traffic stop—after Sergeant Baudoin arrived and took control of Bryant—

Deputy Wilson returns to the Tahoe’s driver door with a flashlight in his right hand,

opens it, and leans inside. (Id. 02:16-2:35). Twenty seconds pass, and Deputy Wilson

emerges, opens the rear driver side door, reaches inside, and appears to engage in a

struggle. (Id. 2:35-2:40). Notably, for this portion of the video, Flowers is entirely

obscured by the open rear door. (Id.). After six or seven seconds, Deputy Wilson drops

his flashlight, raises his service weapon in his right hand, retreats rapidly from the

Tahoe, and fires multiple shots (evidenced by muzzle flashes). (Id. 02:40-02:47).

Flowers emerges from the truck, and appears to raise both arms, before falling to the

ground, and rolling over. (Id. 02:46-02:51). As Flowers rolls he appears to bring his

hands together and raise his arms again, and Deputy Wilson and Sergeant Baudoin

each fire more shots (again, evidenced by muzzle flashes). (Id. 02:40-02:50).

Thereafter, Flowers is motionless, at just under three minutes into the traffic stop.

(Id. 02:50-03:00). The remaining one minute and 46 seconds depict Deputy Wilson

pacing the scene. (Id. 03:00-4:45).

The LSP investigation report’s “narrative” timeline of the RKM video footage

provides essentially the same description of events set forth above. (See Doc. 86-7 pp.

1-2). Most relevant, it states that after opening the rear door Deputy Wilson reaches

4 Defendants include a separate video file with their summary judgment evidence, titled

“Incident Video: RKM Main_IP Camera16 and Authentication.” (See Doc. 82-8 ¶ 2

(Attachment 6). This video is in “mp4” format, is not accessible to the Court, and is not

considered here.

in “appearing to struggle”; that Flowers exited the Tahoe “with both arms appearing

to move up”; and that “Flowers points what appears to be a firearm, using both hands,

toward Dpy. Wilson” as he is rolling on the ground. (Id. (emphasis added)). Notably,

these are the only instances when the LSP’s narrative timeline employs speculative

language—i.e., “appearing” and “appears”—to describe events depicted in the video.

(Id.).

In contrast to the ambiguous video footage, Deputy Wilson’s testimony of what

occurred during his 13-second encounter with Flowers is clear:

Q. So, now, we’re at the point you say you were searching [the Tahoe]

and you saw a leg. And at the point that you saw a leg, what happened

next?

A. I stepped -- I exited the driver’s side of the vehicle and I opened

the back left passenger door, and that’s where I made contact with

Myron Flowers. I advised --

Q. Now, Mr. Flowers, where was he sitting?

A. Directly behind the driver.

Q. And as you made contact with Mr. Flowers, did you give him a

command to get out of the vehicle at that point?

A. I did.

Q. And tell me what else happened.

A. I told him several times to get out of the vehicle. He didn’t get out

of the vehicle. I looked down at him and, on his left side, facing me, was

the handle of a firearm. I reached to secure the firearm with my left

hand. He grabbed my wrist with his left hand. And then, we struggled

over the firearm. And I told him, don’t do it, don’t do this.

So, then he put his right hand in his right pocket and went to

pulling out an object and he was struggling to get it out. I disengaged

him and created distance between both of us. As he turned toward me,

a firearm came out of his right pocket and was coming up toward me,

and I fired shots.

(Wilson Depo. pp. 36:22-37:23)

Q. And as you started firing as Mr. Flowers was exiting the vehicle,

tell me what happened next.

…

A. Whenever he got out -- whenever he was coming out of the vehicle

and the shooting started, he fell to the ground. When he fell to the

ground, I created more distance and the firearm was pointed -- then,

pointed at me from him while he was laying on his side, and I fired my

service weapon again.

Q. Now, was the firearm pointed at you?

A. Yes.

Q. Was the barrel of the firearm pointed at you?

A. Yes.

Q. As he was falling -- as Mr. Flowers was falling to the ground?

A. While he was on the ground.

(Id. pp. 41:23-42:16).

B. Procedural History

Plaintiff initiated this wrongful death and survival action on April 9, 2020,

pursuing various excessive-force related claims on behalf of Flowers’ minor child,

MFJ. (Doc. 1). The following claims remain after the Court’s March 29, 2021 Order

addressing Defendants’ motions to dismiss: (1) constitutional individual capacity

excessive force claims against Deputy Wilson and Sergeant Baudoin; (2)

constitutional municipal liability (Monell) claims against the EFPSO and the Clinton

PD; (3) Louisiana tort claims of excessive force, assault, battery, and negligence

against Deputy Wilson and Sergeant Baudoin; and respondeat superior liability

claims against EFPSO and the Clinton PD. (Doc. 43).5

Now Deputy Wilson, the EFPSO, and the Clinton PD move for summary

judgment. (Doc. 82, Doc. 86). Plaintiff opposes. (Doc. 93, Doc. 103).

II. LAW AND ANALYSIS

A. Standard

Federal Rule of Civil Procedure (“Rule”) 56(a) provides that the Court may

grant summary judgment 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.”

Fed. R. Civ. P. 56(a).

In considering a motion for summary judgment, the district court must

view the evidence through the prism of the substantive evidentiary

burden. All justifiable inferences to be drawn from the underlying facts

must be viewed in the light most favorable to the party opposing the

motion. If the record, viewed in this light, could not lead a rational trier

of fact to find for the nonmovant, summary judgment is proper. On the

other hand, if the factfinder could reasonably find in the nonmovant’s

favor, then summary judgment is improper.

Finally, even if the standards of Rule 56 are met, a court has discretion

to deny a motion for summary judgment if it believes that a better course

would be to proceed to a full trial.

Kunin v. Feofanov, 69 F.3d 59, 61–62 (5th Cir. 1995) (quotation marks, alterations,

and citations omitted); see also Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538

(5th Cir. 2012) (same); accord Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994)

(“The Supreme Court has recognized that, even in the absence of a factual dispute, a

district court has the power to ‘deny summary judgment in a case where there is

5 The Court’s March 29 Order afforded Plaintiff the opportunity to amend her complaint as

to certain dismissed claims. (Doc. 43 p. 18). Plaintiff elected not amend.

reason to believe that the better course would be to proceed to a full trial.’” (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

Importantly, when conducting the summary judgment analysis, the Court is

prohibited from evaluating the credibility of the witnesses, weighing the evidence, or

resolving factual disputes. Guzman v. Allstate Assurance Co., 18 F.4th 157, 160 (5th

Cir. 2021). Put differently, the Court may not credit certain witness testimony over

other evidence: “By choosing which testimony to credit and which to discard, a court

improperly weighs the evidence and resolves disputed issues in favor of the moving

party. Doing so is tantamount to making a credibility determination, and—at this

summary judgment stage—a court may make no credibility determinations.”

Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016) (quotation

marks, alterations, and citations omitted).

B. Analysis

Excessive Force6

Deputy Wilson seeks dismissal of Plaintiff’s excessive force claim, arguing that

it cannot withstand a qualified immunity analysis. (Doc. 86-1 pp. 6-12).

The qualified immunity doctrine turns the traditional summary judgment

burden on its head, requiring Plaintiff—the non-moving party—to “demonstrate the

inapplicability of the defense.”7 Rogers v. Jarrett, 63 F.4th 971, 975 (5th Cir. 2023)

6 Plaintiff pursues excessive force claims under the Fourth Amendment and the Louisiana

Constitution. For all intents and purposes, this distinction is without difference. See Kelly v.

Stassi, 587 F. Supp. 3d 409, 427 & n.130 (M.D. La. 2022) (Dick, C.J.) (citing authorities),

appeal dismissed, 2022 WL 18923152 (5th Cir. Apr. 14, 2022). Accordingly, the following

analysis applies equally to both claims.

7 The qualified immunity defense remains “the law of the land.” Jamison v. McClendon, 476

(quotation marks omitted). To meet her burden, Plaintiff must “(1) raise a fact dispute

on whether [Flowers’] constitutional rights were violated by [Deputy Wilson’s]

conduct, and (2) show those rights were clearly established at the time of the

violation.” Id. (quotation marks omitted). Still, even when conducting a qualified

immunity analysis, the Court views all evidence and makes all reasonable inferences

in the light most favorable to Plaintiff. Tolan v. Cotton, 572 U.S. 650, 657 (2014).

a. Plaintiff has raised a fact dispute on whether

Flowers’ constitutional rights were violated

The Fourth Amendment prohibits an officer from using excessive or

unreasonable force in the context of an arrest. Graham v. Connor, 490 U.S. 386, 394

(1989). To establish an excessive force violation, “a plaintiff must demonstrate (1) an

injury, which (2) resulted directly and only from the use of force that was clearly

excessive to the need; and the excessiveness of which was (3) objectively

unreasonable.” Hutcheson v. Dallas Cnty., Texas, 994 F.3d 477, 480 (5th Cir. 2021)

(quotation marks omitted), cert. denied, 142 S. Ct. 564 (2021). “The second and third

elements collapse into a single objective-reasonableness inquiry determined by the

F. Supp. 3d 386, 409 (S.D. Miss. 2020) (Reeves, J.) (reviewing the history and expansion of

the qualified immunity doctrine, and calling for its elimination). But for how long? Scholars

and at least one jurist of the U.S. Court of Appeals for the Fifth Circuit have recently called

for its ouster because the doctrine is founded on a legal fiction derived from a reconstruction-

era scrivener’s error that removed a determinative 16-word clause from the published version

of 42 U.S.C. § 1983. See Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111

CAL. L. REV. 201 (2023). Restored to its proper place, this clause “unequivocally negate[s] the

original interpretive premise for qualified immunity.” See Rogers v. Jarrett, 63 F.4th 971, 979

(5th Cir. 2023) (Willett, J., concurring). It is not this Court’s role to cast aside qualified

immunity here, particularly absent any argument from the parties. Indeed, only the Supreme

Court can definitively “overrule” the defense. Id. at 981. For now, the undersigned commends

Professor Reinert’s scholarship, and joins Judge Willett’s call for the Supreme Court to

“definitively grapple with § 1983’s enacted text and decide whether it means what it says—

and what, if anything, that means for § 1983 immunity jurisprudence.” Id.

crime’s severity, the suspect’s threat, and whether the suspect is actively resisting

arrest or trying to flee.” Id. (quotation marks omitted).

“The threat-of-harm factor typically predominates the analysis when deadly

force has been deployed.” Harmon v. City of Arlington, Texas, 16 F.4th 1159, 1163

(5th Cir. 2021). The Fifth Circuit instructs that “an officer’s use of deadly force is not

excessive, and thus no constitutional violation occurs, when the officer reasonably

believes that the suspect poses a threat of serious harm to the officer or to others.”

Id. (quotation marks and alterations omitted). Put differently, “[t]he use of deadly

force may be proper regardless of an officer’s negligence if, at the moment of the

shooting, he was trying to prevent serious injury or death.” Carnaby v. City of

Houston, 636 F.3d 183, 188 (5th Cir. 2011). Of course, the Court must “be cautious

about second-guessing the police officer’s assessment of the threat level.” Harmon, 16

F.4th at 1163 (quotation marks and alterations omitted).

Here, the determinative question is solely whether Deputy Wilson could

reasonably have believed that Flowers posed a serious threat of harm during the 13

second encounter beginning when Deputy Wilson opened the Tahoe’s rear door, and

ending when Flowers lay expiring in the RKM parking lot. The parties offer wildly

divergent accounts of what occurred in this critical interval. If, as Deputy Wilson

insists, Flowers disobeyed orders to get out of the Tahoe, displayed a firearm,

attempted to prevent Deputy Wilson from “secur[ing] the firearm” in his left jacket

pocket, and then “pulled a firearm out of his [right] pocket and pointed it at Dy.

Wilson as [he] exited the vehicle,” (Doc. 86-1 p. 10), then existing law compels a

conclusion that Deputy Wilson’s deadly force was justified. Cloud v. Stone, 993 F.3d

379, 387 (5th Cir. 2021) (“Our precedent teaches that officers use lethal force

justifiably if they reasonably believe the individual is reaching for a gun. We have

adhered to this standard even in cases when officers had not yet seen a gun when

they fired, or when no gun was ever found at the scene.” (citation omitted)). If, on the

other hand, Plaintiff is correct that “Flowers was quietly sitting in the back of the

vehicle until Wilson ordered him to get out which [sic] he attempted to do when

Wilson open [sic] fire on him,” (Doc. 103-1 p. 13), then Plaintiff may yet prevail in her

excessive force claim. See Cloud, 993 F.3d at 387 (“To show a triable issue, a plaintiff

must generally present competent summary judgment evidence that the arrestee did

not reach for what the officer reasonably perceived to be a weapon.” (quotation marks

and alterations omitted)).

The RKM video is the best evidence of what occurred in this critical 13-second

interval. Carnaby, 636 F.3d at 187. Remarkably, each side supports its version of

events by referencing this video. (Compare Doc. 86-1 p. 11, with Doc. 103-1 p. 13).

Having viewed the video in real time, and even having paused at the precise intervals

identified in Defendants’ summary judgment papers, each side’s version of events is

plausible. Consistent with the LSP’s narrative timeline, it appears that Deputy

Wilson was struggling (with something) immediately after he opened the Tahoe’s rear

door. (See Doc. 86-7 p. 1). It also appears that Flowers was raising his hands when he

exited the Tahoe. (See id.). It also appears that Flowers’ hands were briefly drawn

together and raised as he rolled over on the ground. (See id. p. 2). But it is impossible

to tell from the video alone what prompted Deputy Wilson’s apparent struggle,

whether Flowers did or did not have a weapon in his hands or on his person during

this interval, or even where the two handguns later recovered from the RKM parking

lot were located after Flowers collapsed.

In short, the video’s depiction of events—which began as an investigation into

a minor traffic infraction but escalated quickly to a fatal officer-involved shooting—

is ambiguous. On the present record, the only way to resolve this ambiguity is to

credit Deputy Wilson’s deposition testimony, and to decide the material dispute at the

heart of this case—i.e., whether Deputy Wilson reasonably deployed deadly force. The

Court is not permitted such liberties at summary judgment. Heinsohn, 832 F.3d at

245.

In sum, viewed one way the RKM video is competent summary judgment

evidence supporting a determination that Flowers was raising his hands and was not

reaching for or holding a weapon when he emerged from the Tahoe, and also was not

pointing a weapon when he rolled on the ground. Viewed another, it supports a

determination that Flowers struggled with Deputy Wilson, and may have reached

for, brandished, or pointed a weapon. The result, for present purposes, is a genuine

dispute of material fact as to whether Deputy Wilson deployed deadly force

reasonably believing that Flowers was a serious threat. See Cloud, 993 F.3d at 387.

Plaintiff has carried her burden at the first step of the qualified immunity analysis.

b. Flowers’ constitutional rights were clearly

established at the time of the alleged violation

This much is clear: it is objectively unreasonable for an officer to use deadly

force absent “probable cause to believe that the suspect poses a significant threat of

death or serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S.

1, 3 (1985); see also Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 338

(5th Cir. 2020) (“Tennessee v. Garner prohibits the use of deadly force without an

immediate threat and without a warning when one is feasible.”). In other words, on

the night he shot Flowers, Deputy Wilson unquestionably had “fair warning” that he

could not use deadly force during a traffic stop for a minor infraction absent a

significant threat from Flowers. Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017)

(“[A] an officer violates the Fourth Amendment if he abruptly resorts to overwhelming

physical force rather than continuing verbal negotiations with an individual who

poses no immediate threat or flight risk, who engages in, at most, passive resistance,

and whom the officer stopped for a minor traffic violation.” (citing authorities)). As

above, whether Flowers posed a significant threat turns on a subjective interpretation

of the RKM video, and a credibility determination regarding Deputy Wilson’s account

of what occurred in the RKM parking lot. Again, the Court is not permitted to make

such findings at summary judgment. Heinsohn, 832 F.3d at 245. Plaintiff has also

carried her burden to show that the law was clearly established at the time Deputy

Wilson used deadly force against Flowers, and Deputy Wilson’s qualified immunity

defense fails.

In sum, Plaintiff has established a fact dispute on whether Deputy Wilson used

excessive force when he shot Flowers, and that when Deputy Wilson discharged his

service weapon the law clearly prohibited deadly force absent a significant threat. See

Rogers, 63 F.4th at 975. Deputy Wilson’s qualified immunity defense fails. Plaintiff’s

excessive force claim will be submitted to the jury.8

c. Punitive Damages

Deputy Wilson also seeks dismissal of Plaintiff’s claim for punitive damages

arising from his alleged use of excessive force. (Doc. 86-1 p. 18). “[A] jury may be

permitted to assess punitive damages in an action under § 1983 when the defendant’s

conduct is shown to be motivated by evil motive or intent, or when it involves reckless

or callous indifference to the federally protected rights of others.” Smith v. Wade, 461

U.S. 30, 56 (1983). Here, again, an obvious factual dispute exists regarding what

motivated Deputy Wilson to shoot Flowers. If Deputy Wilson’s testimony is credited,

then he fired his service weapon reasonably believing that Flowers posed a

substantial threat, in which case there is no underlying constitutional violation or

possibility of punitive damages. But, again, at this stage the Court cannot credit

Deputy Wilson’s testimony to resolve the ambiguity depicted in the RKM video.

Heinsohn, 832 F.3d at 245. As such, whether Deputy Wilson acted with an evil motive

or callous indifference to Flowers constitutional rights is also a jury determination,

and the Court cannot dismiss Plaintiff’s claim for punitive damages. See Heaney v.

8 To be clear, the Court finds that Plaintiff has carried her burden to show that qualified

immunity is inapplicable for present purposes. See Rogers, 63 F.4th at 975. Even if she had

not, however, the Court would exercise its discretion “to proceed to a full trial” in this unique

case. Black, 22 F.3d at 572 (quoting Anderson, 477 U.S. at 255. Simply put, a jury should

decide how to interpret the events depicted in the RKM video and what weight to assign to

Deputy Wilson’s account, particularly given that Flowers and Sergeant Baudoin are each

now deceased (and cannot speak for themselves), and the parties have inexplicably failed to

provide a competent account of events from Kyle Bryant (the only other eye witness to the

events of April 12, 2019). See supra n.3.

Roberts, 846 F.3d 795, 802-03 (5th Cir. 2017) (normal summary judgment rules apply

to determinations of “improper motive” under the qualified immunity analysis (citing

Crawford-El v. Britton, 523 U.S. 574, 585 (1998)); accord Heaney v. Roberts, 147 F.

Supp. 3d 600, 609 n. 9 (E.D. La. 2015) (Zainey, J.) (explaining that no “special rule …

protect[s] a defendant’s right to qualified immunity in cases involving improper

motivation—cases that would frequently involve a disputed issue of fact that would

preclude summary adjudication.”).

Monell Failure To Train

Plaintiff’s remaining municipal liability claims seek damages from the EFPSO

and the Clinton PD for failing to promulgate use of force policies, failing to train their

officers in use of force, and failing to supervise/discipline their officers when excessive

force is used. (See Doc. 43 p. 15).

“To establish Monell liability, a plaintiff must show that an official policy

promulgated by a municipal policymaker was the moving force behind the violation

of a constitutional right.” Henderson v. Harris Cnty., Texas, 51 F.4th 125, 130 (5th

Cir. 2022), cert. denied, 143 S. Ct. 2661 (2023).

A failure-to-train action is a type of Monell claim. To establish Monell

liability on a failure-to-train theory, a plaintiff must prove that: (1) the

city failed to train or supervise the officers involved; (2) there is a causal

connection between the alleged failure to supervise or train and the

alleged violation of the plaintiff’s rights; and (3) the failure to train or

supervise constituted deliberate indifference to the plaintiff’s

constitutional rights.

Id. (quotation marks and citations omitted).

a. EFPSO

At the outset, the EFPSO asserts that Plaintiff’s municipal liability claim must

be dismissed because her “underlying Fourth Amendment excessive force claim fails;

thus, she has no underlying constitutional violation on which to base municipal

liability.” (Doc. 86-1 p. 16). This argument is a nonstarter. As set forth above, Plaintiff

has raised a fact dispute regarding whether Deputy Wilson’s deadly force violated

Flowers’ clearly established constitutional rights.

Next, EFPSO contends that it cannot be liable for failing to implement a use

of force policy where the summary judgment record shows that, at the time of Flowers’

death, EFPSO policy expressly prohibited EFPSO employees “from using

unnecessary force or violence [or striking] a prisoner or any other person except in

self-defense.”(Sheriffs’ SOF ¶¶ 36-37). Plaintiff offers no rebuttal. This aspect of

Plaintiff’s municipal liability claim will be dismissed.9

Finally, the EFPSO challenges each element of Plaintiff’s failure to train claim,

arguing that Plaintiff “fails on all three prongs.” (Id. pp. 16-17). Here, the EFPSO

simply ignores the competent summary judgment evidence. Plainly, Plaintiff has

raised a fact dispute as to the first “prong”—whether the EFPSO failed to train

Deputy Wilson on the use of excessive force—where Deputy Wilson testified that he

did not receive any such training and faced no disciplinary action after the shooting.

(Wilson Depo. pp. 16:16-23, 65:11-17). The same goes for the second “prong”: obviously

9 The fact that EFPSO actually maintained an excessive force policy at the time of Flowers

death is not, of itself, determinative of Plaintiff’s failure to train claim. Why? Because “[a]n

unconstitutional failure to train is not the same as an unconstitutional failure to adopt

policies; each is a distinct theory of Monell liability.” Buchicchio v. LeBlanc, --- F.Supp.3d ---

-, 2023 WL 2027809, at *14 (M.D. La. Feb. 15, 2023) (Jackson, J.) (citing authorities); compare

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978) (establishing

municipal liability for unlawful policies, practices, and customs), with City of Canton, Ohio

v. Harris, 489 U.S. 378, 387-88 (1989) (establishing municipal liability for failure to train).

there is a causal connection between the EFPSO’s alleged failure to train Deputy

Wilson on use of excessive force and Deputy Wilson’s deployment of deadly force

against Flowers. See City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10 (1989)

(“[T]he need to train officers in the constitutional limitations on the use of deadly

force can be said to be ‘so obvious,’ that failure to do so could properly be characterized

as ‘deliberate indifference’ to constitutional rights.” (citation omitted)). Finally, the

third “prong”—deliberate indifference—is satisfied because this case arises from an

officer-involved shooting, precisely the circumstances under which the Supreme

Court holds that “there is an obvious need for some form of training.” Connick v.

Thompson, 563 U.S. 51, 64 (2011) (“Armed police must sometimes make split-second

decisions with life-or-death consequences. There is no reason to assume that police

academy applicants are familiar with the constitutional constraints on the use of

deadly force. And, in the absence of training, there is no way for novice officers to

obtain the legal knowledge they require. Under those circumstances there is an

obvious need for some form of training.”); accord Pena v. City of Rio Grande City, 879

F.3d 613, 624 (5th Cir. 2018) (discussing authorities).

In sum, a fact dispute exists as to whether the EFPSO’s lack of training and

discipline/supervision resulted in Deputy Wilson’s unconstitutional deployment of

deadly force against Flowers. This dispute must also be resolved by the jury.

b. Clinton PD

The Clinton PD raises all the same defenses to Plaintiff’s municipal liability

claim as the EFPSO. (See Doc. 82-1 pp. 6-22). As above, the Clinton PD’s argument

that Plaintiff’s municipal liability claim fails because she has not established an

underlying constitutional violation falls flat. (See id. pp. 6-19). Again, based on the

RKM video, a factual dispute exists regarding whether Sergeant Baudoin’s use of

deadly force violated Flowers’ clearly established constitutional rights.

By contrast, the Clinton PD’s challenge to the evidence supporting the

elements of Plaintiff’s failure to train claim hits the mark. (See id. pp. 19-22).

Specifically, the Clinton PD has produced competent evidence showing that it

maintained an excessive force policy at the time of Flowers’ death, that all officers

were trained on this policy, and that Sergeant Baudoin was suspended (and

ultimately resigned) as a result of his involvement in the shooting. (Town SOF ¶¶ 23,

24, 28; Doc. 82-6 p. 35:1-7). Plaintiff fails to controvert this evidence. As such,

Plaintiff’s municipal liability claim against the Clinton PD must be dismissed. See

Hutcheson, 994 F.3d at 483 (a failure to train claim fails absent a competent showing

that a police department failed to train its officers).

Plaintiff’s State Law Claims

Defendants concede that Plaintiff’s Louisiana tort claims of excessive force,

assault, and battery “are essentially state law corollaries of her § 1983 excessive force

claim.” (Doc. 86-1 pp. 20-21; accord Doc. 82-1 pp. 22-23). The same video evidence

that creates a genuine dispute regarding Plaintiff’s constitutional excessive force

claim also establishes a genuine dispute as to these claims. Deville v. Marcantel, 567

F.3d 156, 173 (5th Cir. 2009) (reversing summary judgment to defendants on

plaintiff’s state-law excessive force/battery claim based on the same evidence that

established a factual dispute as to plaintiff’s constitutional excessive force claim).

This leaves only Plaintiff’s negligence claim. Louisiana measures negligence

by the “duty-risk” framework, requiring Plaintiff to establish that (1) Flowers

suffered an injury; (2) the Defendants owed him a duty of care; (3) the Defendants

breached that duty; (4) the conduct in question was the cause-in-fact of the resulting

harm; and (5) the risk of harm was within the scope of protection afforded by the duty

breached. Doe v. McKesson, 2021-00929 (La. 3/25/22). Under Louisiana law “[a] police

officer has a duty to act reasonably under the totality of the circumstances.” Elphage

v. Gautreaux, 969 F. Supp. 2d 493, 516 (M.D. La. 2013) (Dick, J.) (citing Mathieu v.

Imperial Toy Corp., 646 So.2d 318, 322–23 (La. 1994)).

Here, Defendants challenge only the duty element of Plaintiff’s negligence

claims, arguing that there is no genuine dispute that Deputy Wilson and Sergeant

Baudoin acted reasonably under the circumstances. (See Doc. 82-1 p. 24; Doc. 86-1 p.

20). But again, whether Deputy Wilson and Sergeant Baudoin acted reasonably is

dependent on a subjective interpretation of the RKM video, and a credibility

determination regarding Deputy Wilson’s account of what occurred in the moments

after he opened the Tahoe’s rear door. Such decisions cannot be made at summary

judgment, and remain for the jury alone. Heinsohn, 832 F.3d at 245.

Finally, the EFPSO and the Clinton PD challenge Plaintiff’s respondeat

superior claims, solely on the basis that Plaintiff has not carried her burden to

establish any actionable torts against Deputy Wilson and Sergeant Baudoin. (Doc.

82-1 p. 24; Doc. 86-1 p. 21). Having determined that Plaintiff’s underlying tort claims

survive summary judgment, it follows that Plaintiff’s vicarious liability claims must

also be decided by the jury.

III. CONCLUSION

Accordingly,

IT IS ORDERED that the Clinton PD’s Motion For Summary Judgment

(Doc. 82) be and is hereby GRANTED IN PART, and that Plaintiff’s municipal

liability claim against the Clinton PD be and is hereby DISMISSED. In all other

respects, the Clinton PD’s Motion is hereby DENIED.

IT IS FURTHER ORDERED that the Sheriff Defendants’ Motion For

Summary Judgment (Doc. 86) be and is hereby GRANTED IN PART, and that

Plaintiff’s municipal liability claim against the EFPSO be and is hereby DISMISSED

IN PART, leaving for trial whether the EFPSO is liable under Monell for failing to

train and supervise/discipline Deputy Wilson. In all other respects, the EFPSO’s

Motion is hereby DENIED.

IT IS FURTHER ORDERED that a telephone status conference be and is

hereby SET for October 19, 2023 at 2:00 p.m. for the purpose of selecting a new trial

date and related deadlines. Dial-in instructions will be emailed to counsel. Prior to

the conference, counsel shall meet, confer, and select among the following four-day

trial settings: February 26-29, 2024; March 19-22, 2024; and March 25-29, 2024.

Baton Rouge, Louisiana, this 28th day of September, 2023

______________________________________

JUDGE BRIAN A. JACKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA