# Perron v. Travis

> District Court, M.D. Louisiana · September 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10192753

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** September 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192753

## How later opinions describe it (automated extraction)

- establishing municipal liability for unlawful policies, practices, and customs
- establishing municipal liability for failure to train
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192753. Public record. Not legal advice.