McKay v. LaCroix

Case: 23-30775 Document: 67-1 Page: 1 Date Filed: 09/23/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 23-30775 September 23, 2024

____________

Lyle W. Cayce

Clerk

Brandy McKay, Individually, and on behalf of her minor child, P.M.,

Plaintiff—Appellee,

versus

David LaCroix, Trooper; Rohn Bordelon, Sergeant,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:21-CV-2304

______________________________

Before Jones, Willett, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

Louisiana State Police (“LSP”) senior trooper August McKay

committed suicide in his own home after learning that the LSP was

reassigning him and preparing to execute a search warrant on his house. His

widow sued several LSP officers, alleging claims under 42 U.S.C. § 1983 and

Louisiana state law in connection with his death. The district court declined

to grant qualified immunity to two of the officers. We reverse that decision.

Case: 23-30775 Document: 67-1 Page: 2 Date Filed: 09/23/2024

No. 23-30775

I.

A.

In December 2020, the LSP Narcotics Division began investigating

allegations that senior trooper August McKay was using fraudulent

prescriptions to obtain controlled substances from a local pharmacy. As part

of this investigation, LSP officers obtained a warrant to search August’s

residence. 1 On the morning that they planned to execute the search warrant,

they asked Appellants, Sergeant Rohn Bordelon and Trooper David LaCroix,

for their assistance. They instructed Sgt. Bordelon and Trooper LaCroix to

inform August that he was going to be reassigned and to gain a “Code

Four”—a police signal code that indicates to other officers that “everything

is under control and the scene is safe”—so that other detectives could

execute the search warrant.

On the way to August’s home, Sgt. Bordelon and Trooper LaCroix

“discussed different scenarios,” including the possibility that August might

arm himself and attempt to commit “suicide by cop.” August had been “in

and out of the hospital for medical reasons and had been out on [family and

medical leave]” so they “were not sure about the state of mind [he] would be

in” and “were not sure how things were going to go.” They created a

contingency plan that if August armed himself and attempted to commit

suicide by cop, they would retreat and treat the situation as a “barricaded

subject.”

When Sgt. Bordelon and Trooper LaCroix arrived at August’s

residence, they noticed that his take-home police vehicle was not there. They

knocked on the door and were greeted by August’s minor child, P.M., and

_____________________

1

Because the decedent, August McKay, and the appellee, Brandy McKay, share a

last name, we refer to them by their first names to ensure clarity.

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No. 23-30775

wife, Brandy McKay. Brandy invited the officers in the house to wait for

August’s arrival. Once August returned home, Sgt. Bordelon informed him

that he was being placed on administrative leave and that he needed to go

outside to sign some paperwork. Outside, Sgt. Bordelon told August that the

LSP had a search warrant for the residence and intended to execute it. Sgt.

Bordelon asked August if Brandy, P.M., and P.M.’s minor friend who was

visiting could leave the residence. August agreed that they should leave, and

Sgt. Bordelon and Trooper LaCroix accompanied him back inside.

Upon reentering the house, August made his way to the master

bedroom closet. Trooper LaCroix observed two handguns on a closet shelf

and confiscated them over August’s objection. Trooper LaCroix told him

that “the department was going to take them anyway, so he would hold

them.” August then proceeded to use his master restroom while Trooper

LaCroix stood outside the open door and observed.

By the time August returned to the master bedroom, Sgt. Bordelon

and Brandy had entered the bedroom. While Brandy spoke to the officers

about what was happening, August walked back into the closet and retrieved

his LSP department-issued firearm. As August chambered a round, Trooper

LaCroix exclaimed, “Gus, no, what are you doing?” Following the

contingency plan they made that morning, Sgt. Bordelon told Trooper

LaCroix to “back out,” and both officers left the McKay home. Brandy

unsuccessfully attempted to take the firearm from August, who then fatally

shot himself.

B.

Appellee Brandy McKay, in her individual capacity and on behalf of

her minor child, sued several LSP officers, including Sgt. Bordelon and

Trooper LaCroix. She brought claims under 42 U.S.C. § 1983 for alleged

violations of August’s Fourth, Eighth, and Fourteenth Amendment rights,

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as well as various Louisiana state laws. In response, the defendants filed a

Rule 12(b)(6) motion to dismiss, or in the alternative, a motion for more

definite statement under Rule 12(e). They also asserted qualified immunity.

The district court granted the defendants’ motion as to Brandy’s § 1983

claim for alleged violations of the Eighth Amendment, but otherwise denied

the motion, and granted Brandy leave to amend her complaint to allege facts

tailored to qualified immunity.

Brandy filed a supplement to her original complaint, this time limiting

her claims to the Fourteenth Amendment and various state laws. The

defendants again filed a Rule 12(b)(6) motion to dismiss and asserted

qualified immunity. When ruling on the motion, the district court noted that

Brandy had voluntarily dismissed her claims against several defendants and

granted their dismissals. This left only four defendants: Sgt. Bordelon,

Trooper LaCroix, and two others.

When addressing the remaining defendants’ assertions of qualified

immunity, the district court concluded that Brandy had pled sufficient facts

to state § 1983 claims against Sgt. Bordelon and Trooper LaCroix but

dismissed the § 1983 claims against the other two defendants. To reach this

conclusion, the court asked whether, accepting the pleaded facts as true,

defendants: (1) had subjective knowledge of August’s risk of suicide; and (2)

responded to August’s risk of suicide with deliberate indifference. The

district court also concluded that Brandy stated negligence claims against

Sgt. Bordelon and Trooper LaCroix but dismissed the negligence claims

against the other two defendants. Sgt. Bordelon and Trooper LaCroix timely

filed this interlocutory appeal.

II.

We first assess whether we have jurisdiction. Carswell v. Camp, 54

F.4th 307, 310 (5th Cir. 2022). Absent an exception, non-final district court

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orders are not immediately appealable. Leonard v. Martin, 38 F.4th 481, 485–

86 (5th Cir. 2022). The denial of a defendant’s motion to dismiss asserting

qualified immunity is an immediately appealable decision under the collateral

order doctrine, Mitchell v. Forsyth, 472 U.S. 511, 527–30 (1985), because qual-

ified immunity provides immunity not just from liability but also from suit,

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

The collateral order doctrine only applies to the qualified immunity

portion of a district court order. Morin v. Caire, 77 F.3d 116, 119 (5th Cir.

1996). Nonetheless, in the interest of judicial economy, we may have discre-

tion to exercise pendent appellate jurisdiction to review other claims at the

same time. Id. Pendent appellate jurisdiction is only proper in “rare and

unique circumstances” though, Thornton v. Gen. Motors Corp., 136 F.3d 450,

453 (5th Cir. 1998), and is always discretionary, Mi Familia Vota v. Ogg, 105

F.4th 313, 333 (5th Cir. 2024).

Sgt. Bordelon and Trooper LaCroix seek interlocutory review of the

district court’s entire order denying their motion to dismiss, wherein they

sought dismissal of the § 1983 claims and Louisiana state law claims. As to

the § 1983 claims, they asserted qualified immunity. 2 We have jurisdiction,

under the collateral order doctrine, to review the district court’s denial of

qualified immunity. See Mitchell, 472 U.S. at 527–30. As to the portion of the

district court’s order that denied dismissal of the state law claims, we only

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2

Here, Sgt. Bordelon and Trooper LaCroix contend that qualified immunity bars

Brandy’s state law claims too. They did not raise this as a jurisdictional basis for an

interlocutory appeal, however. Even if they had, they did not assert state law qualified

immunity at the district court, which forfeits their ability to raise it here. See Rollins v. Home

Depot USA, 8 F.4th 393, 397–98 (5th Cir. 2021) (“A party forfeits an argument

by failing to raise it in the first instance in the district court—thus raising it for the first

time on appeal[.] . . . We do not ordinarily consider issues that are forfeited because they

are raised for the first time on appeal.”).

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No. 23-30775

have jurisdiction if we can exercise pendent jurisdiction. See Morin, 77 F.3d

at 119. Sgt. Bordelon and Trooper LaCroix have neither asked us to exercise

pendent jurisdiction, nor demonstrated why this is the rare and unique case

where it is warranted. We therefore decline to review the state law claims. 3

III.

We review orders on Rule 12(b)(6) motions to dismiss for failure to

state a claim under the de novo standard of review. Petrobras Am., Inc. v. Sam-

sung Heavy Indus. Co., Ltd., 9 F.4th 247, 253 (5th Cir. 2021). In doing so, we

must accept all facts in the complaint as true, but do not accept conclusory

allegations, unwarranted factual inferences, or legal conclusions. Arnold v.

Williams, 979 F.3d 262, 266 (5th Cir. 2020).

IV.

A.

The defense of qualified immunity protects state officials from civil

suit and liability when they could have reasonably believed that their actions

were legal. Pearson, 555 U.S. at 231. A state official is entitled qualified im-

munity unless: (1) the plaintiff alleged a violation of a constitutional right; and

(2) that right was “clearly established” at the time of the alleged violation.

Cope v. Cogdill, 3 F.4th 198, 204 (5th Cir. 2021) (citing Pearson, 555 U.S. at

232).

We may address either prong first. Id. (citing Pearson, 555 U.S. at 236).

Here, our inquiry begins and ends with whether Brandy alleged a violation of

August’s constitutional rights.

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3

In declining to review the state law claims, we do not opine on whether this is a

case where we would have discretion to exercise pendent jurisdiction.

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B.

A state generally has no affirmative obligation to protect its citizens

from private harm. M.D. by Stukenberg v. Abbott, 907 F.3d 237, 248 (5th Cir.

2018) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

197 (1989)). “[N]othing in the language of the Due Process Clause itself re-

quires the State to protect the life, liberty, and property of its citizens against

invasion by private actors.” DeShaney, 489 U.S. at 196. But when a state af-

firmatively acts to restrain an individual’s freedom “through incarceration,

institutionalization, or other similar restraint of personal liberty,” the state

establishes a “special relationship” with the individual. McClendon v. City of

Columbia, 305 F.3d 314, 324 (5th Cir. 2002) (en banc) (per curiam) (quoting

DeShaney, 489 U.S. at 200). Where a special relationship exists, a state may

have a constitutional duty to protect the individual from dangers, including

in certain circumstances, private harm such as private violence, id., or self-

inflicted harm, Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en

banc). Such a relationship has arisen between a state and prisoners, see, e.g.,

Farmer v. Brennan, 511 U.S. 825, 832–33 (1994), pretrial detainees—includ-

ing suspected criminals injured while being apprehended by police, see City

of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983), and involun-

tarily-committed mental patients, see, e.g., Youngberg v. Romeo, 457 U.S. 307,

317 (1982).

Yet, no constitutional duty exists where, like here, the state has not

restrained an individual’s liberty. This is not a case like City of Revere, where

police injured a suspect while apprehending him. 463 U.S. at 244. There is

no indication from the alleged facts that Sgt. Bordelon and Trooper LaCroix

planned or attempted to arrest August or confine him to his home. They vis-

ited August’s home to inform him that he was being reassigned at work, and

to confirm that the premises were safe for the LSP to execute the search war-

rant. After they left his house, August tragically proceeded to commit suicide.

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No. 23-30775

Indeed, Brandy does not allege in her complaint that Sgt. Bordelon or

Trooper LaCroix restrained August’s liberty. To the contrary, she seeks to

hold them responsible for August’s death because they “allowed [him] to en-

ter his home, where his guns were,” “allowed [him] to roam around his

home,” “d[id] nothing to restrict his movements,” and then “took no action

whatsoever to attempt to disarm [August]” but instead “elected to flee the

home.” Put otherwise, she blames them because they did not restrain his lib-

erty.

Without a restraint of liberty, there is no constitutional duty. Without

a constitutional duty, there can be no constitutional violation. And without

a constitutional violation, Sgt. Bordelon and Trooper LaCroix are entitled

qualified immunity.

* * *

Because Sgt. Bordelon and Trooper LaCroix are entitled qualified im-

munity, we REVERSE the district court’s judgment as to qualified immunity.

As to the state law claims, we DISMISS the appeal without prejudice. We

REMAND this matter to the district court for further proceedings consistent

with this opinion.

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