# Est of La'Mello Parker v. MS Dept

> Court of Appeals for the Fifth Circuit · June 6, 2025 · 140 F.4th 226

URL: https://www.frixlaw.com/law-library/cases/11066873

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** June 6, 2025
- **Citations:** 140 F.4th 226
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 17 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/11066873

## How later opinions describe it (automated extraction)

- finding it was not unreasonable for officers to fire at a dangerous shooter though they knew the shooter’s infant son was in his lap, who was killed in the cross-fire
- declining to “second guess” decision officers were forced to make “in the split second after Smith fired on one of their own” —“in haste, under pressure, and ... without the luxury of a second chance.”

## Opinion text

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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
____________
June 6, 2025
No. 24-60208 Lyle W. Cayce
____________ Clerk

Estate of La’Mello Parker; L. S., a minor, by and through Kevin
Smith his next friend, individually and on behalf of all entitled to recover,

Plaintiffs—Appellants,

versus

Mississippi Department of Public Safety; Troy
Peterson, Harrison County Sheriff, in his individual and official capacities;
Harrison County, Mississippi; Chris Allen, Harrison County
Deputy, in his individual and official capacities; Harry Moskowitz,
Harrison County Deputy, in his individual and official capacities; City of
Gulfport, Mississippi; Michael Moran, Gulfport Police Officer,
in his individual and official capacities; John Doe, Mississippi Highway
Patrol Troopers 1–8, in their individual and official capacities; John Does,
1–75,

Defendants—Appellees.
______________________________

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:23-CV-185
______________________________

Before Stewart, Clement, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
Three-month-old La’Mello Parker died in the crossfire of a volatile
and deeply tragic confrontation. His father—a fugitive wanted for double
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homicide—held La’Mello in his arms as a human shield and opened fire on
law enforcement. Officers returned fire, with a single bullet striking and
killing La’Mello, ending his life before it had truly begun.
Acting as representatives, La’Mello’s grandfather and brother filed
suit against law enforcement at every level—city, county, and state—alleging
constitutional violations under 42 U.S.C. § 1983 and claims under
Mississippi tort law. The district court dismissed the case in full, concluding
that the officers’ actions during the fast-moving hostage crisis—while
devastating in consequence—did not amount to constitutional wrongdoing,
and that qualified immunity shielded the officers from suit.
However distressing the facts, constitutional liability requires more
than tragedy—it requires a legal wrong. And in moments of split-second
peril, that standard is exacting. The district court found no violation. Neither
do we.
We AFFIRM.
I
A
The facts are both harrowing and heartbreaking.
On May 3, 2021, law enforcement responded to a shooting in Baker,
Louisiana. Two individuals had been fatally shot, and a baby—La’Mello
Parker—was missing. The initial investigation identified La’Mello’s father,
Eric Smith, as the suspected shooter and kidnapper.
A warrant was issued for Smith’s arrest, and law enforcement soon
located him traveling eastbound on Interstate 10 near the Mississippi state
line. Officers initiated pursuit and deployed spike strips to disable his vehicle.
After driving over the spike strips and puncturing multiple tires near mile
marker 11, Smith pulled over, exited the vehicle with La’Mello pressed to his

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chest, and fired a round at a Mississippi Highway Patrol trooper. No officers
returned fire at that time.
Smith reentered his vehicle and continued east on I-10. More officers
joined the pursuit, and they deployed additional spike strips near mile
markers 29 and 31. Throughout the chase, officers remained in
communication with Harrison County Dispatch, repeatedly confirming that
Smith was armed, had already fired at law enforcement, and that an infant
hostage was in the vehicle.
Farther ahead, officers established roadblocks at mile markers 41 and
44 and positioned snipers and a hostage negotiator. But before Smith could
reach those roadblocks, Harrison County Deputy Chris Allen rammed
Smith’s vehicle from behind with his patrol car, pushing it into the median
and disabling it.
Deputy Allen exited his vehicle and joined officers nearby. With their
weapons drawn, officers surrounded Smith, who was still holding La’Mello.
A few seconds later, Deputy Allen noticed that his K9 had exited the patrol
car and went to retrieve it. As Deputy Allen pursued the dog, Smith lowered
his car window and fired his handgun.
In response, at least ten officers—including Harrison County Deputy
Harry Moskowitz, Gulfport Police Officer Michael Moran, a U.S. Marshall
serving on a regional task force, and John Doe Mississippi Highway Patrol
Troopers 1–8—opened fire. Tragically, one of the unidentified Mississippi
troopers fatally shot La’Mello.
B
On La’Mello’s behalf, his grandfather and brother (Plaintiffs) sued
the Mississippi Department of Public Safety (DPS); Harrison County; the
City of Gulfport; Harrison County Sheriff Troy Peterson, and Deputies

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Chris Allen and Harry Moskowitz; Gulfport Police Officer Michael Moran;
John Doe Mississippi Highway Patrol Troopers 1–8; and John Does 1–75.
The complaint asserted claims under § 1983 for violations of La’Mello’s
Fourth and Fourteenth Amendment rights, based on both direct and
bystander liability theories. Plaintiffs also brought state-law claims under the
Mississippi Tort Claims Act against Mississippi DPS, Harrison County, and
various individual officers, Miss. Code Ann. § 11-46-11 et seq. In addition,
they pursued Monell municipal-liability claims against Mississippi DPS,
Gulfport, and Harrison County. 1
Mississippi DPS moved for judgment on the pleadings; the remaining
defendants moved to dismiss. The district court granted the motions in part
and denied them in part.
First, the court held that Plaintiffs lacked standing to bring federal
claims against the officers who fired their weapons but did not strike
La’Mello—namely, Sheriff Peterson, Deputies Allen and Moskowitz,
Officer Moran, and their respective employers, the City of Gulfport and
Harrison County. Only the claim against Deputy Allen and Harrison County
for ramming Smith’s vehicle survived the standing inquiry.
Next, turning to the merits, the district court concluded that none of
the officers violated La’Mello’s constitutional rights. The officers were
entitled to qualified immunity, the court held, as it was not excessive for
Deputy Allen to use his patrol car to stop Smith, or for officers to “fir[e] their
service weapons to defend against and subdue Smith, a murderer who had
just fired first at law enforcement.” And even assuming a constitutional
violation, the court found that the right was not clearly established.

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1
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 695 (1978).

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The district court also dismissed Plaintiffs’ Fourteenth Amendment
claims, reasoning that the alleged conduct was more properly evaluated
under the Fourth Amendment. But in any event, it held that the officers’
“actions of returning fire at an armed and dangerous suspect d[id] not shock
the conscience” in violation of the Fourteenth Amendment.
Finally, the district court dismissed Plaintiffs’ bystander liability and
Monell claims for failure to allege an underlying constitutional violation. The
court also declined to exercise supplemental jurisdiction over Plaintiffs’
state-law claims.
Plaintiffs timely appealed.
II
We review de novo the district court’s dismissal under Rule 12(b)(6).
To survive such a motion, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” 2 A plaintiff’s factual allegation must “raise a right to relief above the
speculative level.” 3 At this stage, we accept all well-pleaded facts as true and
construe them in the light most favorable to Plaintiffs. 4
We apply the same standard when reviewing a judgment on the
pleadings. 5

_____________________
2
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
3
Guerra v. Castillo, 82 F.4th 278, 284 (5th Cir. 2023).
4
Id.
5
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (“A motion for judgment
on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss
under Rule 12(b)(6).”).

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We likewise review de novo the district court’s dismissal for lack of
standing, again accepting all well-pleaded allegations as true and viewing
them in the light most favorable to Plaintiffs. 6
III
Because standing is a jurisdictional prerequisite, we begin there. 7
To establish standing, Plaintiffs must show (1) an injury in fact,
(2) fairly traceable to the conduct of the defendant officers, and (3) likely to
be redressed by a favorable judicial decision. 8 There is no dispute that
La’Mello and his family suffered an obvious injury—one that is plainly
redressable through damages under § 1983. The only question, then, is
traceability.
Plaintiffs assert two constitutional claims of excessive force under the
Fourth and Fourteenth Amendments: (A) the fatal shooting of La’Mello, and
(B) the forcible ramming of Smith’s car. The district court found that
Plaintiffs lacked standing to pursue the former but had standing as to the
latter. That was error. Plaintiffs have standing to pursue both.
A
First, as to the shooting: The district court held that La’Mello’s death
was not fairly traceable to the defendant officers or their employers because

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6
Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 513
(5th Cir. 2017); Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
7
Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir. 1989).
8
Book People, Inc. v. Wong, 91 F.4th 318, 328 (5th Cir. 2024) (citing Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016)).

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none of the named officers fired the single shot that killed him. 9 Plaintiffs do
not dispute that ballistics testing confirmed only one bullet struck
La’Mello—and that it came from Doe Trooper 1. Nor do they dispute that
neither Peterson nor Allen discharged their weapons that day. But the
traceability analysis does not end with the identity of the shooter. La’Mello’s
injury may be fairly traced to the conduct of other officers in two ways: (1)
through their alleged bystander participation in Doe Trooper 1’s use of
excessive force, and (2) through their affirmative conduct in escalating the
confrontation and creating the conditions that led to the fatal shot. Either
theory is sufficient to establish traceability—and thus standing—at the
pleading stage. 10
1
Plaintiffs allege that the officers harmed La’Mello not only by firing
their weapons but also by failing to prevent the final shot. According to the
complaint, the officers “had a duty to prevent the others from depriving
La’Mello of his civil rights and refused to do so.” Under this bystander-
liability theory, the officers’ inaction contributed to La’Mello’s death. 11 On

_____________________
9
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (To establish standing,
“the injury has to be fairly traceable to the challenged action of the defendant, and not the
result of the independent action of some third party not before the court.” (cleaned up)).
10
To bolster their standing argument, Plaintiffs lean heavily on Grandstaff v. City
of Borger, 767 F.2d 161 (5th Cir. 1985). But the district court was right to find Grandstaff
inapposite. There, police officers—mistaking the decedent for an armed suspect—shot
him multiple times. Id. at 165. Because the identity of the officer who fired the fatal shot
remained unknown, we held that all the officers who opened fire were liable. Id. at 168. That
key factual distinction renders Grandstaff a poor fit here. Plaintiffs themselves allege that a
single officer—Doe Trooper 1—fired the shot that struck and killed La’Mello. Grandstaff
therefore weakens, rather than supports, their standing argument. Still, for the two
independent reasons that follow, we conclude Plaintiffs do have standing.
11
See Swofford v. Eslinger, 671 F. Supp. 2d 1289, 1308 (M.D. Fla. 2009) (“[E]ven if
a jury finds that none of the rounds discharged by Defendant [officer] struck [the victim],

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that view, it is immaterial whether a given officer fired at La’Mello or struck
him. What matters is that Doe Trooper 1’s bullet caused the injury, and the
other officers allegedly stood by and let it happen. That chain of causation is
sufficient to establish traceability. Plaintiffs therefore have standing to bring
bystander-liability claims against the named defendant officers and their
respective employers. 12
2
In addition to their bystander theory, Plaintiffs plausibly allege that
La’Mello’s injury was caused, at least in part, by the officers’ conduct leading
up to the shooting. However attenuated, that causal link suffices to establish
traceability for purposes of standing.
To establish traceability, Plaintiffs must show “a causal connection
between the injury and the conduct complained of”—that is, the injury must
be fairly traceable to the defendant’s challenged conduct, and not the result
of an independent action by a third party not before the court. 13 Unlike tort

_____________________
Defendant [officer] could still be liable if the jury finds that he failed to take feasible steps
to protect [the victim] from [another officer’s] use of force . . . .”).
12
Courts have consistently recognized that an officer’s liability does not hinge on
pulling the trigger. See Murray-Ruhl v. Passinault, 246 F. App’x 338, 347–48 (6th Cir. 2007)
(considering a bystander-liability claim against an officer who never fired a shot); Valdez v.
Macdonald, 66 F.4th 796, 833–34 (10th Cir. 2023) (implicitly acknowledging the possibility
of a failure-to-intervene theory even where no evidence linked the defendant officer to the
shot that injured plaintiff); Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)
(finding a constitutional claim against an officer whose shot missed based on his failure to
protect the plaintiff from another officer’s excessive force).
13
Lujan, 504 U.S. at 560; see also Nat’l Press Photographers Ass’n v. McCraw, 90
F.4th 770, 784 (5th Cir.) (“To establish traceability, Plaintiffs must show a causal
connection between the injury and the conduct complained of—the injury has to be fairly
traceable to the challenged action of the defendant, and not the result of the independent
action of some third party not before the court.” (quotations omitted)), cert. denied sub nom.
Nat’l Press Photographers Ass’n v. Higgins, 145 S. Ct. 140 (2024).

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law, Article III causation imposes no stringent or inflexible standard. 14
Indeed, “an indirect causal relationship will suffice” 15 for standing, and
plaintiffs may satisfy the requirement by alleging “a chain of causation
between defendants’ [conduct] and plaintiffs’ injuries.” 16 It is often enough
that the defendant’s conduct was one of multiple contributing causes. 17 And
“the fact that the defendant is only one of several persons who caused the
harm does not preclude a finding of causation sufficient to support
standing.” 18 Even an uncertain or indirect causal connection may suffice at
the pleading stage. 19

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14
See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 n.6
(2014) (“Proximate causation is not a requirement of Article III standing, which requires
only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.”); FDA v. All.
for Hippocratic Med., 602 U.S. 367, 384 (2024) (analogizing “causation in standing law” to
“causation in tort law”); Bennett v. Spear, 520 U.S. 154, 168–69 (1997) (noting that
proximate cause is not equivalent to whether an injury is traceable to the defendant for
standing purposes); Comer v. Murphy Oil USA, 585 F.3d 855, 864 (5th Cir. 2009)
(Causation “need not be as close as the proximate causation needed to succeed on the
merits of a tort claim.”).
15
Comer, 585 F.3d at 864; see also Jackson v. Wright, 82 F.4th 362, 369 (5th Cir.
2023) (“[A]ll [plaintiff] needs to allege under Article III is that his . . . injuries are ‘fairly
traceable’ to the . . . defendants—not that the . . . defendants directly caused his
injuries.”); Warth v. Seldin, 422 U.S. 490, 504 (1975) (“The fact that the harm to
petitioners may have resulted indirectly does not in itself preclude standing.”).
16
Comer, 585 F.3d at 864.
17
Id. at 866.
18
Id. (quoting 15 James Wm. Moore et al., Moore’s Federal
Practice § 101.41[1] (3d ed. 2008)).
19
13A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3531.5 (3d ed. 2025); see also Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 89 (1998) (“It is firmly established that the absence of a valid (as
opposed to arguable) cause of action does not implicate subject-matter jurisdiction . . . .”
(citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1350 n.8 (2d ed. 1990))).

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Plaintiffs have cleared this low causation bar at the standing stage.
Even if Doe Trooper 1’s bullet was the most immediate cause of La’Mello’s
death, Plaintiffs allege that the conduct of the other officers was an additional,
indirect cause. According to Plaintiffs, the officers “dangerously escalated
the situation leading to La’Mello’s death, and pointed their weapons at him
needlessly, and opened fire on him when it was completely unnecessary.”
These actions, Plaintiffs allege, “spurred Trooper Doe 1 to pull the trigger,”
and he “actually struck La’Mello with a bullet and killed him.” However
attenuated, this remains a plausible chain of causation. Whether that chain is
strong enough to sustain a cause of action remains to be seen. But for
purposes of standing at the pleading stage, it is enough. 20
* * *
Plaintiffs have plausibly alleged that La’Mello’s injury is “fairly
traceable” to the defendant officers’ failure to intervene—and to their
conduct leading up to the fatal shooting. La’Mello’s injuries were not merely
“the result of the independent action” of Doe Trooper 1. 21 Accordingly,
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20
We have never squarely addressed standing in a § 1983 excessive-force case like
this one. But we have implicitly assumed standing and proceeded to analyze qualified
immunity in at least one such case where the officer pointed his firearm—but did not
discharge it. Pigott v. Gintz, No. 23-30879, 2024 WL 5087911, at *7–9 (5th Cir. Dec. 12,
2024) (per curiam). Other circuits have likewise proceeded to assess excessive-force claims
against officers whose shots missed the plaintiff, without pausing to question standing. See,
e.g., Floyd, 518 F.3d at 406–07 (holding that an officer whose shot missed could be directly
liable because his use of excessive force escalated the situation and signaled to others that
such force was justified, and because he “participated in the tactical decision” to confront
the plaintiff); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 560–61 (1st Cir. 1989)
(holding that all officers “who participated in the intervention could be deemed to be
proximate causes of plaintiff’s injuries” because they were “active participant[s]” in the
“event that caused plaintiff’s injuries”). While these cases analyze liability on the merits,
not standing, their reasoning applies with even greater force at the standing stage, where
the causation requirement is less exacting.
21
Lujan, 504 U.S. at 560 (cleaned up).

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Plaintiffs have standing to pursue federal claims arising from the shooting
against the named officers—Sheriff Peterson, Deputies Allen and
Moskowitz, and Officer Moran—as well as their respective employers,
Harrison County and the City of Gulfport.
B
Second, as to Deputy Allen’s ramming of Smith’s car, the district
court concluded that Plaintiffs had standing to sue both Deputy Allen and his
employer, Harrison County. Notably, the defendants do not contest standing
on this claim.
All three standing elements are satisfied: (1) La’Mello was fatally
injured by Doe Trooper 1’s gunfire; (2) that injury is traceable to Deputy
Allen’s act of “recklessly ramming the vehicle in which La’Mello was
unrestrained,” which Plaintiffs allege precipitated the shootout between
Smith and law enforcement; and (3) a favorable judgment against Allen under
§ 1983 would redress that injury. Accordingly, Plaintiffs have standing to
bring federal claims against Deputy Allen and Harrison County based on the
ramming of Smith’s vehicle.
IV
We next consider whether the district court correctly dismissed
Plaintiffs’ Fourth Amendment claims on the ground of qualified immunity.
Qualified immunity shields government officials “from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights.” 22 To overcome that shield, Plaintiffs must

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22
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs urge us to abandon the
doctrine of qualified immunity, contending that it conflicts with the text and history of the
Civil Rights Act of 1871. But they properly acknowledge that this argument is foreclosed by
binding Supreme Court precedent. As we have said before, we are “middle-management

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plead facts showing: “(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” 23
Plaintiffs allege that the officers used excessive force in violation of
La’Mello’s Fourth Amendment rights in two ways: (A) by shooting at him,
and (B) by ramming Smith’s vehicle. The district court held that in neither
instance did Plaintiffs plead a violation of a clearly established constitutional
right. We agree.
A
1
We begin with the first qualified-immunity inquiry: whether the
officers violated La’Mello’s Fourth Amendment rights when they opened
fire.
The Fourth Amendment guarantees the “right of the people to be
secure . . . against unreasonable . . . seizures.” 24 To state a Fourth
Amendment excessive-force claim, a plaintiff must show two things: (1) a
seizure occurred; and (2) the force used was unreasonable. 25
The Supreme Court has explained that a Fourth Amendment seizure
occurs “when there is a governmental termination of freedom of movement

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circuit judges” who “must follow binding precedent.” Consumers’ Rsch. v. Consumer Prod.
Safety Comm’n, 91 F.4th 342, 346 (5th Cir. 2024), cert. denied, 145 S. Ct. 414 (2024). While
“[w]e readily acknowledge the legal, social, and practical defects of the judicially contrived
qualified-immunity doctrine . . . we are powerless to scrap it.” Green v. Thomas, 129 F.4th
887, 890 (5th Cir. 2025).
23
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818).
24
U.S. Const. amend. IV.
25
Brower v. County of Inyo, 489 U.S. 593, 599 (1989).

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through means intentionally applied.” 26 Neither our circuit 27 nor others28
have definitively resolved whether a seizure occurs when law enforcement
intentionally targets a suspect but unintentionally strikes an innocent
hostage. But because the parties agree that La’Mello was seized when Doe
Trooper 1 shot him, we assume—without deciding—that a seizure occurred,
and proceed to consider whether the use of force was reasonable. 29
An officer’s use of force is unreasonable under the Fourth
Amendment if the plaintiff shows: “(1) injury, (2) which resulted directly and
only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable.” 30 La’Mello’s death plainly satisfies the

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26
Scott v. Harris, 550 U.S. 372, 381 (2007) (quoting Brower, 489 U.S. at 596–97)
(emphasis added).
27
See Singleton v. Casanova, No. 22-50327, 2024 WL 2891900, at *17 (5th Cir. June
10, 2024) (unpublished) (explaining that Ҥ 1983 claims asserted against law enforcement
officers for unintended injuries suffered by innocent hostages lack the willful detention
required to establish a Fourth Amendment seizure” but recognizing that a seizure may
occur if “an officer’s intentional conduct . . . target[s] more than one person” or if an
officer fires “indiscriminately” into a vehicle or home knowing that an innocent person is
inside).
28
Compare, e.g., Fisher v. City of Memphis, 234 F.3d 312, 318–19 (6th Cir. 2000)
(holding that a seizure occurred where an officer “intentionally applied exertion of force”
toward the vehicle’s driver and shot the passenger) with Landol-Rivera v. Cruz Cosme, 906
F.2d 791, 792, 795 (1st Cir. 1990) (finding no seizure where officers fired at a suspect driving
with a hostage on his lap and an “errant bullet” struck the hostage because the officers’
actions were not “directed toward” the hostage).
29
See Lytle v. Bexar County, 560 F.3d 404, 410 (5th Cir. 2009) (proceeding to the
reasonableness inquiry where the “parties [did] not dispute that . . . [innocent third party]
was ‘seized’ within the meaning of the Fourth Amendment when [the officer’s] bullet
struck her”).
30
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting
Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)).

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injury element. We therefore focus on the second and third elements, which
“collapse into a single objective-reasonableness inquiry.” 31
To assess whether the force used was reasonable, we apply the factors
outlined by the Supreme Court in Graham v. Connor: (1) “the severity of the
crime at issue,” (2) “whether the suspect poses an immediate threat to the
safety of the officers or others,” and (3) “whether he is actively resisting
arrest or attempting to evade arrest by flight.” 32 This analysis considers
factors such as the time officers had to make decisions, whether the force
used is “measured and ascending” in accordance with the suspect’s
aggression, whether the suspect signaled that he was armed, and whether he
moved toward or away from law enforcement. 33
We assess reasonableness “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” 34 And
we are rightly hesitant to “second-guess[ ] a police officer’s assessment,
made on the scene, of the danger presented by a particular situation” from
the calm remove of chambers. 35
Under these standards, we cannot conclude that it was objectively
unreasonable for the officers to return fire at Smith—even knowing there was
a substantial risk they might strike La’Mello. Smith—who that very morning
had murdered two people, opened fire on law enforcement, and abducted his
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31
Peña v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018).
32
Deville, 567 F.3d at 167 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
33
Singleton, 2024 WL 2891900, at *5.
34
Graham, 490 U.S. at 396.
35
Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021) (cleaned up); see also Graham,
490 U.S. at 396 (“‘Not every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers,’ . . . violates the Fourth Amendment.” (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973))).

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infant son—posed a grave and immediate threat to officers and to the
public. 36 Ample precedent supports the reasonableness of using deadly force
against an active shooter. 37 Although we have never addressed a case in which
officers returned fire at an active shooter knowing they might strike an
innocent bystander, we have granted qualified immunity in similar
situations—where officers used deadly force with an innocent person in
dangerous proximity. 38
The officers’ awareness of the high likelihood of striking La’Mello
does not alter our conclusion. The use of force here satisfies the Graham
factors, as well as broader principles that justify the use of deadly force.
Beginning with the first Graham factor, officers were pursuing Smith for
double homicide and the kidnapping of La’Mello—offenses both grave and
violent. Second—and most critically in a deadly force case 39—Smith posed a

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36
See Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (“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.”); see also Barnes v.
Felix, 145 S. Ct. 1353, 1356 (2025) (“To assess whether an officer acted reasonably in using
force, a court must consider all the relevant circumstances, including facts and events
leading up to the climactic moment.”).
37
See Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021) (“[T]his
court’s cases hold that ‘[a]n 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.’” (quoting Manis, 585 F.3d at 843));
Poole v. City of Shreveport, 13 F.4th 420, 425 (5th Cir. 2021) (emphasizing that the suspect
being armed is often the decisive factor in assessing the reasonableness of deadly force).
38
Harmon, 16 F.4th at 1163–67 (granting qualified immunity to an officer who fired
at a fleeing suspect despite the close proximity of an innocent passenger); Harman v. City
of Shannon, 104 F. App’x 398, 399 (5th Cir. 2004) (per curiam) (granting summary
judgment to officers who used deadly force against a vehicle rapidly approaching them,
rejecting the plaintiff’s excessive-force claim).
39
Singleton, 2024 WL 2891900, at *12 n.17 (“When an officer uses deadly force,
the second Graham factor is ‘generally the most important.’” (quotations omitted)).

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clear and immediate threat to the safety of officers and the surrounding
public. Smith had already fired at law enforcement once and had just done so
again. All this unfolded on open interstate. Westbound traffic was halted on
I-10, and Smith could have, in seconds, turned his weapon on passing
vehicles or reentered his car to resume the chase. 40 Even accepting Plaintiffs’
claim that Smith fired only at Deputy Allen, the “tense and evolving factual
circumstances” justified the officers’ belief that Smith posed a continuing
threat to them and to the public along the highway. 41 Third, Smith was
actively evading arrest—fleeing and firing at law enforcement. That Smith
had La’Mello in his arms does not alter the fact that each of the Graham
factors weighs decisively in favor of the officers.
Nor does Plaintiffs’ suggestion—that Deputy Allen created the
danger necessitating deadly force—alter the analysis. As the Supreme Court
recently clarified, the reasonableness of force “requires analyzing the
‘totality of the circumstances,’” 42 including whether officers “allegedly
created the danger necessitating deadly force.” 43 To be sure, Deputy Allen
ended the chase by ramming Smith’s vehicle and exposed himself to gunfire

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40
See Plumhoff v. Rickard, 572 U.S. 765, 776–77 (2014) (holding that deadly force
was reasonable where a suspect paused during a police chase, but “a reasonable officer
could have concluded [that the driver] was intent on resuming his flight” and would “pose
a deadly threat for others on the road”); Scott, 550 U.S. at 386 (noting that police
terminating a car chase that “threatens the lives of innocent bystanders does not violate the
Fourth Amendment”).
41
Romero v. City of Grapevine, 888 F.3d 170, 173–75, 178 (5th Cir. 2018) (holding
that deadly force was reasonable where, following a police chase of a robbery suspect, the
officer warned the suspect several times to keep hands visible, but the suspect failed to fully
comply and approached the officer).
42
Barnes, 145 S. Ct. at 1358 (quoting County of Los Angeles v. Mendez, 581 U.S. 420,
427–28 (2017)).
43
Id. at 1360.

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to retrieve his K9. And perhaps, but for those actions, the ensuing shootout
might not have occurred. But it was Smith—not Deputy Allen—who created
the encounter by opening fire, prompting the officers to respond in kind.
That singular fact distinguishes this case from Barnes, where the officer
invited danger by leaping onto a suspect’s moving vehicle to prevent flight.44
Here, Deputy Allen acted reasonably in seizing a safe opportunity to end a
perilous pursuit. 45 It was Smith who turned the encounter deadly. 46
The reasonableness analysis also considers how quickly officers resort
to force, 47 and how close they are to the threat when doing so. 48 Both factors
favor the officers here. Aware that a child’s life was at risk, they did not rush
to employ deadly force. When Smith fired at officers earlier, they held their
fire and instead employed nonlethal measures—roadblocks, spike strips, and
ramming his vehicle. Only after Smith fired again did the officers return fire.
Deputy Allen was just fifteen feet from Smith’s vehicle when he left cover—
and Smith opened fire. At that moment, officers “did not have the luxury of
engaging in negotiation or deliberation” to persuade Smith to put down his
weapon or step away from La’Mello. 49 They returned fire swiftly, in direct

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44
Id.
45
See Pasco v. Knoblauch, 566 F.3d 572, 580 (5th Cir. 2009) (acknowledging “the
generally inherent danger that suspects fleeing from police in vehicles pose to the public—
even when no bystanders or other motorists are immediately present” (citing Scott, 550
U.S. at 384–85)).
46
See, e.g., Easom v. US Well Servs., Inc., 37 F.4th 238, 246 (5th Cir. 2022)
(acknowledging that a proximate cause cannot be too attenuated from the result)
47
Harmon, 16 F.4th at 1165.
48
Sanchez v. Edwards, 433 F. App’x 272, 276 (5th Cir. 2011) (per curiam).
49
Harmon, 16 F.4th at 1165.

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response to Smith’s own shot—more than what the law requires to justify
deadly force. 50
The tragic facts of this case make our conclusion difficult. We do not
and cannot condone the shooting of an innocent child by law enforcement.
But the law requires us to assess reasonableness from the vantage of a
reasonable officer on the scene—not with the clarity of 20/20 hindsight. And
from that perspective, we cannot deem it unreasonable for officers to return
fire at an active shooter who had endangered both them and the public—even
if, tragically, the shooter used an innocent child as a shield. To hold otherwise
would risk discouraging officers from taking decisive action in active-shooter
situations. Would it be preferable for officers to hesitate—to allow an armed
assailant using an innocent shield to escape, risking still more potential lives?
The officers here were forced to make that fraught moral judgment in the
split second after Smith fired on one of their own—“in haste, under pressure,
and . . . without the luxury of a second chance.” 51 We cannot second-guess
that decision after the fact—from the remove and repose of our chambers. 52
As the First Circuit has aptly observed:
It is inevitable that the police response to violent crime will at
times create some risk of injury to others, including innocent
bystanders. We decline to hold that the mere presence of risk
reflects a callous indifference to the constitutional rights of
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50
See Ramirez v. Knoulton, 542 F.3d 124, 130 (5th Cir. 2008) (“The Fourth
Amendment does not require police officers to wait until a suspect shoots to confirm that
a serious threat of harm exists.” (quoting Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.
1996))); cf. Harmon, 16 F.4th at 1165 (concluding that deadly force may be unreasonable
when officers “deliberately, and rapidly, eschew lesser responses” despite the fact that
“such means are not only plainly available but also obviously recommended by the
situation”).
51
Whitley v. Albers, 475 U.S. 312, 320 (1986).
52
Graham, 490 U.S. at 396.

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those individuals potentially harmed. Any other conclusion
would both chill law enforcement officers in the performance
of their duties and encourage hostage-taking and criminal
activity in public settings so as to minimize police
intervention. 53
The officers’ use of force, while tragic in consequence, was not
excessive. They did not violate La’Mello’s Fourth Amendment rights.
2
Even assuming a constitutional violation, the officers are entitled to
qualified immunity because the unlawfulness of their conduct was not clearly
established at the time. 54
We have never held that returning fire at an active shooter who is
holding a hostage constitutes a Fourth Amendment violation. And while
plaintiffs need not identify “a case directly on point” in order to show the law
was clearly established, they must provide “authority at a sufficiently high
level of specificity” to put law enforcement officers on notice that such
conduct “is definitively unlawful.” 55
Plaintiffs chiefly rely on Coon v. Ledbetter, which upheld a
constitutional claim after an officer fired indiscriminately into a trailer,
knowing the suspect’s four-year-old daughter was inside. 56 But Coon turns on

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53
Landol-Rivera, 906 F.2d at 797; see also Scott, 550 U.S. at 385 (declining to adopt
a rule that would create “perverse incentives” for fleeing suspects).
54
See Bailey v. Ramos, 125 F.4th 667, 681 (5th Cir. 2025) (holding that even if a fact
dispute existed as to whether the officer’s actions were unlawful, the officer was
nonetheless entitled to qualified immunity because the unlawfulness of conduct was not
clearly established).
55
Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015).
56
780 F.2d 1158, 1159–61 (5th Cir. 1986).

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a critical distinction: The suspect there was no longer actively shooting when
officers returned fire. 57 Here, by contrast, Smith had just fired at Deputy
Allen and was visibly aiming his weapon through the vehicle window. The
officers did not fire “indiscriminately”—they fired directly at Smith, who,
tragically, was holding La’Mello in his arms. Smith’s active use of deadly
force at the moment officers fired back places this case outside Coon’s ambit.
Coon therefore cannot provide the clearly established law necessary to
overcome qualified immunity. 58
Plaintiffs also cite Grandstaff, but it, too, is distinguishable. There,
officers mistakenly shot and killed an innocent man, believing he was an
armed suspect they were pursuing nearby. 59 We upheld a jury verdict finding
that use of deadly force was unjustified. 60 But unlike the Grandstaff officers—
who “poured their gunfire at the truck and into the [innocent] person”
“without awaiting any hostile act or sound” 61—the officers here fired only
after Smith shot first. Moreover, the Grandstaff officers “showed no
inclination to avoid inflicting unnecessary harm upon innocent people. They
simply saw a target and fired.” 62 Here, by contrast, the officers exercised
restraint—holding their fire even after Smith shot at them once and only

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57
Id. at 1159–60.
58
Even setting aside those key factual distinctions, Coon cannot provide fair
warning to law enforcement that such conduct violates the Constitution. Our Coon decision
reversed a § 1983 damages award based on improper jury instructions that “improperly
blend[ed] simple negligence and the claimed deprivation of [a] constitutional right.” Id. at
1162. As a result, neither the jury nor the court ever squarely addressed whether the
officers’ use of force was excessive under the Fourth Amendment. Id. at 1164.
59
Grandstaff, 767 F.2d at 165.
60
Id. at 168.
61
Id.
62
Id.

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responding when he fired directly at Deputy Allen. The recklessness that
doomed the officers’ conduct in Grandstaff is absent here. That case thus
cannot provide “clearly established law” rendering the officers’ conduct
unconstitutional.
In sum, no case cited by Plaintiffs—nor any precedent in this circuit—
would have “provided ‘fair warning’ to the defendants ‘that their alleged
conduct was unconstitutional.’” 63 Accordingly, even if the officers’ decision
to fire at Smith while he held La’Mello constituted a constitutional violation,
the law was not clearly established at the time of the incident—and qualified
immunity applies.
B
Turning to the ramming of Smith’s car, we again begin with the first
qualified-immunity prong: whether the officers violated La’Mello’s Fourth
Amendment rights.
The ramming of Smith’s car plainly constituted a seizure as to
Smith. 64 But whether it also amounted to a seizure of La’Mello—who was
not the intended target—is far less certain. Still, even assuming the ramming
qualifies as a seizure of La’Mello, Plaintiffs’ excessive-force claim falters for
want of a critical element: injury. 65 Plaintiffs acknowledge that La’Mello
sustained no injury from the ramming itself—only from the gunshot that

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63
Tolan v. Cotton, 572 U.S. 650, 656 (2014) (cleaned up).
64
See Brower, 489 U.S. at 597 (explaining that if officer had sideswiped a fleeing
vehicle during a pursuit, “the termination of the suspect’s freedom of movement would
have been a seizure”); Pasco v. Knoblauch, 566 F.3d 572, 582 (5th Cir. 2009) (granting
qualified immunity to an officer who ended a chase by bumping the suspect’s car off the
road).
65
See Deville, 567 F.3d at 167 (listing injury as first element of excessive force
claim).

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ultimately claimed his innocent life. To the extent Plaintiffs argue that the
ramming escalated the confrontation, culminating in the fatal gunfire, that
contention concerns the viability of their shooting claim—not the ramming
itself. As discussed above, the officers are entitled to qualified immunity for
the shooting.
Because Plaintiffs do not allege that La’Mello suffered any injury from
the ramming, they have not shown that Deputy Allen used excessive force in
violation of La’Mello’s constitutional rights. Deputy Allen is therefore
entitled to qualified immunity.
V
Plaintiffs alternatively argue that the officers’ use of excessive force
violated La’Mello’s substantive due process rights under the Fourteenth
Amendment. This argument fails for two independent reasons.
First, although excessive force claims may sometimes be brought
under the substantive due process clause of the Fourteenth Amendment,
they must be analyzed under the Fourth Amendment when that more specific
constitutional provision applies. That is, when a particular amendment
provides an explicit textual source of constitutional protection, “the claim
must be analyzed under the standard appropriate to that specific provision,
not under the rubric of substantive due process.” 66 Accordingly, a due
process claim is viable only when the alleged misconduct is “not susceptible
to proper analysis” under the Fourth Amendment. 67 Here, because the
parties do not dispute that a seizure occurred, the Fourth Amendment
governs. That alone forecloses Plaintiffs’ Fourteenth Amendment claims.

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66
United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997).
67
Petta v. Rivera, 143 F.3d 895, 901 (5th Cir. 1998).

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Second, even if we assumed the Fourteenth Amendment applied,
Plaintiffs’ claims would still fail on the merits. The Fourteenth Amendment
forbids any State from depriving a person of “life, liberty, or property,
without due process of law.” 68 The Supreme Court has made clear that only
the most extreme use of force violates the Fourteenth Amendment—namely,
actions that “can properly be characterized as arbitrary[] or conscience
shocking.” 69 This is a deliberately high bar. “[O]nly the most egregious
official conduct can be said to be ‘arbitrary in the constitutional sense.’” 70
Conduct shocks the conscience only when it is “so ‘brutal’ and ‘offensive’
that it did not comport with traditional ideas of fair play and decency.” 71
Indeed, “even precipitate recklessness fails to inch close enough to harmful
purpose to spark the shock that implicates” constitutional protections. 72 “A
purpose to cause [the] harm is needed . . . .” 73 Nothing in the officers’
conduct meets that demanding threshold.
Ramming a suspect’s vehicle to end a pursuit is not the kind of
arbitrary or conscience-shocking conduct the Constitution forbids. Nor do
Plaintiffs allege that Deputy Allen intended to harm La’Mello when he
rammed the car. They concede the act amounted, at most, to “reckless

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68
U.S. Const. amend. XIV, § 1.
69
Collins, 503 U.S. at 128.
70
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Collins, 503 U.S.
at 129).
71
Id. at 847 (quoting Breithaupt v. Abram, 352 U.S. 432, 435 (1957)).
72
Id. at 853.
73
Id. at 854.

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endangerment,”—conduct insufficient to state a Fourteenth Amendment
violation. 74
And although a closer call, firing at an active shooter using a human
shield is likewise neither arbitrary nor conscience-shocking. Plaintiffs do not
claim that officers intended to harm La’Mello. Their intended target was
Smith. Even assuming the decision to fire was “precipitate recklessness,”
that is not enough. Recklessness, however tragic in outcome, does not meet
the Fourteenth Amendment’s demanding standard. 75 With the benefit of
hindsight, one might question the officers’ decision to fire when they did. But
firing back at an active shooter who posed an immediate threat to officers and
bystanders is not so indisputably “brutal” or “offensive” as to cross the
constitutional line. 76 And in any event, Plaintiffs cite no precedent in our
circuit clearly establishing that such conduct violates the Fourteenth
Amendment.
The officers are therefore entitled to qualified immunity on Plaintiffs’
Fourteenth Amendment claims.
VI
In addition to their direct Fourth Amendment and Fourteenth
Amendment claims, Plaintiffs assert bystander liability under § 1983 against

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74
See id. at 853.
75
See id.
76
See id. at 847; see also Medeiros v. O’Connell, 150 F.3d 164, 166–67, 170 (2d Cir.
1998) (holding that an officer’s decision to fire at a suspect in vehicle also occupied by a
hostage did not “shock the conscience”); Landol-Rivera, 906 F.2d at 796–98 (concluding
that officers did not violate the hostage’s Fourteenth Amendment rights by shooting at a
suspect who held the hostage on his lap); Cooper v. Rutherford, 503 F. App’x 672, 673, 677
(11th Cir. 2012) (per curiam) (observing that no precedent clearly establishes that shooting
at a suspect’s car containing innocent hostages is conscience-shocking).

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each individual officer and seek municipal liability under Monell against the
Mississippi DPS, the City of Gulfport, and Harrison County. The district
court properly dismissed both claims.
Both bystander liability and municipal liability require Plaintiffs to
plead an underlying constitutional violation. 77 As discussed above, Plaintiffs
have not plausibly alleged a violation of La’Mello’s Fourth or Fourteenth
Amendment rights. Accordingly, we agree with the district court that
Plaintiffs’ bystander-liability and municipal-liability claims fail.
VII
La’Mello Parker’s death is an unspeakable tragedy. And no outcome
in this case can undo the anguish of a life cut short or ease the sorrow of those
who mourn him.
La’Mello’s family has standing to seek justice on his behalf against
every officer involved in the tense and volatile sequence of events that
culminated in the shooting. But the constitutional standards that bind us do
not turn on hindsight or heartbreak. Judged from the perspective required by
law—that of officers forced to make split-second decisions under threat of
lethal violence—we cannot say their conduct was unconstitutional. Faced
with an armed fugitive who had murdered two people, who posed a grave and
immediate danger to officers and the public, and who despicably used his
infant son as a shield—the officers’ decision to return fire, though
devastating in its consequence, was not unreasonable, nor did it rise to the
level of conduct that shocks the conscience.

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77
See Hamilton v. Kindred, 845 F.3d 659, 663 (5th Cir. 2017) (outlining the elements
required to establish bystander liability under § 1983); Rivera v. Hous. Indep. Sch. Dist., 349
F.3d 244, 247 (5th Cir. 2013) (reciting the elements necessary to plead municipal liability
under Monell).

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Bound by our controlling precedent, we therefore AFFIRM the
district court’s dismissal of Plaintiffs’ claims.

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11066873. Public record. Not legal advice.