Deidra Clayton v. Columbia Casualty Company

Case: 13-30116 Document: 00512454429 Page: 1 Date Filed: 11/26/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

November 26, 2013

No. 13-30116 Lyle W. Cayce

Clerk

DEIDRA CLAYTON, Individually and on behalf of Jonathan Clayton;

ANGELA BURKE,

Plaintiffs - Appellants

v.

COLUMBIA CASUALTY COMPANY; DAVID JOHNSON, Individually and

in his Official Capacity as Livingston Parish Sheriff’s Deputy; WILLIE

GRAVES, Individually and in his Official Capacity as Livingston Parish

Sheriff,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:11-CV-845

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM: *

In this challenge to summary judgment’s being granted Appellees,

primarily at issue is the qualified immunity granted Deputy David Johnson.

Concerning the Deputy, the district court ruled: his use of deadly force

(shooting) against Jonathan Clayton did not violate the Fourth Amendment;

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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in the alternative, the Deputy was entitled to qualified immunity. The

judgment in favor of the Deputy, Sheriff Willie Graves, and Columbia Casualty

Company is AFFIRMED.

I.

As discussed infra, the following facts are presented, to the greatest

extent possible, in the light most favorable to Appellants Deidra Clayton and

Angela Burke, decedent’s mother and sister, respectively. See Scott v. Harris,

550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one

of which is blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the facts for purposes

of ruling on a motion for summary judgment.”).

Summary-judgment evidence attributable to Clayton’s sister, Burke, is

provided through the recording of her 911 telephone call at 6:45 a.m. the

morning of the incident, 4 April 2011; her statement to law enforcement the

same day, approximately one hour after the incident; her 10 May 2012

deposition; and her 30 November 2012, post-summary-judgment declaration in

support of Appellants’ motion to alter or amend, or for relief from, the

judgment. Summary-judgment evidence attributable to Deputy Johnson is

provided, inter alia, through the 4 April 2011 radio log recording between the

Deputy and the sheriff’s office; his 14 April 2011 statement to law enforcement;

and his 18 September 2012 deposition.

At approximately 6:30 a.m. on 4 April 2011, Burke witnessed Clayton

beating his girlfriend, Krystyna Westmoreland, on the porch of the trailer

located on the back of Burke’s property. Clayton beat Westmoreland on the

head with a metal bar, strangled her, and threatened to kill her.

Westmoreland, bleeding profusely, escaped to the front of the property where

Burke invited her into Burke’s house. Once inside, Burke called 911.

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(Although, in her deposition, Burke testified she never saw Clayton hit

Westmoreland with anything other than his fists, Burke reported to the 911

operator her brother had beaten his girlfriend with a metal pipe.)

At some point, Burke saw Clayton smash the windows of

Westmoreland’s vehicle, parked by the trailer. Clayton walked up the

driveway to Burke’s house carrying a knife she described in her statement as

“a long filet knife” with a seven-inch blade. (In her deposition she stated the

blade was ten to 12 inches.) Burke then told the 911 operator she had a gun

and would shoot Clayton to protect her family and herself. As Burke heard

sirens getting closer, Clayton walked back to Westmoreland’s vehicle, slashed

its tires with the knife, and went inside the trailer.

Deputy Johnson was dispatched to the Clayton residence and was

informed the subject beat his girlfriend with some type of object, there were

slashed tires, “busted windows”, possibly a knife, and the suspect’s sister was

threatening to shoot the suspect. Though the parties disagree over whether

Burke spoke with the Deputy when he arrived, at the very least Burke directed

the Deputy to the trailer.

Approximately ten to 15 minutes elapsed between the Deputy’s arrival

and his shooting Clayton. The parties disagree over whether Clayton went

back into the trailer after the Deputy ordered him out. According to Burke,

once Clayton walked outside, he did not go back in; according to the Deputy,

Clayton walked out of the trailer once, went back inside, and then walked out

again. The record correlates with the Deputy’s version of events.

Consequently, what follows is a description of what occurred according to the

Deputy, insofar as it is not directly contradicted by Burke. See Scott v. Harris,

550 U.S. at 380.

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After parking behind Westmoreland’s vehicle, the Deputy ran to the

trailer door with his firearm drawn and found the door locked. He holstered

his weapon and told Clayton to come out, but Clayton yelled through the closed

door that he had a gun. In response, the Deputy drew his firearm, backed off

the porch, and again told Clayton to come out. Clayton walked out and toward

the Deputy with a hand behind his back, ignored the Deputy’s commands to

show his hands, and repeatedly called the Deputy a “pussy” for not shooting

him. Clayton “hollered”: “If you’re going to pull a gun on me, you better use it”;

“I am going to shoot you, you fucking pussy”; and “I am going to make you shoot

me. I want to commit suicide”. The Deputy announced over the radio, “He’s

threatening to shoot!”, after which the dispatcher requested all available units

go to the Clayton residence because the suspect was “threatening to shoot”.

Based on this exchange, the Deputy assumed Clayton was armed with a

gun. As Clayton made his way back up the porch, went inside, and shut the

door, the Deputy saw the weapon was instead a knife, after which he

announced over the radio: “He’s got a knife, he’s barricaded himself back in

the door”. Deputy Johnson tried to get Clayton to come outside again, but

Clayton only opened the door, remaining behind the closed screen. The Deputy

watched Clayton use the knife to cut his neck, after which Clayton came out of

the trailer and started quickly moving toward him; the Deputy announced over

the radio, “He’s cut himself with a knife”, and then later, “He’s cut himself

around the neck”; the Deputy also announced over the radio “He’s threatening

an 8-29 by cop” (which the Deputy clarified during his deposition means

suicide). Deputy Johnson repeatedly told Clayton to stop and “[l]ay the weapon

down”; but Clayton kept moving toward him, yelling “I am going to make you

shoot me you fucking pussy. Shoot me mother fucker. You are going to shoot

me you pussy”.

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In her statement, Burke explained: Clayton walked “real ugly like, scary

like” toward the Deputy; as Clayton walked, he screamed: “Shoot me! Shoot

me!”, called Deputy Johnson “‘pussy’ because he wouldn’t shoot him”, and

hollered other “stuff like that”; Clayton kept “aggressively walking” toward the

Deputy, screaming, hollering, and throwing his hands in the air; and, although

the Deputy told Clayton to “stop where you’re at”, Clayton would not comply

and ultimately came within five feet of the Deputy before he was shot.

Similarly, in her deposition, Burke testified Clayton called the Deputy a

“pussy” and hollered at him: “If you’re going to pull a gun on me, you better use

it”; and “Shoot me, mother fucker”. (Despite her earlier statement, when asked

at her deposition whether Clayton “aggressively walked” toward Deputy

Johnson, she responded: “He was holler—yes. He was hollering at him”.)

As Clayton continued forward, the Deputy fired one shot, hitting Clayton

in the chest and killing him. The Deputy immediately announced “Shots fired”

over his radio, after which Deputy Fiske arrived. (After the radio log noted the

time as 7:06 a.m., Deputy Johnson can be heard on the recording yelling “Shots

fired! Shots fired!” Video from Deputy Fiske’s dashboard camera shows less

than ten seconds passed between the “Shots fired” announcement and when he

turned onto Burke’s driveway. Nevertheless, in her deposition, Burke stated

she stood in the middle of her driveway for longer than a minute, and Deputy

Fiske arrived a couple of minutes after the shooting. In his video, Burke is

neither seen on the driveway nor outside her house.)

In December 2011, this action was filed, inter alia, pursuant to 42 U.S.C.

§ 1983 against the Deputy for, inter alia, excessive and unreasonable use of

deadly force; and against Sheriff Graves for, inter alia: maintaining a policy

and custom of ignoring the parish’s policy and procedure manual, as well as

failing to properly train and equip patrol deputies. Columbia Casualty

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Company, liability insurer for the sheriff’s office and the Sheriff, was included

as a party. Appellees invoked qualified immunity in their answer, and, after

discovery, moved for summary judgment.

In granting summary judgment to Deputy Johnson, the district court

concluded: his use of deadly force was justified by the presence of an immediate

threat of serious harm or death to himself or others and, therefore, did not

violate the Fourth Amendment, irrespective of whether Clayton held a knife at

the moment the Deputy shot him; and, in the alternative, if the Deputy’s

conduct violated the Fourth Amendment, a reasonable officer in his position

would not have known the use of deadly force was unlawful in the light of

clearly-established law, vesting the Deputy with qualified immunity. Because

there was no violation of Clayton’s constitutional rights, the court granted

Sheriff Graves summary judgment with respect to all claims against him in

his individual and official capacity. The state-law claims were dismissed

without prejudice and are not at issue in this appeal. Clayton v. Columbia Cas.

Co., No. 11–845, 2012 WL 5835676, at *19 (M.D. La. 16 Nov. 2012).

II.

A summary judgment is reviewed de novo. E.g., Tolan v. Cotton, 713

F.3d 299, 304 (5th Cir. 2013). It is proper if movant shows: no genuine dispute

as to any material fact; and entitlement to judgment as a matter of law. FED.

R. CIV. P. 56(a). “A dispute is ‘genuine’ if the evidence is sufficient for a

reasonable jury to return a verdict for the nonmoving party.” Poole v. City of

Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (citation omitted). “A fact issue

is ‘material’ if its resolution could affect the outcome of the action.” Id. (citation

omitted). As discussed supra, generally “all facts and inferences are construed

in the light most favorable to non-movants”. Tolan, 713 F.3d at 304 (citation

omitted).

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To avoid summary judgment, the nonmovant may not rest, inter alia, on

conclusory allegations or unsubstantiated assertions. E.g., Tillman v. S. Wood

Preserving of Hattiesburg, Inc., 250 F. App’x 622, 624 (5th Cir. 2007) (citation

omitted); see also Winfrey v. San Jacinto Cnty., 481 F. App’x 969, 974 n.5 (5th

Cir. 2012) (“Unsubstantiated assertions, improbable inferences, and

unsupported speculation, however, are not sufficient to defeat a motion for

summary judgment”.) (citation and internal quotation marks omitted).

Rather, the nonmovant must set forth specific facts to show a genuine dispute.

E.g., Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000).

A.

Deputy Johnson was sued in his official and individual capacity. On

appeal, Appellants failed, however, to brief their official-capacity claims

against the Deputy. Therefore, they are abandoned. E.g., Gates v. Tex. Dep’t

of Protective & Regulatory Servs., 537 F.3d 404, 438 (5th Cir. 2008) (citation

omitted). As a result, for the Deputy, we consider only his individual capacity.

(In the alternative, for the reasons that follow, no genuine dispute of material

fact would preclude the Deputy’s not being liable in his official capacity.)

Concerning that individual capacity, qualified immunity promotes the

necessary, effective, and efficient performance of governmental duties, Harlow

v. Fitzgerald, 457 U.S. 800, 807 (1982), by shielding from suit “all but the

plainly incompetent or those who knowingly violate the law”. Brumfield v.

Hollins, 551 F.3d 322, 326 (5th Circ. 2008) (citation and internal quotation

marks omitted); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (qualified

immunity is immunity from suit, not merely an affirmative defense to

liability). Accordingly, “for review of a summary judgment upholding qualified

immunity, plaintiff bears the burden of showing a genuine dispute of material

fact”. Tolan, 713 F.3d at 304 (citing Michalik v. Hermann, 422 F.3d 252, 262

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(5th Cir. 2005) (qualified-immunity defense alters summary judgment burden

of proof)).

In other words, after defendant properly invokes qualified immunity,

plaintiff bears the burden to rebut its applicability. Crostley v. Lamar Cnty.,

Tex., 717 F.3d 410, 422 (5th Cir. 2013) (quoting McClendon v. City of Columbia,

305 F.3d 314, 323 (5th Cir. 2002)). To abrogate a public official’s right to

qualified immunity, plaintiff must show: first, the official’s conduct violated a

constitutional or statutory right; and second, the official’s “actions [constituted]

objectively unreasonable [conduct] in [the] light of clearly established law at

the time of the conduct in question”. Brumfield, 551 F.3d at 326 (alteration

added) (citation omitted).

For an excessive-force claim, plaintiff clears the first prong of the

qualified-immunity analysis at the summary-judgment stage by showing a

genuine dispute of material fact for whether plaintiff sustained: “(1) an injury

(2) which resulted from the use of force that was clearly excessive to the need

and (3) the excessiveness of which was objectively unreasonable”. Ramirez v.

Martinez, 716 F.3d 369, 377 (5th Cir. 2013) (quoting Rockwell v. Brown, 664

F.3d 985, 991 (5th Cir. 2011)).

For the second prong at the summary-judgment stage, plaintiff must

similarly show a genuine dispute of material fact for two distinct, but

intertwined, elements. “The second prong of the qualified immunity test is

better understood as two separate inquiries: whether the allegedly violated

constitutional rights were clearly established at the time of the incident; and, if

so, whether the [defendant’s conduct] was objectively unreasonable in the light

of that then clearly established law.” Hare v. City of Corinth, Miss., 135 F.3d

320, 326 (5th Cir. 1998) (alteration added) (emphasis in original) (citation

omitted).

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In the excessive-force context at issue here, although the long-

established two prongs of the qualified-immunity analysis contain “objective

reasonableness” elements, those prongs remain distinct and require

independent inquiry. Brumfield, 551 F.3d at 326. Importantly, the sequence

of the analysis is immaterial, Pearson v. Callahan, 555 U.S. 223, 236 (2009);

qualified immunity may be granted without deciding the first prong if plaintiff

fails to satisfy the second, Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir.

2010). Deciding the second prong first is often advisable; for example, if, as

here, a constitutional right is claimed to have been violated (first prong), “[t]his

approach [of first addressing the second prong] comports with [the] usual

reluctance to decide constitutional questions unnecessarily”. Reichle v.

Howards, 132 S. Ct. 2088, 2093 (2012) (alterations added).

Appellants contend the summary judgment resulted from the district

court’s erroneously considering Deputy Johnson’s testimony that Clayton came

at him, with his hands in the air, yelling he was going to make the Deputy

shoot him. Based on these statements, the court concluded the Deputy faced

a threat of immediate harm and, therefore, was justified in his use of deadly

force. In Appellants’ motion to reconsider, which the district court

subsequently denied, they attached a declaration by Burke stating Clayton

never said he was going to make the Deputy shoot him. Rather, according to

Appellants, it is only undisputed that “Clayton and [Deputy] Johnson were

hollering back and forth”, Clayton waved his arms as he walked toward the

Deputy, Clayton was suicidal, and Clayton “invited [Deputy] Johnson to shoot

him”. According to Appellants, at the moment the Deputy shot Clayton, his

“arms were at his sides as he walked”.

Moreover, Appellants claim there is a substantial difference between

whether Clayton yelled, “I am going to make you shoot me!” rather than “Shoot

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me! Shoot me!”, called Deputy Johnson a “pussy” for not shooting him, and

stated: “if you’re going to pull a gun on me, you better use it”. But, the

undisputed summary-judgment evidence shows the Deputy was confronted

with an individual who attacked his girlfriend with a metal bar, damaged her

vehicle, and injured himself with a knife; his sister, Burke, threatened to shoot

him; Clayton claimed he had a gun; he threatened to shoot the Deputy; he

continued to “holler” and failed to obey the Deputy’s orders to stop; he

continued to walk toward the Deputy, causing him to move back toward

Burke’s house, even though the Deputy had a gun pointed at him; and the

Deputy stood between Clayton and the victim, and other innocent bystanders.

Appellants emphasize Burke’s statement that, at the moment the

Deputy shot Clayton, his arms were at his sides as he walked. They emphasize

the significance of this alleged fact, claiming the “focus of the inquiry is the act

that led the officer to discharge his weapon”. Nevertheless, “strict reliance” on

the precise moment an officer fires his weapon is inappropriate when the

totality of the circumstances is “the touchstone of the reasonableness inquiry”.

Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1318 (10th Cir. 2009).

Finally, the parties dispute whether Clayton held a knife when he

walked toward the Deputy. Appellants continue to contend Clayton did not

have one. In her post-shooting statement, when asked whether she saw

anything in Clayton’s hands, Burke answered: “Not at that time . . . . I saw the

knife earlier”. When asked during her deposition whether Clayton held

anything, she answered: “No, because he was flailing [his hands] up in the air.

I can see whether—that his hands are empty”. Burke also stated in her

deposition: the knife Clayton approached her house with and used to slash

Westmoreland’s tires was not found near his body; rather, she found the knife

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in the trailer after police left; and there was no knife near where Clayton fell

after being shot.

On the other hand, Deputy Johnson explained in his 14 April 2011

statement to law enforcement and his 18 September 2012 deposition that, after

announcing “Shots fired”, he circled Clayton with his gun drawn until he saw

Deputy Fiske arrive, then kicked the knife out of Clayton’s hand. Though it is

not entirely clear in Deputy Fiske’s video, Deputy Johnson does kick something

away from Clayton’s body. The video also reflects: once by the trailer, Deputy

Fiske asked: “Where’s the weapon?”; Deputy Johnson pointed to the object and

stated, “Right there”; and, as Deputy Fiske secured the scene, an officer stood

over the knife so it was not disturbed by those arriving on the scene.

In addition to Burke’s deposition and affidavit, Appellants rely on

Westmoreland’s deposition and statements given by first responders on the

scene. (The first responders included firemen and paramedics who arrived at

Burke’s residence before Deputy Johnson, but did not go on scene until law

enforcement arrived; once the Deputy arrived, the first responders moved on

scene to assist Westmoreland.) Westmoreland claimed she saw Clayton come

out of the trailer and walk toward Deputy Johnson. Although she did not see

the Deputy fire his gun, she did “see [Clayton’s] hands and could see that he

was not holding a knife or any other object”. Appellants also contend no first

responder on the scene “saw a knife in Clayton’s hand and none of them heard

[Deputy] Johnson tell Clayton to put down a knife”.

Notably, first responders did not say they did not see a knife. Rather, no

first responder mentioned a knife in his statement. For example, one stated:

he saw the Deputy in the driveway with his gun drawn and pointed at Clayton;

the Deputy ordered Clayton to get on the ground, but Clayton would not follow

these commands; and Clayton then went “up the stairs of the trailer”.

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Similarly, another stated: “[the] victim was aproching [sic] the officer in a

hostile manner with his hand behind his back. The officer was shouting

commands and the victim would not comply. The victim started to walk

backwards onto the porch”. Yet another explained: “We saw the deputy . . .

trying to get the victim to comply . . . . The victim had his right hand behind

his back . . . . We were then alerted by a female in the front residence that there

was a female victim in the house with her . . . [and] the [deputy] was telling

the victim to get on his knees, and show him his hands. The victim was not

complying”. The statements by first responders are far from enough to create

a genuine dispute of material fact. See Chappell v. City of Cleveland, 585 F.3d

901, 913-14 (6th Cir. 2009) (statements of witnesses who did not hear police

announcements did not refute detectives’ testimony that they made such

announcements).

Appellants contrast the facts of this case with those in Tolan, and claim,

unlike Tolan, this case is not about an officer’s reasonable mistake. Instead,

they maintain: because Burke testified there was no knife in Clayton’s hands

and because Deputy Johnson is adamant Clayton held a knife, the Deputy is

lying. Along this line, they contend that, “to assume [] Clayton was unarmed

is to assume [Deputy Johnson] repeatedly offered false and perjured

testimony”. This is an unsubstantiated assertion. See Boudreaux v. Swift

Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (explaining non-moving

party’s burden is not satisfied by “some metaphysical doubt as to the material

facts, by conclusory allegations, by unsubstantiated assertions, or by only a

scintilla of evidence”). On the other hand, there is much evidence to show

Clayton held a knife, including: the knife found near Clayton’s body, the cut

on Clayton’s neck visible in his autopsy photographs, Clayton’s blood on the

knife (confirmed by DNA analysis), crime scene photographs of the knife near

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Clayton’s body, video of an officer standing over the knife, as well as the radio-

log recording between Deputy Johnson and the sheriff’s office in which the

Deputy stated Clayton had a knife. In any event, whether Clayton held a knife

at the moment Deputy Johnson shot him is not determinative. Even assuming

there was no knife, the Deputy is entitled to qualified immunity.

Despite evidence to the contrary, Appellants also claim a recording from

Deputy Johnson’s dashboard camera existed, was considered by one of

Appellees’ experts, and was subsequently destroyed or withheld by Appellees.

As a result, they claim this court is obligated to infer the missing video was

unfavorable to Appellees. Appellants, however, do not offer supporting

evidence. “[A]t the summary judgment stage, we require evidence—not

absolute proof, but not mere allegations either”. Ontiveros v. City of Rosenberg,

Tex., 564 F.3d 379, 383 (5th Cir. 2009) (quoting Reese v. Anderson, 926 F.2d

494, 499 (5th Cir. 1991) (internal quotation marks omitted)). A finding of

spoliation requires the “bad faith” destruction of evidence relevant to the

litigation. Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005)

(“The Fifth Circuit permits an adverse inference against the destroyer of

evidence only upon a showing of ‘bad faith’”.); Rimkus Consulting Group, Inc.

v. Cammarata, 688 F. Supp. 2d 598, 612-13 (S.D. Tex. 2010). But, again,

Appellants have not provided any evidence the video existed; instead, they

offer only a conclusory allegation.

1.

As noted, exercising the above-referenced “usual reluctance to decide

constitutional questions unnecessarily”, Reichle, 132 S. Ct. at 2093, we do not

reach the first prong of qualified-immunity analysis: whether a genuine

dispute of material fact exists for whether Deputy Johnson’s shooting Clayton

violated his Fourth Amendment right against excessive force. As discussed

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above, showing a genuine dispute for violation of a constitutional right does

not end the inquiry when qualified immunity has been invoked properly.

2.

A right is sufficiently clear, and therefore “clearly established”, when

“every ‘reasonable official would have understood that what he is doing violates

that right’”. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[E]xisting precedent must

[] place[] the statutory or constitutional question beyond debate”. Reichle, 132

S. Ct. at 2093 (quoting al-Kidd, 131 S. Ct. at 2083). This “clearly-established”

standard balances the vindication of constitutional or statutory rights and the

effective performance of governmental duties by ensuring officials can

“reasonably . . . anticipate when their conduct may give rise to liability for

damages”. Davis v. Scherer, 468 U.S. 183, 195 (1984). As discussed supra, this

second-prong question of whether the law was clearly established cannot be

untethered from the concomitant question of whether the challenged conduct

was objectively unreasonable in the light of that clearly-established law. Poole,

691 F.3d at 630.

It is undisputed that, when Deputy Johnson shot Clayton, an officer had

a clearly-established right to use deadly force if he harbored an objective and

reasonable belief a suspect presented an “immediate threat to [his] safety”.

Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009); see also Ontiveros, 564

F.3d 379; Young v. City of Killeen, Tex., 775 F.2d 1349 (5th Cir. 1985). For

Appellants to prevent Deputy Johnson’s succeeding on this second prong, they

must show a genuine dispute of material fact on whether “every ‘reasonable

official would have understood’” the use of deadly force was objectively

unreasonable under the circumstances and clearly-established law. See al-

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Kidd, 131 S. Ct. at 2083; Buchanan v. Gulfport Police Dep’t, No. 12-60496, 2013

WL 2421949, at *4 (5th Cir. 4 June 2013).

Appellants rely upon Louisiana State Police Investigator Kennedy’s

deposition, in which the Investigator supposedly stated the Deputy’s use of

deadly force was reasonable solely because Clayton was armed with a weapon;

Appellants mischaracterize the Investigator’s testimony. Because Investigator

Kennedy concluded Clayton did have a knife at the moment the Deputy shot

him, he refused to speculate as to whether the use of deadly force would have

been justifiable if Clayton did not have a knife.

Appellants also rely upon Deputy Johnson’s supposed admission he

would not testify at trial as to whether his use of force was reasonable if

Clayton was unarmed. Appellants seem to contend this statement would

preclude Appellees from presenting evidence the Deputy acted reasonably. In

reality, the Deputy’s supposed admission is irrelevant. “[O]ur review is

necessarily objective—reasonableness is our touchstone, and we lack any

benefit of 20/20 hindsight”. Poole, 691 F.3d at 630 (citation omitted); see also

Buchanan, 2013 WL 2421949, at *5 (citation omitted).

There is no genuine dispute of material fact for the following: Deputy

Johnson was confronted by a non-compliant suspect with dangerous and

violent propensities who posed a “threat of serious physical harm” to himself

and others around him. Reese, 926 F.2d at 500-01 (citing Tennessee v. Garner,

471 U.S. 1, 11 (1985)); see also Mace v. City of Palestine, 333 F.3d 621, 624 (5th

Cir. 2003). The danger was enhanced because the Deputy had a gun pointed

at Clayton, yet Clayton continued toward the Deputy, ignoring his commands.

Reese, 926 F.2d at 500-01 (citing Garner, 471 U.S. at 11). Clayton was within

five feet of the Deputy before he fired his gun. Along that line, Clayton had

clear and obvious warning of the Deputy’s believing deadly force might be

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required under the circumstances. E.g., Garner, 471 U.S. at 11-12 (deadly force

not unconstitutional when probable cause to believe crime involving threat of

serious physical harm has been committed and, if feasible, suspect warned

deadly force may be used). Because Appellants have not shown a genuine

dispute of material fact for whether the Deputy’s shooting Clayton was

objectively unreasonable under clearly-established law, summary judgment

based on qualified immunity was proper.

B.

By failing to properly present in their opening brief their claims against

Sheriff Graves, Appellants have abandoned any challenge to the adverse

summary judgment as it concerns the Sheriff. Gates, 537 F.3d at 438 (citation

omitted). Along that line, their attempt to do so in their reply brief is not

considered. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Because

Appellants’ claims against the Sheriff fail, their claim against the liability

insurer, Columbia Casualty Company, fails as well.

III.

For the foregoing reasons, the judgment is AFFIRMED.

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