Tyralyn Harris v. New Orleans Police Depart

Case: 13-30337 Document: 00512558654 Page: 1 Date Filed: 03/12/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 12, 2014

No. 13-30337

Lyle W. Cayce

Clerk

TYRALYN HARRIS, individually and on behalf of her minor children, Jai

Harris and Jalen Aubert; SHANNON GRACE, individually and on behalf of

her minor child, Branin Harris; BRIAN JOURDAN; BRIANIKA JOURDAN,

Plaintiffs - Appellants

v.

RONAL SERPAS; STEPHEN MCGEE; CITY OF NEW ORLEANS, through

Mayor Mitchell Landrieu; JAMES KISH; JONATHAN PARKER; STUART

SMITH; ERIC GEISLER,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before KING, CLEMENT, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

On the evening of April 9, 2010, five police officers from the New Orleans

Police Department (NOPD) arrived at Brian Harris’s home after his former

wife called 911 when she feared Brian had possibly ingested an overdose of

sleeping pills. Mr. Harris had committed no crime and the officers were not

there to place him under arrest. After breaching the barricaded door to his

bedroom, the officers shot and killed Mr. Harris when he raised a knife above

his head and advanced toward them. Mr. Harris’s surviving children filed suit

against the officers for excessive force in violation of the Fourth Amendment

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No. 13-30337

and sued the City of New Orleans under a Monell theory. The district court

granted summary judgment for the officers on the basis of qualified immunity

and dismissed the claim against the City. We AFFIRM the district court’s

opinion for the following reasons.

FACTS AND PROCEDURAL HISTORY

At the time of this incident, Brian Harris was in his bedroom at his home,

where he lived with his former wife, Tyralyn Harris, and two children, Jalen

Aubert and Jai Harris. On April 9, 2010, Tyralyn became concerned about

Brian’s well-being, as he was depressed after recently losing his job. That

night, Brian locked himself inside their bedroom and Tyralyn believed he may

have taken an overdose of sleeping pills in an effort to take his own life.

Fearing for Brian’s life, Tyralyn called 911 for help.

NOPD Officers Stephen McGee, Jonathon Parker, and James Kish

responded to the call, along with Sergeants Stuart Smith and Eric Geisler.

When the officers arrived at about 10:22 p.m., Tyralyn met the officers in front

of the house, and explained to them that she believed Brian may have taken

an overdose of sleeping pills. She did not express any fear for her own safety

or that of their children, but she was worried that Brian may hurt himself. She

also told the officers that Brian did not have a gun, but may have a folding

knife with him that he usually carried due to his former job as a welder.

Tyralyn then gave the officers a set of keys to the bedroom door where Brian

had locked himself in.

The officers carried two tasers that included small camera devices, which

recorded audio and video. The first video shows one of the officers, Sergeant

Smith, ordering the other officers to line up outside Brian’s bedroom door,

stating that “I want one gun and one taser right here.” An officer called out

the name “Brian” and got no response. When the officers unlocked the door,

they found it was barricaded by a large dresser that had been moved into the

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path of the doorway. The video shows the officers forcing the door open, calling

out “Brian” and then entering the room. The officers found Mr. Harris lying

on his back in his bed under a blanket, not moving.

Upon entering his bedroom, the officers began to give verbal commands,

demanding to see Mr. Harris’s hands. When Mr. Harris did not respond,

Officer McGee removed his blanket revealing Mr. Harris, who was dressed in

under shorts and a tank top, lying on his bed. Mr. Harris was holding a folding

knife in his right hand. The officers began yelling for him to “put it down, put

it down! Put down the knife!” Mr. Harris, while still lying in his bed, crossed

his arms and responded, “It’s not coming down.” Mr. Harris continued not to

comply with the officers’ requests to put the knife down, and Sergeant Smith

then ordered Officer Kish to “tase him.” Officer Kish deployed his taser at Mr.

Harris, who was still lying in his bed at this point, about 26 seconds after the

officers first entered the room. One of the two steel darts that Officer Kish shot

at Mr. Harris missed him, and it appears that no shock was administered.

The next taser video lasts only six seconds. As it begins, Mr. Harris is

already standing up and Officer Parker is using the second taser on him. Mr.

Harris stood up out of his bed after the first taser attempt, and he appears

agitated at this point. Officer Parker’s second taser attempt apparently failed

to work as well because Mr. Harris was not incapacitated. At this point, Mr.

Harris began flailing his arms at the taser wires, and raised the knife above

his right shoulder in a stabbing position. An officer yelled “Drop the knife” to

which Mr. Harris responded “I’m not dropping nothing.” The next instant, gun

shots rang out on the video, as Officer McGee fired three bullets at Mr. Harris

with a departmentally-issued Glock Model 22 semi-automatic handgun. Two

of the bullets hit Mr. Harris in the torso, and the third in his thigh. Mr. Harris

slumped to the floor at that point, and the second video ends. Mr. Harris was

transported to University Hospital, where he died from the gunshot wounds.

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Tyralyn Harris filed suit in the Eastern District of Louisiana, on behalf

of herself and her minor children. 1 The Plaintiffs filed suit under 42 U.S.C. §

1983, contending that the officers used excessive force in violation of Mr.

Harris’s Fourth Amendment rights. They also contended that the City of New

Orleans is liable under Monell, alleging that the City’s inadequate policies and

training procedures led to Mr. Harris’s death. 2 The district court found that

the use of deadly force was not unreasonable and granted the officers’ motion

for summary judgment on the basis of qualified immunity. As such, the district

court dismissed the Monell claim, and granted summary judgment in favor of

the City of New Orleans. Plaintiffs timely appealed.

STANDARD OF REVIEW

“This court reviews de novo the district court’s resolution of legal issues

on a motion for summary judgment on the basis of qualified immunity.”

Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). “[S]ummary judgment is

proper when, viewing the evidence in the light most favorable to the non-

movant, ‘there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.’” White ex rel. White v.

Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003). “A genuine issue

of material fact exists if the record, taken as a whole, could lead a rational trier

of fact to find for the non-moving party.” Tubos de Acero de Mexico, S.A. v. Am.

Int’l Inv. Corp., Inc., 292 F.3d 471, 478 (5th Cir. 2002). In reviewing a motion

for summary judgment, this Court views “the facts and inferences to be drawn

1 Mr. Harris’s other former wife, Shannon Grace, joined as a plaintiff on behalf of

herself and the children she had with Mr. Harris. Upon a motion raised by the defendants,

the district court determined that both Tyralyn Harris and Shannon Grace did not have

standing to pursue any survival claims on behalf of Mr. Harris, as neither of them were

married to Mr. Harris at the time of his death. Mr. Harris’s children were permitted to

proceed as plaintiffs in this suit.

2 Plaintiffs also sought relief under Louisiana’s wrongful death and survival statutes,

but the district court declined to exercise jurisdiction over these state law claims.

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therefrom in the light most favorable to the non-moving party.” Id. However,

when there is video evidence available in the record, the court is not bound to

adopt the nonmoving party’s version of the facts if it is contradicted by the

record, but rather should “view[] the facts in the light depicted by the

videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007); see also Carnaby v. City

of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (“Although we review evidence in

the light most favorable to the nonmoving party, we assign greater weight,

even at the summary judgment stage, to the facts evident from video

recordings taken at the scene.”).

DISCUSSION

“Qualified immunity protects officers from suit unless their conduct

violates a clearly established constitutional right.” Mace v. City of Palestine,

333 F.3d 621, 623 (5th Cir. 2003). Once the defendant raises the qualified

immunity defense, “the burden shifts to the plaintiff to rebut this defense by

establishing that the official’s allegedly wrongful conduct violated clearly

established law.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)

(quoting Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir.

2001)). “Claims that law enforcement officers used excessive force are

analyzed under the Fourth Amendment.” Mace, 333 F.3d at 624 (citing

Graham v. Connor, 490 U.S. 386, 395 (1989)).

“This court applies a two-step analysis to determine whether a

defendant is entitled to summary judgment on the basis of qualified

immunity.” Freeman, 483 F.3d at 410. First, this Court must determine

“whether, viewing the summary judgment evidence in the light most favorable

to the plaintiff, the defendant violated the plaintiff’s constitutional rights.” Id.

“If so, we next consider whether the defendant’s actions were objectively

unreasonable in light of clearly established law at the time of the conduct in

question.” Id. at 410–11. “To prevail on an excessive force claim, a plaintiff

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must establish: (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.” Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008)

(internal quotations and citations omitted).

The reasonableness inquiry “requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Graham, 490 U.S. at 396. The defendants conceded

that Brian Harris was not being placed under arrest for any suspected crime.

Therefore, the only applicable factor under Graham is whether Brian Harris

“posed an immediate threat to the safety of the officers or others.” Id. The

“[u]se of deadly force is not unreasonable when an officer would have reason to

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

Mace, 333 F.3d at 624.

A. Excessive Force Claim

Appellants argue that taken as a whole the officers’ actions in this case

were unreasonable. To the extent that Brian Harris became agitated and

threatening, Appellants contend, it was only due to the provocation of the

officers. Appellants point to the officers’ awareness that Brian had not

threatened his wife or children, and that they were only called to the home to

assist Brian, who was depressed and had possibly taken an overdose of

sleeping pills. Brian was engaged in lawful activity before and during the

incident, Appellants contend, up until the officers roused him from his bed by

breaching his bedroom door yelling commands and firing taser darts at him

seconds later. Accordingly, Appellants assert that under the totality of the

circumstances, the officers’ use of force was unreasonable.

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The United States Supreme Court has long held that courts must look at

the “totality of the circumstances” when assessing the reasonableness of a

police officer’s use of force. Graham, 490 U.S. at 396 (citing Tennessee v.

Garner, 471 U.S. 1, 8–9 (1985)). This Court, however, has narrowed that test,

holding that “[t]he excessive force inquiry is confined to whether the [officer]

was in danger at the moment of the threat that resulted in the [officer’s]

shooting.” Bazan, 246 F.3d at 493. Therefore, any of the officers’ actions

leading up to the shooting are not relevant for the purposes of an excessive

force inquiry in this Circuit.

This Court recently issued a published opinion that is analogous to the

instant case. In Rockwell v. Brown, 664 F.3d 985 (5th Cir. 2011), a mother

called 911 for assistance in helping her 27-year-old son get to a mental health

facility during a mental health crisis. Id. at 989. After making repeated

unsuccessful attempts to convince the son to come out of his bedroom, the police

decided to breach the door. Id. Once the door was breached, the officers found

the mentally unstable son holding two eight-inch serrated knives, and after he

rushed towards the police officers and a struggle ensued, the officers fired their

weapons and killed him. Id. at 989–90. On appeal to this Court, the plaintiffs

in Rockwell argued that the officers’ breach of the locked door to their son’s

room should be included in the reasonable use of deadly force inquiry,

contending that the officers’ actions “carried a substantial risk of causing

serious bodily harm and was the immediate but-for cause of the resulting

altercation between [their son] and the officers.” Id. at 992 (internal quotation

marks omitted). In rejecting this argument, the Court explained,

It is well-established that “[t]he excessive force inquiry is confined

to whether the [officer or another person] was in danger at the

moment of the threat that resulted in the [officer’s use of deadly

force].” Bazan, 246 F.3d at 493. At the time of the shooting, [the

Plaintiffs’ son] was engaged in an armed struggle with the officers,

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and therefore each of the officers had a reasonable belief that [he]

posed an imminent risk of serious harm to the officers. We need

not look at any other moment in time.

Id. at 992–93 (emphasis in original).

In the instant case, the taser video evidence confirms that Mr. Harris

was holding a knife above his head at the moment Officer McGee fired his

weapon. Notwithstanding, Appellants argue that the district court erred by

“making a finding of fact that [Officer] Kish was in imminent danger of being

stabbed by an advancing Brian Harris” at the time of the shooting. Appellants

contend that the parties’ locations and movements in the room at the time of

the shooting is a “hotly contested” material factual issue that precludes

summary judgment.

The relevant law, however, does not require the court to determine

whether an officer was in actual, imminent danger of serious injury, but rather,

whether “the officer reasonably believe[d] that the suspect pose[d] a threat of

serious harm to the officer or to others.” Rockwell, 664 F.3d at 991 (internal

quotations and citations omitted). Moreover, “[t]he ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Graham,

490 U.S. at 396. When looking at the “moment of the threat” that resulted in

Officer McGee’s use of deadly force, it is clear from the taser video that Mr.

Harris was standing up out of bed and had raised the knife above his head at

the time the shots were fired. Accordingly, the district court properly held that

under these circumstances, the officers reasonably feared for their safety at

the moment of the fatal shooting.

B. Warrantless Entry Claim

Appellants also argue that the officers violated Brian Harris’s Fourth

Amendment rights when they forcibly entered his bedroom without a warrant.

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This Court has previously held that “it is well established that the police may

conduct a warrantless search of an area without running afoul of the Fourth

Amendment if a third party with common control over the area consents to the

search.” United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002) (internal

quotation marks and citation omitted). Since Tyralyn Harris consented to the

officers’ entry by giving them the keys to the bedroom, in a home that she co-

occupied with Brian, Appellants have not shown that there was any Fourth

Amendment violation. Therefore, it is not necessary to reach Appellants’

alternative argument regarding whether Mr. Harris’s possible suicide attempt

constituted exigent circumstances justifying a warrantless entry into his

bedroom.

C. Monell Claim

“To hold a municipality liable under [42 U.S.C.] § 1983 for the

misconduct of an employee, a plaintiff must show, in addition to a

constitutional violation, that an official policy promulgated by the

municipality’s policymaker was the moving force behind, or actual cause of, the

constitutional injury.” James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009).

Since Appellants have not shown that there was a constitutional violation in

this case, the district court properly dismissed the Monell claim against the

City of New Orleans.

CONCLUSION

We affirm the district court’s opinion based solely on our examination of

the moment when the fatal shooting occurred. We express no opinion

regarding the appropriateness of the officers’ conduct that preceded the

moment of the shooting in this case.

In summary, the taser video evidence confirms the district court’s finding

that Brian Harris was holding a knife in a stabbing position at the moment of

the fatal shooting. Therefore, the district court properly concluded that the

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use of deadly force was not unreasonable. Accordingly, we AFFIRM the district

court’s grant of summary judgment for the officers based on qualified

immunity. As such, we also AFFIRM the dismissal of the Monell claim against

the City of New Orleans.

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