Mason v. Lafayette City-Parish Consolidated Government

Case: 14-30021 Document: 00513265120 Page: 1 Date Filed: 11/10/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 10, 2015

No. 14-30021

Lyle W. Cayce

Clerk

BRENDA MASON, Individually and on behalf of Quamaine Dwayne Mason;

BILLY C. MASON, Individually and on behalf of Quamaine Dwayne Mason,

Plaintiffs–Appellants,

v.

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT; JAMES P.

CRAFT, In His Official Capacity as Chief of Police; MARTIN FAUL,

Individually and in His Official Capacity,

Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Officer Martin Faul fatally shot Quamaine Mason while responding to a

reported armed robbery. Mr. Mason’s parents, Brenda and Billy Mason

(together, the Masons), sued Faul asserting Fourth, Fifth, Eighth, and

Fourteenth Amendment violations. The Masons also brought Monell 1 claims

against Faul’s employer, Lafayette City–Parish Consolidated Government

(Lafayette), and James Craft, Lafayette’s Chief of Police. The complaint also

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

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included claims against all three defendants under Louisiana state law. Faul

raised the defense of qualified immunity. The district court granted the

defendants’ motion for summary judgment and dismissed all of the Masons’

claims. Because there are material fact issues that preclude summary

judgment in favor of Faul on the basis of qualified immunity, we reverse the

summary judgment as to Faul on the Masons’ Fourth Amendment and state

law claims and remand them to the district court. We otherwise affirm the

district court’s judgment.

I

Because the district court disposed of the case on summary judgment,

we state the facts of the case in the light most favorable to the Masons, the

nonmovants below. 2 At the time of his death, Mr. Mason was dating Racquel

Babino. Mr. Mason knew that Paul Pitkins, the father of Babino’s child, was

coming to her apartment one evening regarding a phone bill. Mr. Mason did

not know that Babino planned to prepare dinner for Pitkins and his cousin,

Jeremy Richardson, to celebrate Pitkins’s recent college graduation.

Mr. Mason came to Babino’s apartment that evening to pick up his dog.

He saw Babino through the apartment window and became upset, banging on

the door and yelling. Babino asked her roommate to answer the door, and

Babino locked herself in her bedroom with Pitkins and Richardson. Mr. Mason

entered the apartment and attempted to pry open the bedroom door with a

spoon.

Babino eventually opened the bedroom door. Mr. Mason entered the

bedroom carrying a gun and ordered Pitkins and Richardson to leave. Mason

threatened to “pistol whip” someone, but Babino states that the gun remained

pointed at the ground at all times. Babino and Mr. Mason later exited the

2 See Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012).

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bedroom, and Mr. Mason eventually “got calm.” They discovered that Mr.

Mason’s dog was missing and intended to leave the apartment to search for the

dog.

In the meantime, Richardson had called 911. He told the operator that

an armed individual had “broken into” Babino’s apartment to get a dog. He

stated that he did not know the individual but that Babino and Pitkins knew

him. Richardson described the suspect to the operator as a black male,

approximately six feet tall and weighing 200 pounds, wearing black jeans and

a black shirt.

Officer Martin Faul volunteered to respond to an incident described as

an armed robbery that had been reported at Babino’s apartment. The Masons

contend we must conclude that Faul approached the incident with no

additional information because of his statements during his post-incident

interview with the Louisiana State Police. The following exchange occurred

between Faul and Frank Garcia, the State Police investigator:

[GARCIA]: You volunteered for the call, okay. Where were you

when y’all got dispatched out there?

[FAUL]: I was en route to another armed robbery call around

approximately Saint Christopher and Johnston.

...

[FAUL]: Yeah, I was going to Marshall’s Department Store.

...

[GARCIA]: When the call came over, when dispatch put the call

out, were there any particulars, any notes or comments in the

comment section on the call?

[FAUL]: Yes, I didn't read them, but she verbally dispatched them.

[GARCIA]: Okay. What were the comments?

[FAUL]: Armed robbery, 200 Theater, Campus Crossing

Apartments, Black male, black pants, black shirt with a gun still

in the apartment, apartment 712.

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[GARCIA]: Okay, alright. And is there any particular reason why

you decided to go out here instead of going to Marshall’s?

[FAUL]: Yes, they had a canine handler already there. . . . I was

going to keep rolling in case they you know they needed me. And

then like I said when I got around Saint Christopher, the original,

the first 64 [armed robbery] went to Charlie, so I put my base radio

on Charlie and stopped it from scanning. And then I still had one

on me on Alpha. So, I was still listening to Alpha. And when I

heard that call come in on Alpha, I was so close. On Alpha, I said,

“Headquarters distract from that first 64, show me en route to that

one.” You know, I don’t know if I said I was closer or whatever,

but they said, “10-4.” And then . . . the computer and [sic] did all

this stuff, but I never paid no attention to the computer.

The Masons argue that the “never paid no attention to the computer”

statement shows that Faul had no information about the situation he

approached.

Faul arrived at the apartment complex and saw that Officers Brittney

Dugas and Jace Galland were there. Faul removed his police canine from his

car. The three officers encountered Richardson and Pitkins, who directed them

toward Babino’s apartment.

Mr. Mason and Babino opened the apartment door to find the officers

with their guns drawn. Mr. Mason matched the description Faul alleges he

received from dispatch. Babino moved in front of Mr. Mason. She positioned

herself so that she shielded Mr. Mason from Officers Dugas and Galland. She

screamed to the officers, “What are you doing? He’s not doing nothing. What’s

wrong?”

The officers then issued commands to Mr. Mason and Babino, but the

witnesses differ as to what commands were issued. According to Babino, the

officers only ordered them to put their hands up. Faul asserts that Galland

was the only officer to issue commands and that Galland told Mr. Mason and

Babino to get on the ground. Dugas and Galland state that the officers issued

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conflicting orders for Mr. Mason and Babino to keep their hands up and get on

the ground.

Although the officers contend that Mr. Mason reacted to the commands

by squaring up with Faul and tucking his chin as if he were preparing to fight,

Babino claims that Mr. Mason had his hands up and was not moving. Faul

saw a gun in Mr. Mason’s waistband. Faul yelled “Gun!” and sent his dog

towards Mr. Mason. Babino asserts that Mr. Mason only dropped his hands to

his crotch after the dog had attacked him, in contrast to Faul, who claims that

Mr. Mason’s right hand went to his side before he released the dog.

Faul asserts that once the dog had attacked Mr. Mason, Mr. Mason’s

hand came in contact with his gun, so Faul began shooting. Babino asserts

that Mr. Mason never did anything to require the officer to release the dog for

an attack, that Mr. Mason never touched the gun, and that Mr. Mason never

attempted to resist, assault or fire upon the police.

Faul’s initial shot struck Mr. Mason in the chin. The second shot struck

Mr. Mason in the right shoulder, moving slightly from the back to the front.

The third shot struck the upper back part of Mr. Mason’s right arm, fracturing

his humerus. Dr. James Traylor, a forensic pathologist for the defense, stated

that while the fracture would have severely restricted the movement of Mr.

Mason’s right arm, he would have been able to flex some at the elbow, though

not very effectively, but that moving his arm “would have been extremely

painful.” Additionally, Dr. Traylor testified that Mr. Mason could still have

moved his shoulder but also not very well. The fourth shot struck Mr. Mason

in his lateral right chest wall, fracturing a rib. The fifth shot struck Mr. Mason

on the upper back portion of the left arm, fracturing the left humerus. Dr.

Traylor testified that at the time the fifth shot was fired, Mr. Mason was in a

prone position, face down. Faul then temporarily stopped firing.

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Faul claims that Mr. Mason then moved his shoulder and elbow as if he

were about to spin over, pull out the gun, and start shooting. Officer Dugas

asserts that Mr. Mason was “still trying to reach for [the gun]” after the first

five shots were fired. Babino, in contrast, states that once Mr. Mason was on

the ground she only saw him “pick up his head and put it back down” and that

she never saw Mr. Mason “move his body, the trunk of his body.” Faul fired

two shots into Mr. Mason’s back, and Mr. Mason stopped moving. Babino

states that after the shooting ended, Mr. Mason’s arms were not above his head

but at his side.

Faul radioed for an ambulance and put the dog into a police vehicle.

When Faul returned, Mr. Mason had been moved to a nearby breezeway, and

Faul saw other officers were administering first aid to Mr. Mason. A civilian

combat medic also helped care for Mr. Mason, but he died at the scene.

The Masons allege several irregularities in Lafayette’s investigation of

the shooting. First, police later recovered an eighth bullet lodged in a wall that

did not strike Mr. Mason. Murphy Riggs, a relative of Mr. Mason, testified

that when he arrived at the scene, a bullet hole in a structure had been

patched, and the area had been cleaned with bleach. Second, before Frank

Garcia, the State Police investigator, arrived at the scene, Mr. Mason’s gun

had been moved, and the magazine had been removed. Finally, after Faul’s

interview with Garcia formally ended, the Masons allege that the video camera

captured the following exchange:

Faul: Where was the gun when it was all said and done and who

took it out? And where was it at?

Garcia: [Lafayette Police Officer] Bart [Ryder] took it.

Faul: Was it in his hand?

Garcia: Best as I can figure.

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The Masons, individually and on behalf of their son, Mr. Mason, sued

Faul, Chief Craft, and Lafayette. They brought claims under 42 U.S.C. § 1983

alleging Faul (1) used excessive force in violation of the Fourth and Fourteenth

Amendments; (2) deprived Mr. Mason of substantive due process under the

Fourteenth Amendment by engaging in actions that “shock the conscience;” (3)

and violated Mr. Mason’s Eighth Amendment and due process rights by acting

with deliberate indifference to his medical needs after the shooting. The

Masons brought Monell 3 claims against Lafayette and Craft. The complaint

also included state law claims against the three defendants. Faul pled

qualified immunity. The district court granted the defendants’ motion for

summary judgment and dismissed all claims. The Masons appeal.

II

We review the district court’s grant of summary judgment de novo,

applying the same standards as the district court. 4 Summary judgment is

appropriate when “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” 5

When reviewing a motion for summary judgment, we must “must view

the facts in the light most favorable to the non-moving party and draw all

reasonable inferences in its favor.” 6 No genuine issue of disputed fact exists

“unless there is sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.” 7

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

4 Newman, 703 F.3d at 761.

5 FED. R. CIV. P. 56(a).

6 Newman, 703 F.3d at 761 (quoting Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.

2009) (per curiam)).

7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

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III

A plaintiff suing under § 1983 must “(1) allege a violation of a right

secured by the Constitution or laws of the United States and (2) demonstrate

that the alleged deprivation was committed by a person acting under color of

state law.” 8 A § 1983 suit may be brought against a person in his or her

individual or official capacity as well as against governmental entities. 9

In an individual-capacity suit, a defendant may raise the defense of

qualified immunity. 10 “[Q]ualified immunity shields government officials

acting within their discretionary authority from liability when their conduct

does not violate clearly established statutory or constitutional law of which a

reasonable person would have known.” 11 We analyze a defendant’s assertion

of qualified immunity under a two-prong test. 12 The first asks whether the

plaintiff has shown sufficient facts to “make out a violation of a constitutional

right.” 13 The second prong requires the court to determine “whether the right

at issue was ‘clearly established’ at the time of defendant's alleged

misconduct.” 14

IV

We begin with the Masons’ Fourth Amendment claim against Officer

Faul. When a police officer uses force to make a “seizure,” we analyze a claim

against the officer under the Fourth Amendment for “objective

8 Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citing Leffall v.

Dall. Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)).

9 Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).

10 Id.

11 Id. (quoting Wallace v. Cnty. of Comal, 400 F.3d 284, 289 (5th Cir. 2005)).

12 Pearson v. Callahan, 555 U.S. 223, 236 (2009).

13 Id. at 232.

14 Id.

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reasonableness.” 15 To prevail on an excessive-force claim, a plaintiff must

show “(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.” 16

In Tennessee v. Garner, the Supreme Court explained that to reasonably

use deadly force, an officer must, at the very least, have “probable cause to

believe that the suspect poses a threat of serious physical harm, either to the

officer or to others.” 17 The officer’s reasonableness in using force—deadly or

non-deadly—is analyzed under an objective standard “in light of the facts and

circumstances confronting [the officer], without regard to [his or her]

underlying intent or motivation.” 18 In Graham v. Connor, the Supreme Court

directed courts determining an officer’s objective reasonableness to pay

“careful attention to the facts and circumstances of each particular case,

including [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.” 19 We

consider reasonableness “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” 20 Additionally, we must

make “allowance for the fact that police officers are often forced to make split-

second judgments—in circumstances that are tense, uncertain, and rapidly

15 Graham v. Connor, 490 U.S. 386, 388 (1989).

16Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Hill v. Carroll Cnty.,

Miss., 587 F.3d 230, 234 (5th Cir. 2009)).

17 471 U.S. 1, 11 (1985) (providing this standard when an officer faces a fleeing

suspect); see also Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (applying the same

standard to a non-fleeing suspect).

18 Graham, 490 U.S. at 397.

19 Id. at 396.

20 Id.

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evolving—about the amount of force that is necessary in a particular

situation.” 21 Our inquiry is limited to whether the officer “was in danger at

the moment of the threat” that resulted in the use of force. 22

The district court did not correctly analyze the summary judgment

record. The district court appears to have relied entirely on the officers’

account of events. For example, the district court accepts as “uncontroverted”

Faul’s position that Mr. Mason’s hand went toward the gun in his waistband

before Faul released the canine. Babino’s account of the shooting, which

conflicts with the officers’ accounts in several key respects, is absent from the

district court’s opinion despite having been discussed in the Masons’ briefing.

Babino’s deposition contains an account of the shooting, and the facts she

related are material to the Fourth Amendment question.

When addressing excessive-force claims, courts have an obligation to

“slosh our way through the factbound morass of ‘reasonableness.’” 23

Additionally, the Supreme Court has recently emphasized that in an excessive-

force case on summary judgment, like any other case, a court must accept as

true the evidence of the nonmoving party and draw all justifiable inferences in

that party’s favor. 24 The district court failed to give credence to, or even make

note of, Babino’s conflicting account of the shooting, which perhaps constitutes

21 Id. at 396-97.

Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Bazan ex rel. Bazan

22

v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001)) (emphasis omitted).

23 Scott v. Harris, 550 U.S. 372, 383 (2007).

Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam) (citing Anderson v. Liberty

24

Lobby, Inc., 477 U.S. 242, 255 (1986)).

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the Masons’ strongest evidence. We must give full credence to Babino’s

testimony. 25

As an initial matter, the Masons do not argue that Faul’s use of the

canine, by itself, violated the Fourth Amendment. Rather, they argue that a

Fourth Amendment violation arose through Faul’s use of his firearm and

assert that the use of the canine against Mr. Mason while the shots were being

fired is relevant to the question of Faul’s reasonableness. Accordingly, we do

not address the constitutional standards for use of a police canine.

We have explained that “an exercise of force that is reasonable at one

moment can become unreasonable in the next if the justification for the use of

force has ceased.” 26 Although the record reflects that there was a break

between the first five and last two shots that struck Mr. Mason, and that Mr.

Mason lay on the ground when the final two shots were fired, the district court

did not expressly address whether Faul’s use of his firearm was justified

throughout the encounter. We conclude that genuine issues of material fact

arise regarding the final two shots that struck Mr. Mason, which requires

reversal of the summary judgment in part, and we do not express an opinion

as to whether Faul was entitled to qualified immunity for each of the first five

shots.

A reasonable jury could conclude that a reasonable officer in Faul’s

position would not have “probable cause to believe that [Mr. Mason] pose[d] a

threat of serious physical harm” 27 at the time the final two shots were fired.

25 See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (“[T]he

court . . . may not make credibility determinations.” (citing Lytle v. Household Mfg., Inc., 494

U.S. 545, 554-55 (1990))).

26 Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009).

Tennessee v. Garner, 471 U.S. 1, 11 (1985) (providing this standard when an officer

27

faces a fleeing suspect); see also Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008)

(applying the same standard to a non-fleeing suspect).

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Although Faul and Galland indicated that Mr. Mason moved in a threatening

manner after he was on the ground, Babino’s testimony contradicts this portion

of the officers’ accounts. Babino indicated that she was able to see Faul fire all

seven shots that struck Mr. Mason. She further explained that once Mr. Mason

was on the ground, she saw “him pick up his head and put it back down” but

did not see Mr. Mason “move his body, the trunk of his body.”

Other evidence in the record, viewed in the light most favorable to the

Masons, corroborates Babino’s testimony. Although Dr. Traylor, the defense

expert, indicated that Mr. Mason might be able to make a slight movement

with his right elbow, he also explained that it “would have been extremely

painful” for Mr. Mason to use his right arm. Although Dr. Traylor’s testimony

can support favorable inferences for both parties about whether Mr. Mason

moved his arm, at the summary judgment stage, we must conclude that Mr.

Mason’s arm was immobile while he lay on the ground.

In light of Babino’s and Dr. Traylor’s testimony, a reasonable jury could

conclude that Mr. Mason lay incapacitated on the ground and did not move in

a threatening manner before Faul fired the final two shots. 28 Accordingly, a

reasonable jury could conclude that Mr. Mason objectively posed no immediate

threat, such that Faul violated the Fourth Amendment by firing the final two

shots.

We therefore must determine whether Faul is entitled to qualified

immunity on the grounds that he did not violate clearly established law. The

law is clearly established if there is factually similar, controlling case law from

See Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014) (suggesting, in dicta, that a

28

Fourth Amendment violation might occur if the defendant officers “had initiated a second

round of shots after an initial round had clearly incapacitated” the decedent); see also Bush

v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (holding that an officer cannot use further non-

deadly force against a “restrained and subdued” suspect).

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this court or the Supreme Court. 29 The present case is an “obvious one

where Graham and Garner alone offer a basis for decision.” 30 The

constitutionality of the final two shots can be decided on the threshold issue—

under Garner—of whether deadly force was permissible, i.e., whether Mr.

Mason objectively posed an immediate threat. 31 The second, more complex

inquiry dictated by Graham—balancing the severity of the threat against other

factors 32—is not necessary here. A reasonable jury could conclude that when

Faul fired the final two shots, Mr. Mason would have appeared incapacitated

to an objectively reasonable officer. Shooting a clearly incapacitated suspect is

inconsistent with Garner’s command that deadly force is unconstitutional

when a “suspect poses no immediate threat to the officer and no threat to

others.” 33 We therefore conclude that there are material fact questions as to

whether Faul is entitled to qualified immunity for firing the final two shots.

The district court erred in granting Faul’s motion for summary judgment on

the Fourth Amendment and state law claims.

29 See Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012) (assuming arguendo that

controlling circuit court precedent could “be a dispositive source of clearly established law in

the circumstances of this case”); cf. McClendon v. City of Columbia, 305 F.3d 314, 329 (5th

Cir. 2002) (en banc) (“[I]n the absence of directly controlling authority, a consensus of cases

of persuasive authority might, under some circumstances, be sufficient to compel the

conclusion that no reasonable officer could have believed that his or her actions were

lawful.”).

30 Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

31 See, e.g., Tennessee v. Garner, 471 U.S. 1, 11 (1985).

32Graham v. Connor, 490 U.S. 386, 396 (1989); see also Ramirez v. Knoulton, 542 F.3d

124, 129 (5th Cir. 2008).

33 471 U.S. at 11.

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V

The Masons argue that Faul violated Mr. Mason’s substantive due

process rights under the Fourteenth Amendment because his actions “shocked

the conscience.” 34 In Graham, the Supreme Court held:

[A]ll claims that law enforcement officers have used excessive

force—deadly or not—in the course of an arrest, investigatory stop,

or other “seizure” of a free citizen should be analyzed under the

Fourth Amendment and its “reasonableness” standard, rather

than under a “substantive due process” approach. 35

While substantive due process applies to some police conduct, the Supreme

Court has refused to look beyond the Fourth Amendment when the police

“seize” a suspect. 36 A seizure occurs “only when there is a governmental

termination of freedom of movement through means intentionally applied.” 37

Faul “seized” Mr. Mason when he terminated Mr. Mason’s freedom of

movement using the canine and his gun. 38 The Masons substantive due

process claim fails as a matter of law.

VI

The Masons argue that Faul violated the Eighth and Fourteenth

Amendments by acting with deliberate indifference by failing to render aid to

Mr. Mason after the shooting. The Eighth Amendment does not apply in the

present case because no adjudication of Mr. Mason’s guilt occurred. 39

34 See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998).

35 Graham, 490 U.S. at 395.

36 See Lewis, 523 U.S. at 843-45.

37 Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989).

38 See Petta v. Rivera, 143 F.3d 895, 913-14 (5th Cir. 1998) (noting that the fact that

the officer’s bullet did not strike the plaintiff prevented the case from being a seizure case

analyzed under the Fourth Amendment).

39 See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

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Therefore, we turn to the Masons’ claim under the Fourteenth Amendment’s

Due Process Clause.

“The Due Process Clause . . . require[s] the responsible government or

governmental agency to provide medical care to persons . . . who have been

injured while being apprehended by the police.” 40 “[T]he plaintiff must show

that an officer acted with subjective knowledge of a substantial risk of serious

medical harm, followed by a response of deliberate indifference.” 41 Deliberate

indifference is “an extremely high standard to meet.” 42 A plaintiff “must show

that the officials ‘refused to treat him, ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.’” 43

The Masons’ deliberate indifference argument is narrow. The Masons

allege that Lafayette’s police policy requires an officer to “immediately . . .

determine the physical conditions of any injured person and render first aid.”

They note that after the shooting, Faul called an ambulance, left to put the dog

into the police vehicle, and returned to render first aid but found others

addressing Mr. Mason’s wounds; they find fault with the fact that Faul did not

personally participate in Mr. Mason’s care. They also seek to hold Faul liable

for the inadequate care by others because Mr. Mason was dragged by his legs

from the scene of the shooting to a nearby breezeway.

Faul’s conduct did not rise to the level of deliberate indifference. A

failure to follow official policy, by itself shows, at most, negligence and cannot

40 Id.

41 Hill v. Carroll Cnty., 587 F.3d 230, 238 (5th Cir. 2009).

United States v. Gonzales, 436 F.3d 560, 574-75 (5th Cir. 2006) (citing Domino v.

42

Tex. Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001)).

43 Domino, 239 F.3d at 756 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985)).

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support a finding of deliberate indifference. 44 Faul’s decision to place the dog,

which had been attacking Mr. Mason, in the police car, and to defer to other

officers to attend to Mr. Mason, cannot fairly be described as showing “a

wanton disregard for [Mr. Mason’s] serious medical needs.” 45 Additionally,

when addressing deliberate indifference, we must evaluate an official’s conduct

individually rather than collectively so long as multiple officials are not acting

in unison. 46 The other officers’ decision to drag Mr. Mason, if deliberate

indifference, cannot give rise to liability for Faul. Faul is entitled to judgment

as a matter of law on the deliberate indifference claims.

VII

The Masons also bring claims against Lafayette and Chief Craft, in his

official capacity. Because Craft was sued in his official capacity, the claim

against him is treated as a claim against Lafayette, a municipality. 47

In Monell v. Department of Social Services, 48 the Supreme Court held

that a municipality cannot be held liable under § 1983 solely because its

employee committed a constitutional tort. 49 In other words, a plaintiff cannot

prevail on a theory of respondeat superior. 50 Accordingly, to hold a

municipality liable under § 1983, the plaintiff must prove three elements: (1)

44 See Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 398 (5th Cir. 2000).

45 Domino, 239 F.3d at 756.

46 Jacobs, 228 F.3d at 395.

47 See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits against state officials in their

official capacity therefore should be treated as suits against the State.”).

48 436 U.S. 658 (1978).

49 Id. at 691.

50 Id.

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a policymaker; (2) an official policy; and (3) a “violation of constitutional rights

whose ‘moving force’ is the policy or custom.” 51

We have defined “official policy” to mean:

1. A policy statement, ordinance, regulation, or decision that is

officially adopted and promulgated by the municipality's

lawmaking officers or by an official to whom the lawmakers

have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees,

which, although not authorized by officially adopted and

promulgated policy, is so common and well settled as to

constitute a custom that fairly represents municipal policy. 52

“Isolated violations are not the persistent, often repeated, constant violations

that constitute custom and policy.” 53

The “moving force” inquiry requires a plaintiff to make two showings:

causation and culpability. 54 A plaintiff must show a “direct causal connection

. . . between the policy and the alleged constitutional deprivation.” 55 The

“moving force” inquiry imposes a causation standard higher than “but for”

causation. 56 Under the culpability requirement, if the policy is facially lawful,

a plaintiff must also show that the municipality “promulgated [the policy] with

deliberate indifference to the ‘known or obvious consequences’ that

constitutional violations would result.” 57 Even a showing of heightened

51Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell, 436

U.S. at 694).

52 Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam).

53 Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984) (en banc).

54 Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997).

55 Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992).

56 Id.

57 Piotrowski v. City of Hous., 237 F.3d 567, 579 (quoting Brown, 520 U.S. at 407).

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negligence is insufficient to show the deliberate indifference needed to prove

municipal liability. 58

The Masons point to numerous acts that they claim evince a policy or

custom. First, the Masons argue that the three officers approached Mr. Mason

without sufficient information. They allege that the three officers “agree that

they do not listen to the computer routinely” and provide expert testimony

establishing that officers need the information they receive from dispatch.

However, the record does not support the Masons’ assertion. In his statement

to Garcia, the State Police investigator, Faul said that he did not read the notes

on the screen in his vehicle about the armed robbery reported at Babino’s

apartment; rather, he listened to the dispatcher read the comments to him,

describing the suspect and the location. Faul’s statement also says that after

he told the dispatcher that he was going to the armed robbery at Babino’s

apartment rather than the one at Marshall’s, Faul stated that “the computer

and [sic] did all this stuff, but I never paid no attention to the computer.” On

summary judgment, we must make “justifiable” inferences in the nonmovant’s

favor. 59 Because Faul plainly stated that he received the information from

dispatch verbally rather than reading the written notes on a call, no reasonable

jury could infer that Faul’s later statement that he “never paid no attention to

the computer”—read in context—meant that he was not aware of the

information describing the suspect that was communicated verbally.

Alternatively, assuming the officers ignored dispatch and that ignorance

reached the level of custom, the Masons have not met their burden on

causation. They have not pointed to any information that dispatch provided

58 Id. (quoting Brown, 520 U.S. at 407).

59 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

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on the computer that, if known by Faul, would have altered the course of

events.

Second, the Masons focus on Faul’s use of the police dog. They note that

Faul admitted to not knowing of Lafayette’s policies on the use of canines and

that he admitted that it is unusual to use a dog when firing a weapon. They

also contend that his conduct showed an inability to retain his training about

using a police dog. This evidence does not identify a municipal policy or

custom. To the contrary, it shows, at most, that Faul failed to follow policy.

Third, the Masons note that the three officers failed to maintain cover

when approaching Mr. Mason; their experts allege that this is “evidence of a

systemic practice.” However, the Masons have not produced any evidence that

the officers’ failure to maintain cover was more than an “isolated violation.” 60

Therefore, they have not met their burden of showing a custom or policy.

Similarly, the Masons seek to impose Monell liability by alleging several

other errors by the officers. They point to the officers’ failure to negotiate and

conflicting commands to Mr. Mason and Babino as well as Faul’s decision to

shoot Mr. Mason when he was already on the ground. But, again, the Masons

provide no proof that these practices rise to the level of custom or policy.

Finally, the Masons point to defects in Lafayette’s investigatory and

disciplinary proceedings. They allege that Lafayette police cleaned the crime

scene and manipulated Mr. Mason’s gun. They also fault Lafayette for keeping

Faul on the job because he discussed the incident with the state-police

investigator after his official interview terminated. We have held that “it is

nearly impossible to impute lax disciplinary policy to [a municipality] without

showing a pattern of abuses that transcends the error made in a single case.” 61

60 Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984).

61 Piotrowski, 237 F.3d at 582.

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Here, the Masons have not provided evidence of problems with Lafayette’s

disciplinary and investigatory procedures outside the present case.

Accordingly, Lafayette and Chief Craft cannot be held liable under Monell.

VIII

The Masons also bring claims under Louisiana state law. The parties

agree that the Fourth Amendment’s reasonableness standard applies to the

state-law claims, such that the state-law claims rise or fall with the Fourth

Amendment claim. For this proposition, the parties and the district court have

cited to our unpublished opinion in Winston v. City of Shreveport 62 but have

not pointed to any published cases that directly establish this proposition 63

from our court or the Louisiana Supreme Court. 64

Because the parties are in agreement but have not thoroughly briefed

the issue, we assume, without deciding, that Louisiana law employs the same

reasonableness standard as the Fourth Amendment. Therefore, we reverse the

district court’s grant of summary judgment on the Masons’ claims against Faul

under Louisiana state law and remand.

62390 F. App’x 379, 385-86 (5th Cir 2010) (per curiam) (citing Reneau v. City of New

Orleans, No. Civ.A. 03–1410, 2004 WL 1497711, at *4 (E.D. La. July 2, 2004)).

63See Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000) (“If

the Louisiana Supreme Court has not ruled on this issue, then this Court must make an ‘Erie

guess’ and ‘determine as best it can’ what the Louisiana Supreme Court would decide.”

(quoting Krieser v. Hobbs, 166 F.3d 736, 738 (5th Cir. 1999)); see also 19 WRIGHT, MILLER, &

COOPER, FEDERAL PRACTICE AND PROCEDURE § 4520 (explaining that the Erie doctrine

applies even when the basis of jurisdiction is not diversity).

64Compare Kyle v. City of New Orleans, 353 So.2d 969, 973 (La. 1977) (“Whether the

force used is reasonable depends upon the totality of the facts and circumstances in each case.

A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable

men placed in the same position as the officers and with the same knowledge as the officers.”),

with Mathieu v. Imperial Toy Corp., 646 So.2d 318, 323 (La. 1994) (“The reasonableness test

we employed in Kyle is based upon the text of the Fourth Amendment to the United States

Constitution, as well as La.Code Cr.P. art. 220.” (second emphasis added) (footnote omitted)).

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* * *

For the foregoing reasons, we AFFIRM the district court’s judgment with

regard to the Masons’ substantive due process and deliberate indifference

claims; we REVERSE the district court’s judgment that Officer Faul is entitled

to qualified immunity with respect to the Fourth Amendment and state law

claims, as to the final two shots; and REMAND for consideration in the first

instance whether Officer Faul’s other actions are entitled to qualified

immunity in the light of Babino’s testimony.

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PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in part and

dissenting in part:

As Quamaine Mason and his girlfriend, Racquel Babino, stepped outside

of her apartment, they were met by three officers with guns drawn. Quamaine

put his hands up and stood still. Officer Martin Faul and his police dog

together attacked Quamaine, Faul shooting him seven times at point-blank

range as he fell down struggling to fend off the dog. No other officer fired a

shot. I concur in the rejection of immunity for the final two shots and the

disposition of Appellants’ other claims, but I dissent from the majority’s refusal

to address the district court’s grant of qualified immunity for the first five shots

that led to Quamaine’s senseless death.

I.

Accepting the version of facts most favorable to Appellants, as we must, 1

I offer a narrative of events from which a reasonable jury could find that no

reasonable police officer could have perceived an imminent threat to his own

life or the life of another.

On December 9, 2011, Officer Martin Faul—a canine officer—was

working the night shift. Responding to a reported armed robbery at a

department store, Officer Faul heard a report of another armed robbery at

Racquel Babino’s apartment complex. Officer Faul immediately “volunteered

for the call.” Arriving on the scene at the same time as two other officers, all

three officers ran toward the apartment with guns drawn. When the other

officers gained the lead, he quickly took charge, yelling, “Y’all behind the dog.”

The officers arrived at the apartment complex to see Quamaine Mason

walking out the front door of an apartment with a young woman. Quamaine

matched the description of the suspect, and the police call had stated that he

1 See Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015).

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was armed. 2 When the officers saw him, he was not fleeing or threatening

anyone; he was walking quietly out the front door with a female companion.

The young woman with him, upon seeing the police officers with already-drawn

weapons, immediately shouted out that Quamaine had done nothing wrong.

Quamaine, who wanted to be a police officer and was actively applying to

agencies in the area, had a gun on his waistband. He had a permit to carry

this gun. 3

Quamaine stood still with his hands up and empty, complying with all

police instructions. 4 But holding his dog by its collar, Officer Faul and the dog

charged Quamaine—the two were separated by less than the length of the

dog’s thirty-six-inch tether. Officer Faul shouted “Gun!,” and launched the dog

onto Quamaine. When the dog hit Quamaine, he began falling to the ground

reflexively trying to fend off the attack with his hands. As Quamaine fell,

Officer Faul began shooting him. Indeed, Officer Faul began firing nearly

simultaneously with his deployment of the dog, which continued attacking

throughout the shooting. This means that Officer Faul was firing at point-

blank range and that the assault was of man and dog, not dog then man.

Neither of the other two officers on the scene fired a single shot.

The autopsy confirms that the paths of the shots which hit Quamaine

are explained only by his struggle with the dog as he falls to his left and to the

2 The characterization of the preceding incident as armed robbery was an error made

by the dispatcher.

3 Appellees represent that they performed a records search and were unable to find

any evidence that Quamaine held a concealed weapons permit, Appellees’ Brief at 7, but at

least two different people recall seeing documentation of this permit. Appellees also are not

confident enough in their search efforts to represent that Quamaine definitely did not have

such a permit. See id. (“[E]ven assuming arguendo that [Quamaine] held a valid permit . . .

.”). To the extent this fact is disputed, we must resolve the dispute in favor of Appellants.

See Ferraro, 796 F.3d at 531.

4 Babino also stated that Quamaine never did anything threatening, presumably

including taking up a fighting stance.

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ground. None of the seven shots hit Quamaine head-on, instead striking him

in downward paths from the side and back. The closest to head-on is the shot

which hit Quamaine’s chin at a sharp downward angle, then traveled through

his neck (never exiting his body) to his chest. Dr. Traylor, who gave a

“plausible order of shots fired based on the [witness] statements,” believed this

shot was the first to hit. However, this account is contradicted by other

evidence; 5 indeed, Babino stated that she believed the first shot hit Quamaine’s

chest or shoulder rather than his chin. Whenever the chin shot struck, its

downward trajectory can be explained only by Quamaine’s struggle with the

dog.

While the dog was on Quamaine, Officer Faul shot Quamaine seven

times at point-blank range (recall that the dog was on a thirty-six-inch tether

held by Officer Faul’s left hand and his gun was being fired with his right). If

Quamaine did move on the ground prior to Officer Faul firing the last two

shots, it may have been due to the dog, which was still “tearing at” Quamaine’s

hip, “grabbing him and pulling him back.” However, there is evidence that

Quamaine did not move during the pause between the first five and the last

two shots to hit him. Babino’s deposition indicates that her attention was fixed

on Quamaine throughout the shooting, and officer accounts provide further

support—she was watching Quamaine. When asked if she saw Quamaine

move once he was on the ground, she stated that he picked up his head, but

she did not see him “move his body, the trunk of his body.” She also stated

that she did not see Quamaine make “any threatening action . . . towards

anyone” once the apartment door opened or make “any effort whatsoever . . .

5Dr. Traylor’s version of the bullet’s trajectory as “slightly right to left” differs from

the autopsy, which reported the trajectory as “left to right.”

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to fight back against the police.” 6

Officer Galland reported that Quamaine made a rolling motion similar

to that reported by Officer Faul, but only after all the shots were fired, and

stated that Quamaine’s hands were above his head at the time—suggesting

that Officer Faul’s timeline might be mistaken. Finally, if the last two shots

hit Quamaine’s back, as suggested by testimony from Officer Faul and another

witness, then both his humeri were already fractured by the point at which

Officer Faul reports that he tried to spin himself over. Though he may still

have been able to move his arms, “it would have been extremely painful” and

they were “not going to help him at all” to turn over. As the majority correctly

concludes, a reasonable trier of fact could find that Quamaine never moved

threateningly once on the ground. 7

II.

A.

“[W]hen reviewing a grant of summary judgment in the Fourth

Amendment context, after first construing disputed historical facts in favor of

the non-movant, the court must then ask how a reasonable officer would have

perceived those historical facts.” 8 On the narrative sketched above, Officer

Faul and the dog together attacked Quamaine even though the young man

made no threatening movement whatsoever. Even if Officer Faul actually

believed Quamaine was going to fight him—despite his complete compliance

and facing three drawn guns—no reasonable police officer could perceive such

6 Babino here refers to all times after the first shot; she also stated Quamaine made

no threatening movement prior to any shots.

7 See Goodman v. Harris County, 571 F.3d 388, 398 (5th Cir. 2009) (“Ashabranner’s

testimony that Michael pushed him and attempted to drown Nero was contradicted by

medical evidence and witness testimony that Michael’s right arm was ‘virtually useless’ due

to a gun-shot wound suffered only three months prior which had not yet healed.”); Sanchez

v. Fraley, 376 F. App’x 449, 452 (5th Cir. 2010).

8 Hill v. Carroll County, 587 F.3d 230, 234 (5th Cir. 2009).

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behavior as life threatening. There is no doubt that Officer Faul’s use of lethal

force in these circumstances violated the Fourth Amendment. “Where the

suspect poses no immediate threat to the officer and no threat to others,” the

use of deadly force is not justified. 9 We also “need not dwell” on the issue of

qualified immunity. “It has long been clearly established that, absent any

other justification for the use of force, it is unreasonable for a police officer to

use deadly force against a . . . felon who does not pose a sufficient threat of

harm to the officer or others.” 10

The majority fully agrees with this analysis with respect to the final two

shots, but it leaves the district court’s grant of summary judgment in place

with respect to the first five shots—refusing to address the appeal from that

judgment. That is, it leaves Officer Faul entitled to qualified immunity for

these shots, electing to “remand for consideration in the first instance whether

Officer Faul’s other actions are entitled to qualified immunity in the light of

Babino’s testimony”—without vacating the grant of summary judgment. With

all due respect, this result is as inexplicable as it is unexplained. The district

court concluded that Officer Faul was entitled to qualified immunity for all

seven shots—it has already addressed “in the first instance” whether Officer

Faul is entitled to qualified immunity for the first five shots “in the light of

Babino’s testimony.” Moreover, this partial remand cannot be squared with

the fact that the majority does address the final two shots, where Babino’s

testimony was critical. I am at sea as to why the majority slices a single event

into distinct segments—seven shots into five and two—then performs the

proper analysis with respect to one segment—the final two shots—and then

9 Tennessee v. Garner, 471 U.S. 1, 11 (1985).

10 Lytle v. Bexar County, 560 F.3d 404, 417 (5th Cir. 2009); see also Graves v. Zachary,

277 F. App’x 344, 349 (5th Cir. 2008) (“It does not take a specific case for an officer to know

that he cannot shoot a compliant suspect and that he cannot fire again at someone who is

objectively ‘downed or incapacitated.’”).

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orders the district court to try again with respect to the other segment—the

first five shots. This decision is especially puzzling when the issue is qualified

immunity. As we have said before in this context, there is no reason to require

the district court to address again a legal question that this Court reviews de

novo. 11 And we inevitably will face another appeal before this case can go to

trial, at which evidence offered to the jury can hardly be segmented.

The upshot is that the majority simply declines to “express an opinion”

with regard to a legal issue—the main issue of this case—that was squarely

addressed by the district court, fully briefed by the parties, and remains the

heart of this case. The majority also declines to vacate the district court’s

judgment with respect to the first five shots. To these eyes, that is

indefensible. 12 Nowhere in its opinion does the majority explain from where it

derives the authority to slice a single event and choose from the resulting parts

of the appeal which to decide. We are duty-bound to decide the issues essential

to the appeal. “Federal appellate courts’ twin duties are to decide appeals and

to articulate the law.” 13 The majority’s opinion does neither with respect to the

first five shots and complicates the future path of this case. One thing is sure—

long delay in a trial that the majority has already conceded must occur.

11 See Nerren v. Livingston Police Dep’t, 86 F.3d 469, 473 n.25 (5th Cir. 1996); see also

Barrie v. Intervoice-Brite, Inc., 397 F.3d 249, 263 (5th Cir. 2005) (“While the normal procedure

where the lower court has not considered a pertinent issue is to remand the case,

considerations of judicial economy can dictate otherwise in circumstances such as these,

where the issue is a purely legal question subject to plenary review by this court.”).

12 When remanding because the district court committed a legal error, our uniform

practice is to vacate the judgment. See, e.g., Veasey v. Abbot, 796 F.3d 487, 503-04 (5th Cir.

2015); Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 232 (5th Cir. 2009) (per

curiam); Gros v. City of Grand Prairie, 181 F.3d 613, 617 (5th Cir. 1999). This is sensible. If

the district court’s judgment is predicated on an erroneous legal determination, we should

not leave it in place. If it is not, there is no basis to return a part of the case to the district

court.

13 United States v. McFarland, 311 F.3d 376, 417 (5th Cir. 2002) (Jones, J., dissenting

from the denial of rehearing en banc).

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B.

Whatever the majority’s reasoning, and with all due respect, I cannot

concur in its opinion leaving the door open for another decision in Officer Faul’s

favor. This “remand for consideration” implicitly holds that on this record the

district court could conclude that Officer Faul enjoys qualified immunity as a

matter of law for the first five shots and to these eyes that cannot be so.

Appellees rely upon the principle that officers may use deadly force when

threatened even if they negligently create circumstances leading to the need

for force. 14 That is, Appellees argue that Officer Faul was justified in using

deadly force because even if he negligently released his attack dog, Quamaine

reacted—in a reflexive attempt to fend off the dog—by moving his hands

downward and unintentionally closer to the gun in his waistband. But that

principle does not address the situation here, where an officer used both a dog

and a gun together as part of the same attack, the same direct and intentional

deployment of deadly force.

The doctrine regarding negligent creation of the circumstances requiring

deadly force is necessary to avoid collapse of the jurisprudence of deadly force

into a negligence action, but it is not without limit—for it would then blur and

ultimately erase the effort of the law to limit the use of deadly force. And I do

not read the extant cases to say otherwise. In Young, the officer negligently

increased the background level of risk by failing to maintain cover, failing to

radio for help or wait for backup, placing his patrol car in a dangerous position,

and directing the suspects to exit their car. 15 We have followed Young in cases

where officers failed to maintain cover, 16 failed to identify themselves as

14 See Young v. City of Killeen, 775 F.2d 1349, 1353 (5th Cir. 1985).

15 Id. at 1351.

16 Carnaby v. City of Houston, 636 F.3d 183, 188 (5th Cir. 2011).

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officers, 17 or otherwise increased the riskiness of the situation. 18 Also following

Young, we have said 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

force, but we immediately continued that earlier events “set the stage for what

followed” and held that factual disputes regarding them were material. 19

Excessive force cases are highly fact specific, and two key circumstances

distinguish this case from Young and its progeny. First, the officer’s use of the

dog to attack Quamaine did not merely set a risky scene before shots were

fired. It was at all times an assault of dog and gun. The moment the dog did

as trained, Officer Faul began firing away. That he continued to put two more

rounds in his back after Quamaine was lying on his stomach is doubly relevant.

It signifies both as an independent act, as the majority observes, but also for

its powerful suggestion that Officer Faul intended his force to be deadly from

the beginning. 20 Officer Faul’s multiple breaches of police protocol—including

“rush[ing] into . . . the killing zone” without a plan, failing to take cover, and

insisting on taking the lead despite being tethered to an attack dog—suggest

the same. Though Officer Faul cannot be held liable for these negligent

actions, a jury could certainly infer that they paint the picture of an officer

eager to engage in a deadly confrontation.

17 Fraire v. City of Arlington, 957 F.2d 1268, 1275-76 (5th Cir. 1992).

18 See Rockwell v. Brown, 664 F.3d 985, 992-93 (5th Cir. 2011) (officers broke into room

where upset, mentally ill man had barricaded himself); Ramirez v. Knoulton, 542 F.3d 124,

127, 129-30 (5th Cir. 2008) (officer “fail[ed] to consider the use of non-lethal force or to employ

a crisis negotiator” in response to a non-complying suspect); Owens v. City of Austin, 259 F.

App’x 621, 624 n.2 (5th Cir. 2007) (officer failed to follow proper procedures).

19 Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 493 (5th Cir. 2001) (citing

Fraire, 957 F.2d at 1276; and Young, 775 F.2d at 1353). But see Rockwell, 664 F.3d at 992-

93 (refusing to consider circumstances leading to use of force).

20 See Baker v. Putnal, 75 F.3d 190, 198 (5th Cir. 1996) (“The nature of the wounds

indicate that Baker, Jr., was not facing Putnal when he was shot. The number of shots and

the nature of the wounds raise a serious question as to the reasonableness of his conduct,

more of a question of fact than a court may dispose of on summary judgment.”).

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Second, in the Young cases, officers’ actions created risky situations, but

the suspects then chose to commit intervening acts which threatened the

officers. 21 The officers set the scene, but the tragic outcome was not inevitable;

suspects were free to comply with officer commands 22—but instead chose to

attack, flee, or reach for objects out of officers’ view. Officers faced with these

newly developed threats then responded reasonably in the moment. There was

no intervening act in this case. To the extent Quamaine moved his hands, he

cannot be faulted for reflexively attempting to protect himself from the dog.

No reasonable officer would have perceived his reflexive movements as

threatening. Indeed, given the firing sequence and trajectories, a reasonable

jury could easily conclude that hand movement had nothing to do with this

shooting.

Young and Ramirez do not provide an answer here. We have recognized

that summary judgment is properly denied “where fact issues exist[] about

whether a police officer’s use of force was justified or was ‘unreasonably

created.’” 23 Other circuits with rules similar to Young have recognized that

officers may be liable for using excessive force when their actions cross the line

21 Young, 775 F.2d at 1351 (suspect who tried to flee scene of drug deal reached down

into car when ordered to exit); Rockwell, 664 F.3d at 989-90 (suspect attacked officers with

knives); Carnaby, 636 F.3d at 186 (suspect led police on car chase, refused to get out until

police smashed a window, bent down in car where officers could not see hands, and then

swung hands, one grasping something, toward officers); Fraire, 957 F.2d at 1275 (suspect fled

from police in car, then defied police orders and drove straight at officer); Ramirez, 542 F.3d

at 127 (suspect exited car holding gun and brought his hands together in front of his waist,

all the time failing to comply with officer commands); Owens, 259 F. App’x at 622-23 (suspect

refused to allow himself to be handcuffed, then accelerated car with officer’s arms trapped

inside so that officer was dragged along).

22 Rockwell’s mental illness may have restricted his choices once cornered, but police

did not. See Rockwell, 664 F.3d at 989.

23 Edmond v. City of New Orleans, 20 F.3d 1170, at *2 (5th Cir. 1994) (precedential

under 5th Cir. R. 47.5.3); see also Bazan, 246 F.3d at 493 (holding that earlier events “set the

stage for what followed,” and that factual disputes regarding those events were material).

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from negligence to recklessness. 24 Still others have recognized the principle

that officers may be liable for excessive force when their actions directly create

the justification for the force. In Ribbey v. Cox, the Eighth Circuit held that a

police officer cannot break a car window and then rely upon the suspect’s

“reflex[ive] [movement] to protect himself from the breaking glass” to justify

the use of lethal force. 25 In Estate of Starks v. Enyart, the Seventh Circuit held

that a police officer cannot jump in front of a suspect’s car and then rely upon

the danger of the oncoming car to justify the use of lethal force. 26 In Sample v.

Bailey, the Sixth Circuit held that a police officer cannot order a suspect to get

out of his hiding place and then rely upon the suspect’s efforts to comply with

that command to justify the use of lethal force. 27 And in Kopf v. Wing, the

Fourth Circuit held that a police officer cannot deploy a dog and then rely upon

the inability of the suspect to put his hands up as the dog attacks him to justify

the use of force. 28

These cases chart a limit to Young comporting with common sense. At

some point, an officer crosses the line between setting up a risky situation and

actually himself directly causing the “threat.” Officers are at risk in nigh every

24 See, e.g., Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002) (“[W]here an officer

intentionally or recklessly provokes a violent confrontation, if the provocation is an

independent Fourth Amendment violation, he may be held liable for his otherwise defensive

use of deadly force.”); Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995) (“The

reasonableness of Defendants’ actions depends both on whether the officers were in danger

at the precise moment that they used force and on whether Defendants’ own reckless or

deliberate conduct during the seizure unreasonably created the need to use such force.”

(footnote omitted)).

25 222 F.3d 1040, 1042-43 (8th Cir. 2000).

26 5 F.3d 230, 235 (7th Cir. 1993); see also Kirby v. Duva, 530 F.3d 475, 482 (6th Cir.

2008) (“Where a police officer unreasonably places himself in harm’s way, his use of deadly

force may be deemed excessive.”).

27 409 F.3d 689, 697 (6th Cir. 2005).

28 942 F.2d 265, 268 (4th Cir. 1991). As I do, the court concluded that “a jury could

find it objectively unreasonable to require someone to put his hands up and calmly surrender

while a police dog bites his scrotum.” Id.

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No. 14-30021

traffic stop as they approach a vehicle, as are the persons in that vehicle—so

also with street confrontations. Yet no one will maintain that an officer can

lawfully avoid all risk by simply shooting and asking questions later. So long

as the suspect has his hands in the air—and certainly when three officers have

drawn guns trained on him—an officer cannot simply shoot him, avoiding all

risk to himself. If that is so, an officer cannot knock him down and shoot him

because he then no longer has his hands up. That the officer has information

that the suspect is armed does not work a different result. 29 To say otherwise

is to hold that a deadly attack upon a man standing with his hands in the air

is not excessive force just because he has a gun in his waistband—an

unconscionable result insupportable in law, and perversely confounding the

current sanctioning of open carry of handguns.

III.

Under Appellants’ version of the facts, there was nothing that Quamaine

Mason or indeed anyone in the area matching his description could do to escape

Quamaine’s fate. He was dead as soon as police were called. He complied with

all orders until he was attacked by a dog and police officer who shot him seven

times at point-blank range. We have the responsibility of providing arresting

officers all guidance in the use of deadly force that we can, as these cases are

often close and difficult—and when these cases are close and difficult, we clothe

the officers with post-hoc immunity. This attack of man and dog is far from

that genre. We ought not decide this case—that decision belongs to a jury.

Avoiding a trial is an important component of qualified immunity, but denial

of qualified immunity does not deny Officer Faul his immunity defense from

29See Cole v. Carson, Nos. 14-10228, 15-10045, 2015 WL 5672071, at *4 (5th Cir. Sept.

25, 2015) (“[T]here is no open season on suspects with guns.”).

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No. 14-30021

liability. It only concludes that he must be judged by a jury of his peers. 30

Appellants should not have go through the time and expense of another

interlocutory appeal to get this Court to recognize as much. I cannot join this

newly minted form of abstention, and I respectfully dissent.

30 See, e.g., Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 402 (5th Cir. 2011);

Harper v. Harris County, 21 F.3d 597, 601 (5th Cir. 1994) (per curiam) (“Of course, [the

officer] still may assert qualified immunity at trial.”).

33