Rogers Vann v. City of Southaven

Case: 16-60561 Document: 00514372480 Page: 1 Date Filed: 03/05/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 5, 2018

No. 16-60561

Lyle W. Cayce

Clerk

ROGERS VANN, As Personal Representative and on Behalf of the Wrongful

Death Beneficiaries of Jeremy W. Vann,

Plaintiff – Appellant,

v.

CITY OF SOUTHAVEN, MISSISSIPPI; LIEUTENANT JORDAN JONES,

Individually and in His Official Capacity as a Police Officer; SERGEANT

BRETT YOAKUM, Individually and in His Official Capacity as a Police

Officer; POLICE CHIEF TOM LONG, Individually and in His Official

Capacity as a Police Officer and Chief of Police; SERGEANT JEFF LOGAN,

Individually and in His Official Capacity as a Police Officer,

Defendants – Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

ON PETITION FOR REHEARING

Before SMITH, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a petition for panel

rehearing, the petition for panel rehearing is GRANTED. The panel opinion,

Vann v. City of Southaven, 876 F.3d 133 (5th Cir. 2017), is WITHDRAWN, and

the following is substituted:

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No. 16-60561

This lawsuit arises from the death of Jeremy W. Vann, who was shot and

killed by police in a retail parking lot in Southaven, Mississippi during a small-

scale drug sting operation. During the encounter, Vann was shot by two

officers, Sergeant Jeff Logan and Lieutenant Jordan Jones. Plaintiff sued the

officers involved and the City of Southaven under 42 U.S.C. § 1983, claiming

that the officers violated Vann’s Fourth Amendment right to be free from

unreasonable seizure, excessive force, and deadly force, and that the City had

failed properly to train its officers and had permitted an official practice or

custom that violated the constitutional rights of the public at large. The

officers and the City simultaneously moved for summary judgment. 1 The

district court granted the officers’ and the City’s summary-judgment motion.

“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.” Hanks

v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) (quoting Griggs v. Brewer, 841 F.3d

308, 311 (5th Cir. 2016)). Summary judgment is appropriate only if “there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Id. (quoting Griggs, 841 F.3d at 311–12); see

also McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en

banc). “[W]e view the facts in the light most favorable to the non-moving party

and draw all reasonable inferences in its favor.” Hanks, 853 F.3d at 743

(quoting Griggs, 841 F.3d at 312); see also Tolan v. Cotton, 134 S. Ct. 1861,

1866 (2014) (“Our qualified-immunity cases illustrate the importance of

drawing inferences in favor of the nonmovant . . . .”).

“A qualified immunity defense alters the usual summary judgment

burden of proof. Once an official pleads the defense, the burden then shifts to

1 The City and the officers were and continue to be represented by the same counsel

in single briefs and motions.

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No. 16-60561

the plaintiff, who must rebut the defense by establishing a genuine fact issue

as to whether the official’s allegedly wrongful conduct violated clearly

established law.” Hanks, 853 F.3d at 744 (citation omitted) (quoting Brown v.

Callahan, 623 F.3d 249, 253 (5th Cir. 2010)).

With respect to Jones, one of the two officers who shot Vann, it is

undisputed that Jones shot Vann after his colleague, Logan, was knocked to

the ground by Vann’s car and as Vann’s car approached Logan for a second

time. Under these circumstances, Jones’s use of force did not violate clearly

established law.

With respect to Logan, the other officer who shot Vann, even assuming

arguendo that Logan used excessive force, the question then becomes, was

there law that put Logan on notice that shooting in the situation presented

violated the constitution? It is the plaintiff’s burden to find a case in his favor

that does not define the law at a “high level of generality.” Cass v. City of

Abilene, 814 F.3d 721, 732–33 (5th Cir. 2016). In the district court, Plaintiff,

Vann’s representative, cited nary a pre-existing or precedential case. That

alone dooms his case here. See id. at 733 (granting qualified immunity even

though the defendant did not cite any cases in his favor to the district court

because plaintiffs bears the burden of showing specific law on point). Even on

appeal, Plaintiff fails to cite a case on point from this court or the Supreme

Court that helps his case, instead relying on an out-of-circuit case.

Accordingly, we AFFIRM the district court’s grant of summary judgment

to Jones, Logan, Yoakum, and Long. In addition, finding no error in the district

court’s analysis regarding the City, we AFFIRM the district court’s grant of

summary judgment to the City of Southaven.

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