Marjorie Shepherd v. City of Shreveport

Case: 18-30528 Document: 00514901211 Page: 1 Date Filed: 04/03/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-30528

FILED

April 3, 2019

Lyle W. Cayce

MARJORIE SHEPHERD, on behalf of Estate of John Shepherd, Clerk

Plaintiff – Appellant,

v.

CITY OF SHREVEPORT; PHILLIP TUCKER,

Defendants – Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This lawsuit arises from the death of William Shepherd, who was shot

and killed by Corporal Tucker of the Shreveport Police Department in October

2013. Mr. Shepherd’s mother brought excessive force claims against the officer

and the city. The district court granted summary judgment for the defendants.

We AFFIRM.

I.

On October 15, 2013, Corporal Tucker was dispatched to Mr. Shepherd’s

home to assist the Shreveport Fire Department with a 911 call. Corporal

Tucker was informed by dispatch that there was a potentially violent male who

had possibly suffered a stroke and who the female caller feared might hurt her.

While Corporal Tucker was en route, firefighters entered Mr. Shepherd’s

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home, encountered Mr. Shepherd with a knife in his hand, and fled the home.

Mr. Shepherd followed them out into the yard but stopped at the sidewalk. The

knife was later determined to be eight inches long with a four-inch blade.

Dispatch updated Corporal Tucker that the subject was armed with a knife

and directed that he expedite. During this time, a neighbor called 911 to

erroneously report that shots had been fired, and dispatch then notified

Corporal Tucker that there were reports of shots fired in the area.

Shortly after receiving the report of possible shots fired, Corporal Tucker

arrived at Mr. Shepherd’s home. He was the first police officer at the scene

and the dash-mounted camera in his patrol car captured much of what followed

in the next two minutes. Corporal Tucker retrieved his shotgun and

approached the firetruck around which the firefighters had gathered. At that

time, Mr. Shepherd was standing in the yard with a knife in his hand,

positioned between the firetruck and the house. The firefighters identified Mr.

Shepherd as the person with a knife and informed Corporal Tucker there was

at least one person—the female caller—inside the home.

Corporal Tucker made multiple commands for Mr. Shepherd to “get

down” and “lay down.” Mr. Shepherd did not comply with those commands.

During the entire encounter, Mr. Shepherd did not directly engage in dialogue

with Corporal Tucker, but he cursed aloud at multiple times, stating “f--k you.”

After approximately thirty seconds of ignoring commands to get down in the

yard, Mr. Shepherd began moving back towards the residence—where the

female caller was believed to be—and Corporal Tucker commanded him to

“come to me now.” That was the only time during the encounter that Corporal

Tucker directed Mr. Shepherd to move towards him. Mr. Shepherd did not

comply with that command and walked into the residence’s garage.

Mr. Shepherd was in the garage for approximately a minute. During

that time, Corporal Tucker proceeded partially up the driveway to keep a

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visual on Mr. Shepherd and gave him multiple commands to put his hands up.

Mr. Shepherd disregarded those commands as well. Mr. Shepherd then exited

the garage and began moving down the inclined driveway towards Corporal

Tucker. At approximately 19:53:45 on the videotape captured by the patrol

car’s dash-mounted camera, Corporal Tucker can be seen backing down the

driveway’s incline. At approximately 19:53:49, Mr. Shepherd comes into the

videoframe and can be seen moving down the driveway towards Corporal

Tucker. At the same time, Corporal Tucker can be heard commanding Mr.

Shepherd to “get back.” However, Mr. Shepherd continued to move towards

Corporal Tucker at a relatively quick speed, while Corporal Tucker continued

to move backwards.

The parties dispute whether Mr. Shepherd had the knife raised over his

head or at his side at this point. The parties also dispute whether Mr.

Shepherd was accelerating or “stumbling” toward Corporal Tucker. On appeal,

the appellant also alleges that there is a dispute over whether Mr. Shepherd

and Corporal Tucker were ten feet or ten yards apart. But what is undisputed

is that Mr. Shepherd continued to move towards Corporal Tucker with a knife

in his hand, disregarded a command to get back, and Corporal Tucker shot him

once with his shotgun at approximately 19:53:51 on the videotape. Mr.

Shepherd died from the injury. He was fifty years old at the time.

Marjorie Shepherd, Mr. Shepherd’s mother and the appellant in this

case, subsequently filed a lawsuit in federal court against Corporal Tucker and

the City of Shreveport, bringing excessive force claims under both 42 U.S.C.

§ 1983 and Louisiana state tort law. The district court had federal question

jurisdiction over the Section 1983 claims, see 28 U.S.C. § 1331, and

supplemental jurisdiction over the related state law tort claims, see 28 U.S.C.

§ 1367. The defendants eventually moved for summary judgment. Ms.

Shepherd filed a response brief in opposition. Two weeks later, after the

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defendants had filed their reply to Ms. Shepherd’s response brief, Ms.

Shepherd moved for leave to supplement her response brief. The district court

denied Ms. Shepherd’s motion to supplement, as well as her subsequent motion

to reconsider that denial.

The district court granted summary judgment for the defendants and

dismissed all of Ms. Shepherd’s claims with prejudice. As to the Section 1983

claim against Corporal Tucker, the district court held that “[u]nder the totality

of the circumstances and irrespective of whether the knife was over Shepherd’s

head or by his side, . . . Cpl. Tucker reasonably believed that Shepherd posed

a threat of serious harm[.]” As such, the district court held that Corporal

Tucker’s use of force was not excessive under the Fourth Amendment. In the

alternative, the district court held that even if his force was excessive, Corporal

Tucker was entitled to qualified immunity because his actions were not

objectively unreasonable in light of clearly established law. For the Section

1983 claim against the City of Shreveport, the district court held the claim

failed because there was no underlying constitutional violation. And for the

state law claims, the district court held that the analysis for Louisiana

excessive force claims mirrors the analysis for Fourth Amendment excessive

force claims and dismissed for the same reasons.

Ms. Shepherd filed a timely notice of appeal, and this court has

jurisdiction under 28 U.S.C. § 1291. On appeal, Ms. Shepherd argues that the

district court erred by: (1) holding that Corporal Tucker’s use of force was not

excessive under the Fourth Amendment; (2) holding, in the alternative, that

Corporal Tucker was entitled to qualified immunity; (3) holding that the

defendants were not liable under Louisiana tort law, and (4) denying her

motion to supplement her brief in opposition to summary judgment.

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II.

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

applying the same standards as the district court.” DeVoss v. Sw. Airlines Co.,

903 F.3d 487, 490 (5th Cir. 2018) (citation and quotation marks omitted).

Summary judgment is appropriate only 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.” Fed. R. Civ. P. 56(a). A dispute of fact is not

“material” unless its resolution would affect the outcome of the case. Hamilton

v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). When reviewing

summary judgment decisions, we generally construe all purported facts in the

light most favorable to the non-movant. Carnaby v. City of Houston, 636 F.3d

183, 187 (5th Cir. 2011). However, when there is a videotape that discredits

the non-movant’s description of facts, we will “consider ‘the facts in the light

depicted by the videotape.’ ” Id. (quoting Scott v. Harris, 550 U.S. 372, 381

(2007)).

We review a district court’s determination of state law de novo. Salve

Regina Coll. v. Russell, 499 U.S. 225, 231 (1991).

We review a district court’s denial of a motion to amend or supplement

pretrial materials, such as briefs in opposition to summary judgment, for abuse

of discretion. See Reliance Ins. Co. v. La. Land & Expl. Co., 110 F.3d 253, 257

(5th Cir. 1997); Barker v. Norman, 651 F.2d 1107, 1128–29 (5th Cir. 1981).

III.

A.

First, we address the Section 1983 excessive force claim against Corporal

Tucker. To prevail on a Section 1983 excessive force claim, “a plaintiff 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.” Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (quoting

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Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008)); see also Graham v.

Conner, 490 U.S. 386, 393–97 (1989). In this circuit, “the 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. Therefore, any of the officers’

actions leading up to the shooting are not relevant[.]” Harris, 745 F.3d at 772

(internal quotation marks, citation, and alterations omitted). “Use 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 v. City of

Palestine, 333 F.3d 621, 624 (5th Cir. 2003).

Ms. Shepherd argues that the district court erred in determining that

there was no genuine dispute as to whether Corporal Tucker’s use of force was

unreasonably excessive. She argues that genuine disputes of material facts

exist as to: (1) the distance between Mr. Shepherd and Corporal Tucker at the

time the shot was fired; (2) the manner in which Mr. Shepherd approached

when he was shot; and (3) the level of threat Mr. Shepherd presented with the

knife when he was shot. We address each alleged dispute in turn.

First, we consider the distance between Mr. Shepherd and Corporal

Tucker when the shot was fired. This is a primary focus of Ms. Shepherd’s

appeal. In her original complaint, Ms. Shepherd alleged that Corporal Tucker

was approximately eight to ten feet away when he fired. Corporal Tucker and

several witnesses also testified to that approximate distance of ten feet. Ms.

Shepherd did not dispute that distance in her brief in opposition to summary

judgment. As such, the district court determined that the distance at the time

of the shooting was approximately ten feet. Now on appeal, Ms. Shepherd tries

to create a dispute by alleging that the distance was ten yards rather than ten

feet. Her counsel does so by misleadingly citing parts of the record which

indicate that Corporal Tucker tried to maintain a ten-yard distance before Mr.

Shepherd began moving towards him.

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However, even if this court were willing to consider an issue that was

conceded before the district court and then raised as a dispute for the very first

time on appeal, that issue is discredited by the videotape in this case. Though

the videotape is far from the paragon of clarity, it shows that the distance at

the time of the shot was much closer to ten feet than to thirty feet. So, viewing

this alleged factual dispute “in the light depicted by the videotape[,]” Scott, 550

U.S. at 381, we hold that there is no material issue of fact as to the distance

between Mr. Shepherd and Corporal Tucker at the time of the shot. Counsel’s

attempt to manufacture a dispute over this point on appeal borders on

frivolous.

Second, we consider the manner of Mr. Shepherd’s approach at the time

of the shot. Ms. Shepherd asserts that there are material disputes as to

whether Mr. Shepherd was obeying Corporal Tucker’s commands to leave the

garage when he was shot and whether he was moving slowly at that time

because he was staggering and stumbling. However, these assertions are also

belied by the videotape. The videotape clearly shows that Corporal Tucker did

not command Mr. Shepherd to leave the garage in the moments before he was

shot; to the contrary, the videotape shows that Tucker instead ordered him to

“get back.” In addition, the videotape also shows that Mr. Shepherd was

advancing down the driveway at a relatively quick speed in the final moments

before being shot—in a motion that looks much more like directed running

than errant stumbling. Thus, once again viewing this alleged factual dispute

“in the light depicted by the videotape[,]” Scott, 550 U.S. at 381, we hold that

there is no genuine issue of material fact on this issue either.

Third, we turn to the level of threat that Mr. Shepherd presented with

the knife when he was shot. Ms. Shepherd repeats her argument, rejected by

the district court, that the dispute over whether Mr. Shepherd had the knife

up by his head or down by his side at the time when he was shot is material.

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Her argument is that Mr. Shepherd could not have reasonably posed a threat

if the knife was by his side. The videotape does not clearly show how Mr.

Shepherd was holding the knife in the moments leading up to the shot.

However, we agree with the district court that this dispute is not material to

the outcome of the case. Under the totality of circumstances present in this

case, even if we were to accept that Mr. Shepherd still had the knife at his side

at the moment when he was shot, there is ample reason to conclude that he

posed a real threat of serious bodily harm to the officer. As such, we hold that

Corporal Tucker’s use of deadly force was reasonable.

In addition, Ms. Shepherd’s counsel repeatedly makes the assertion that

knives cannot be used as projectile weapons, and states that a knife could not

be a sufficient threat even at ten feet. Counsel cites no authority for this

assertion; counsel simply proclaims it as if it is a fact. But it is not a fact.

Furthermore, it disregards the actual fact that Mr. Shepherd was continuing

to move toward Corporal Tucker even after being commanded to get back and

having a shotgun pointed at him. Counsel’s unsupported assertion that

holding a knife could not pose a threat of serious bodily injury under the facts

of this case is not sufficient to create a genuine issue of material fact.

As such, all of the alleged disputes raised by Ms. Shepherd in this appeal

are either immaterial or discredited by the videotape, and we affirm the

district court’s judgment that Corporal Tucker’s use of force was neither

excessive nor unreasonable under the Fourth Amendment.

B.

Next, we address the district court’s conclusion that, in the alternative,

Corporal Tucker is entitled to qualified immunity. “Qualified immunity

protects officers from suit unless their conduct violates a clearly established

constitutional right.” Mace, 333 F.3d at 623. For a right to be clearly

established, “existing precedent must have placed the statutory or

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constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). The Supreme Court

has repeatedly told courts not to define clearly established rights “at a high

level of generality.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotation

marks and citation omitted). “The dispositive question is ‘whether the

violative nature of particular conduct is clearly established.’ . . . Such

specificity is especially important in the Fourth Amendment context[.]” Id.

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

Ms. Shepherd argues that Corporal Tucker is not entitled to qualified

immunity because “the constitutional right to be free of deadly force” is clearly

established. However, her argument lacks the level of specificity required to

survive a motion for summary judgment. See Brown v. Callahan, 623 F.3d

249, 253 (5th Cir. 2010) (“A qualified immunity defense alters the usual

summary judgment burden of proof. Once an official pleads the defense, the

burden then shifts to 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.” (citation omitted)).

Caselaw at the time of the shooting (and at the time of this opinion) has

not clearly established that it violates the Constitution for a police officer to

shoot someone who is behaving erratically, advancing toward the police officer

with a knife in his hand, and disregarding a command to get back. Indeed,

caselaw supports the opposite conclusion. See, e.g., Kisela, 138 S. Ct. at 1150–

55 (holding that it was not clearly established that an officer’s use of deadly

force was excessive when used against someone who continued to approach a

bystander after ignoring commands to drop a knife); Elizondo v. Green, 671

F.3d 506, 510 (5th Cir. 2012) (holding that an officer did not use excessive force

when the individual “ignored repeated instructions to put down the knife, . . .

[was] in close proximity to [the officer], and [was] moving closer”).

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As such, even if Corporal Tucker’s use of force was unreasonably

excessive based on the totality of circumstances in this case (which we hold it

was not), we also affirm the district court’s alternate determination that

Corporal Tucker is entitled to qualified immunity. 1

C.

We now turn to the district court’s summary judgment on the state law

tort claims. The district court determined that a claim of excessive force under

Louisiana tort law mirrors a claim of excessive force under the Fourth

Amendment and granted summary judgment for the defendants accordingly.

On appeal, Ms. Shepherd argues that the analysis for excessive force under

Louisiana law materially differs from the analysis for excessive force under the

Fourth Amendment. She also argues that she properly raised state law claims

of negligence against the firefighters and dispatch personnel that are distinct

from the excessive force analysis. We address each argument in turn.

First, we address Ms. Shepherd’s argument that the analysis for

excessive force under Louisiana law materially differs from the analysis for

excessive force under the Fourth Amendment in this case. We reject this

argument.

As the district court noted, excessive force claims under both federal and

Louisiana law turn on whether the use of force was objectively reasonable

given the totality of the circumstances. This has been widely recognized by

this court, Louisiana federal district courts, and the Louisiana Supreme Court.

See, e.g., Delville v. Marcantel, 567 F.3d 156, 172 (5th Cir. 2009) (“Louisiana's

excessive force tort mirrors its federal constitutional counterpart. . . .

‘Whether the force used is reasonable depends upon the totality of the facts

1 “This circuit follows the rule that alternative holdings are binding precedent and not

obiter dictum.” Melton v. Phillips, 875 F.3d 256, 265 n.8 (5th Cir. 2017) (en banc) (quoting

United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011)).

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and circumstances in each case[.]’ . . . These considerations are sufficiently

similar to the Graham factors that our decision on this claim mirrors our

decision of plaintiffs’ § 1983 excessive force claim.” (quoting Kyle v. City of New

Orleans, 353 So. 2d 969, 973 (La. 1977))); Reneau v. City of New Orleans, No.

03-1410, 2004 WL 1497711, at *4 (E.D. La. Jul. 2, 2004) (“Under Louisiana

law, the same standard is used in analyzing a state law claim of excessive force

as a constitutional claim, namely reasonableness under the circumstances. . .

. As the Court has found that the officers acted reasonably under the

circumstances, the Plaintiffs state law claims must fail as well.”); Mathieu v.

Imperial Toy Corp., 646 So. 2d 318, 323 (La. 1994) (stating that “[t]he

reasonableness test we employed in Kyle is based upon the text of the Fourth

Amendment to the United States Constitution[,]” and citing Graham in a

footnote).

Ms. Shepherd nevertheless argues that the district court erred in

granting summary judgment on her state law excessive force claims because

at least one Louisiana appellate court has affirmed an excessive force inquiry

that looked to the reasonableness of the events leading up to the use of force

rather than just looking solely at the reasonableness at the moment of the

threat, see Harris v. Carter, 768 So. 2d 827, 835 (La. App. 2d Cir. 2000), and

because Louisiana negligence law allows for fault to be comparatively

apportioned.

To our knowledge, the Louisiana Supreme Court has not spoken

explicitly to the question of whether the reasonableness inquiry for excessive

force under Louisiana tort law is limited to the moment of threat or if it should

be expanded to consider the events leading up to it. However, we need not

hazard an Erie guess here. Ms. Shepherd has failed to raise a genuine dispute

of material fact that Corporal Tucker’s actions were objectively unreasonable

at any stage in the events leading up to the use of force, so under either

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standard the outcome is the same. Moreover, because Corporal Tucker acted

reasonably, he did not breach any duty owed to Mr. Shepherd and there is no

fault to comparatively apportion. Therefore, the district court did not err in

granting summary judgment to the defendants on the state law excessive force

claims.

Second, we address Ms. Shepherd’s argument that she properly raised

state law claims of negligence pertaining to the firefighters and dispatch

personnel that are distinct from the excessive force analysis. We reject this

argument as well.

Under the Federal Rules of Civil Procedure, a complaint needs to provide

“a short and plain statement of the claim[.]” Fed. R. Civ. P. 8(a)(2). That

statement needs to be sufficient to “give the defendant fair notice of what the

[plaintiff’s] claim is and the grounds upon which it rests[.]” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). In other words, “a complaint must do more than name laws that may

have been violated by the defendant; it must also allege facts regarding what

conduct violated those laws.” Anderson v. U.S. Dep’t of Hous. & Urban Dev.,

554 F.3d 525, 528 (5th Cir. 2008).

In this case, Ms. Shepherd’s complaint alleged that Corporal Tucker was

at fault for using excessive force and that the city was at fault for failing to

train and supervise Corporal Tucker. Ms. Shepherd pleaded that firefighters

were on the scene, but nowhere does her complaint say anything that would

reasonably put the defendants on notice that she is alleging negligence on the

part of either the firefighters or the dispatchers. The first time that Ms.

Shepherd comes close to articulating a clear allegation of negligence on the

part of either the firefighters or the dispatchers is after the defendants moved

for summary judgment, in her brief in opposition.

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However, as a general matter, we “carefully scrutinize” any attempts to

raise new theories of recovery after the opposing party has filed a motion for

summary judgment. Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999). As

such, we hold that the claims of alleged negligence on the part of the

firefighters and the dispatchers were not properly raised before the district

court and have no bearing on the analysis of the state law excessive force

claims brought by Ms. Shepherd in this case. Furthermore, even if those

claims had been properly raised before the district court, the argument that

negligence on the part of the firefighters or the dispatchers was somehow

responsible for Mr. Shepherd advancing towards Corporal Tucker with a knife

in his hand while disregarding a command to get back is specious at best.

Therefore, we affirm the judgment of the district court granting

summary judgment to the defendants on Ms. Shepherd’s state law tort claims.

D.

Last, we address the district court’s denial of Ms. Shepherd’s motion to

supplement her brief in opposition to summary judgment. Ms. Shepherd

argues the district court abused its discretion when it denied her motion to

supplement her brief. Ms. Shepherd states that the supplemental brief would

have “represented mostly elaboration of points prior made” by expanding upon

an expert report and developing arguments related to the alleged negligence of

the firefighters and dispatch personnel.

The Federal Rules of Civil Procedure state that a pretrial schedule may

be modified “only for good cause.” Fed. R. Civ. P. 16(b)(4). “We consider four

factors in determining whether the district court abused its discretion in

[declining a motion to supplement a report considered at summary judgment]:

‘(1) the explanation for the failure to submit a complete report on time; (2) the

importance of the testimony; (3) potential prejudice in allowing the testimony;

and (4) the availability of a continuance to cure such prejudice.’ ” Reliance Ins.

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Co., 110 F.3d at 257 (alterations omitted) (quoting Geiserman v. MacDonald,

893 F.2d 787, 791 (5th Cir. 1990)).

In this case, the first two factors weigh strongly in favor of affirming the

district court’s decision. Ms. Shepherd offered no explanation for why the

supplemental materials were not included in the first brief other than the

statement that “[p]laintiff was unable to fully set forth all the grounds” in her

original opposition brief. And she did not explain why the addition to the

expert’s report was not ready to be timely submitted. Likewise, she has failed

to offer any better explanation on appeal. Moreover, by her own description,

the supplemental materials merely “represented mostly elaboration of points

prior made.” As such, she falls far short of demonstrating that there was good

cause for receiving a schedule adjustment to permit supplemental briefing.

District courts must have the power to control their dockets by holding

litigants to a schedule. See Reliance Ins. Co., 110 F.3d at 258. We hold that

the district court did not abuse its discretion in this case when it denied Ms.

Shepherd’s motion to supplement her brief in opposition to summary

judgment.

* * *

Under the totality of circumstances present in this case, Corporal

Tucker’s use of deadly force was reasonable, and the district court did not

abuse its discretion by denying Ms. Shepherd’s motion to supplement her brief.

The district court’s order granting summary judgment for the defendants and

dismissing all of Ms. Shepherd’s claims with prejudice is AFFIRMED.

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