Cloud v. Stone

Case: 20-30052 Document: 00515810111 Page: 1 Date Filed: 04/06/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 6, 2021

No. 20-30052

Lyle W. Cayce

Clerk

Mark David Cloud; Patti Brandt Cloud,

Plaintiffs—Appellants,

versus

Mike Stone, Lincoln Parish Sheriff; Kyle Elliott Luker, Deputy

Sheriff,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:18-CV-1070

Before Smith, Willett, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Lincoln Parish Deputy Sheriff Kyle Luker tased and then shot and

killed Joshua Cloud while trying to arrest him during a traffic stop. Cloud’s

parents sued Luker for excessive force, but the district court granted Luker

summary judgment after finding no constitutional violation. Like the district

court, we conclude Luker reasonably deployed his taser when Cloud

continued to resist arrest. We also conclude Luker justifiably used deadly

force when Cloud lunged for a revolver that had already discharged and

struck Luker in the chest. The district court’s judgment is affirmed.

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I

Around midday on August 29, 2017, Deputy Luker observed Cloud

speeding on I-20 in Simsboro, Louisiana.1 Luker followed Cloud off the

interstate and pulled him over on Highway 80, across the street from

Simsboro High School. When Luker wrote Cloud a ticket for driving 13

m.p.h. over the speed limit, Cloud protested that Luker could not possibly

have seen him on the interstate. Cloud refused to sign his ticket, which is

grounds for arrest under Louisiana law. See La. Stat. Ann. § 32:391(B).

Luker attempted to arrest Cloud. He had Cloud exit his pickup truck

and face its side with his hands behind his back. Standing behind Cloud,

Luker handcuffed his left wrist, at which point Cloud turned partially around

to his left. (Plaintiffs contend Cloud turned around, not to keep arguing, but

because he had a hearing impairment. We address that assertion below. See

infra Section III.A & n.9.) Luker ordered Cloud to turn back around and

reached for his right hand to finish handcuffing him. But Cloud then spun all

the way around, turning away from Luker’s reach and facing him head-on,

with the handcuffs hanging from his left wrist.

With Cloud now facing him, Luker stepped a few feet back and tased

Cloud in the chest. Though both taser prongs hit Cloud and began cycling,

they did not incapacitate him. Cloud yelled and pulled the prongs from his

chest. Luker then released his police dog from his car with a remote button

1

The factual record comes principally from the testimony of Deputy Luker,

Deputy Taff Randall Watts, and a bystander witness named Quinton Crowe, as well as

physical evidence and a cellphone video Crowe recorded from some distance away that

captured parts of the incident. See infra note 4.

2

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and tried to regain control of Cloud. Luker grabbed Cloud around the waist

and tased him again, now with the taser in “drive-stun” mode.2

The two men, grappling with each other, moved toward the truck’s

open door. Cloud produced a revolver from somewhere near the driver’s

seat.3 As the two struggled for control of the gun, it discharged twice, the

second shot hitting Luker in the chest. Luker was in pain but unable to tell

how badly he was injured: as it turned out, his protective vest spared him all

but a minor injury. As the struggle continued, Luker managed with one hand

to radio police dispatch that shots had been fired. Luker was then able to

wrest the revolver out of Cloud’s hands and throw it to the ground on the

street behind him. With Cloud disarmed and the police dog now engaging,

Luker drew back a short distance, withdrew his duty weapon, and ordered

Cloud to get on the ground.

At this point, Cloud was crouching in his truck’s doorway, keeping

the dog at arm’s length with his hand on the dog’s head. Cloud’s revolver

was on the ground, behind Luker and to his left. Then, according to Luker,

Cloud rushed toward him—“directly at [his] chest or to [his] left a little

bit”—and started to move past him. Luker turned to his left, with Cloud’s

shoulder brushing across his chest. As Cloud lunged toward the revolver

lying on the ground, Luker fired two shots into Cloud’s back. Cloud was

pronounced dead at the scene shortly thereafter.4

2

When taser prongs are deployed, they conduct an electric current that can

immobilize a person by causing his muscles to seize up. A taser in drive-stun mode inflicts

a painful electric shock on contact, but does not cause the same seizing effect.

3

Luker testified that he first saw the gun in Cloud’s hand underneath the steering

wheel.

4

The altercation was partially captured on a cellphone video taken from across the

street by Quinton Crowe, a Simsboro High employee on a cigarette break. The video shows

the struggle in the car door, cuts out, then picks up when Luker is aiming his gun at Cloud,

3

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Cloud’s parents (“Plaintiffs”) filed suit in federal district court

against Luker, Lincoln Parish Sheriff Mike Stone, and Lincoln Parish District

Attorney John Belton, the latter two in their official capacities. They alleged

excessive force claims under 42 U.S.C. § 1983 and the Fourth and

Fourteenth Amendments, state-law survival and wrongful death claims, and

disability discrimination claims under the Americans with Disabilities Act,

42 U.S.C. § 12101 et seq. Belton was voluntarily dismissed, and the remaining

Defendants moved for summary judgment, which the district court granted

as to all claims.

As relevant here, the court held Luker did not use excessive force.

First, it found his taser use reasonable, primarily because a reasonable officer

would have believed that Cloud was resisting arrest at the time. Second, it

found that shooting Cloud was not excessive force because Luker reasonably

believed Cloud posed an immediate threat of serious harm. Finally, the court

found that, assuming arguendo a constitutional violation, Luker would still be

entitled to qualified immunity because he did not violate clearly established

law. The court therefore dismissed all claims with prejudice, and Plaintiffs

appealed.5

who is crouching in the open truck door. The video again cuts out momentarily before the

gunshots. It next shows Cloud lying on the ground, near where his revolver had previously

come to rest. Crowe testified that he did not see the shots, but only saw Cloud on the

ground afterwards.

5

The court likewise granted summary judgment on the official-capacity claims

against Sheriff Stone, all state law claims, and the ADA claim. Plaintiffs appeal only the

dismissal of their excessive force claim against Luker and have therefore abandoned their

other claims. See Robertson v. Intratek Comput., Inc., 976 F.3d 575, 579 n.1 (5th Cir. 2020),

petition for cert. filed (U.S. Mar. 1, 2021) (No 20-1229).

4

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II

“We review a summary judgment de novo, applying the same

standards as the district court.” Arenas v. Calhoun, 922 F.3d 616, 620 (5th

Cir. 2019). “The movant must show ‘there is no genuine dispute as to any

material fact and [he is] entitled to judgment as a matter of law.’” Garcia v.

Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (quoting Fed. R. Civ. P. 56(a)),

cert. denied, No. 20-498, 2021 WL 78130 (U.S. Jan. 11, 2021). “However, a

good-faith assertion of qualified immunity alters the usual summary

judgment burden of proof, shifting it to the plaintiff to show that the defense

is not available.” Ibid. (quoting Ratliff v. Aransas Cnty., 948 F.3d 281,

287 (5th Cir. 2020), cert. denied, 141 S. Ct. 376 (2020) (cleaned up)). “We

still draw all inferences in the plaintiff’s favor.” Ibid. (citation omitted).

III

To rebut Luker’s qualified immunity defense, Plaintiffs must point to

summary judgment evidence “(1) that [Luker] violated a federal statutory or

constitutional right and (2) that the unlawfulness of the conduct was ‘clearly

established at the time.’” Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019)

(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)), cert. denied,

140 S. Ct. 388 (2019). “We can analyze the prongs in either order or resolve

the case on a single prong.” Garcia, 957 F.3d at 600 (citing Morrow v.

Meachum, 917 F.3d 870, 874 (5th Cir. 2019)). Here, prong one resolves the

case. We address separately Luker’s taser use and his subsequent shooting of

Cloud, in that order.

A

Plaintiffs claim that Luker’s nonlethal force—first tasing Cloud from

a few feet away, then using his taser in drive-stun mode while grappling with

Cloud—violated Cloud’s Fourth Amendment right against excessive force

during an arrest. We disagree.

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An officer violates the Fourth Amendment when an arrestee “suffers

an injury that results directly and only from a clearly excessive and objectively

unreasonable use of force.” Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d

319, 332 (5th Cir. 2020); see also Graham v. Connor, 490 U.S. 386, 395 (1989).

“Crucially, this analysis must be objective: To make out a Fourth

Amendment violation . . . ‘the question is whether the officer[’s] actions are

objectively reasonable in light of the facts and circumstances confronting

[him], without regard to their underlying intent or motivation.’” Poole v. City

of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (quoting Graham, 490 U.S.

at 397) (cleaned up). “The ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

Graham identifies several factors bearing on the reasonableness of

force: with “careful attention to the facts and circumstances of each

particular case,” courts consider “the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Ibid. We consider “not only the need for force, but also the

relationship between the need and the amount of force used.” Joseph, 981

F.3d at 332 (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009))

(internal quotation marks omitted). Faced with an uncooperative arrestee,

officers properly use “measured and ascending actions that correspond to

[the arrestee’s] escalating verbal and physical resistance.” Id. at 332–33

(quoting Poole, 691 F.3d at 629) (cleaned up).

Of the factors identified in Graham, the extent of Cloud’s resistance

is the most important to analyzing Luker’s use of his taser. The other two

factors—the “severity of the crime at issue” and the “immediate threat to

the safety of the officers or others”—are less illuminating. Cloud was

suspected of only a minor offense, at least before resisting arrest. On the other

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hand, Luker was the lone officer on the scene, and Cloud’s confrontational

manner, culminating in his turning around to face Luker squarely (with one

hand uncuffed and the door of his truck open next to him) created some

threat to the officer’s safety. The parties chiefly dispute the degree to which

Cloud was resisting arrest when Luker deployed his taser.

Our cases on police use of tasers have paid particular attention to

whether officers faced active resistance when they resorted to a taser. Where,

as here, the severity of crime and immediate safety threat are relatively

inconclusive, a suspect’s active resistance to arrest may justify this degree of

force. For example, we have held that two officers were reasonable to tase an

arrestee because he had “aggressively evaded [their] attempts to apprehend

him,” and because they did so after the arrestee “continuously failed to

comply,” other “efforts to subdue [him] were ineffective,” and the arrestee

had “continued to resist handcuffing” and “kicked an officer after being

taken to the ground.” Pratt v. Harris Cnty., 822 F.3d 174, 182 (5th Cir. 2016).

In that case, we took as further evidence of “measured and ascending” action

that “neither officer used [his] taser as the first method to gain [the arrestee’s]

compliance.” Ibid.; see also Buchanan v. Gulfport Police Dep’t, 530 F. App’x

307, 314 (5th Cir. 2013) (“[W]here a suspect resists arrest or fails to follow

police orders, officers do not violate his right against excessive force by

deploying their tasers to subdue him.”). In another case—one not involving

a taser but nonetheless relevant—we held that an officer reasonably pushed

an arrestee onto the hood of a police cruiser, causing some bruises and chest

pain, because the arrestee “resisted when [the officer] attempted to place

handcuffs on him.” Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009).

Specifically, the arrestee had “pulled his hand back and turned away from

the officer,” then grappled with him briefly. Id. at 216.

By contrast, we have found excessive force when officers tased

someone offering only passive resistance or no resistance at all. For example,

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we held that officers could not tase someone who had not committed a crime,

attempted flight, or disobeyed any commands, and who may have only

provoked police with an “off-color joke.” Newman v. Guedry, 703 F.3d 757,

762–63 (5th Cir. 2012). Under those circumstances, police could not

“immediately resort[] to taser and nightstick without attempting to use

physical skill, negotiation, or even commands.” Id. at 763. In another case,

we found excessive force when an officer tased someone who did no more

than pull his arm out of the officer’s grasp, and who was not even suspected

of a crime up to that point. Ramirez v. Martinez, 716 F.3d 369, 372, 378 (5th

Cir. 2013); see also Trammell v. Fruge, 868 F.3d 332, 341–42 (5th Cir. 2017)

(arrestee pulling his arm away from officer’s grasp did not alone justify two

officers’ tackling him to the ground). Likewise, we recently found excessive

force when officers repeatedly beat and tased a man who “was not suspected

of committing any crime, was in the fetal position, and was not actively

resisting.” Joseph, 981 F.3d at 336; see also id. at 335 (“If Joseph was not

actively resisting, [officers] inflicted force beyond what the Fourth

Amendment permits.”).6

6

Other circuits addressing police tasing have drawn a similar line between actively

and passively resisting subjects. Cases generally “adhere to this line: If a suspect actively

resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment

by using a taser to subdue him.” Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509

(6th Cir. 2012); see id. at 509–10 (collecting cases); see also Draper v. Reynolds, 369 F.3d

1270, 1278 (11th Cir. 2004) (reasonable to tase suspect who “used profanity, moved around

and paced in agitation, and repeatedly yelled at [officer]” while refusing series of verbal

commands); Meyers v. Baltimore Cnty., 713 F.3d 723, 733–34 (4th Cir. 2013) (tasers were

reasonable while arrestee “posed an immediate threat to the officers’ safety, and was

actively resisting arrest,” but excessive after threat and active resistance relented); Brown

v. City of Golden Valley, 574 F.3d 491, 497–98 (8th Cir. 2009) (excessive to tase suspect

“who had disobeyed two orders to end her phone call with a 911 operator”); but see Mattos

v. Agarano, 661 F.3d 433, 446 (9th Cir. 2011) (en banc) (tasing of woman was excessive

when she “actively resisted arrest insofar as she refused to get out of her car when

instructed to do so and stiffened her body and clutched her steering wheel to frustrate the

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The record in this case shows that Cloud actively resisted arrest,

which gave Luker reasonable grounds to tase him. While Cloud’s left hand

was being handcuffed, he turned partially around. Luker responded by

commanding Cloud to turn back around. But when Luker reached for

Cloud’s right hand, Cloud turned to face him, with the handcuffs dangling

from his left wrist. In other words, Cloud took a confrontational stance,

deprived Luker of the use of his handcuffs, and thwarted efforts to complete

the arrest. Cf. Collier, 569 F.3d at 216, 219 (reasonable to use force on arrestee

who “physically resisted when [officer] attempted to place handcuffs on

him”). Up to then, Luker had addressed Cloud’s general uncooperativeness

and modest resistance with verbal commands and milder force. But at this

juncture things took a more serious turn, making Luker’s resort to his taser

reasonable.

Plaintiffs argue that Cloud’s resistance was merely passive, but this

mischaracterizes the record. Cloud was more than merely uncooperative or

argumentative: his actions—not just his failure to follow directions—

prevented Luker from completing a lawful arrest. This conduct compares

unfavorably with our passive-resistance cases, as well as those of other courts.

In Newman, for example, we found a man’s resistance was passive when he

did not disobey any commands and at most pushed himself backwards off a

car after officers struck him. 703 F.3d at 762–63. Likewise, in Ramirez, we

found passive resistance when a man not yet under arrest or any suspicion

exchanged angry words with an officer and pulled his arm out of the officer’s

grasp. 716 F.3d at 372, 378; see also, e.g., Brown v. City of Golden Valley, 574

officers’ efforts to remove her from her car.”); id. at 451 (same, where subject “minimally

resisted [another person’s] arrest while attempting to protect her own body”).

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F.3d 491, 494, 497 (8th Cir. 2009) (passive resistance where passenger in

pulled-over car refused command to hang up her phone).

Plaintiffs also argue that Cloud was only turning around to read

Luker’s lips due to Cloud’s hearing impairment.7 But we measure excessive

force by the objective circumstances, not by the subjective intentions of the

arrestee. Graham, 490 U.S. at 397. Luker testified he did not know Cloud had

any hearing problem, and Plaintiffs have pointed to no evidence suggesting

he should have known. To the contrary, Cloud was not wearing hearing aids

at any point while in Luker’s view and had previously communicated with

Luker without any apparent difficulty.8 Even if Plaintiffs’ assertion about

Cloud’s reason for turning around is correct, it does not change the objective

excessive-force analysis.

Finally, Plaintiffs argue that even if Luker’s initial tase was justified,

his subsequent drive-stun maneuver was excessive. It is true that the same

incident can include both lawful and unlawful uses of force. See, e.g., Carroll

v. Ellington, 800 F.3d 154, 174, 176–78 (5th Cir. 2015) (granting qualified

immunity for one officer’s initial taser use but not others’ subsequent uses of

force); Joseph, 981 F.3d at 335 (“Force must be reduced once a suspect has

been subdued.”). Because Luker’s initial tase had no effect, however, the

circumstances justifying force were still present during the drive-stun tasing.

Plaintiffs have not pointed to evidence that Cloud complied with any

commands or ceased to resist arrest after the first tase. Although Plaintiffs

7

Plaintiffs offered testimony of two lay witnesses regarding this hearing

impairment.

8

Plaintiffs offered a video presentation Cloud made some time before the incident

and, based on this, argue that his speech pattern would have demonstrated to a reasonable

listener that he was hearing-impaired. The district court correctly found, however, that this

video did not raise a genuine dispute as to whether Luker reasonably should have known

that Cloud was hearing-impaired.

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suggest that only a few seconds elapsed between Luker’s initial tase and his

drive-stun maneuver, the situation remained “tense, uncertain, and rapidly

evolving.” Graham, 490 U.S. at 397. Under these circumstances, Luker’s

continued force to complete the arrest, like his initial tase, was reasonable.

B

We next address whether Luker’s use of lethal force was excessive.

“Where the officer has probable cause to believe that the suspect poses a

threat of serious physical harm, either to the officer or to others, it is not

constitutionally unreasonable to prevent escape by using deadly force.”

Tennessee v. Garner, 471 U.S. 1, 11 (1985); see also Ontiveros v. City of

Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). Our precedent teaches that

officers use lethal force justifiably if they reasonably believe the individual is

reaching for a gun. See, e.g., Salazar-Limon v. City of Houston, 826 F.3d 272,

278–79 (5th Cir. 2016). We have adhered to this standard even in cases when

officers had not yet seen a gun when they fired, or when no gun was ever

found at the scene. See, e.g., Manis v. Lawson, 585 F.3d 839, 844–45 (5th Cir.

2009); Reese v. Anderson, 926 F.2d 494, 500–01 (5th Cir. 1991). To show a

triable issue, a plaintiff must generally “present[] competent summary

judgment evidence that [the arrestee] did not reach . . . for what [the officer

reasonably] perceived to be a weapon.” Salazar-Limon, 826 F.3d at 278.

It is evident from the record that Luker could have reasonably believed

that Cloud threatened him with serious physical harm. At a minimum, Luker

knew that a loaded revolver lay on the ground behind and to his left. More

than that, though, he knew that the gun had just discharged twice—once into

his chest—and that he had had to wrest it from Cloud’s hands and toss it

away. Finally, he saw Cloud make a sudden move in the gun’s direction. Even

drawing all inferences in Plaintiffs’ favor, the record shows that Cloud was

shot while moving toward the revolver and potentially seconds from

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reclaiming it.9 Plaintiffs contend Cloud was likely trying to flee, not to regain

the revolver, but even if true, that would be irrelevant. Whatever Cloud’s

intentions, the circumstances warranted a reasonable belief that Cloud

threatened serious physical harm. The lethal force was therefore not

constitutionally excessive.

IV

Because we find no constitutional violation, we need not reach prong

two of the qualified immunity defense and consider whether Luker violated

any clearly established law.

AFFIRMED.

9

As noted, the cellphone video footage does not show Cloud’s movement or

Luker’s shots due to a gap in the recording, but the video confirms that both occurred

within a four-second span. Luker testified that Cloud lunged across the officer’s chest as

Luker turned to his left and fired two shots. Analysis by Plaintiffs’ forensic consultant

corroborates this story: he concluded that Cloud’s wounds showed he was shot at point-

blank range in the left posterior flank and middle back. Video frames also show that after

the shots, Cloud was lying on the ground to the left of Luker’s initial position, near where

the revolver had been lying earlier.

12