Jackson v. Gautreaux

Case: 20-30442 Document: 00515920865 Page: 1 Date Filed: 06/30/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 30, 2021

No. 20-30442 Lyle W. Cayce

Clerk

Carrington Jackson, on behalf of the minor child Travon

Carter; Travis Watson, on behalf of the minor child Travon

Carter; Phyllicia Carter, on behalf of the minor child Travon

Carter; Cassandra Carter, on behalf of the minor child Travon

Carter,

Plaintiffs—Appellants,

versus

Sidney J. Gautreaux, III, Sheriff, East Baton Rouge Parish;

Shannon Broussard, Detective; Charles Montgomery,

Detective; Scott Henning, Detective; Christopher Masters,

Detective; Verner Budd, Sergeant; Michael Birdwell,

Lieutenant,

Defendants—Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:17-CV-105

Before Davis, Duncan, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

Travis Stevenson repeatedly slammed his vehicle into a police cruiser

and a concrete pillar in front of an apartment building while yelling “Kill

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No. 20-30442

me!” to officers who were trying to control the scene. After making repeated

but unsuccessful efforts to deescalate the situation and to disable Stevenson’s

vehicle, officers shot and killed him. At summary judgment, the district court

granted the officers qualified immunity. We affirm.

I.

At approximately 8:30 p.m. on February 23, 2016, Kimula Porter

called 911 to report that her boyfriend, Travis Stevenson, physically assaulted

her and her daughter with pepper spray, smashed a hole in the wall with a

beer bottle, took her wallet, and fled from their shared apartment. After

Stevenson left, he called and texted Porter to say he was going to commit

suicide.

Around 9:50 p.m., Michael Birdwell, a lieutenant in the East Baton

Rouge Sherriff’s Office, located Stevenson. Stevenson was in a car, which

was turned off and parked next to an apartment building. An SUV was parked

to the left of Stevenson, an industrial-sized dumpster was on his right, and

the building was directly in front of him. The Louisiana State Police (“LSP”)

Criminal Investigation Division created a scale diagram of the scene:

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Lieutenant Birdwell parked his patrol unit behind and perpendicular to

Stevenson’s car, approached the driver’s side where Stevenson was seated,

and knocked on the window. Stevenson ignored him at first, so Birdwell kept

knocking. But then Stevenson turned on the car as if to drive away.

Lieutenant Birdwell attempted to end the confrontation peacefully by using

his pocketknife to break the driver’s-side window and remove Stevenson

from the vehicle. Before Lieutenant Birdwell could remove Stevenson,

however, Stevenson placed his car in reverse and slammed into the patrol

unit so hard that it caused the patrol unit to crash into a nearby parked car

and deployed its airbags.

Detective Scott Henning arrived on the scene. He ordered Stevenson

to exit the vehicle. Stevenson refused to comply and repeatedly yelled “Kill

me!” By this time, Lieutenant Birdwell was positioned in front of

Stevenson’s car—between the car and the apartment building. Stevenson

then shifted the car into drive and accelerated toward Lieutenant Birdwell.

Believing Stevenson was trying to run over Birdwell and that Birdwell was in

a position to be injured or killed, Detective Henning shot his firearm toward

Stevenson. The bullet didn’t hit Stevenson; it hit one of the windows, and

some of the shattered glass hit Lieutenant Birdwell. As Stevenson accelerated

toward him, Lieutenant Birdwell jumped back and hit the parked SUV.

Stevenson crashed into a pole in front of the apartment building. He then

shifted back into reverse and slammed into the patrol unit again.

Shortly thereafter, several other deputies arrived on the scene. One

fired two or three shots into the driver’s-side tire in an attempt to disable the

vehicle. The shots didn’t stop Stevenson, who accelerated forward and then

back into the patrol unit again and again. While Stevenson was oscillating

between the apartment building and the patrol unit, Lieutenant Birdwell was

trapped in Stevenson’s path.

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Eventually, officers opened fire on the vehicle. Stevenson sustained

seven gunshot wounds and was pronounced dead on the scene. The entire

episode—from the time Lieutenant Birdwell spotted the car to the time

officers notified dispatch that Stevenson was down—lasted 85 seconds.

After the incident, the Sheriff’s Office contacted the LSP Criminal

Investigations Division to study the shooting. The LSP interviewed Porter,

her daughter, and each of the officers. The LSP ultimately concluded there

was no criminal misconduct, as the officers’ actions were consistent with

those of a reasonably prudent police officer facing the same circumstances.

Stevenson’s survivors sued the officers under 42 U.S.C. § 1983.

Plaintiffs alleged that six officers used excessive force to seize Stevenson in

violation of the Fourth Amendment. Plaintiffs further alleged that a seventh

defendant, Sheriff Gautreaux, violated the Fourth Amendment by

unreasonably failing to train his officers. At summary judgment, the district

court held that Plaintiffs failed to overcome the officers’ qualified immunity.

Plaintiffs timely appealed.

II.

Our review is de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir.

2019). “Qualified immunity includes two inquiries. The first question is

whether the officer violated a constitutional right. The second question is

whether the right at issue was clearly established at the time of the alleged

misconduct.” Ibid. (quotation omitted). Here we need only decide the first

question: Plaintiffs cannot show a Fourth Amendment violation for

(A) excessive force or (B) failure to train.

A.

We start with excessive force. “To establish excessive force under the

Fourth Amendment, a plaintiff must demonstrate (1) an injury, which

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(2) resulted directly and only from the use of force that was clearly excessive

to the need; and the excessiveness of which was (3) objectively

unreasonable.” Hutcheson v. Dallas County, 994 F.3d 477, 480 (5th Cir. 2021)

(quotation omitted). When an injury is uncontested, the court need only

consider the second two elements—asking whether each officer’s “resort to

deadly force was unreasonable and excessive when the facts are viewed ‘from

the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.’” Ratliff v. Aransas County, 948 F.3d 281, 287–88

(5th Cir. 2020) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The

“excessive” and “unreasonable” inquiries require the court to exercise

“cautio[n] about second-guessing a police officer’s assessment, made on the

scene, of the danger presented by a particular situation.” Ryburn v. Huff, 565

U.S. 469, 477 (2012) (per curiam).

The “reasonableness” inquiry always requires the court to consider

“the crime’s severity, the suspect’s threat, and whether the suspect is

actively resisting arrest or trying to flee.” Hutcheson, 994 F.3d at 480. But

courts assess the reasonableness of using deadly force by considering whether

a “suspect poses a threat of serious physical harm, either to the officer or to

others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). “Stated differently, ‘[a]n

officer’s use of deadly force is not excessive, and thus no constitutional

violation occurs, when the officer reasonably believes that the suspect poses

a threat of serious harm.’” Batyukova v. Doege, 994 F.3d 717, 725 (5th Cir.

2021) (alteration in original) (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th

Cir. 2009)).

While conducting this analysis, we must remain ever mindful that

“Fourth Amendment reasonableness is predominantly an objective inquiry.”

Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (emphasis added) (quotation

omitted). If “the circumstances, viewed objectively, justify the challenged

action,” then subjective intent doesn’t matter. Ibid. (quotation omitted).

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“This approach recognizes that the Fourth Amendment regulates conduct

rather than thoughts; and it promotes evenhanded, uniform enforcement of

the law.” Ibid. (citation omitted).

Although our inquiry is necessarily fact-intensive, three of our

precedents all but determine today’s outcome. The first is Fraire v. City of

Arlington, 957 F.2d 1268 (5th Cir. 1992). There, an officer chased a car until

it struck a curb. Id. at 1270–71. The driver then backed up toward the officer’s

car and sped away. Id. at 1271. The officer chased again; the driver crashed

again; and the driver sped away again. Ibid. Eventually, the driver turned

around and drove toward the officer. Ibid. The officer fired one shot and

killed the driver. Id. at 1271–72. We held the officer did not violate the Fourth

Amendment because he reasonably attempted to defend himself against the

driver. Id. at 1274–77.

Second, consider Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007).

There, an officer stopped a car and started walking to the driver’s-side

window. Id. at 316. When the officer got about 8 to 10 feet from the car, the

driver suddenly accelerated toward him. Ibid. As soon as the officer realized

he wasn’t going to be able to get out of the car’s path, he drew his firearm

and fired one bullet at the car. Ibid. The bullet went straight through the

driver’s lungs and heart, and he died of his wounds. Ibid. We held the officer

responded reasonably “in firing his weapon when threatened by a nearby

accelerating vehicle, even if, owing to the limited time available to respond,

the shot was fired when or immediately after the officer was hit.” Id. at 322.

Third, take Ramirez v. Guadarrama, 2021 WL 257199, --- F.4th --- (5th

Cir. Feb. 8, 2021). That case did not involve a driver using a vehicle as a

weapon against an officer. But Ramirez held that an officer’s conduct cannot

be held “unreasonable” under the Fourth Amendment in the absence of

allegations or evidence regarding an “alternative course the defendant

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officers should have followed that would have led to an outcome free of

potential tragedy.” Id. at *4. We rejected the plaintiffs’ Fourth Amendment

claim because it was “not apparent what might have been done differently to

achieve a better outcome under these circumstances.” Ibid.

Fraire, Hathaway, and Ramirez require us to find no Fourth

Amendment violation here. That’s for three independent reasons. First, like

the drivers in Fraire and Hathaway, Stevenson was using his car as a weapon.

See Fraire, 957 F.2d at 1271–72; Hathaway, 507 F.3d at 316. It does not matter

whether Stevenson (unlike the drivers in our precedents) “ha[d] not

threatened or attempted to harm any of the deputies.” Blue Br. 34. Suppose

a small child finds his parents’ loaded pistol and plays with it, not intending

to shoot anyone. Is the pistol any less a weapon when the child doesn’t intend

to shoot it? Obviously not. Does the pistol constitute a deadly threat to others

when the child doesn’t intend to shoot it? Obviously. So too with

Stevenson’s car.

Second, Stevenson and the drivers in our precedents exhibited volatile

behaviors that contributed to the officers’ “justifi[cation] in firing to prevent

. . . death or great bodily harm.” Fraire, 957 F.2d at 1276; see id. at 1276 n.30

(stating the driver was “drinking while driving, erratic[ally] driving, [driving

at a] high speed through a residential subdivision, [and] twice crashing the

car”); Hathaway, 507 F.3d at 315–16 (stating the driver was swerving while

he and his passengers were hanging out the window, making gang signs, and

yelling the name of a well-known gang). Before the incident, Stevenson was

drinking and using drugs; he pepper sprayed his girlfriend and her daughter

in a fit of rage; he stole his girlfriend’s wallet and drove away while

intoxicated; he repeatedly told his girlfriend and the officers that he was

suicidal; he repeatedly yelled “Kill me!” at one officer while ignoring

commands from other officers; and he repeatedly rammed his car into a

patrol unit and a concrete pillar while inches away from hitting Lieutenant

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Birdwell. Stevenson’s immunity to reason was patent; the risk of injury or

death to the Lieutenant was equally patent.

Third, Plaintiffs have not produced any evidence that suggests the

officers might’ve had a reasonable alternative course of action. See Ramirez,

2021 WL 257199, at *4. When asked at oral argument for a reasonable

alternative, Plaintiffs’ counsel said that officers should’ve “step[ped] back

and allow[ed] Mr. Stevenson to finish the episode, and then they could have

acted.” Oral Arg. at 42:33–41. That’s absurd. Lieutenant Birdwell was inches

from the front left bumper of Stevenson’s car while he was repeatedly driving

it backwards and forwards and violently crashing into things. Whatever

reasonable alternatives officers might’ve had, doing nothing and praying for

the best is not one of them. And without a reasonable alternative to the

officers’ conduct, Plaintiffs are without a Fourth Amendment claim that the

officers behaved “unreasonably.” See Ramirez, 2021 WL 257199, at *4.

The district court therefore correctly held, in accordance with our

precedent, that Plaintiffs’ excessive-force claim fails as a matter of law.*

B.

Plaintiffs also contend that the district court erred by granting

summary judgment on their failure-to-train claim against the Sheriff. The

district court held that Plaintiffs forfeited this claim by failing to plead it in

*

For the first time at oral argument, Plaintiffs attempted to distinguish between

the officers’ first four shots and their subsequent ones. As we’ve repeatedly and

emphatically held, we cannot and will not consider arguments raised for the first time at

oral argument. See, e.g., Hoyt v. Lane Constr. Corp., 927 F.3d 287, 297 (5th Cir. 2019);

Martinez v. Mukasey, 519 F.3d 532, 545–46 (5th Cir. 2008); United States v. Bigelow, 462

F.3d 378, 383 (5th Cir. 2006); United States v. Ogle, 328 F.3d 182, 191 n.9 (5th Cir. 2003);

Comsat Corp. v. FCC, 250 F.3d 931, 936 n.5 (5th Cir. 2001); Whitehead v. Food Max of Miss.,

Inc., 163 F.3d 265, 270 (5th Cir. 1998).

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their complaint and raising it only in response to the officers’ motion for

summary judgment. We agree with the district court.

It is well settled in our circuit that “[a] claim which is not raised in the

complaint but, rather, is raised only in response to a motion for summary

judgment is not properly before the court.” Cutrera v. Bd. of Supervisors of

La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (citing Fisher v. Metro. Life

Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)). We’ve repeatedly emphasized

this rule. See, e.g., Pittman v. U.S. Bank, N.A., 840 F. App’x 788, 789–90 (5th

Cir. 2021) (per curiam); Price v. Wheeler, 834 F. App’x 849, 859 n.8 (5th Cir.

2020); Park v. Direct Energy GP, LLC, 832 F. App’x 288, 295 (5th Cir. 2020)

(per curiam); Lumar v. Monsanto Co., 795 F. App’x 293, 294 n.1 (5th Cir.

2020) (per curiam); Brown v. Wilkinson Cnty. Sheriff Dep’t, 742 F. App’x

883, 884 (5th Cir. 2018) (per curiam); Sims v. City of Madisonville, 894 F.3d

632, 643 (5th Cir. 2018) (per curiam); Strong v. Green Tree Servicing, Inc., 716

F. App’x 259, 265 n.7 (5th Cir. 2017) (per curiam); Jones v. Wells Fargo Bank,

N.A., 858 F.3d 927, 935 (5th Cir. 2017); United Motorcoach Ass’n v. City of

Austin, 851 F.3d 489, 492 n.1 (5th Cir. 2017); Byrnes v. City of Hattiesburg,

662 F. App’x 288, 290 n.1 (5th Cir. 2016) (per curiam).

Plaintiffs alleged that Sheriff Gautreaux failed to adequately train his

officers to avoid excessive force. After the officers moved for summary

judgment, Plaintiffs argued for the first time that the Sheriff failed to

adequately train his officers to deal with mentally unstable individuals. This is

precisely the sort of surprise switcheroo that our precedents forbid.

Plaintiffs contend that the district court should have construed their

new summary-judgment argument as an implied motion to amend their

complaint under Federal Rule of Civil Procedure 15. It’s true that we’ve done

that in the past, see, e.g., Pierce v. Hearne Indep. Sch. Dist., 600 F. App’x 194,

200 (5th Cir. 2015) (per curiam), although it’s unclear how cases like Pierce

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are consistent with our rule of orderliness and our numerous published

precedents holding litigants forfeit arguments raised for the first time at

summary judgment. Moreover, the sort of relief mentioned in Pierce—

construing a request for X as an implied request for Y—is normally reserved

for pro se litigants. See, e.g., United States v. Riascos, 76 F.3d 93, 95 (5th Cir.

1996) (“conclud[ing] that the district court’s failure to construe [the pro se

plaintiff’s] ‘traverse’ as a motion to amend was an abuse of discretion”);

Cooper v. Sherriff, Lubbock Cnty., 929 F.2d 1078, 1081 (5th Cir. 1991)

(“Under the liberal construction given to pro se pleadings, the magistrate

judge should have construed Cooper’s reply to the defendant’s new answer

as a motion to amend the complaint.”). Of course, Plaintiffs in this case did

not appear pro se; they were represented by experienced counsel. Plaintiffs’

counsel never moved to amend under Rule 15. Their failure to do so forfeited

the issue and prevented the district court from considering the merits of their

summary-judgment argument.

AFFIRMED.

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