“overcoming qualified immunity is especially difficult in excessive-force cases”
How later courts described this case
- “overcoming qualified immunity is especially difficult in excessive-force cases”
Written by the judges who cited it.
The opinion
Case: 22-60546 Document: 00516853568 Page: 1 Date Filed: 08/10/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 10, 2023
No. 22-60546 Lyle W. Cayce
____________ Clerk
Devon Modacure,
Plaintiff—Appellee,
versus
Kenneth Short, II, Individually and as an Officer of City of Jackson;
Cobey Smith, Individually and as an Officer of City of Jackson,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:20-CV-476
______________________________
Before Richman, Chief Judge, and Jones and Ho, Circuit Judges.
Per Curiam: *
Defendant-Appellants Short and Smith, former police officers for the
city of Jackson, Mississippi, appeal the district court’s denial of summary
judgment. We REVERSE the district court and RENDER judgment for
the two officers on the basis of qualified immunity.
_____________________
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-60546 Document: 00516853568 Page: 2 Date Filed: 08/10/2023
No. 22-60546
I. Background
On October 27, 2017, officers Short and Smith responded to a report
of a shooting incident at a known drug house. The victim described the
shooter as a 150-pound black male wearing a maroon shirt. On their way to
the house, the officers encountered a group of people standing around
outside, one of whom fit the description of the shooter. That man was
Plaintiff-Appellee Devon Modacure, who fled as soon as the officers singled
him out and commanded he “come here.” A brief foot chase commenced
and ended with the officers shooting Modacure. The officers testified that
Modacure reached toward his waistline, as if to grab a gun, and turned his
torso toward the officers, precipitating their use of lethal force. Video footage
of the event, captured from a residential security camera, is grainy and does
not show the orientation of Modacure’s torso or hands when the first shot
was fired. Modacure insists he ran because he was paranoid, having just been
released from a two-year stint in prison and having seen other people shot by
the police. A handgun was recovered from the area; Modacure swears it was
not his and that he was unarmed on the day of the incident.
Relevant to this appeal, Modacure sued Short and Smith in their
individual capacities under 42 U.S.C. § 1983, alleging the officers violated his
Fourth Amendment right against the use of excessive force and his
Fourteenth Amendment due process right to receive timely medical care.
The district court denied the officers’ motion for summary judgment based
on qualified immunity. The officers timely filed this interlocutory appeal.
II. Jurisdiction
“An order denying qualified immunity, to the extent it turns on an
issue of law, is immediately appealable.” Laviage v. Fite, 47 F.4th 402, 405
(5th Cir. 2022) (quoting Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)
(en banc)). In contrast, an order denying qualified immunity based solely on
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No. 22-60546
“evidence sufficiency” is not. Plumhoff v. Rickard, 572 U.S. 765, 773,
134 S. Ct. 2012, 2019 (2014) (quoting Johnson v. Jones, 515 U.S. 304, 313,
115 S. Ct. 2151, 2156 (1995)). Here, the officers “contend that their conduct
did not violate the Fourth Amendment and, in any event, did not violate
clearly established law. Thus, they raise legal issues.” Id. We have
jurisdiction and will turn to the merits; our review is de novo. Wyatt v. Fletcher,
718 F.3d 496, 499 (5th Cir. 2013).
III. Discussion
“An officer merits qualified immunity unless (1) he ‘violated a
statutory or constitutional right of the plaintiff’ and (2) ‘the right was clearly
established at the time of the violation.’” Betts v. Brennan, 22 F.4th 577, 582
(5th Cir. 2022) (quoting Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020)).
The plaintiff bears the burden “to demonstrate the inapplicability of the
defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
Further, we may “resolve the case on a single prong.” Garcia v. Blevins,
957 F.3d 596, 600 (5th Cir. 2020).
Jumping straight to the second prong, Modacure may show that the
officers violated his clearly established constitutional rights by identifying an
“on-point case” or satisfying the “obvious-case exception.” Henderson v.
Harris Cnty., 51 F.4th 125, 132 (5th Cir. 2022) (per curiam). “Rights are
‘clearly established’ when ‘existing precedent squarely governs the specific
facts at issue.’” Id. (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)).
And “specificity is especially important in the Fourth Amendment context.”
Mullenix v. Luna, 577 U.S. 7, 12, 136 S. Ct. 305, 308 (2015); see also Morrow v.
Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (“overcoming qualified
immunity is especially difficult in excessive-force cases”). “The Supreme
Court strictly enforces the requirement to identify an analogous case and
explain the analogy.” Joseph v. Bartlett, 981 F.3d 319, 346 (5th Cir. 2020).
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Modacure does not invoke the “obvious case” exception and fails to
cite a single “on-point case” to support his argument, even after the officers
highlighted this deficiency in their opening brief. We have overlooked such
shortcomings in cases where the district court carried the plaintiff’s burden
for him. See, e.g., Joseph v. Bartlett, 981 F.3d 319, 337 (5th Cir. 2020). But
here, instead of engaging in this prong of the analysis, the district court
merely announced the presence of factual disputes and recited the general
contours of excessive force and due process violations on its way to denying
summary judgment. In other cases where this court has been presented with
a similarly deficient record, we have not hesitated to reverse the denial of
qualified immunity. See Laviage, 47 F.4th at 408; Joseph, 981 F.3d at 346.
We must do so here as well. Where the plaintiff fails to carry his burden to
show a violation of his clearly established rights, and where the district court
does not step in to fix that shortcoming, we cannot assent to the denial of
qualified immunity.
We REVERSE the district court’s judgment and RENDER
judgment for officers Short and Smith.
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