Joseph v. Lopinto ( 2023 )

Case: 21-30672 Document: 00516802163 Page: 1 Date Filed: 06/27/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
June 27, 2023
No. 21-30672 Lyle W. Cayce
____________ Clerk
The Intestate Succession of Chris Anthony Joseph;
Michell Strickland, Individually and in her capacity as the duly
confirmed natural tutrix of C.J., A.J., Jr., M.J., and M.J.; Passion
Tapange Joseph,
Plaintiffs—Appellants,
versus
Sheriff Joseph P. Lopinto, III, in his official capacity as the duly
elected Sheriff of Jefferson Parish; Narcotics Detective Allen
Doubleday, Individually and in his capacity as a duly sworn officer employed
by the Jefferson Parish Sheriff’s Office; Narcotics Detective Ben
Jones, Individually and in his capacity as a duly sworn officer employed by the
Jefferson Parish Sheriff’s Office; Narcotics Detective
Carmouche, Individually and in his capacity as a duly sworn officer
employed by the Jefferson Parish Sheriff’s Office; Narcotics Detective
Wible, Individually and in his capacity as a duly sworn officer employed by the
Jefferson Parish Sheriff’s Office,
Defendants—Appellees,
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Leshonna Monique Steptore, Individually and in her capacity as the
natural tutrix of D.R., a minor child,
Plaintiff—Appellant,
versus
Case: 21-30672 Document: 00516802163 Page: 2 Date Filed: 06/27/2023
Joseph P. Lopinto, in his official capacity as the duly elected Sheriff of
Jefferson Parish,
Defendant—Appellee,
______________________________
Daviri Oseanus Robertson, Intestate Succession of;
Darrelyn Smith, Individually and in Her Capacity as the Natural Tutrix
of D.R.; Keshaun Morgan, Individually and in Her Capacity as the
Natural Tutrix, a minor child,
Plaintiffs—Appellants,
versus
Sheriff Joseph P. Lopinto, III, in his official capacity as the duly
elected Sheriff of Jefferson Parish; Narcotics Detective Allen
Doubleday, Individually and in his capacity as a duly sworn officer employed
by the Jefferson Parish Sheriff’s Office; Narcotics Detective Ben
Jones, Individually and in his capacity as a duly sworn officer employed by the
Jefferson Parish Sheriff’s Office; Narcotics Detective
Carmouche, Individually and in his capacity as a duly sworn officer
employed by the Jefferson Parish Sheriff’s Office; Narcotics Detective
Wible, Individually and in his capacity as a duly sworn officer employed by the
Jefferson Parish Sheriff’s Office,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 2:19-CV-11268, 2:20-CV-1006,
2:20-CV-841
______________________________
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Case: 21-30672 Document: 00516802163 Page: 3 Date Filed: 06/27/2023
No. 21-30672
Before Smith, Clement, and Wilson, Circuit Judges.
Per Curiam:*
During a narcotics investigation, Jefferson Parish Sheriff’s Office
(JPSO) law enforcement officers shot and killed Chris Joseph and Davari
Robertson. Plaintiffs, three groups of individuals seeking recovery on behalf
of the decedents and their heirs, contend that the officers used excessive
force in violation of the Fourth Amendment. Defendants interposed the
defense of qualified immunity and moved for summary judgment, which the
district court granted. Plaintiffs appeal, and we affirm.
I.
In March 2019, members of the JPSO Special Investigations Bureau
used a cooperating individual to organize a heroin transaction with Joseph.
Joseph and the individual agreed to meet at an IHOP Restaurant in Gretna,
Louisiana. The JPSO unit set up surveillance in the restaurant’s parking lot
and waited for Joseph to arrive. A security camera recorded what happened
next:
Joseph and Robertson, who was not a target of the investigation,
arrived at the appointed time, parking at 9:01:12 p.m. Joseph was in the
driver’s seat and Robertson was in the front passenger’s seat as the narcotics
unit converged in several unmarked vehicles. Within seconds, officers had
used their vehicles to box in Joseph’s car on two sides. The officers, all in
plainclothes, exited their vehicles with guns drawn and surrounded Joseph’s
vehicle. Though the video is unclear on this specific point, Detective Jones
testified that he positioned himself at the rear of Joseph’s vehicle, between it
and a JPSO vehicle. The officers then directed Joseph and Robertson to step
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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out of the vehicle; they did not comply. At 9:01:27 p.m., Joseph put the
vehicle in reverse. Around the same time, the officers opened fire on the
vehicle. Joseph and Robertson were both shot; Detective Doubleday was also
shot, evidently by another officer. Joseph died at the scene, while Robertson
was pronounced dead on arrival at the hospital. Detective Doubleday
survived.
Plaintiffs sued under 42 U.S.C. § 1983, alleging that the officers’
actions constituted excessive force and asserting a claim for municipal
liability. Defendants moved for summary judgment, arguing that they were
entitled to qualified immunity. The district court, relying on the video, found
that Joseph reversed the car in the direction of the police officers before the
officers fired. Based on that finding, the district court held that there was no
genuine fact dispute that the JPSO officers’ use of force was not excessive
under the circumstances, such that there was no constitutional violation.
Plaintiffs’ claims thus failed at the first step of the qualified immunity
analysis, and the court did not reach the second, i.e., whether the law bearing
on Plaintiffs’ claims was clearly established. The court granted summary
judgment to Defendants. Plaintiffs now appeal.
II.
Generally, “[w]e review a grant of summary judgment de novo,
viewing all evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor.” Kariuki v. Tarango,
709 F.3d 495, 501 (5th Cir. 2013) (citation and quotation marks omitted). But
“a qualified immunity defense alters the usual summary judgment burden of
proof.” Kokesh v. Curlee, 14 F.4th 382, 392 (5th Cir. 2021) (citation and
quotation marks omitted).
“Qualified immunity shields public officials sued in their individual
capacities from liability for civil damages insofar as their conduct does not
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violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id. at 391 (citation and quotation
marks omitted). “[T]he plaintiff has the burden to negate the defense once
it is properly raised.” Id. at 392 (citation omitted). “Thus, once the defense
is invoked, the plaintiff must rebut the defense by establishing that the
official’s allegedly wrongful conduct violated clearly established law and that
genuine issues of material fact exist regarding the reasonableness of the
official’s conduct according to that law.” Id. (cleaned up).
The district court’s ruling for Defendants largely turned on its
determination that the vehicle reversed before the officers fired. That makes
sense. This court’s caselaw is clear that officers who are endangered by a
weaponized vehicle may properly, within the strictures of the Fourth
Amendment, use deadly force to neutralize the threat. It follows that this
appeal primarily turns on (A) whether the district court was correct, based
on the summary judgment record, that Joseph’s vehicle moved before the
officers fired. Plaintiffs actually differ on this point, as discussed infra. They
raise three additional issues, namely whether: (B) the officers identified
themselves and commanded Joseph and Robertson to exit the vehicle before
Joseph reversed the vehicle; (C) Joseph reversed the vehicle in the direction
of an officer positioned at the rear of the vehicle; and (D) the fact that
Robertson was merely a passenger in the vehicle bears on our analysis. We
examine each of these issues in turn and then analyze Plaintiffs’ excessive
force claims in their light.
A.
First, and foremost, whether Joseph reversed the vehicle before the
officers fired. The district court relied in part on the security video in finding
that Joseph reversed the vehicle first, and two of the three groups of Plaintiffs
concede the district court’s view of the evidence. But the third group of
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Plaintiffs contends that the officers fired first. While the district court
determined that the video of the incident provided a clear answer, we find
the video inconclusive on this question. Nevertheless, the district court did
not err in granting judgment on this basis because Plaintiffs offer nothing to
counter other evidence, including officers’ testimony, that demonstrates
Joseph reversed the vehicle before they fired.
The Plaintiffs who contest this point rely solely on the video to
support their position that the officers fired before Joseph reversed the car.
Or, they say, at the least, there is a material fact dispute precluding summary
judgment because the video is inconclusive. But the video does not move the
needle in either direction, even under the latter theory, because it supports
neither side’s version of events. On the other hand, two of the officers
testified in their depositions that the vehicle moved first. Likewise, the JPSO
investigative report states that the officers fired only after the vehicle moved.
The video does not contradict this definitive evidence that the vehicle
reversed first, and thus is insufficient to create a genuine dispute of material
fact. See Kokesh, 14 F.4th at 392; see also Fed. R. Civ. P. 56(c)(1)(A) (“A
party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record[.]”).
B.
Plaintiffs similarly fail to proffer evidence that the officers did not
identify themselves as law enforcement and order Joseph and Robertson to
exit the vehicle.1 By contrast, the officers consistently testified that they
identified themselves and ordered Joseph and Robertson to step out of the
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1
Plaintiffs alternatively characterize this issue as whether Joseph and Robertson
heard the officers. But this point is irrelevant, as “we consider only what the officers knew
at the time of their challenged conduct.” See Cole v. Carson, 935 F.3d 444, 456 (5th Cir.
2019), as revised (Aug. 21, 2019).
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vehicle before firing. One officer testified that as he was getting out of his
vehicle, he heard another officer shout: “[P]olice, show me your hands. Shut
it down.” Another officer testified that he got out of his vehicle yelling
“show me your hands. Show me your hands, or turn off the vehicle.” He
swore that he “could hear everyone else saying the same thing.” Plaintiffs
cite to no evidence to the contrary, and because the video does not include
audio, it cannot support their version of events. Thus, the district court
correctly determined there was no genuine dispute of material fact as to this
issue. See Kokesh, 14 F.4th at 392; see also Fed. R. Civ. P. 56(c)(1)(A).
C.
Likewise, Plaintiffs fail to point to any evidence creating a fact dispute
regarding whether there was an officer behind Joseph’s vehicle when he
reversed it. Plaintiffs posit that if there was no officer behind Joseph’s car, it
is debatable whether Joseph was actually “weaponizing” his vehicle and thus
questionable whether Defendants’ use of deadly force was justified. The
video is admittedly unclear on this point. But one of the officers testified that
he was “directly in between [a police vehicle] and [Joseph’s vehicle].” The
same officer testified that he “remember[ed] the vehicle coming straight
towards [him]” as Joseph reversed the vehicle. As above, because Plaintiffs
offer no contrary evidence, there is no genuine factual dispute frustrating
summary judgment. See Kokesh, 14 F.4th at 392; see also Fed. R. Civ. P.
56(c)(1)(A).
D.
Finally, the Robertson Plaintiffs contend that the excessive force
analysis is different as to Robertson because he was only a passenger in the
vehicle, so he could not control what Joseph did as the driver. Regardless of
their argument’s logical appeal, it is foreclosed by precedent. In cases where
a vehicle with a passenger in it is deployed as a weapon, we examine the
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actions of the vehicle, not the driver. See Lytle v. Bexar County, Tex., 560 F.3d
404, 412–15 (5th Cir. 2009). Thus, though a tragic circumstance, it is legally
immaterial that Robertson was merely a passenger in Joseph’s car.
III.
Weighed against the record discussed above, the qualified immunity
analysis comes into clear focus. And we focus only on whether Defendants’
“conduct . . . violate[d] clearly established . . . constitutional rights,” Kokesh,
14 F.4th at 391, namely Joseph’s and Robertson’s Fourth Amendment “right
to be free from excessive force during a seizure,” Poole v. City of Shreveport,
691 F.3d 624, 627 (5th Cir. 2012).2 To sustain an excessive force claim, a
plaintiff “must demonstrate: (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.” Byrd v. Cornelius, 52 F.4th 265, 270 (5th
Cir. 2022) (citation and quotation marks omitted). Courts weigh the Graham
factors to assess whether the force used was reasonable: (1) “‘the severity of
the crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the
safety of the officers or others,’ and (3) ‘whether he is actively resisting arrest
or attempting to evade arrest by flight.’” Id. at 270 (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). The “overarching question is whether
the officers’ actions are objectively reasonable in light of the facts and
circumstances confronting them.” Id. (citation and quotation marks
omitted). “The reasonableness of a particular use of force must be judged
from the perspective of a reasonable officer on the scene[.]” Id. (citation and
quotation marks omitted).
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2
We pretermit discussion of the second prong of the qualified immunity analysis,
whether the law governing Defendants’ conduct was clearly established, because, as
discussed above the line, Plaintiffs have not established a constitutional violation. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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Here, the officers’ use of force was reasonable under the Graham
factors. Heroin distribution is “certainly [a] serious offense[].” See Darden
v. City of Fort Worth, Tex., 880 F.3d 722, 729 (5th Cir. 2018) (holding that
cocaine distribution is a serious offense such that “the severity of the crime
at issue weighs in favor of the officers”). And when Joseph threw his car into
reverse, he “weaponized” it against the JPSO personnel at the scene—and
against others who were in the vicinity. His maneuvering of the vehicle also
indicated that its occupants were both “actively resisting arrest or attempting
to evade arrest by flight.” See Byrd, 52 F.4th at 270 (citation omitted). Faced
with these threats (which materialized within seconds of when the encounter
began), the officers’ actions were reasonable under the Graham factors. See
Hathaway v. Bazany, 507 F.3d 312, 322 (5th Cir. 2007) (holding that a police
officer was justified in using deadly force against a car accelerating toward
him). Because the officers’ actions were reasonable, the use of force was not
excessive, and there was no constitutional violation.3
Mindful of our duty to assess “the reasonableness of a particular use
of force . . . from the perspective of a reasonable officer on the scene,” Byrd,
52 F.4th at 270 (citation and quotation marks omitted), we hold that the
district court did not err in granting Defendants summary judgment on the
basis of qualified immunity.
AFFIRMED.
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3
Plaintiffs’ municipal liability claims fail because there is no underlying
constitutional violation. See Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013).
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