Gomez v. Galman ( 2021 )


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  • Case: 20-30508     Document: 00516100044         Page: 1     Date Filed: 11/18/2021
    United States Court of Appeals
    for the Fifth Circuit                                   United States Court of Appeals
    Fifth Circuit
    FILED
    November 18, 2021
    No. 20-30508
    Lyle W. Cayce
    Clerk
    Jorge Gomez,
    Plaintiff—Appellant,
    versus
    John Galman; Spencer Sutton; City of New Orleans,
    Defendants—Appellees.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:19-CV-11803
    Before Stewart, Ho, and Engelhardt, Circuit Judges.
    Per Curiam:
    While sitting at his local bar, Jorge Gomez was harassed and later
    beaten unconscious by two off-duty New Orleans police officers. Gomez
    sued, and the district court dismissed Gomez’s federal claims because it
    found that the officers were not acting under color of law. But because
    Gomez has alleged sufficient facts at this stage to show that his assailants
    utilized their authority as officers to abuse him, the district court erred on
    that point. Gomez has not, however, alleged sufficient facts to support all of
    his claims. Accordingly, we AFFIRM in part, REVERSE in part, and
    REMAND.
    Case: 20-30508     Document: 00516100044          Page: 2    Date Filed: 11/18/2021
    No. 20-30508
    I.
    On the evening of July 23, 2018, military veteran Jorge Gomez sat at
    the bar at Mid-City Yacht Club. As was often the case, Gomez was wearing
    military fatigues. A regular at that bar, Gomez sat by himself and minded his
    own business. Then, two officers with the New Orleans Police Department
    (“NOPD”), John Galman and Spencer Sutton, arrived on the scene. The
    two men were off duty, wore no indicia of being officers, and did not formally
    announce their positions with NOPD. Unfortunately, their behavior was not
    becoming of an officer of the law. Galman and Sutton harassed Gomez,
    calling him a “fake American” and telling him to “go back” to where he
    came from. At one point the verbal harassment became physical, and the two
    men attempted to pull off Gomez’s clothes. They eventually stole Gomez’s
    beret off his head and left the bar. When Gomez followed the officers outside,
    Sutton ordered Gomez to stop and not leave the patio of Mid-City Yacht
    Club. The officers proceeded to beat Gomez until several bystanders
    intervened to assist the bloodied veteran.
    After getting pummeled, Gomez managed to pull himself together and
    enter his truck to drive to his nearby home. As he was driving away, the
    officers ordered Gomez to stop and exit his vehicle. Gomez alleges that
    “[b]ecause they acted like police officers” he “believed he was not free to
    leave.” Accordingly, Gomez followed the officers’ order and stepped out of
    his vehicle. Galman and Sutton again thrashed Gomez. During the attack,
    Sutton held Gomez down by restraining his hands behind his back and sitting
    on top of him, which Gomez describes as “a police hold,” which the officers
    “were trained to do.” Gomez believed he was being arrested. Eventually,
    the officers knocked Gomez unconscious. After their victim passed out,
    Galman and Sutton did not immediately leave the scene. Instead, Sutton
    called NOPD for backup and identified himself to dispatch as a police officer.
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    Gomez was rushed to the emergency room by ambulance, where he
    was diagnosed with a concussion, a lumbar sprain, and other severe injuries.
    Gomez continues to suffer some effects from these wounds. NOPD officers
    twice questioned Gomez while he was convalescing.                 After a short
    investigation, Galman and Sutton were charged with simple misdemeanor
    battery.
    Gomez sued Galman, Sutton, and the City of New Orleans. Against
    the officers, Gomez alleged a violation of his constitutional rights under 42
    U.S.C. § 1983, as well as various state law claims including assault, battery,
    and false arrest. Against the City, Gomez alleged a § 1983 claim for failure to
    hire, train, supervise, or discipline officers, as well as various state law claims
    including negligent hiring, negligent supervision and retention, and vicarious
    liability.
    The district court dismissed Gomez’s § 1983 claims against the City
    and the officers. The court found that Gomez had not properly alleged that
    the officers were acting under of color of law at the time of the attack, and
    therefore he could not maintain a § 1983 claim against the officers or the City.
    As an alternative holding, the court found that Gomez had failed to allege an
    official policy or custom so as to hold the City liable under § 1983. The court
    further dismissed the negligent hiring, retention, and supervision, respondeat
    superior, and intentional infliction of emotional distress (“IIED”) claims
    against the City. The court declined supplemental jurisdiction over the
    remaining state law claims. Gomez timely appealed.
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    II.
    We review a district court’s grant of a motion to dismiss de novo.
    Masel v. Villarreal, 
    924 F.3d 734
    , 742–43 (5th Cir. 2019). “To survive a
    motion to dismiss, ‘a complaint must contain sufficient factual matter,
    accepted as true, to state a claim to relief that is plausible on its face.’” 
    Id.
    (cleaned up). “In conducting this analysis, we accept all well-pleaded facts
    as true and view those facts in the light most favorable to the plaintiffs.”
    Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 
    942 F.3d 258
    , 263 (5th Cir. 2019) (cleaned up). We do not require “detailed factual
    allegations,” but the complaint must contain sufficient facts to “allow[] the
    court to draw the reasonable inference that the defendant is liable for the
    misconduct alleged.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (quoting
    Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 556 (2007)). A complaint’s “‘naked
    assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. 
    Id.
    (quoting Twombly, 
    550 U.S. at 557
    ). Additionally, courts “are not bound to
    accept as true a legal conclusion couched as a factual allegation.” Papasan v.
    Allain, 
    478 U.S. 265
    , 286 (1986); see also Iqbal, 
    556 U.S. at 678
     (holding that
    the “tenet that a court must accept as true all of the allegations contained in
    a complaint is inapplicable to legal conclusions”).
    “In determining whether a plaintiff’s claims survive a Rule 12(b)(6)
    motion to dismiss, the factual information to which the court addresses its
    inquiry is limited to (1) the facts set forth in the complaint, (2) documents
    attached to the complaint, and (3) matters of which judicial notice may be
    taken under Federal Rule of Evidence 201.” Walker v. Beaumont Indep. Sch.
    Dist., 
    938 F.3d 724
    , 735 (5th Cir. 2019).
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    III.
    A.     “Under Color of Law”
    Under 42 U.S.C. § 1983, one may sue “[e]very person who, under
    color of any statute, ordinance, regulation, custom, or usage of any State”
    violates his or her constitutional rights. Based on this language, the Supreme
    Court has explained that “[t]o state a claim under § 1983, a plaintiff must
    allege the violation of a right secured by the Constitution and laws of the
    United States, and must show that the alleged deprivation was committed by
    a person acting under color of state law.” West v. Atkins, 
    487 U.S. 42
    , 48
    (1988). The first question before us is whether Gomez has established that
    Galman and Sutton were acting “under color of state law” the night that they
    attacked him.
    “The traditional definition of acting under color of state law requires
    that the defendant in a § 1983 action have exercised power ‘possessed by
    virtue of state law and made possible only because the wrongdoer is clothed
    with the authority of state law.’” Id. at 49 (quoting United States v. Classic,
    
    313 U.S. 229
    , 326 (1941)). More simply, “[u]nder ‘color’ of law means under
    ‘pretense’ of law.”     Screws v. United States, 
    325 U.S. 91
    , 111 (1945).
    Generally, if an officer is performing their official duties, their acts “are
    included whether they hew to the line of their authority or overstep it,”
    though “acts of officers in the ambit of their personal pursuits are plainly
    excluded.” 
    Id.
     That said, even if an officer acts for purely personal reasons,
    he or she may still act under color of law if they are “acting by virtue of state
    authority.” United States v. Tarpley, 
    945 F.2d 806
    , 809 (5th Cir. 1991).
    Importantly here, it is “clear that whether a police officer is acting
    under color of law does not depend on duty status at the time of the alleged
    violation.” 
    Id.
     Rather, to determine whether an officer acted under color of
    law, we must consider: (1) “whether the officer misused or abused his official
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    power” and (2) “if there is a nexus between the victim, the improper
    conduct, and the officer’s performance of official duties.” Bustos v. Martini
    Club, Inc., 
    599 F.3d 458
    , 464–65 (cleaned up).
    Viewing his complaint in the light most favorable to Gomez—as we
    must—we determine that he has adequately pleaded facts which establish
    that Galman and Sutton acted under the color of law. First, Gomez alleges
    that when he exited the bar, Sutton “acting as a police officer, gave Mr.
    Gomez a direct order to stop and not leave the patio area of the bar.” Gomez
    obeyed this order. Then, when he attempted to drive away after getting
    violently beaten, Sutton and Galman “ordered him to stop” and “ordered
    [him] to step out of his vehicle.” Gomez claims that “[b]ecause they acted
    like police officers, [he] believed he was not free to leave, and did as he was
    ordered.”
    These allegations are key. A victim usually does not follow orders
    from someone who just attacked him without good reason to do so. He is
    even less likely do so when—as alleged here—the victim was in the process
    of escaping his attackers. The fact that Gomez stopped and exited his vehicle
    at his attackers’ commands lends significant credence to his allegation that
    he believed them to be police officers, because the complaint offers no reason
    for Gomez to obey Galman and Sutton unless they were “acting by virtue of
    state authority.” Tarpley, 
    945 F.2d at 809
    .
    Gomez alleges other facts indicating that Galman and Sutton
    “misused or abused their official power.” Bustos, 
    599 F.3d at 465
    . For
    example, Gomez asserts that the officers “forced him onto his stomach, and
    placed his hands behind his back in a police hold as they were trained to do
    during an arrest, and effected an arrest of Mr. Gomez.” This caused Gomez
    to “believe[] he was being arrested.” The use of the police hold further
    indicates that Galman and Sutton were abusing their official power and
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    exercising their authority as officers in their efforts to harm Gomez. Further,
    Sutton “called for backup in continuing to make an arrest” and Defendants
    “identified themselves to NOPD dispatch as NOPD officers.” Gomez
    concedes that by the time the officers called for backup he was unconscious.
    Nevertheless,    Defendants’      call   for   backup—and       especially   their
    identification of themselves as officers of the law—adds to the “air of official
    authority” that pervaded the assault. Tarpley, 
    945 F.2d at 809
    . Taken
    together, these allegations are sufficient to plead that the officers misused
    their official power. Accordingly, the district court erred in finding that
    Galman and Sutton did not act under color of law.
    Bustos v. Martini Club, Inc. is not to the contrary. In that case, a
    plaintiff got into a bar fight with various officers in San Antonio. Bustos, 
    599 F.3d at 460
    –61. Because the officers were blocking the back door, the plaintiff
    headed for the alley, where the officers were “holding each other’s shoulders
    as a group of SWAT officers showing force” and one officer pushed the
    plaintiff to the floor. 
    Id. at 461
    . Bustos also alleged that he called 911, but the
    operator would not help him because he could not identify the officers’ badge
    numbers, though he did not allege that the officers were in uniform. 
    Id. at 461, 465
    . The district court found that Bustos failed to plead that the officers
    acted under color of law, and this Circuit affirmed. In doing so, we noted that
    “Bustos does not allege facts to suggest that the officers who assaulted him
    misused or abused their official power,” and that “no ‘air of authority’
    pervaded [that] barroom altercation.” 
    Id. at 465
    .
    Here, Gomez has alleged facts that demonstrate an “air of authority”
    not present in Bustos. Unlike Gomez, Bustos did not allege that the off-duty
    officers gave him orders. And Bustos certainly did not allege that he would
    have felt obligated to comply because the defendants were officers of the law.
    Although Bustos claimed that the officers who hurt him held each other’s
    shoulders like a SWAT team, that act is different in kind from a “police
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    hold” that is routinely used during arrests. Indeed, Bustos never claimed
    that he felt that he was under arrest. Taken together, the allegations Gomez
    levies demonstrate a far greater “air of authority” than that present in Bustos.
    Our holding does not disturb well-established case law that “acts of
    officers in the ambit of their personal pursuits are plainly” not under color of
    law. Screws, 
    325 U.S. at 111
    . We merely hold that, viewed in the light most
    favorable to Gomez, he has pleaded sufficient facts at this early stage of
    litigation to suggest that Galman and Sutton were “acting by virtue of state
    authority.” Tarpley, 
    945 F.2d at 809
    . His allegations are sufficient to allow
    this matter to proceed to discovery, where additional fact-finding may
    support—or vitiate—Gomez’s claims.
    B.     Gomez’s Monell Claim
    Because we have determined that Galman and Sutton acted under
    color of law, we must determine whether Gomez has adequately pleaded a
    claim against the City of New Orleans. In Monell v. Department of Social
    Services, the Supreme Court held that municipalities may be sued under
    § 1983 but cannot be held liable for acts of their employees under a theory of
    respondeat superior. 
    436 U.S. 658
     (1978). Rather, to state a claim against a
    municipality under Monell and its progeny, Gomez must plead that “(1) an
    official policy (2) promulgated by the municipal policymaker (3) was the
    moving force behind the violation of a constitutional right.” Davidson v. City
    of Stafford, Tex., 
    848 F.3d 384
    , 395 (5th Cir. 2017). Because Gomez fails to
    adequately plead an official policy, we need not address the second or third
    elements.
    Official municipal policies can take various forms. They often appear
    as written policies, but an official policy may also be an unwritten but
    “widespread practice that is so common and well-settled as to constitute a
    custom that fairly represents municipal policy.”           Alvarez v. City of
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    Brownsville, 
    904 F.3d 382
    , 390 (5th Cir. 2018) (quoting James v. Harris
    County, 
    577 F.3d 612
    , 617 (5th Cir. 2009)). Gomez presses three theories of
    official policies that he alleges caused his harm. First, he asserts that the City
    has an official policy or custom of hiring unqualified police officers. Second,
    he argues the City has a policy of failing to train its officers in the basic
    elements of effective policing. Finally, Gomez contends that the City has an
    official policy of protecting its police officers from the consequences of their
    wrongdoing, or a “Blue Code of Silence.” We address each of these
    purported policies in turn.
    We first address Gomez’s claim that the City had a policy of hiring
    and retaining unqualified officers. The City may be held liable for decisions
    about hiring and retention if Gomez can demonstrate “deliberate
    indifference” to the “known or obvious consequence[s]” of such decisions.
    Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 
    520 U.S. 397
    , 410 (1997).
    Indeed, “[a] showing of simple or even heightened negligence will not
    suffice.” 
    Id. at 407
    . Deliberate indifference exists “where adequate scrutiny
    of an applicant’s background would lead a reasonable supervisor to conclude
    that the plainly obvious consequences of the decision to hire would be the
    deprivation of a third party’s constitutional rights.” Gros v. City of Grand
    Prairie, 
    209 F.3d 431
    , 433–34 (5th Cir. 2000) (citing Snyder v. Trepagnier, 
    142 F.3d 791
    , 797 (5th Cir. 1998)).        To show deliberate indifference, the
    connection between the background of the individual and the specific
    violation alleged must be strong, as the plaintiff “must show that the hired
    officer was highly likely to inflict the particular type of injury [he] suffered.”
    
    Id. at 434
    ; see also Brown, 
    520 U.S. at 412
    .
    Gomez fails to allege any facts that would demonstrate deliberate
    indifference in the hiring or retention of Sutton. Gomez does, however,
    allege two instances of prior misconduct by Galman, which he contends put
    the City on notice that Galman would engage in conduct violative of citizens’
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    constitutional rights.    First, Gomez pleads that in May 2018, Galman
    performed an illegal, invasive, and public strip search on an arrestee in his
    custody. Second, Gomez alleges that in June 2018, Galman hit the passenger
    side window of a car while walking by it, and when confronted, he headbutted
    the side mirror so hard it knocked the mirror glass loose.           The City
    determined this act violated at least four of its rules.
    Galman’s conduct in these instances was egregious. But it does not
    provide support for Gomez’s claim because these incidents are too unlike
    Galman’s conduct here to establish “deliberate indifference” on the City’s
    part. The Supreme Court has emphasized that “[t]he connection between
    the background of the particular [defendant] and the specific constitutional
    violation alleged must be strong.” Brown, 
    520 U.S. at 412
     (emphasis added).
    Galman’s improper strip-search of an arrestee does not make “plainly
    obvious” that Galman had a proclivity toward such brutal violence as alleged
    here. True enough, the fact Galman headbutted a car’s mirror suggests that
    he is willing to improperly do damage to property. But that is different in
    kind from the act Galman is accused of here, which is aggressive physical
    violence toward a citizen. These incidents simply do not “show that
    [Galman] was highly likely to inflict the particular type of injury [Gomez]
    suffered.” Gros, 
    209 F.3d at 434
    .
    Gomez also relies on the NOPD’s “historically tainted record” of
    recruitment and hiring to argue that the City’s flawed practices in those areas
    constituted a policy. Gomez’s complaint cites to the findings of a 2011
    Department of Justice (“DOJ”) Investigation into the NOPD, which
    concluded that deficiencies in recruitment and retention of officers
    contributed to a pattern of police misconduct.              As a result of the
    investigation, in 2012 the City and the DOJ entered into a Consent Decree
    which required the City to implement new polices in various areas, including
    recruitment and retention.       Gomez further alleges that, in 2018, the
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    Independent Monitor who oversaw enforcement of the Consent Decree filed
    an annual report noting that NOPD continued to deal with deficiencies in
    officer recruitment. 1
    With respect to the 2011 DOJ report, we do not see how NOPD’s
    problems with hiring and retention almost a decade ago translate to a policy
    of deliberate indifference in hiring and retention in 2018, when this incident
    occurred. To the contrary, the fact that the City entered into a Consent
    Decree suggests that the City recognized that a problem existed and agreed
    to remedy it. That is hardly consistent with demonstrating “deliberate
    indifference” on the City’s part. Of course, for other claims and in other
    contexts, the DOJ report and Consent Degree may be useful evidence; but
    on these facts, they are not.
    The report of the Independent Monitor is closer in time to the
    officers’ assault.     But it, too, fails as sufficient evidence of deliberate
    indifference. Although the report gestures broadly to issues NOPD has with
    hiring and retention, it does not discuss specific conduct of officers like what
    is alleged here. It therefore fails to “show that [Galman] was highly likely to
    inflict the particular type of injury [Gomez] suffered.” Gros, 
    209 F.3d at 434
    (emphasis added). Further, the report makes clear that the City was actively
    working to remedy any existing issues in hiring and retention by
    implementing the report’s recommended action items. As the district court
    noted, “Gomez has simply not alleged the requisite link between instances of
    problematic conduct identified in the consent decree or reports and the
    1
    We note that while Gomez alleges that the Independent Monitor filed his 2017
    report on April 10, 2018, the report attached to the Complaint is dated January 18, 2017
    and gives no indication it was released in 2018. But whether the report was issued in 2017
    or 2018 does not make a material difference here, as the report does not support Gomez’s
    claims.
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    incident at issue.” We agree. And because none of the evidence that Gomez
    pleads adequately supports his hiring and retention claim, that claim fails.
    Next, we address Gomez’s argument that the City had a policy of
    failing to train its officers. In order to successfully plead a claim for failure to
    train, a plaintiff “must plead facts plausibly establishing ‘(1) that the
    municipality’s training procedures were inadequate, (2) that the municipality
    was deliberately indifferent in adopting its training policy, and (3) that the
    inadequate training policy directly caused the violations in question.’”
    Ratliff v. Aransas Cnty., 
    948 F.3d 281
    , 285 (5th Cir. 2020) (quoting Zarnow v.
    City of Wichita Falls, 
    614 F.3d 161
    , 170 (5th Cir. 2010)). In the failure-to-train
    context, deliberate indifference may be established in two ways. First, a
    plaintiff may plead that a municipality had “notice of a pattern of similar
    violations at the time the plaintiff’s own rights were violated.” Robles v.
    Ciarletta, 797 F. App’x 821, 833 (5th Cir. 2019). Second, failure to train may
    amount to deliberate indifference when the specific injury suffered is a
    “highly predictable consequence of a failure to train.” 
    Id. at 833
    –34.
    Gomez’s complaint fails under either approach. Gomez does not
    allege a single specific instance like the facts here. Instead, he relies solely on
    the DOJ investigation and the Independent Monitor’s report.                 But as
    described above, those reports only broadly illustrate officer misconduct
    without any discussion of “a pattern of similar violations at the time
    [Gomez’s] own rights were violated.” 
    Id. at 833
    . Nor does Gomez allege any
    facts by which the court could find that he suffered harm “as the highly
    predictable consequence of a failure to train.” 
    Id. at 833
    –34. As described
    above, Gomez does plead facts regarding two instances of misconduct by
    Galman, but neither of those instances are similar enough to the conduct here
    to demonstrate that the attack on Gomez was a “highly predictable”
    consequence of a failure to train.
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    Finally, we address Gomez’s claim that NOPD had a “Blue Code of
    Silence,” or official policy of protecting its police officers from the
    consequences of their wrongdoing. This claim is easily disposed of. Gomez
    alleges no facts showing a “widespread practice that is so common and well-
    settled as to constitute a custom that fairly represents municipal policy.”
    Alvarez, 904 F.3d at 390. Most of Gomez’s allegations about this policy are
    conclusory; and even the paltry facts Gomez alleges to support his claim,
    such as that Galman and Sutton expected not to face consequences for their
    actions, are contradicted by other allegations, including the swift punishment
    the officers received. 2 Further, the non-conclusory allegations speak only to
    this incident, and a “customary municipal policy cannot ordinarily be
    inferred from single constitutional violations.” Piotrowski v. City of Houston,
    
    237 F.3d 567
    , 581 (5th Cir. 2001). This claim fails.
    Although Gomez musters enough facts to demonstrate the officers
    were acting under color of law, he does not allege sufficient facts to support
    a Monell claim against the City based on the officers’ actions. Accordingly,
    we affirm the district court’s dismissal of Gomez’s § 1983 claim against the
    City.
    C.      Gomez’s State Law Claims
    Finally, we turn to the state law claims against the City that the district
    court addressed.        These include (1) negligent hiring, retention, and
    supervision, (2) vicarious liability, and (3) intentional infliction of emotional
    distress. We address each in turn.
    2
    Gomez alleges that both officers were arrested and charged with battery. The
    City also represents in its briefing that it terminated Galman and Sutton the day after the
    assault.
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    We start with Gomez’s claims for negligent hiring and negligent
    retention and supervision against the City of New Orleans. “A claim against
    an employer for the torts of an employee based on the employer’s alleged
    direct negligence in hiring, retaining, or supervising the employee generally
    is governed by the same duty-risk analysis” used in Louisiana for negligence
    claims. Kelley v. Dyson, 
    10 So. 3d 283
    , 287 (La. App. 5 Cir. 2009). The
    elements of liability in a Louisiana negligence case are: (1) duty; (2) breach of
    duty; (3) cause-in-fact; (4) scope of liability or scope of protection; and (5)
    damages. 
    Id.
     Because the existence of a duty is the only question of law, we
    turn our focus to the first factor. Griffin v. Kmart Corp., 
    776 So. 2d 1226
    , 1231
    (La. 2000).
    The district court dismissed the negligent hiring and negligent
    retention and supervision claims against the City largely for the same reasons
    it dismissed Gomez’s Monell claim. But Louisiana’s test for whether a duty
    exists for these claims is different than the test for whether Gomez states a
    Monell claim. Specifically, Louisiana law tells us that “[w]hen an employer
    hires an employee who in the performance of his duties will have a unique
    opportunity to commit a tort against a third party, he has a duty to exercise
    reasonable care in the selection of that employee.” Kelley, 
    10 So. 3d at 287
    .
    The primary focus is whether the “the employment gave the
    tortious/criminal employees ‘unique opportunities’ to commit their
    wrongdoing.” 
    Id. at 287
    –88. Of course, this is a world apart from requiring
    Gomez to show an official policy of hiring and retaining unqualified officers.
    Davidson, 848 F.3d at 395.
    Gomez has pleaded sufficient facts to show that Sutton and Galman
    did benefit from the “unique opportunities” provided by their employment
    during their assault on Gomez. Gomez alleges that he only exited his vehicle
    because he was given an order by the officers and felt he was not free to leave.
    Gomez further alleges that the officers placed him “in a police hold as they
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    were trained to do during an arrest.” The use of a cloak of authority to stop
    a victim and the use of a police hold that they had been specifically trained to
    perform constitute “unique opportunities” provided by their employment.
    Given this, these claims cannot be dismissed on the grounds that the City
    owed Gomez no duty. And because the other four elements are factual
    questions, Griffin, 776 So. 2d at 1231, we cannot decide them at this early
    stage.
    A state-law claim for vicarious liability has yet a different test. An
    employer may be held vicariously liable for the tortious acts of its employees
    only when they are performed “in the exercise of the functions in which they
    are employed.” La. Civ. Code art. 2320. Vicarious liability attaches only “if
    the employee is acting within the ambit of his assigned duties and also in
    furtherance of his employer’s objective.” Baumeister v. Plunkett, 
    673 So. 2d 994
    , 996 (La. 1996) (quotations omitted). In other words, “an employee’s
    conduct is within the course and scope of his employment if the conduct
    is . . . activated at least in part by a purpose to serve the employer.” Patrick
    v. Poisso, 
    882 So. 2d 686
    , 691 (La. App. 2 Cir. 2004).
    The test for vicarious liability is harder for a plaintiff to meet than the
    tests for other state law claims discussed above.             The plaintiff must
    demonstrate not only that the tortfeasors were enabled by “unique
    opportunities” of their employment to commit their wrongdoing, but also
    that the employee’s conduct is “within the course and scope of his
    employment.” 
    Id.
     Indeed, this is an even greater burden than demonstrating
    that an officer’s actions are “under color of law,” which does not depend on
    duty-status or whether the action was for the benefit of the state. See Tarpley,
    
    945 F.2d at 809
    . Gomez pleads no facts that could demonstrate that the
    officers’ conduct was “in furtherance of his employer’s objective.”
    Baumeister, 674 So. 2d at 996. To the contrary, while Galman and Sutton
    may have been able to inflict such harm on Gomez because of their positions
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    Case: 20-30508     Document: 00516100044           Page: 16    Date Filed: 11/18/2021
    No. 20-30508
    of authority, NOPD immediately rebuked their actions. The district court
    correctly dismissed the vicarious liability claim against the City.
    Finally, we turn to Gomez’s intentional infliction of emotional
    distress claim. To establish an IIED claim in Louisiana, a plaintiff must show:
    “(1) that the conduct of the defendant was extreme and outrageous; (2) that
    the emotional distress suffered by the plaintiff was severe; and (3) that the
    defendant desired to inflict severe emotional distress or knew that severe
    emotional distress would be certain or substantially certain to result from his
    conduct.” White v. Monsanto Co., 
    585 So. 2d 1205
    , 1209 (La. 1991). A careful
    review of Gomez’s amended complaint reveals no facts that would support
    the first or third elements of this claim against the City. Although Gomez
    may have alleged an IIED claim against Galman and Sutton, their conduct is
    only attributable to the City through respondeat superior, a claim we have
    already explained fails. Therefore, the district court correctly dismissed the
    IIED claim against the City.
    IV.
    For the foregoing reasons, we AFFIRM the grant of the City’s Motion
    to dismiss as to Gomez’s Monell claim, vicarious liability claim, and IIED
    claim. We REVERSE the dismissal of the § 1983 claims against Galman and
    Sutton and the dismissal of Gomez’s state-law negligent hiring, retention,
    and supervision claim against the City. We REMAND this matter to the
    district court for further proceedings consistent with this opinion.
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    No. 20-30508
    James C. Ho, Circuit Judge, concurring:
    As a strictly doctrinal matter, this is a close case. Gomez alleges that
    he believed his assailants were police officers, and that for that reason, he
    complied with their orders, rather than flee to avoid further injury. But he
    never explains why he believed the defendants were police officers. He does
    not allege that they wore uniforms, displayed their badges, or otherwise
    presented themselves to him as police officers. And it is not Gomez’s
    subjective beliefs, but the officers’ conduct, that determines whether the
    defendants acted “under color of [state law]” as required under 42 U.S.C. §
    1983. See, e.g., Bustos v. Martini Club Inc., 
    599 F.3d 458
    , 464–65 (5th Cir.
    2010) (“Whether an officer is acting under color of state law” turns on “(1)
    whether the officer misused or abused his official power, and (2) if there is a
    nexus between the victim, the improper conduct, and the officer’s
    performance of official duties.”) (cleaned up). So I can see how the district
    court might have concluded that this case cannot proceed under § 1983.
    That said, I am not prepared to dismiss all of Gomez’s claims at this
    time. Some circuits have recognized that a plaintiff’s subjective beliefs may
    bear “some relevance” to the color of law determination. See, e.g., Barreto-
    Rivera v. Medina-Vargas, 
    168 F.3d 42
    , 47 (1st Cir. 1999) (“Although we
    [have] accorded the subjective reactions of the victim some relevance in the
    color of law analysis . . . , the primary focus of the color of law analysis must
    be on the conduct of the police officer.”); Strange v. Porath, 
    104 F.3d 368
    (10th Cir. 1996) (noting that, although a victim’s “subjective perception . . .
    may be a relevant factor in determining whether [an officer] acted under color
    of law, it is not determinative”).
    In addition, there is at least some support in our circuit precedent for
    the proposition that the officers here acted under color of state law because
    they later called for police backup. See, e.g., United States v. Tarpley, 
    945 F.2d 17
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    No. 20-30508
    806, 809 (5th Cir. 1991) (“Significantly, [the defendant] summoned another
    police officer from the sheriff’s station and identified him as a fellow officer
    and ally.”). See also Halmu v. Beck, 
    2021 WL 980912
    , *4 (S.D. Fla. Mar. 15,
    2021) (officers acted under color of law where they “filed a false arrest
    affidavit and omitted significant facts to conceal police wrongdoing under
    color of state law in order to avoid liability”).
    In light of these authorities, I am happy to reverse in part and remand
    for further proceedings, and therefore concur.
    Moreover, although reasonable minds can debate whether the
    misconduct alleged here is actionable under § 1983, it is unquestionably
    contemptible.
    Accepting the allegations in the complaint as true, as we must at this
    stage, Jorge Gomez is a U.S. citizen and decorated military veteran of
    Honduran descent. On the night in question, he visited a local bar, proudly
    wearing his military regalia. Officers Galman and Sutton ordered Gomez to
    approach. They called him a “fake American” and a “liar” and told him to
    “go back” to wherever he came from. They attempted to strip off his
    military clothing. And then they brutally beat him until two bystanders
    intervened to stop the attack. They left Gomez sprawled across a patio table,
    bruised and bloodied. After he managed to get up, Gomez entered his car
    and began driving away. But the officers ordered him to stop and exit his
    vehicle. Believing he had no choice, Gomez complied. The officers then
    knocked Gomez to the ground, forced him onto his stomach, held his arms
    behind his back, and beat him unconscious.
    “Nothing is more corrosive to public confidence in our criminal
    justice system than the perception that there are two different legal
    standards.” United States v. Taffaro, 
    919 F.3d 947
    , 949 (5th Cir. 2019) (Ho,
    J., concurring in the judgment). If the allegations in this case are true, the
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    No. 20-30508
    officers have not merely brutalized one man—they have badly undermined
    public trust in law enforcement. And unfortunately, the misconduct alleged
    here is not unique. See, e.g., Fennell v. Marion Indep. Sch. Dist., 
    804 F.3d 398
    ,
    402–06 (5th Cir. 2015) (black high-school students brought Section 1983
    claims against public officials after years of racially-motivated harassment,
    including racial slurs and nooses placed on their cars); United States v. Harris,
    
    293 F.3d 863
    , 870, 882 (5th Cir. 2002) (defendant police chief repeatedly
    beat Mexican-American in the head with a baton and told FBI agents that
    “Mexicans do not have the same rights as ‘real Americans’”); Patel v.
    Dennett, 
    389 F. Supp. 3d 888
    , 892–93 (D. Nev. 2018) (defendant police
    officer told Indian-American to “go back where you came from” before
    breaking his arm during illegal arrest); Cotto v. City of Middletown, 
    158 F. Supp. 3d 67
    , 80 (D. Conn. 2016) (defendant police officers used racial
    epithets while conducting an illegal, public strip-search without gloves);
    Polite v. Town of Clarkstown, 
    120 F. Supp. 2d 381
    , 383 (S.D.N.Y. 2000)
    (defendant police officers shouted racial epithets at plaintiff arrestees, put
    guns to their heads, and threatened to pull the trigger); Hardeway v. City of
    Chicago, 
    1991 WL 203857
    , *1–2 (N.D. Ill. Oct. 4, 1991) (defendant police
    officers beat plaintiff while using profanities and racial slurs).
    I agree that the district court should not have dismissed Gomez’s
    claims against the officers at this early stage in the proceedings. Accordingly,
    I concur.
    19