Case: 11-30110 Document: 00511662381 Page: 1 Date Filed: 11/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 10, 2011
No. 11-30110 Lyle W. Cayce
Clerk
ANN DESHOTELS; KIMBERLY ANN DESHOTELS; JAMIE JOURDAN
DESHOTELS PUCHEU; MATTHEW RISHER DESHOTELS,
Plaintiffs-Appellants
v.
MIKE MARSHALL; TRAVIS MILLER; ANTHONY MANCUSO; JEFF
PITTMAN; JEFF MORGAN; CITY OF LAKE CHARLES; ST. PAUL FIRE &
MARINE INSURANCE COMPANY,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Seldon Deshotels died shortly after an altercation with law enforcement
officers from the Lake Charles Police Department and the Calcasieu Parish
Sheriff’s Office. His surviving wife and children, Plaintiffs-Appellants, filed suit
against the officers and their employers, among others, asserting claims under
42 U.S.C. § 1983 and state law. The district court granted summary judgment
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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dismissing various claims against appellees Mike Marshall, Travis Miller, Jeff
Pittman, Jeff Morgan, and Anthony Mancuso. For the following reasons, we
AFFIRM.
BACKGROUND
The incident giving rise to this case occurred on November 1, 2007, in Lake
Charles, Louisiana. At approximately 9:20 p.m., Cherie Norsworthy looked out
her back door and saw Seldon Deshotels in her garage. Deshotels, a clinical and
anatomical pathologist, had recently moved to Lake Charles for employment
purposes and was living in the nearby Nelson Pointe apartment complex. Ms.
Norsworthy did not recognize Deshotels, but assumed he was there to see her
husband.1 When she opened the door and asked if he was “looking for Greg,”
Deshotels “kind of panicked” and quickly exited the garage. Alarmed by
Deshotels’s reaction, Ms. Norsworthy went back into the house and yelled for her
husband.
When Ms. Norsworthy told her husband what happened, he instructed
her to call the police and then immediately left the house to look for Deshotels.
Ms. Norsworthy contacted the Calcasieu Parish Sheriff’s Office (CPSO). Mr.
Norsworthy searched the neighborhood on his four-wheeler and eventually
located Deshotels running toward the Nelson Pointe apartment complex.
Norsworthy, a trained martial artist, caught up with Deshotels near the gate to
the apartment complex, jumped on his back, and applied a choke hold that
rendered Deshotels temporarily unconscious. Both men fell to the ground and
Norsworthy released the choke hold. Deshotels regained consciousness shortly
thereafter.
At about the same time, Jessica Cobb and two friends were driving into
the apartment complex parking lot. Cobb testified that when they approached
1
The Norsworthys did not know, and had never met, Deshotels.
2
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the gate, she saw Deshotels laying on his stomach and Norsworthy sitting on his
back. Norsworthy yelled to Cobb that Deshotels had broken into his house and
asked her to call the police. Cobb called 911 and was connected to the Lake
Charles Police Department (LCPD). She told the 911 operator that a homeowner
was restraining a man who broke into his house and that they were near the
gate to the Nelson Pointe apartment complex.
Both CPSO and LCPD dispatched officers to respond to the incident.
LCPD officer Jeff Pittman was the first law enforcement officer at the scene.
When he arrived, Deshotels was sitting on the ground and Norsworthy was
standing nearby. Norsworthy identified himself as the complainant and
Deshotels as the burglary suspect. As Pittman approached the two men,
Deshotels got up and began running toward Nelson Road. Pittman chased and
quickly caught Deshotels, bringing him to the ground face down. Pittman
straddled Deshotels’s lower back and pulled on his left arm in an attempt to
apply handcuffs. Deshotels resisted, pulling his arms down and underneath his
chest. As Pittman struggled with Deshotels, CPSO deputies Mike Marshall and
Travis Miller and LCPD officers Jeff Morgan and Kevin O’Rourke arrived and
began assisting. Marshall attempted to gain control of Deshotels’s right arm and
Miller placed his knee on Deshotels’s right shoulder. Deshotels was kicking his
legs, so officer Morgan crossed one leg over the other and pushed them down
towards Deshotels’s back. Officer O’Rourke warned Deshotels to stop resisting
or he would be tased. When Deshotels failed to surrender his hands, O’Rourke
conducted a five second “drive-stun” tase to Deshotels’s right shoulder.2 Despite
being tased, Deshotels continued to pull his arms under his chest. O’Rourke
moved to Deshotels’s left side and conducted another drive-stun tase to
2
With a drive-stun tase, an officer shocks a suspect by applying the Taser directly to
the suspect’s body.
3
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Deshotels’s lower back. After the second tasing, the officers secured Deshotels’s
arms and applied handcuffs.3
Once the handcuffs were on, Pittman and Marshall attempted to lift
Deshotels off the ground. They noticed that Deshotels’s body was limp and that
he was unable to support his own weight. At about the same time, LCPD officers
John Thacker, Robert McCauley, and Larry Moss arrived at the scene. They
observed Deshotels being dragged as “dead weight” in the direction of a police
car. They noticed that Deshotels’s face looked blue and that he did not appear
to be breathing. Thacker instructed Pittman to remove Deshotels’s handcuffs
and lay him on the ground. The officers removed Deshotels’s handcuffs, laid him
on his back, and at some point, called an ambulance.
The parties dispute what, if anything, the officers did to assist Deshotels
before the ambulance arrived. McCauley testified that Deshotels’s tongue
appeared to be blocking his airway. He stated that Moss held Deshotels’s head
while he used a pen to move Deshotels’s tongue in an attempt to clear the
blockage. Moss testified that he assisted McCauley until a paramedic arrived
and was standing next to Deshotels.
Appellants point to the deposition testimony of Walter Siefford, an
EMT/paramedic who responded to the incident. Siefford testified that when he
arrived at the scene, Deshotels was lying on his back and a single officer,
presumably McCauley, was attempting to pry his mouth open with a pen.4
Siefford stated that the officer repeatedly asked him to help Deshotels. Siefford
further testified that Deshotels’s mouth was full of vomit and that there was
3
It is not clear when Deshotels’s left hand was cuffed and under control. Marshall
testified that Deshotels’s left hand was cuffed and in Pittman’s control before Deshotels was
tased. O’Rourke testified that Pittman cuffed Deshotels’s left hand between the first and
second tasing. Pittman testified that neither hand was cuffed until after the second tasing.
4
According to Siefford, seven to eight officers were congregated near the parking lot
gate.
4
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vomit on his face and in the area around his head. McCauley, Moss, and Thacker
all testified that they did not see Deshotels vomit and did not see vomit on or
around Deshotels.
Deshotels was eventually transported to Women’s and Children’s Hospital
where he was later pronounced dead. He was fifty-six years old. According to an
autopsy conducted by the Parish Coroner, Dr. Terry Welke, Deshotels was
asthmatic and had a blood alcohol level of .12. The reported cause of death was
excited delirium. Appellants commissioned a second autopsy, which was
performed by Dr. Collie Trant, a board certified forensic pathologist. Dr. Trant
concluded that the cause of death was asphyxia caused by a misapplied choke
hold, compression of the chest and abdomen during the struggle with the
officers, and airway obstruction by gastric contents.
Appellants filed suit on September 18, 2008, naming as defendants, among
others, Marshall, Miller, Pittman, Morgan, and O’Rourke, in their individual
capacities, and Calcasieu Parish Sheriff Anthony Mancuso in his individual and
official capacities. Appellants brought claims under § 1983 and state law for
excessive force and for failing to render appropriate medical assistance.
Appellants also brought § 1983 bystander liability claims, asserting that
Marshall, Miller, Pittman, and Morgan are liable for failing to prevent O’Rourke
from tasing Deshotels.
In opinions filed October 27, 2010, and January 4, 2011, the district court
granted summary judgment dismissing Appellants’ excessive force and
bystander liability claims against Marshall, Miller, Pittman, and Morgan. The
district court also granted summary judgment dismissing Appellants’ official and
individual capacity excessive force claims against Calcasieu Parish Sheriff
Anthony Mancuso. The court denied summary judgment on Appellants’ excessive
force claims against O’Rourke. The court also denied summary judgment on
Appellants’ claims against Marshall, Miller, Pittman, and Morgan for failing to
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render appropriate medical assistance. Those claims are currently pending
before the district court. The judgments accompanying the October 27 and
January 4 opinions were certified as final and appealable under Rule 54(b) of the
Federal Rules of Civil Procedure.
DISCUSSION
This court reviews the grant of summary judgment de novo, applying the
same standard used by the district court. Hill v. Carroll Cnty., Miss., 587 F.3d
230, 233 (5th Cir. 2009). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). “A fact is ‘material’ if its resolution in
favor of one party might affect the outcome of the lawsuit under governing law.”
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). “An issue
is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Id. (quoting Hamilton, 232 F.3d at 477). In
determining whether a fact issue exists, the court views “the facts and the
inferences to be drawn therefrom in the light most favorable to the nonmoving
party.” Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412
(5th Cir. 2003).
Section 1983 Claims Against Marshall, Miller, Pittman, and Morgan
1. Excessive Force
The district court concluded that Marshall’s, Miller’s, Pittman’s, and
Morgan’s actions to subdue and handcuff Deshotels were objectively reasonable
and that the officers are entitled to qualified immunity from Appellants’ § 1983
excessive force claims. Appellants argue that they have raised a fact issue as to
whether the officers’ actions were reasonable and that the district court
therefore erred.
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Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether qualified
immunity applies, the court conducts the two-part analysis set forth in Saucier
v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S.
223 (2009). The court decides “(1) whether facts alleged or shown by plaintiff
make out the violation of a constitutional right, and (2) if so, whether that right
was clearly established at the time of the defendant’s alleged misconduct.” Pasco
v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009). “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) (quoting
Saucier, 533 U.S. at 202). If the answer to either of the two above questions is
“no,” qualified immunity applies and the government official is immune from
suit. The plaintiff bears the burden of overcoming the qualified immunity
defense. Bennett v. City of Grand Prairie, Tex., 883 F.2d 400, 408 (5th Cir. 1989).
After the Supreme Court’s decision in Pearson, 555 U.S. 223, courts have
discretion as to which of the two qualified immunity prongs to address first.
Turning to the first prong of the qualified immunity analysis, this court
must determine whether the facts, taken in the light most favorable to
Appellants, show that the officers violated a constitutional right. “[A]ll claims
that law enforcement officers have used excessive force—deadly or not—in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should
be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 487 (5th Cir. 2001) (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)) (alteration in original). To prevail
in an excessive force claim, “a plaintiff must show that he was seized and that
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he ‘suffered (1) an injury that (2) resulted directly and only from the use of force
that was excessive to the need and that (3) the force used was objectively
unreasonable.’” Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (quoting
Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). Determining
whether an officer’s use of force was objectively reasonable “requires careful
attention to the facts and circumstances of each particular case, including 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.” Graham, 490 U.S. at 396. Courts must be
mindful that police officers are often required to make split-second judgments
“in circumstances that are tense, uncertain, and rapidly evolving” and must
evaluate an officer’s use of force “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Id. at 396–97.
To support a fact issue, Appellants point to Marshall’s deposition
testimony stating that he was not concerned for his or the other officers’ safety
during the struggle with Deshotels and that he believed they could have
handcuffed Deshotels without the use of a Taser. Appellants also point to
Miller’s testimony that he agreed with O’Rourke’s use of a Taser and that he
would have used his Taser had O’Rourke not done so first. Appellants further
note that Deshotels did not attempt to strike or kick the officers and that the
LCPD use of force report characterized Deshotels’s behavior as “empty hand
defensive resistance.”
Appellants’ evidence tends to focus on whether O’Rourke’s use of a Taser
constituted excessive force, an issue not before the court. The relevant inquiry
is whether Marshall’s, Miller’s, Pittman’s, and Morgan’s individual actions to
subdue and handcuff Deshotels were reasonable under the circumstances. See
Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir. 2007) (holding that each
officer’s individual actions should be considered in determining whether
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qualified immunity applies). The facts show that the officers were responding to
a burglary in progress, “a crime normally and reasonably expected to involve a
weapon.”5 United States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007). When
Pittman approached the scene, Deshotels immediately fled, and when caught,
actively resisted Pittman’s attempts to apply handcuffs. Marshall, Miller, and
Morgan arrived to see Pittman struggling with a large, unruly suspect. (At the
time of the autopsy, Deshotels was 5'10" tall and 240 lbs.) The officers repeatedly
instructed Deshotels to show them his hands and to stop resisting. Despite the
commands, Deshotels continued to resist the officers by pulling his arms under
his chest. Though the officers had not seen a weapon on Deshotels, they had also
not confirmed that he was unarmed. To secure Deshotels, Pittman straddled his
back and pulled on his left arm. Miller kneeled on Deshotels’s right shoulder
while Marshall seized Deshotels’s right forearm. Morgan folded one of
Deshotels’s legs over the other to stop him from kicking. In light of the above
described circumstances, the officers’ actions were objectively reasonable and
they are entitled to qualified immunity from Appellants’ § 1983 excessive force
claims.
2. Bystander Liability
Appellants argue that Marshall, Miller, Pittman, and Morgan are liable
for failing to prevent O’Rourke’s alleged use of excessive force when he tased
Deshotels.6 In support of these claims, Appellants rely on this court’s holding in
Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995), that “an officer who is present
5
CPSO deputies Marshall and Miller were initially dispatched to respond to a trespass
at the Norsworthy’s house. As they were driving to the Norsworthy’s, Pittman passed them
in his patrol car with his lights and siren on. The dispatch informed the deputies that Pittman
was responding to a burglary in progress at the Nelson Pointe complex. They assumed that
their call and Pittman’s were related and decided to follow him to the apartment complex.
6
As mentioned above, Appellants’ § 1983 excessive force claim against O’Rourke is
currently pending at the district court. There has been no determination whether O’Rourke’s
use of a Taser constituted excessive force and we offer no opinion on that question.
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at the scene and does not take reasonable measures to protect a suspect from
another officer’s use of excessive force may be liable under section 1983.” The
court determined that liability under § 1983 can attach when the bystander
officer “had a reasonable opportunity to realize the excessive nature of the force
and to intervene to stop it.” Id. Appellants maintain that Marshall, Miller,
Pittman, and Morgan had an opportunity to realize that O’Rourke was going to
tase Deshotels and to intervene and stop him.7
As discussed above, to overcome the officers’ defense of qualified
immunity, Appellants must show that the officers “violated clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Manis v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009). Exercising the
discretion provided in Pearson, 555 U.S. 223, we first consider whether the
officers’ conduct violated clearly established law. If the answer is “no,” the
officers are entitled to qualified immunity and the court need not decide whether
Appellants’ facts make out the violation of a constitutional right.
For a right to be clearly established, the “contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Saucier, 533 U.S. at 202. “As we have held, pre-
existing law must dictate, that is, truly compel (not just suggest or allow or raise
a question about), the conclusion for every like-situated, reasonable government
agent that what defendant is doing violates federal law in the circumstances.”
Pasco, 566 F.3d at 579–80 (internal quotations omitted); see also Saucier, 533
7
In support, Appellants point to testimony that Deshotels was verbally warned that
he would be tased unless he stopped resisting. O’Rourke testified that before he tased
Deshotels he told him “stop resisting or I’m going to deploy the Taser on you.” Marshall
testified that O’Rourke said “Taser, Taser, Taser,” before he tased Deshotels. Brady Hendrix,
an eyewitness, testified that he heard an officer tell Deshotels “if you keep moving, you will
get tased.” Appellants argue that if these warnings were sufficient for Deshotels to cease
struggling and avoid being tased, they were also sufficient to alert the officers that O’Rourke
planned to use his Taser and to do something to stop him.
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U.S. at 202 (“The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.”). “[Q]ualified immunity
operates to ensure that before they are subjected to suit, officers are on notice
their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal
quotations omitted).
Thus, the inquiry is whether, under the law in effect at the time of the
arrest, the officers could have reasonably believed that they were not required
to intervene and prevent O’Rourke’s alleged use of excessive force. The answer
to that question is clearly “yes.” The facts in Hale are significantly different from
the facts in this case. In Hale, the plaintiff produced evidence that he was beaten
by a police officer while the bystander officer stood by and laughed, making no
effort to intervene. Hale, 45 F.3d at 919. Nothing in Hale provided police officers
“fair notice” that officers actively engaged in restraining a large, potentially
dangerous suspect are required to intervene and prevent another officer’s use of
excessive force. See Manis, 585 F.3d at 845–46 (“If the law at the time of a
constitutional violation does not give the officer ‘fair notice’ that his conduct is
unlawful, the officer is immune from suit.”). Nor do Appellants provide any other
authority, and we could not find any, supporting that proposition. Accordingly,
the officers’ actions were objectively reasonable in light of clearly established law
and they are entitled to qualified immunity.
State Law Claims Against Marshall, Miller, Pittman, and Morgan
Appellants argue that the district court erred in dismissing their state law
excessive force claims against Marshall, Miller, Pittman, and Morgan. In
Louisiana, excessive force claims are analyzed under a reasonableness standard
similar to that used to evaluate § 1983 excessive force claims. Kyle v. City of New
Orleans, 353 So. 2d 969, 972–73 (La. 1977). “Whether the force used is
reasonable depends upon the totality of the facts and circumstances in each
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case.” Id. at 973. Factors to be considered include “the known character of the
arrestee, the risks and dangers faced by the officers, the nature of the offense
involved, the chance of the arrestee’s escape if the particular means are not
employed, the existence of alternative methods of arrest, the physical size,
strength, and weaponry of the officers as compared to the arrestee, and the
exigencies of the moment.” Id. Given the similarity between these factors and
those used to evaluate § 1983 excessive force claims, we conclude that the
officers’ use of force was reasonable under Louisiana law for the same reasons
the use of force was reasonable under the Fourth Amendment. See Deville v.
Marcantel, 567 F.3d 156, 173 (5th Cir. 2009) (“These considerations are
sufficiently similar to the Graham factors that our decision on this claim mirrors
our decision of plaintiffs’ § 1983 excessive force claim . . . .”); see also Winston v.
City of Shreveport, 390 F. App’x 379, 385–86 (5th Cir. 2010). We affirm the
district court’s dismissal of Appellants’ state law excessive force claims.
Appellants also argue that the district court erred in dismissing claims
that the officers were negligent under Louisiana law because they “had notice
of O’Rourke’s intentions with regard to the use of his Taser and . . . failed to take
any action whatsoever to prohibit O’Rourke’s excessive use of force.” Appellants’
brief, however, provides no authority discussing bystander liability claims under
Louisiana law or whether Louisiana law enforcement officers have a duty to
prevent another officer’s use of excessive force. Accordingly, that argument is
waived. See Kohler v. Englade, 470 F.3d 1104, 1114 (5th Cir. 2006) (holding
appellant’s claim waived for inadequate briefing because it was not supported
with any legal authority); Salazar-Regino v. Trominski, 415 F.3d 436, 452 (5th
Cir. 2005) (holding that a claim supported by only one citation was waived for
inadequate briefing), vacated on other grounds sub nom. Salazar-Regino v.
Moore, 549 U.S. 1093 (2006); L & A Contracting Co. v. S. Concrete Servs. Inc., 17
F.3d 106, 113 (5th Cir. 1994) (“Southern cites no authority in its one-page
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argument on the attorney fee question, however, and we consider the challenge
abandoned for being inadequately briefed.”).
Vicarious Liability Excessive Force Claim Against Sheriff Mancuso
In Louisiana, sheriffs are vicariously liable in their official capacity for the
torts of their deputies committed in the course and scope of employment. Jenkins
v. Jefferson Parish Sheriff’s Office, 402 So. 2d 669, 669 (La. 1981); Riley v.
Evangeline Parish Sheriff’s Office, 94-C-0202, p. 1 (La. 4/4/94); 637 So. 2d 395,
395. Appellants argue that the state law excessive force claims against deputies
Marshall and Miller were erroneously dismissed and therefore it follows that the
vicarious liability excessive force claim against Calcasieu Parish Sheriff Anthony
Mancuso was also erroneously dismissed. As discussed above, the state law
excessive force claims against deputies Marshall and Miller were correctly
dismissed by the district court. Therefore, there is no basis for a vicarious
liability excessive force claim against Sheriff Mancuso. The district court’s ruling
on this issue is affirmed.
CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judge dismissing Appellants’ § 1983 and state law excessive force and bystander
liability claims against officers Marshall, Miller, Pittman, and Morgan. We also
affirm the dismissal of the state law excessive force claims against Sheriff
Mancuso.
13