Frank v. Parnell

Case: 22-30408 Document: 00516888297 Page: 1 Date Filed: 09/08/2023

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

____________ FILED
September 8, 2023
No. 22-30408 Lyle W. Cayce
____________ Clerk

Don Frank, Individually & as Representative on behalf of Armando
Frank Estate; Antonio Frank, Sr., Individually & as
Representative on behalf of Armando Frank Estate,

Plaintiffs—Appellants,

versus

Kenneth Parnell; Deputy Alexander; Deputy Spillman;
City of Marksville; Doug Anderson, in his official capacity, also
known as Sheriff of Avoyelles Parish,

Defendants—Appellees.
______________________________

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-978
______________________________

Before Wiener, Graves, and Douglas, Circuit Judges.
Per Curiam:*
Before the court is an appeal of a grant of summary judgment based on
qualified immunity for Appellants’ excessive force claim. The district court

_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30408 Document: 00516888297 Page: 2 Date Filed: 09/08/2023

No. 22-30408

held that the officers’ use of force, including tasers and chokeholds, was not
unreasonable under the facts of this case. We VACATE and REMAND.
Factual Background
Armando Frank, a mentally ill, disabled veteran, was a lifelong
resident of Marksville, Louisiana. In this town of approximately 5,000
people, Frank was known as “the man on the tractor” because he drove his
red tractor around town. On October 20, 2017, Frank drove his tractor to
Walmart for a personal errand. As he sat on the tractor in the parking lot, he
was approached by Deputies Brandon Spillman and Alexander Daniel of the
Avoyelles Parish Sheriff’s Office, where Marksville is located. They parked
their vehicles directly in front of Frank’s tractor to prevent the tractor from
being used as a means of escape or a weapon. Around the same time, Officer
Kenneth Parnell of the Marksville Police Department arrived at the scene.
Immediately after arriving, Daniel approached Frank, identified himself as an
Avoyelles Sherriff’s Office Deputy, and asked for identification from Frank.
Frank promptly handed Daniel his identification. Spillman and Daniel told
Frank that they had an outstanding warrant for his arrest and wanted Frank
to come with them.
Frank repeatedly asked to see the arrest warrant, and Daniel informed
him that he could see it at the police station. When Frank asked what the
charges were, Daniel, Spillman, and Parnell refused to tell him. At this point,
the encounter became tense. Frank declared that he was not leaving the
tractor, and Parnell quickly resorted to force, reaching in from the right to
pull Frank off the tractor. Frank provided some resistance and tried to keep
Parnell off the tractor.
Approximately 30 seconds later, Parnell deployed his taser into
Frank’s chest for a five second cycle. Frank removed one of the taser probes.
A few seconds later, Spillman jumped onto the tractor and put Frank into a

2
Case: 22-30408 Document: 00516888297 Page: 3 Date Filed: 09/08/2023

No. 22-30408

chokehold while screaming “get off the goddamned tractor.” Then, while
Frank was being choked, Daniel deployed his taser and hit Frank in the leg.
Shortly after, Parnell performed a drive stun where he physically stunned
Frank on his leg with the taser for pain compliance. Spillman continued to
choke Frank while Parnell twisted Frank’s left arm far behind his back.
Daniel performed two drive stuns with his taser. Parnell then performed two
more drive stuns with his taser. In total, Frank was tased 7 times in less than
a minute. Within only minutes of his encounter with the officers, Frank was
rendered unconscious, and, according to the forensic pathologist, was “for
all intents and purposes, dead.” Frank was pronounced dead less than an
hour after the incident began.
I. Autopsy report
On October 23, 2017, the forensic pathologist, Dr. Christopher Tape,
performed an autopsy on Frank. In addition to physically examining the
external and internal parts of Frank’s body, Dr. Tape’s autopsy also included
an examination of the body camera video evidence. In analyzing the video
evidence, Dr. Tape noted that during the encounter but after the chokehold,
Frank started breathing heavily and began “cough[ing] . . . “gasp[ing] . . .
[and] speak[ing] in a deep and strained voice.” According to Dr. Tape, this
happened because of Spillman’s “carotid sleeper hold evolving into a bar
hold for approximately 15 seconds with another bar hold for approximately 6
seconds[,]” combined with Frank’s body being pressed onto the tractor and
being pulled from the front, which compressed his chest and abdomen and
reduced his ability to ventilate. After the officers removed Frank from the
tractor, he was “placed face down with his hands behind his back with
multiple law enforcement officers partially on his back and neck and lower
extremities.” For 27 seconds, the officers stayed on Frank’s back while Frank
was face down on the ground with his hands behind his back. For the next 41
seconds, the officers tried to lift him with no response, and Parnell declared

3
Case: 22-30408 Document: 00516888297 Page: 4 Date Filed: 09/08/2023

No. 22-30408

that Frank was “dead weighting.” While Frank was unconscious, the officers
dragged him and put him headfirst into a SUV patrol car. Captain Honea of
the Avoyelles Parish Sheriff’s Office, who arrived at the scene, noticed
Frank’s shallow breathing and directed another officer to call paramedics,
who arrived three minutes later. Frank coded on the stretcher, and
paramedics attempted to begin chest compressions and to intubate Frank,
but he never regained a heartbeat. Frank was pronounced dead on October
20, 2017 at 11:50 a.m., less than an hour after the incident began.
Dr. Tape listed Frank’s cause of death as “[a]sphyxia due to
respiratory compromise due to law enforcement arrest with contribution of
hypertensive atherosclerotic cardiovascular disease, obesity (BMI=37), and
electronic control device shocks.” Dr. Tape detailed a timeline of the
asphyxiation: in total 6 minutes and 42 seconds of respiratory compromise,
which included 15 seconds of a carotid sleeper hold and bar hold, 6 seconds
of bar hold, 165 seconds of compressional asphyxia being pressed against the
tractor, 27 seconds of compressional asphyxia being face down on the ground
with his hands on his back, 41 seconds of positional asphyxia while loading,
as well as 148 seconds of positional asphyxia in the back of the SUV. Frank’s
physical autopsy also showed injuries “consistent with evidence of a manual
strangulation.”
According to Dr. Tape, it is likely that Frank “primarily died as a
result of respiratory (and possibly some vascular) compromise due to a
struggle with police, supported by autopsy and video evidence.” Dr. Tape
determined that the respiratory compromise consisted of “neck holds
(strangulation), the body being pressed, compromising ventilation
(compressional asphyxia), the body on the ground with hands behind the
back and personnel on him (compressional asphyxia and positional asphyxia),
and the body face down with hands behind the back in the back of an SUV
(positional asphyxia).” Moreover, the tasers “likely caused respiratory

4
Case: 22-30408 Document: 00516888297 Page: 5 Date Filed: 09/08/2023

No. 22-30408

compromise by paralyzing the muscles of ventilation including the chest,
abdomen and accessory muscles,” and the “addition of the pain of being
shocked likely stopped effective breathing, at least temporarily.”
According to Dr. Tape, “it seems that the law enforcement arrest was
the intervening factor that led to the death,” and for “medicolegal purposes
such as the death certificate, the manner of death should be classified as a
homicide.”
Procedural History
On July 27, 2018, approximately 9-months after the death of Armando
Frank, Don Frank and Antonio Frank, individually, as the surviving heirs of
their brother, Armando Frank, and as representatives of Armando Frank’s
estate, filed a civil complaint in the United States District Court for the
Western District of Louisiana.1 The lawsuit named Parnell, Spillman, Daniel,
and Doug Anderson as Avoyelles Parish Sheriff, and the City of Marksville
as defendants and alleged causes of action under 42 U.S.C. § 1983 and
Louisiana state law. On June 10, 2019, the district court granted in part
Defendants’ motion to dismiss with leave to replead. On June 25, 2019, Frank
filed an amended complaint which alleged a Section 1983 excessive force
claim and claims for excessive force, assault, and battery under Louisiana law,
seeking compensatory and punitive damages.
In early November of 2021, all Appellees moved for summary
judgment on the ground of qualified immunity. On June 13, 2022, the district
court found that the defendants were entitled to qualified immunity and
dismissed the case.

_____________________
1
For simplicity, the Appellants are referred to as “Frank.”

5
Case: 22-30408 Document: 00516888297 Page: 6 Date Filed: 09/08/2023

No. 22-30408

Standard of Review
The standard of review on summary judgment is de novo. Davidson v.
Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). The court should
grant summary judgment where there is no genuine dispute of material fact
“and the movant is entitled to judgment as a matter of law.” Id. (quoting
FED. R. CIV. P. 56(a)). “[W]e view the facts in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor.” Trammell
v. Fruge, 868 F.3d 332, 338 (5th Cir. 2017) (quoting Hanks v. Rogers, 853 F.3d
738, 743 (5th Cir. 2017)). This court “may affirm [summary judgment] on
any grounds supported by the record.” McGruder v. Will, 204 F.3d 220, 222
(5th Cir. 2000).
Discussion

I. Qualified Immunity
“Consistent with our standard of review for summary judgments, the
legal issues underlying the district court’s qualified-immunity ruling is
reviewed de novo.” Bey v. Prator, 53 F.4th 854, 857 (5th Cir. 2022). “Once an
official pleads the defense, the burden then shifts to the plaintiff, who must
rebut the defense by establishing a genuine fact issue as to whether the
official’s allegedly wrongful conduct violated clearly established law. The
plaintiff bears the burden of negating qualified immunity, but all inferences
are drawn in his favor.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)
(internal citations omitted). Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts showing “(1) that
the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the challenged conduct.” Bey, 53
F.4th at 857 (internal quotation omitted). A court may rely on either prong
of the defense in its analysis. Brown, 623 F.3d at 253

6
Case: 22-30408 Document: 00516888297 Page: 7 Date Filed: 09/08/2023

No. 22-30408

1. Constitutional Violation
When “the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment . . . .” Graham v. Connor,
490 U.S. 386, 394 (1989). Since an excessive force claim arises out of the
Fourth Amendment, the test applied is whether the force was reasonable. Id.
at 396. This reasonableness inquiry is an objective one: “the question is
whether the officers’ actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their underlying
intent or motivation.” Id. However, the court “cannot apply this standard
mechanically.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Excessive
force claims are “necessarily fact-intensive,” and whether force is excessive
or unreasonable “depends on the facts and circumstances of each particular
case.” Darden v. City of Fort Worth, 880 F.3d 722, 728 (5th Cir. 2018)
(internal quotations omitted).
“In making this [objective reasonableness] determination, a court
should consider the totality of the circumstances, ‘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.’” Id. at 728–29 (quoting Graham, 490
U.S. at 396). These are known as the Graham factors. Additionally, while not
“exclusive” and outlined “only to illustrate the types of objective
circumstances potentially relevant to a determination of excessive force,”
the court can also consider “the relationship between the need for the use of
force and the amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat reasonably perceived by
the officer; and whether the plaintiff was actively resisting.” Kingsley, 576
U.S. at 397.

7
Case: 22-30408 Document: 00516888297 Page: 8 Date Filed: 09/08/2023

No. 22-30408

The situation before the court is aided by video evidence from
multiple angles of the interaction. “The reasonableness inquiry is inherently
factbound, making the video of this . . . event critical.” Harmon v. City of
Arlington, 16 F.4th 1159, 1164 (5th Cir. 2021); see also Scott v. Harris, 550 U.S.
372, 381 (2007) (the court of appeals “should have viewed the facts in the
light depicted by the videotape”). Therefore, instead of having to take the
parties’ version of the events as canon, the court “should not . . . rel[y] on
such visible fiction,” to the extent that there is any. Scott, 550 U.S. at 380–
81.
a. Graham Factors
i. Threat-of-harm
While all factors are relevant, the “threat-of-harm factor typically
predominates the analysis when deadly force has been deployed,” so we will
begin there. Harmon, 16 F.4th at 1163. The district court held that this factor
weighed in favor of Frank “as the tractor, which could have been viewed by
a reasonable officer on the scene as a threat to safety, was not turned on; was
blocked by at least one patrol car; and had a farming implement attached to
the rear.” Frank v. Parnell, No. 18-CV-978, 2022 WL 2125581, at *7 (W.D.
La. June 13, 2022). We agree. Frank posed no immediate threat to the safety
of the officers or the public. Frank was clearly unarmed, had no ability to and
never attempted to flee, and was an obese, disabled veteran.
Additionally, “this Court considers the speed with which an officer
resorts to force where officers deliberately, and rapidly, eschew lesser
responses when such means are plainly available and obviously
recommended by the situation.” Crane v. City of Arlington, 50 F.4th 453, 464
(5th Cir. 2022) (citing Harmon, 16 F.4th at 1165). It is clear from Daniel’s
body camera footage that the officers made no attempt to deescalate the
situation, but rather deliberately and rapidly eschewed lesser responses. It

8
Case: 22-30408 Document: 00516888297 Page: 9 Date Filed: 09/08/2023

No. 22-30408

took approximately 80 seconds from when Frank handed his ID to Daniel
until the officers initiated physical contact with Frank. Parnell fired a taser
probe into Frank’s chest only 32 seconds later. A mere 8 seconds later,
Spillman put Frank in a chokehold. Within the next 45 seconds, Frank was
shot or stunned with a taser six separate times and put in another chokehold.
A jury could conclude that reasonable officers would have been keenly aware
that this level of force should not have been used in this situation. The threat-
of-harm factor favors Frank.
“While the remaining two factors do not weigh as heavily upon our
analysis, they yet demand attention.” Crane, 50 F.4th at 465.
ii. Severity of the crime
The district court held that the Graham severity of the crime factor
“weighs in favor of the officers as they were attempting to execute a felony
arrest warrant.” Frank, 2022 WL 2125581, at *6. It asserted that since the
“officers knew there was a felony warrant outstanding and that based upon
that warrant, they had probable cause to arrest Frank.” Id.
In the recent case of Crane v. City of Arlington, however, the court did
not find the fact that the warrant was for “an unconfirmed felony probation
violation” and multiple confirmed misdemeanor warrants as wholly
dispositive of this factor. 50 F.4th at 465. Parnell testified that he was advised
that the open warrant for Frank “was a felony warrant[,]” but that he did not
recall if he knew what the warrant was about. Neither Daniel nor Spillman
knew or inquired into the nature of the felony warrant.
The warrant was for simple criminal trespass and attempted
unauthorized entry of an inhabited dwelling. Simple criminal trespass is a
misdemeanor, and unauthorized entry of an inhabited dwelling is a felony.

9
Case: 22-30408 Document: 00516888297 Page: 10 Date Filed: 09/08/2023

No. 22-30408

LA. STAT. §§ 14:63, 14:62.3.2 Daniel’s incident report does not state that the
warrant was for a felony or any type of violent crime, but rather says that he
was aware of “the existence of a warrant . . . .” None of the officers arrived
at the scene with their weapons drawn or appearing alarmed by the severity
of the violation. Any felony warrant does not automatically tip the “severity
of the crime at issue” prong to weigh in the officers’ favor, and, in fact, prior
case law implicitly recognizes that a felony warrant is not automatically
dispositive of this factor. Crane, 50 F.4th at 465; Aguirre v. City of San
Antonio, 995 F.3d 395, 408 n.5 (5th Cir. 2021) (“Even if [Frank] were
suspected of a serious crime, this would not necessarily be dispositive.”).
None of the officers felt the need to be particularly cautious of Frank
or take a protective position. The conversation was relaxed and friendly at
first.3 This factor is, at best, neutral.
iii. Actively resisting arrest or attempting to evade arrest by flight
“Officers may consider a suspect’s refusal to comply with
instructions during a traffic stop in assessing whether physical force is needed
to effectuate the suspect’s compliance.” Deville v. Marcantel, 567 F.3d 156,
167 (5th Cir. 2009). “However, officers must assess not only the need for
force, but also ‘the relationship between the need and the amount of force
used.’” Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)). In
Deville, the court found that the fact that the officer “engaged in very little,

_____________________
2
An attempt, which is what Frank was charged with, “is a separate but lesser grade
of the intended crime.” LA. STAT. § 14:27. Nevertheless, it is still a felony.
3
For example, soon after the officers arrived, Daniel motioned to Parnell and said
to Frank that he “understand[s] you’re a veteran. Both of us are too.” The fact that Daniel
knew Frank was a veteran also lends credence to the allegation that Frank was known to
the police.

10
Case: 22-30408 Document: 00516888297 Page: 11 Date Filed: 09/08/2023

No. 22-30408

if any, negotiation with her—and . . . instead quickly resorted to breaking her
driver’s side window and dragging her out of the vehicle” was relevant to this
factor. Id. at 168. Here, there was no attempt at any negotiation. Frank asked
what the warrant was for or to see the warrant, and the officers only replied
that he would find out after he was arrested and at the station. In his
deposition, Daniel agreed that Frank asking why he was being arrested “was
a reasonable question,” he was “not aware of any downside” to calling the
station and finding out the nature of the arrest warrant, that he could have
easily “found out” the reason, and that telling Frank the full information
about why he was initiating contact with him was a reasonable request. This
is not to say that the officers were required to show Frank the warrant in this
situation. They should have, however, engaged in some other de-escalatory
action before resorting to violence in this circumstance, since such means
were plainly available given that Frank was sitting unarmed and not able to
flee on a blocked-in tractor. Deville, 567 F.3d at 168.
Here, the district court held that it could not say that Frank was only
passively resisting arrest. Frank, 2022 WL 2125581, at *7 (“Although
Frank’s initial demeanor was calm, he became increasingly obstinate when
officers did not do as he requested to present him with a warrant.”). A jury
could conclude, however, that reasonable officers would have been aware
that they should not have been repeatedly tasing and choking an unarmed,
disabled man sitting in a blocked-in tractor. The district court held that
“Frank reached for the taser. Parnell grabbed his wrist, and Frank pulled his
arm away.” Id. At *8. From the video evidence, there is, at a minimum, a
factual dispute about whether Frank was reaching for Parnell’s taser or was
simply pulling his arm away to avoid being grabbed and tased.
In Trammell v. Fruge, the court held that there was “a factual dispute
as to whether Trammel was actively resisting arrest throughout his encounter
with the police officers.” 868 F.3d at 341. There, the court held that “it

11
Case: 22-30408 Document: 00516888297 Page: 12 Date Filed: 09/08/2023

No. 22-30408

appears that Trammel’s only physical resistance prior to being tackled was
his attempt to pull his arm away.” Id. Additionally, the court noted that the
officer was not pulled forward. Id. But, the court continued,
even if Trammel’s decision to pull his arm away
from the officers can be characterized as some
degree of resistance that would justify an
officer’s use of force, the quickness with which
the officers resorted to tackling Trammel to the
ground militates against a finding of
reasonableness. This Court has several times
found that the speed with which an officer
resorts to force is relevant in determining
whether that force was excessive to the need.

Id. At 342. This situation is similar to Trammell; “[A] reasonable jury could
infer that the officers used very little, if any, negotiation before resorting to
physical violence, and that the officers’ conduct did not constitute the
required ‘measured and ascending’ actions calibrated to [Frank’s] conduct.”
Id. (quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).
“Excessive force claims are necessarily fact-intensive[.]” Deville, 567
F.3d at 167. The Fifth Circuit has held that excessive force existed when an
officer tased someone who only pulled his arm out of the officer’s grasp.
Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013); see also Trammell, 868
F.3d at 341–42 (arrestee pulling his arm away from officer’s grasp did not
alone justify two officers’ tackling him to the ground). Drawing all inferences
in Frank’s favor, Frank satisfies this factor.

12
Case: 22-30408 Document: 00516888297 Page: 13 Date Filed: 09/08/2023

No. 22-30408

Frank has shown that there is a factual dispute about whether the
officers’ use of force in this situation was unreasonable and violated his
Fourth Amendment rights.4 We now turn to the clearly established prong.
2. Clearly established right
“Officers’ conduct violates a clearly established right when there is
‘controlling authority . . . that defines the contours of the right in question
with a high degree of particularity.’” Aguirre, 995 F.3d at 415 (quoting
Linicomn v. Hill, 902 F.3d 529, 538 (5th Cir. 2018)). Clearly established law
should not be defined at a high level of generality, but “it is not necessary that
a previous case presenting identical facts exist in order for a right to be clearly
established.” Id. This is because the central concept is that of fair warning:
“The law can be clearly established despite notable factual distinctions
between the precedents relied on and the cases then before the Court, so long
as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.” Trammell, 868 F.3d at 339 (internal
quotations omitted).
“Lawfulness of force, however, does not depend on the precise
instrument used to apply it.” Newman v. Guedry, 703 F.3d 757, 763 (5th Cir.
2012). “Qualified immunity will not protect officers who apply excessive and
unreasonable force merely because their means of applying it are novel.” Id.

_____________________
4
Additionally, “[i]n evaluating excessive force claims, courts may look to the
seriousness of injury to determine ‘whether the use of force could plausibly have been
thought necessary, or instead evinced such wantonness with respect to the unjustified
infliction as is tantamount to a knowing willingness that it occur.’” Deville, 567 F.3d at 168
(quoting Brown v. Lippard, 472 F.3d 384, 386–87 (5th Cir. 2006)); see also id. (“[T]he extent
of [the] injury inflicted may be considered in determining whether the officers used
excessive force.”) (internal quotations omitted).

13
Case: 22-30408 Document: 00516888297 Page: 14 Date Filed: 09/08/2023

No. 22-30408

at 763–64. In Newman, however, the court dealt with a similar situation
involving the use of a taser. Officers pulled over a vehicle for a traffic stop
and noticed that a passenger, Mario Cole, had a warrant out for his arrest. Id.
at 759. Cole got out of the car and began struggling with the police. Id. Against
police warnings, Newman also exited the vehicle to talk with Cole. Id. Backup
officers arrived with their tasers out, and instructed Newman to go to the rear
of the vehicle. Id. at 760. During a search of his person, the police officer
contended that Newman grabbed his hand and placed it on Newman’s
privates. Id. The officer pushed Newman towards the car, and another officer
came to the scene, struck Newman with his baton, and then tased him three
times. Id.
The officers argued that “Newman resisted search and arrest, that he
struggled and was noncompliant, that he reached for his waistband,
potentially for a weapon, and that their actions were necessary to prevent
serious injury or death to themselves.” Id. at 762. The court held that no
reasonable police officer would have found Newman to be armed or trying to
flee. Id. Therefore, the court held that the police used unconstitutional
excessive force that violated a clearly established right. Id. At 764. Heeding
the court’s analysis in Deville, that the degree of force is not justified where
the officer “engaged in very little, if any, negotiation” with the suspect, the
Newman court held that it was relevant that the officers “immediately
resorted to taser and nightstick without attempting to use physical skill,
negotiation, or even commands.” Id. at 763. Here, the officers used
commands, but failed to attempt any other action to effectuate compliance
short of tasing, twisting, and choking Frank. Deville, 567 F.3d at 167 (when
considering a suspect’s refusal to comply with instructions, “officers must
assess not only the need for force, but also the relationship between the need
and the amount of force used.”) (internal quotations omitted).

14
Case: 22-30408 Document: 00516888297 Page: 15 Date Filed: 09/08/2023

No. 22-30408

Furthermore, the Supreme Court held that “in an obvious case,” the
Graham excessive-force factors themselves can “clearly establish” the
answer, even without a body of relevant case law. Newman, 703 F.3d at 763
(quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). None of the Graham
factors justify the officers’ actions against Frank. Even without Newman or
Deville, a jury could conclude that the officers used excessive force and that
they had reasonable warning their conduct violated Frank’s clearly
established Fourth Amendment rights.
Therefore, the Appellees were not entitled to qualified immunity, and
the district court erred in granting their motion for summary judgment.
II. State law claims
“Louisiana’s excessive force tort mirrors its federal constitutional
counterpart.” Deville, 567 F.3d at 172. “Whether the force used is reasonable
depends upon the totality of the facts and circumstances in each case,” and
it includes “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.” Kyle v. City of
New Orleans, 353 So. 2d 969, 973 (La. 1977). “These considerations are
sufficiently similar to the Graham factors that our decision on this claim
mirrors our decision of plaintiffs’ § 1983 excessive force claim . . . .” Deville,
567 F.3d at 173.
The federal qualified immunity analysis applies here. There is a
genuine issue as to whether any of the officers used unreasonable or excessive
force, so the district court is reversed as to the dismissal of the appealed
Louisiana state law claims.

15
Case: 22-30408 Document: 00516888297 Page: 16 Date Filed: 09/08/2023

No. 22-30408

III. Punitive damages
“[P]unitive damages may be awarded only when the defendant’s
conduct is motivated by evil intent or demonstrates reckless or callous
indifference to a person’s constitutional rights.” Williams v. Kaufman Cnty.,
352 F.3d 994, 1015 (5th Cir. 2003) (internal quotations omitted). “The latter
standard requires recklessness in its subjective form, i.e. a subjective
consciousness of a risk of injury or illegality and a criminal indifference to
civil obligations.” Id. (internal quotations omitted). Frank argues that the
district court abused its discretion by dismissing his punitive damages claim,
and he contends that there is a triable issue of fact about whether the officers
demonstrated reckless or callous indifference to his constitutional rights.
In light of the evidence before it, a jury could reasonably infer that the
officers’ acts were unjustified and that they acted with callous or reckless
indifference to Frank’s constitutional rights. Moore v. LaSalle Mgmt. Co., 41
F.4th 493, 513–14 (5th Cir. 2022) (“Plaintiffs have therefore met their
burden to raise a fact dispute over whether each of these Individual
Defendants demonstrated reckless or callous indifference to [Plaintiffs’]
constitutional rights. . . . In sum, Plaintiffs’ claims for punitive damages
should have survived summary judgment.”).
IV. Medical causation
The district court denied as moot Appellees’ motion for summary
judgment as to medical causation. This issue is left to the district court after
remand.
V. State law respondent superior
Frank waived his federal respondeat superior claims against the City of
Marksville and Doug Anderson as Avoyelles Parish Sheriff. He does,
however, contend that the City and Anderson are still liable under the state

16
Case: 22-30408 Document: 00516888297 Page: 17 Date Filed: 09/08/2023

No. 22-30408

tort claims. Unlike federal law, “[m]unicipalities do not enjoy special
protection from vicarious liability under Louisiana law and are subject to
respondeat superior like every other employer.” Deville, 567 F.3d at 174; see
also LA. CIV. CODE art. 2320 (“Masters and employers are answerable for the
damage occasioned by their servants and overseers, in the exercise of the
functions in which they are employed.”). “Although an employment
relationship may in fact exist, the employer will not be liable for the
substandard conduct of the employee unless the latter can be fairly said to be
within the course and scope of the employment with the former.” Brasseaux
v. Town of Mamou, 752 So. 2d 815, 820 (La. 2000). As the court held in
Deville,
The district court did not reach the question of
whether the [municipality] is vicariously liable,
concluding that it was entitled to summary
judgment because plaintiffs failed to sustain their
state-law claims against the individual
defendants. Because this conclusion was in error,
we reverse. On remand, should the district court
reach the issue of the [municipality’s] vicarious
liability, it should then consider in the first
instance whether [individual defendants] were
acting within the scope of their employment such
that the [municipality] can be held liable for
plaintiffs’ viable state-law claims against the
individual defendants.

567 F.3d at 174.
Since the district court is reversed as to the state court claims, we
leave this matter to the district court to decide in accordance with the
instructions given in Deville, keeping in mind that “the employer of a police
officer is liable for wrongful injury inflicted while performing his official
duties.” Bourque v. Lohr, 248 So. 2d 901, 904 (La. Ct. App. 1971); see also

17
Case: 22-30408 Document: 00516888297 Page: 18 Date Filed: 09/08/2023

No. 22-30408

Buchicchio v. LeBlanc, No. CV 22-00147-BAJ-EWD, 2023 WL 2027809, at
*10 (M.D. La. Feb. 15, 2023) (“Under Louisiana law, Sheriff Cazes—as
Chief Juge’s employer—may be liable for Chief Juge’s tortious on-the-job
conduct.”).
Conclusion

The judgment of the district court is VACATED as to granting
summary judgment to Appellees on qualified immunity grounds, the
dismissal of the parallel Louisiana state tort claims, and the denial of punitive
damages as a matter of law. On REMAND, the district court can consider
any challenges to medical causation as well as vicarious liability against the
City of Marksville and Doug Anderson in accordance with this court’s
decision.

18