United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 13, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 03-30824
_______________________
JOYCE C. ROBERTS, ETC.; ET AL.,
Plaintiffs,
LATASHA MILLS, on behalf of La’Quarshay Mills;
NICOLE MOTON, on behalf of Kearra S. Moton,
Plaintiffs-Appellees,
versus
CITY OF SHREVEPORT, ETC., ET AL.,
Defendants,
CITY OF SHREVEPORT, on behalf of Police Department of
Shreveport; STEVE PRATOR,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, SMITH, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Defendant-Appellants City of Shreveport and Police Chief
Steve Prator appeal the district court’s denial of summary
judgment, arguing that each is entitled to qualified immunity from
this § 1983 lawsuit. As to Defendant-Appellant City of Shreveport
and Defendant-Appellant Steve Prator in his official capacity, we
DISMISS the appeals for lack of jurisdiction. As to Defendant-
Appellant Steve Prator in his individual capacity, we REVERSE the
district court and RENDER judgment, dismissing him from the instant
action on the basis of qualified immunity.
I. Background
On Sunday morning, March 14, 1999, Officer Robert Rivet
(“Officer Rivet”) of the Shreveport, Louisiana Police Department
was working as a crossing guard for the Springs of Grace Baptist
Church. Although Officer Rivet was working off-duty, he was
wearing a distinctive police baseball cap and jacket. With traffic
stopped in both directions, Officer Rivet escorted a woman and her
child across the street using the crosswalk. As the group reached
the middle of the street, a car approached.1
While attempting to get the pedestrians out of the way,
Officer River signaled to the driver, Undray Carter (“Carter”), to
slow down and stop. Although the parties give widely divergent
accounts of the ensuing moments, they agree that Officer Rivet
ended up on the hood of Carter’s vehicle.2 Officer Rivet struck
1
There is some disagreement as to Carter’s reason for coming into the
intersection in this manner. Defendants assert that Carter was drunk and driving
recklessly. Plaintiffs deny that Carter was intoxicated. Appellants’ Br. at 3.
The autopsy indicates that Carter had a blood alcohol level of 0.18, nearly twice
the legal limit for driving in Louisiana. R. at 1031.
2
Defendants claim that Carter slowed but ultimately struck Officer
Rivet. Appellees’ Br. at 5. By contrast, plaintiffs claim that Carter’s vehicle
fully stopped in front of Officer Rivet, who then inexplicably leaped onto
Carter’s car and “began striking the vehicle with his handgun.” Appellants’ Br.
at 2.
2
Carter’s windshield twice with his service revolver and ordered him
to stop the car. Carter, cursing, applied the brakes, then the
gas, sequentially, apparently trying to throw Officer Rivet off the
car. This jerking motion threw Officer Rivet to the driver’s side
of the car. As he was falling, Officer Rivet fired a single, fatal
shot at Carter. Officer Rivet gave no warning before discharging
his weapon as he was thrown from the moving vehicle.
Plaintiffs, LaTasha Mills (on behalf of her minor child,
La’Quarshay Mills) and Nicole Moton (on behalf of her minor child,
Kearra Moton), brought suit under 42 U.S.C. § 1983 and Louisiana
state tort law against Officer Rivet, former Chief of Police Steve
Prator (in both his official and individual capacities), the City
of Shreveport, Springs of Grace Baptist Church, and emergency
medical personnel Greg Jackson, Chuck Justice, and Jeff Dixon,
alleging that the defendants violated Carter’s Fourth Amendment
right to be free from unreasonable seizures. The district court
severed the claims against Officer Rivet and held a jury trial.
The jury returned a special verdict, finding (1) that Officer Rivet
used excessive force in this incident, but also (2) that Officer
Rivet’s conduct was objectively reasonable in light of clearly
established law. Based on these findings, the district court
dismissed the § 1983 claims against Officer Rivet on qualified
immunity grounds.
Following the dismissal of the § 1983 claims against
Officer Rivet, the remaining defendants moved for summary judgment,
3
invoking qualified immunity as a shield to further proceedings. On
July 24, 2003, the district court, in a one-page order without
accompanying decision, denied the motion with respect to defendants
Chief Prator and the City of Shreveport. That decision is the
subject of the instant appeal.
II. Jurisdiction
As an exception to the principle that interlocutory
review of district court decisions is not permitted, this court has
jurisdiction to review denials of qualified immunity with respect
to government officers sued in their individual capacities, so long
as that determination turns on a matter of law. See Mitchell v.
Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815-16, 86 L.Ed.2d
411 (1985); Feagley v. Waddill, 868 F.2d 1437, 1439 (5th Cir.
1989).3 Our authority to review a judgment on an interlocutory
basis does not, however, extend to all entities or all § 1983
claims. As relevant here, “[m]unicipal governments may not raise
immunity defenses on interlocutory appeal.” Jacobs v. West
Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392 (5th Cir. 2000)
3
As this court has explained before, “the only question that we can
answer on interlocutory appeal is whether or not a certain course of conduct
would, as a matter of law, be objectively unreasonable in light of clearly
established law.” Simmons v. City of Paris, Tex., 378 F.3d 476, 479 (5th Cir.
2004) (internal citations and quotations omitted).
This practice of interlocutory review reinforces the principles underlying
qualified immunity: protection of public officials from money damages as well
as “the general costs of subjecting officials to the risk of trial -- distraction
of officials from their official governmental duties, inhibition of discretionary
action, and deterrence of able people from public service.” Mitchell, 472 U.S.
at 526, 105 S. Ct. at 2815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816, 102
S. Ct. 2727, 2737, 73 L.Ed.2d 396 (1982)).
4
(citing Nicoletti v. City of Waco, 947 F.2d 190, 191 (5th Cir.
1991) (determining that a suit against a municipal officer in his
official capacity is a suit against the municipality itself such
that interlocutory appeal is barred)).
Here, we have jurisdiction to review the district court’s
denial of summary judgment to Chief Prator in his individual
capacity. The Chief’s motion challenged plaintiffs’ evidence of
failure to train or supervise, causation, pattern of
unconstitutional conduct, and deliberate indifference, as well as
whether the Chief’s conduct was objectively unreasonable. Because,
on this record, the district court’s determinations can be reviewed
as a matter of law, we have appellate jurisdiction over Chief
Prator’s individual claim of qualified immunity. However, as the
right to interlocutory review does not extend to municipalities or
municipal officers sued in their official capacities, we must
DISMISS the claims of both the City of Shreveport and of Chief
Prator in his official capacity.
III. Standard of Review
We review the district court’s summary judgment decision
de novo, using the same standard as the district court. Keenan v.
Tejeda, 290 F.3d 252, 258 (5th Cir. 2002); Fed. R. Civ. P. 56.
More specifically, “[w]hether a government official is entitled to
qualified immunity, to the extent that it turns on a question of
law, is a question that we review de novo . . . .” Keenan, 290
5
F.3d at 261 (citing Kennedy v. Tangipahoa Parish Library Bd. of
Control, 224 F.3d 359, 376-77 (5th Cir.2000)). In making this
determination, we review the facts in the light most favorable to
the non-moving party. In re Millette, 186 F.3d 638, 641 (5th Cir.
1999). Thus, in this case we review the facts in the light most
favorable to the plaintiffs.
IV. Qualified Immunity
The plaintiffs allege that Chief Prator violated Carter’s
Fourth Amendment rights because he acted in an objectively
unreasonable manner by failing to train Officer Rivet properly.
Before this court — or any court — can adjudicate the merits of
this claim, the plaintiffs must overcome the bar of qualified
immunity. Chief Prator argues that the district court should have
granted him qualified immunity because (1) his actions were
objectively reasonable; (2) the plaintiffs cannot meet their burden
on the failure to train claim; and (3) this case does not meet this
circuit’s standards for the “single incident exception” for
supervisory liability.
When applicable, qualified immunity protects public
officials from both recovery of damages and trial.4 As a
4
Because we lack jurisdiction to review the district court’s
determinations as to the City of Shreveport at this time, we are unable to
address the claims that the City of Shreveport acted with deliberate indifference
to Carter’s constitutional rights or that the City of Shreveport allowed
violations of clearly established law by pursuing a policy of inadequate training
or supervision. Our decision today, however, may give the district court
occasion to revisit its unexplained, unreasoned denial of summary judgment to the
municipality and to Chief Prator in his official capacity.
6
prerequisite, a plaintiff “must identify defendants who were either
personally involved in the constitutional violation or whose acts
are causally connected to the constitutional violation alleged.”
Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (citing Lozano
v. Smith, 718 F.2d 756, 768 (5th Cir. 1983)). “Under section 1983,
supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” Thompson v.
Upshur County, 245 F.3d 447, 459 (5th Cir. 2001) (quoting Thompkins
v. Belt, 828 F.2d 298, 303 (5th Cir. 1987)). To establish § 1983
liability against supervisors, the plaintiff must show that:
(1) the police chief failed to supervise or train the officer;
(2) a causal connection existed between the failure to supervise or
train and the violation of the plaintiff’s rights; and (3) the
failure to supervise or train amounted to deliberate indifference
to the plaintiff’s constitutional rights. City of Canton v.
Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L.Ed.2d 412 (1989);
Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003).
Plaintiffs allege that Chief Prator failed to train
Officer Rivet sufficiently. Chief Prator responds that this issue
is foreclosed in his favor because the jury verdict in Officer
Rivet’s trial found Rivet’s conduct objectively reasonable. Chief
Prator is incorrect. The jury, after all, found that Officer Rivet
violated Carter’s constitutional rights, even though it also
accepted Officer Rivet’s defense that his conduct was objectively
reasonable. Under such circumstances, Chief Prator remains vulner-
7
able to a failure to train claim because the plaintiffs may be able
to demonstrate that by his failure to train or supervise
adequately, he both caused Carter’s injuries and acted deliberately
indifferent to violations of Fourth Amendment rights by Shreveport
police officers, including Officer Rivet. See, e.g., Snyder v.
Trepagnier, 142 F.3d 791, 800 (5th Cir. 1998) (quoting Melear v.
Spears, 862 F.2d 1177, 1187-88 (5th Cir. 1989) (Higginbotham, J.,
concurring) (“It is possible for the jury to find that, although
the actual circumstances of the search did not justify the
officer’s behavior, the circumstances that appeared to the officer
would have justified a search. . . . It might be possible for the
jury to resolve factual ambiguities so as to conclude that a
constitutional violation took place, even though it is not possible
for the jury to resolve factual ambiguities so as to conclude that
the violation was the product of an objectively unreasonable
mistake.”) (internal citations and alterations omitted)). The
jury’s findings are neither inconsistent nor preclusive for
qualified immunity purposes.
Nevertheless, even assuming that lack of training
“caused” Carter’s injuries, the plaintiffs have not provided
sufficient evidence of either Prator’s failure to train (the first
requirement) or his deliberate indifference to Carter’s constitu-
tional rights (the third requirement) to create a triable fact
issue. See Burge, supra. A plaintiff seeking recovery under a
failure to train or supervise rationale must prove that the police
8
chief failed to control an officer’s “known propensity for the
improper use of force.” See, e.g., Sims v. Adams, 537 F.2d 829,
832 (5th Cir. 1976); Chestnut v. City of Quincy, 513 F.2d 91, 92
(5th Cir. 1975). Moreover, to prove deliberate indifference, a
plaintiff must demonstrate “at least a pattern of similar
violations arising from training that is so clearly inadequate as
to be obviously likely to result in a constitutional violation.”
Burge, 336 F.3d at 370 (internal citations and quotations omitted).
We discuss the summary judgment evidence concerning each of these
criteria in turn.
A. Inadequate Training
The standard applicable to failure to train allegations
against supervisors is based on that for municipal liability.5
Thus, for a supervisor to be liable for failure to train, “the
focus must be on the adequacy of the training program in relation
to the tasks the particular officers must perform.” Snyder, 142
F.3d at 798 (quoting City of Canton, 489 U.S. at 390-91, 109 S. Ct.
at 1205-06). In this inquiry, mere proof that the injury could
have been prevented if the officer had received better or addi-
tional training cannot, without more, support liability. Id. But
the plaintiffs have not even presented this much evidence. Officer
Rivet was trained extensively by the State of Louisiana, and his
curriculum included additional instruction in the use of force from
5
See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452-54 & nn.7-8
(5th Cir. 1994).
9
the State of Louisiana Peace Officer Standards and Training
Council. In all, Officer Rivet received hundreds of hours of
professional instruction.
In addition, for liability to attach based on an
“inadequate training” claim, a plaintiff must allege with
specificity how a particular training program is defective.
See Benavides v. County of Wilson, 955 F.2d 968, 973 (5th Cir.
1992). Here, plaintiffs allege three deficiencies: (1) that the
Chief’s program failed to train officers for crossing guard duty,
specifically, how to perform as a crossing guard without resorting
to deadly force; (2) that the officers were not trained properly in
the Tennessee v. Garner6 standard and the requirement to issue a
warning before employing deadly force; and (3) that the training
program did not teach officers the correct meaning of the term
“deadly force.” All of these claims are unavailing.
First, the assertion relating to crossing guard duties
will not support a failure to train claim. Plaintiffs cannot
prevail by styling their complaints about the specific injury
suffered as a failure to train claim. In City of Canton, the
Supreme Court specifically warned against this type of artful
pleading. 489 U.S. at 391, 109 S. Ct. at 1206 (“Neither will it
suffice to prove that an injury or accident could have been avoided
if an officer had had better or more training, sufficient to equip
6
471 U.S. 1, 105 S. Ct. 1694, 85 L.Ed.2d 1 (1985).
10
him to avoid the particular injury-causing conduct.”) (emphasis
added). Officer Rivet’s substantial instruction in the use of
force and his broad-based law enforcement training (including
traffic stops, directing traffic, and general roadside conduct)
prepared him for what occurred on the morning in question. But
even assuming that crossing guard duty requires such special skills
as to transcend Canton’s concern about overly narrow pleading, the
plaintiffs have failed to produce evidence substantiating those
skills and the nature of the necessary, but unprovided,
instruction.
Second, the plaintiffs have failed to create a fact issue
concerning whether Chief Prator offered insufficient or inadequate
training in the use of deadly force under the Tennessee v.
Garner standard, or whether Shreveport police officers do not
understand the meaning of deadly force. The plaintiffs’ strongest
evidence for this claim is the deposition testimony of the current
police chief, Steve Roberts (who replaced Chief Prator), and Gary
Smith, head of internal affairs: neither man was personally able
to recall the exact standard mandated by Tennessee v. Garner. The
testimonial embarrassment of two supervisors, however, does not
prove inadequacy in the Shreveport Police Department’s training on
deadly force. See Snyder, 142 F.3d at 798 (“That a particular
officer may be unsatisfactorily trained will not alone suffice to
fasten liability on the city, for the officer’s shortcomings may
have resulted from factors other than a faulty training program.”
11
(quoting City of Canton, 489 U.S. at 390-91, 109 S. Ct. at 1205-
06)).7 For this reason, even assuming that Officer Rivet’s conduct
on the morning in question constituted an improper use of deadly
force, this lone incident is insufficient to pierce the qualified
immunity enjoyed by Chief Prator.
Third, Chief Prator supplied overwhelming evidence that
his officers, including Officer Rivet, were adequately trained in
the use of deadly force. The City of Shreveport Police Department
has a comprehensive policy on the use of deadly force (R. Doc. No.
154, Exhibit D, § IV.A.; Shreveport Police Department General Order
SPD 601.6), and all officers undergo training about the Tennessee
v. Garner standard (R. Doc. No. 154, Exhibit C, ¶7 (Affidavit of
Louisiana Certified Police Instructor)). 8 This thorough training
regimen was not disputed by the plaintiffs’ scant evidence.
B. Deliberate Indifference
Additionally, plaintiffs fall short in attempting to
demonstrate a pattern of unconstitutional conduct on the part of
Officer Rivet. Their proffered evidence of pattern requires an
excessively high level of generality, as it consists of a handful
7
The same logic disposes of the plaintiffs’ allegation that Shreveport
police officers insufficiently understand the meaning and use of “deadly force.”
8
Included in this policy and training is the nostrum that officers
should warn before using deadly force when feasible, as compelled by Tennessee
v. Garner. Compare id., 471 U.S. at 11-12, 105 S. Ct. at 1701, with R. Doc. No.
154 (Exhibit D) at 2. Plaintiffs’ insistence on a warning does not square with
Tennessee v. Garner in the fast-moving scenario that Rivet confronted.
12
of tangentially related incidents, some of which do not even
involve Officer Rivet.
First, plaintiffs supply claims of past incidents in
which Officer Rivet brandished and pointed his firearm toward
unarmed African-Americans while making routine traffic stops.
Rivet’s alleged propensity for displaying his firearm is
fundamentally different from a propensity to use deadly force in
the course of ordinary traffic stops. We do not deny that this
evidence appears to reflect badly on Officer Rivet’s judgment, but
it proves nothing about Officer Rivet’s actual use of deadly force
in the much different context of this case, nor is it relevant to
whether Chief Prator was on notice that Officer Rivet might use
excessive force when confronted with a speeding vehicle while
standing in the street directing traffic. Further, the Supreme
Court has repeatedly observed that traffic stops (even those far
more innocuous than the one at issue in this case) are inherently
dangerous. See Maryland v. Wilson, 519 U.S. 408, 413, 117 S. Ct.
882, 885, 137 L.Ed.2d 41 (1997); Michigan v. Long, 463 U.S. 1032,
1049 (1983) (“[R]oadside encounters between police and suspects are
particularly hazardous.”); see also United States v. Baker, 47 F.3d
691, 694-95 (5th Cir. 1995).
The second piece of evidence supplied by plaintiffs
represents the only other instance in which Officer Rivet used
deadly force. In that case, a court dismissed the § 1983 claim
filed by Patrick Morris, whom Rivet shot. Because Morris was
13
convicted for assault and battery of Officer Rivet during that
incident, the district court awarded Rivet summary judgment on the
ground that Rivet’s conduct could not amount to excessive force as
a matter of law. Morris v. Rivet, No. 99-CV-0288, Mem. Ruling at
6-7 (W.D. La. Mar. 17, 2000).9 If anything, this incident demon-
strates that Officer Rivet acted in conformity with the substantial
training he has received on the use of deadly force.10
Finally, no competent summary judgment evidence supports
two other claims of unconstitutional deadly force. The plaintiffs
provide only newspaper articles — classic, inadmissible hearsay.
Even if proven up properly, these allegations do not form a pattern
of unconstitutional activity of which Chief Prator should have been
aware. See, e.g., Pineda v. City of Houston, 291 F.3d 325, 329 (5th
Cir. 2002) (finding eleven incidents insufficient to establish a
pattern of unconstitutional events).
9
Similarly, the complaint filed by Kara Lewis, who accuses Officer
Rivet of improperly brandishing his weapon during the same incident, could not
have placed Chief Prator on notice of any problems within the department of
using deadly force without adequate warning. Lewis was not physically harmed
during the altercation, and the court found that Officer Rivet did not employ
excessive force when he shot Morris.
10
Plaintiffs cite another incident involving the use of deadly force
by the Shreveport Police Department. In that case, the jury sitting in the
accompanying § 1983 suit specifically found that the officer involved did not use
excessive force and therefore did not commit a constitutional violation.
See Harris v. City of Shreveport, No. 00-31276, 69 Fed. Appx. 657, 2003 WL
21355841 (5th Cir. 2003). This constitutional use of deadly force cannot provide
a link to any purported chain of unconstitutional conduct.
14
C. “Single Incident” Exception
Plaintiffs’ last claim is that this case fits within the
narrow scope of the “single incident” exception allowing municipal
liability. See Bryan County v. Brown, 520 U.S. 397, 117 S. Ct.
1382, 137 L.Ed.2d 626 (1997). In that case, the Supreme Court
clarified previous decisions that allow, in certain extreme
circumstances, a single act by a municipal employee to form the
basis of municipal liability apart from a pattern of unconsti-
tutional activity. To rely on this exception, a plaintiff must
prove that the “highly predictable” consequence of a failure to
train would result in the specific injury suffered, and that the
failure to train represented the “moving force” behind the
constitutional violation. Brown v. Bryan County, 219 F.3d at 461.
This circuit, in conformity with the Supreme Court’s
jurisprudence,11 has been highly reluctant to permit this exception
to swallow the rule that forbids mere respondeat superior
liability. See, e.g., Burge, 336 F.3d at 373; Pineda, 291 F.3d at
334-35, following Monell v. New York Dep’t of Soc. Servs., 436 U.S.
658, 691, 98 S. Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).
A cursory comparison of the failure to train charge in
Brown with the facts here finds plaintiffs’ case wanting. In
11
It must be noted that the Supreme Court denied liability in Brown,
where the evidence failed to establish that the sheriff’s isolated failure to
perform adequate screening reflected deliberate indifference to high risk that
a deputy would use excessive force. This court’s decision on remand turned on
a separate claim involving very unusual facts regarding failure to train.
15
Brown, the sheriff hired as a deputy one of his relatives who had
multiple prior arrests and convictions for violent crimes and other
reckless behavior, as well as an outstanding arrest warrant. The
deputy received no training whatsoever, and, without any
provocation, he used a violent “arm bar” technique to take down an
unarmed suspect. Further, the deputy had been involved in a
significant number of “takedown” arrests.12 By contrast, Chief
Prator oversaw a significant training regimen for Officer Rivet and
the other police officers under his command. There is no evidence
that Officer Rivet has been involved in any cases involving the
improper use of deadly force. Neither the “unmistakable culpa-
bility” of Chief Prator nor the “clearly connected causation”
required by Brown, see 219 F.3d at 461, appears in this case.
V. State Law Claims Against Chief Prator
Plaintiffs further allege claims under Louisiana state
and constitutional law. Chief Prator defends on the basis of
Louisiana’s provisions for immunity. The Chief is correct.
Louisiana applies qualified immunity principles to state constitu-
tional law claims based on “[t]he same factors that compelled the
United States Supreme Court to recognize a qualified good faith
immunity for state officers under § 1983.” Moresi v. Dep’t of
Wildlife and Fisheries, 567 So. 2d 1081, 1093 (La. 1990). Inasmuch
12
For a more detailed factual discussion, see Brown v. Bryan County,
219 F.3d 450, 454-55 (5th Cir. 2000) (on remand from the Supreme Court of the
United States).
16
as the plaintiffs’ claims under state constitutional law parallel
entirely the § 1983 allegations, Chief Prator enjoys the privilege
of qualified immunity.
While Moresi does not apply to the plaintiffs’ tort
allegations against Chief Prator, Louisiana’s discretionary
immunity statute does. See LA. REV. STAT. ANN. § 9:2798.1 (conferring
immunity from suit upon state officers when the allegations are
predicated “upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when
such acts are within the course and scope of their lawful powers
and duties”). The Supreme Court of Louisiana considers the
immunity conferred on state public officials by this law to be
“essentially the same as the immunity conferred on the federal
government by the exception to the Federal Tort Claims Act (FTCA).”
Jackson v. State ex rel. the Dep’t of Corrections, 785 So. 2d 803,
809 (La. 2001). Louisiana courts have adopted a test analogous to
the FTCA discretionary function test in determining whether an
official is protected by the statute, namely, (1) whether a state
law, regulation, or policy specifically prescribes the officer’s
course of action; and (2) whether the challenged action is grounded
in political, economic, or social policy. See Fowler v. Roberts,
556 So. 2d 1, 15 (La. 1990) (adopting the FTCA discretionary
function test reiterated in Berkovitz v. United States, 486 U.S.
531, 536-37, 108 S. Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988)).
Under part one, if the official has no alternatives, the exception
17
does not apply. Williams v. City of Monroe, 658 So. 2d 820, 828
(La. Ct. App. 2d Cir. 1995). Under part two, the court must
determine whether, if the action involves selection among
alternatives, the choice was policy-based. Id. An officer’s use
of policy-based discretion protects him from state tort liability.
Chief Prator had a wide variety of options for training
officers under his command; no law, regulation, or policy of the
State of Louisiana explicitly directed his course of action.
Further, his training and supervisory decisions are grounded in
policy considerations; he had to assess the community’s needs,
contemplate the types of situations his officers would face, and
ultimately reconcile his training decisions with the department’s
budget. Because his actions meet both prongs of the discretionary
immunity test, Chief Prator is immune from the plaintiffs’ state
law tort claims.
VI. Conclusion
The plaintiffs surely mourn the loss of Undray Carter.
However, the evidence they provided is insufficient to overcome the
qualified immunity protecting Chief Prator. The district court
should have recognized the plaintiffs’ failure of proof in the
first instance.
For the reasons stated above, we therefore DISMISS the
appeals of the City of Shreveport and of Chief Prator in his
official capacity for lack of jurisdiction; REVERSE the district
18
court’s denial of summary judgment to Chief Prator in his
individual capacity; and RENDER summary judgment for Chief Prator.
The case is REMANDED for proceedings consistent with this opinion.
DISMISSED IN PART; REVERSED IN PART; AND RENDERED IN
PART. REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
19