Cloud v. Stone

993 F.3d 379

Mark David CLOUD; Patti Brandt Cloud, Plaintiffs—Appellants,

v.Mike STONE, Lincoln Parish Sheriff; Kyle Elliott Luker, Deputy Sheriff, Defendants—Appellees.

No. 20-30052

United States Court of Appeals, Fifth Circuit.

FILED April 6, 2021

James A. Rountree, Rountree Law Offices, Monroe, LA, for Plaintiffs-Appellants.

Timothy Richardson, Richardson Law Group, L.L.C., Madisonville, LA, Ronald Shane Bryant, Usry & Weeks, A.P.L.C., New Orleans, LA, for Defendants- Appellees.

Before Smith, Willett, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Lincoln Parish Deputy Sheriff Kyle Luker tased and then shot and killed Joshua Cloud while trying to arrest him during a traffic stop. Cloud's parents sued Luker for excessive force, but the district court granted Luker summary judgment after finding no constitutional violation. Like the district court, we conclude Luker reasonably deployed his taser when Cloud continued to resist arrest. We also conclude Luker justifiably used deadly force when Cloud lunged for a revolver that had already discharged and struck Luker in the chest. The district court's judgment is affirmed.

I

Around midday on August 29, 2017, Deputy Luker observed Cloud speeding on I-20 in Simsboro, Louisiana.¹ Luker followed Cloud off the interstate and pulled him over on Highway 80, across the street from Simsboro High School. When Luker wrote Cloud a ticket for driving 13 m.p.h. over the speed limit, Cloud protested that Luker could not possibly have seen him on the interstate. Cloud refused to sign his ticket, which is grounds for arrest under Louisiana law. See LA. STAT. ANN. § 32:391(B).

Luker attempted to arrest Cloud. He had Cloud exit his pickup truck and face its side with his hands behind his back. Standing behind Cloud, Luker handcuffed his left wrist, at which point Cloud turned partially around to his left. (Plaintiffs contend Cloud turned around, not to keep arguing, but because he had a hearing impairment. We address that assertion below. See infra Section III.A & n.9.) Luker ordered Cloud to turn back around and reached for his right hand to finish handcuffing him. But Cloud then spun all the way around, turning away from Luker's reach and facing him head-on, with the handcuffs hanging from his left wrist.

With Cloud now facing him, Luker stepped a few feet back and tased Cloud in the chest. Though both taser prongs hit Cloud and began cycling, they did not incapacitate him. Cloud yelled and pulled the prongs from his chest. Luker then released his police dog from his car with a remote button and tried to regain control of Cloud. Luker grabbed Cloud around the waist and tased him again, now with the taser in "drive-stun" mode.²

The two men, grappling with each other, moved toward the truck's open door. Cloud produced a revolver from somewhere near the driver's seat.³ As the two struggled for control of the gun, it discharged twice, the second shot hitting Luker in the chest. Luker was in pain but unable to tell how badly he was injured: as it turned out, his protective vest spared him all but a minor injury. As the struggle continued, Luker managed with one hand to radio police dispatch that shots had been fired. Luker was then able to wrest the revolver out of Cloud's hands and throw it to the ground on the street behind him. With Cloud disarmed and the police dog now engaging, Luker drew back a short distance, withdrew his duty weapon, and ordered Cloud to get on the ground.

At this point, Cloud was crouching in his truck's doorway, keeping the dog at arm's length with his hand on the dog's head. Cloud's revolver was on the ground, behind Luker and to his left. Then, according to Luker, Cloud rushed toward him—"directly at [his] chest or to [his] left a little bit"—and started to move past him. Luker turned to his left, with Cloud's shoulder brushing across his chest. As Cloud lunged toward the revolver lying on the ground, Luker fired two shots into Cloud's back. Cloud was pronounced dead at the scene shortly thereafter.⁴

Cloud's parents ("Plaintiffs") filed suit in federal district court against Luker, Lincoln Parish Sheriff Mike Stone, and Lincoln Parish District Attorney John Belton, the latter two in their official capacities. They alleged excessive force claims under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments, state-law survival and wrongful death claims, and disability discrimination claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Belton was voluntarily dismissed, and the remaining Defendants moved for summary judgment, which the district court granted as to all claims.

As relevant here, the court held Luker did not use excessive force. First, it found his taser use reasonable, primarily because a reasonable officer would have believed that Cloud was resisting arrest at the time. Second, it found that shooting Cloud was not excessive force because Luker reasonably believed Cloud posed an immediate threat of serious harm. Finally, the court found that, assuming arguendo a constitutional violation, Luker would still be entitled to qualified immunity because he did not violate clearly established law. The court therefore dismissed all claims with prejudice, and Plaintiffs appealed.⁵

II

"We review a summary judgment de novo , applying the same standards as the district court." Arenas v. Calhoun , 922 F.3d 616, 620 (5th Cir. 2019). "The movant must show ‘there is no genuine dispute as to any material fact and [he is] entitled to judgment as a matter of law.’ " Garcia v. Blevins , 957 F.3d 596, 600 (5th Cir. 2020) (quoting FED. R. CIV. P. 56(a) ), cert. denied , ––– U.S. ––––, 141 S.Ct. 1058, 208 L.Ed.2d 525 (2021). "However, a good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available." Ibid. (quoting Ratliff v. Aransas Cnty. , 948 F.3d 281, 287 (5th Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 376, 208 L.Ed.2d 97 (2020) (cleaned up)). "We still draw all inferences in the plaintiff's favor." Ibid. (citation omitted).

III

To rebut Luker's qualified immunity defense, Plaintiffs must point to summary judgment evidence "(1) that [Luker] violated a federal statutory or constitutional right and (2) that the unlawfulness of the conduct was ‘clearly established at the time.’ " Rich v. Palko , 920 F.3d 288, 294 (5th Cir. 2019) (quoting District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) ), cert. denied , ––– U.S. ––––, 140 S. Ct. 388, 205 L.Ed.2d 217 (2019). "We can analyze the prongs in either order or resolve the case on a single prong." Garcia , 957 F.3d at 600 (citing Morrow v. Meachum , 917 F.3d 870, 874 (5th Cir. 2019) ). Here, prong one resolves the case. We address separately Luker's taser use and his subsequent shooting of Cloud, in that order.

A

Plaintiffs claim that Luker's nonlethal force—first tasing Cloud from a few feet away, then using his taser in drive-stun mode while grappling with Cloud—violated Cloud's Fourth Amendment right against excessive force during an arrest. We disagree.

An officer violates the Fourth Amendment when an arrestee "suffers an injury that results directly and only from a clearly excessive and objectively unreasonable use of force." Joseph ex rel. Estate of Joseph v. Bartlett , 981 F.3d 319, 332 (5th Cir. 2020) ; see also Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "Crucially, this analysis must be objective: To make out a Fourth Amendment violation ... ‘the question is whether the officer[’s] actions are objectively reasonable in light of the facts and circumstances confronting [him], without regard to their underlying intent or motivation.’ " Poole v. City of Shreveport , 691 F.3d 624, 628 (5th Cir. 2012) (quoting Graham , 490 U.S. at 397, 109 S.Ct. 1865 ) (cleaned up). "The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham , 490 U.S. at 396, 109 S.Ct. 1865.

Graham identifies several factors bearing on the reasonableness of force: with "careful attention to the facts and circumstances of each particular case," courts consider "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." Ibid. We consider "not only the need for force, but also the relationship between the need and the amount of force used." Joseph , 981 F.3d at 332 (quoting Deville v. Marcantel , 567 F.3d 156, 167 (5th Cir. 2009) ) (internal quotation marks omitted). Faced with an uncooperative arrestee, officers properly use "measured and ascending actions that correspond to [the arrestee's] escalating verbal and physical resistance." Id. at 332–33 (quoting Poole , 691 F.3d at 629 ) (cleaned up).

Of the factors identified in Graham , the extent of Cloud's resistance is the most important to analyzing Luker's use of his taser. The other two factors—the "severity of the crime at issue" and the "immediate threat to the safety of the officers or others"—are less illuminating. Cloud was suspected of only a minor offense, at least before resisting arrest. On the other hand, Luker was the lone officer on the scene, and Cloud's confrontational manner, culminating in his turning around to face Luker squarely (with one hand uncuffed and the door of his truck open next to him) created some threat to the officer's safety. The parties chiefly dispute the degree to which Cloud was resisting arrest when Luker deployed his taser.

Our cases on police use of tasers have paid particular attention to whether officers faced active resistance when they resorted to a taser. Where, as here, the severity of crime and immediate safety threat are relatively inconclusive, a suspect's active resistance...