     Case: 13-10773   Document: 00512725759     Page: 1   Date Filed: 08/07/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                        FILED
                                                                     August 7, 2014
                                 No. 13-10773
                                                                     Lyle W. Cayce
                                                                          Clerk
TROY THOMPSON, INDIVIDUALLY, AND AS HEIR TO THE ESTATE OF
KEITH THOMPSON; TERESA THOMPSON, INDIVIDUALLY, AND AS
HEIR TO THE ESTATE OF KEITH THOMPSON,

                                         Plaintiffs-Appellants,
v.

SHERIFF IRA A. MERCER; PALO PINTO COUNTY, TEXAS

                                         Defendants-Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      Keith Thompson (“Keith”) was killed when Palo Pinto County Sheriff Ira
Mercer ended a two-hour high-speed chase by firing an assault rifle into the
vehicle Keith had stolen.   Keith’s parents (“the Thompsons”) brought the
present action against Mercer and the County pursuant to state law and 42
U.S.C. § 1983, alleging that Mercer used excessive force in apprehending the
suspect. The district court granted the defendants’ joint motion for summary
judgment after granting qualified immunity to Mercer and declining to
exercise supplemental jurisdiction over any remaining state claims.         The
Thompsons filed timely appeal.
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      We review summary judgment de novo, applying the same standard as
the district court. Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).
Summary judgment is appropriate where the record and evidence, taken in the
light most favorable to the non-moving party, show “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”      Ibid. (quoting Fed. R. Civ. P. 56(a)).     In making this
determination, “evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Tolan v. Cotton, --- U.S. ----, 134 S.
Ct. 1861, 1863 (2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)). A public official is entitled to qualified immunity
unless his conduct violates constitutional law that was “clearly established at
the time of the defendant’s actions.” Freeman v. Gore, 483 F.3d 404, 411 (5th
Cir. 2007) (citations omitted).    Because we conclude that there was no
constitutional violation in Mercer’s use of deadly force, we affirm the district
court’s decision.
                                       I.
      “The first step in assessing the constitutionality of [Mercer’s] actions is
to determine the relevant facts.” Scott v. Harris, 550 U.S. 372, 378 (2007).
Review of the record reveals virtually no dispute as to the material facts. Much
of the incident, including its unfortunate conclusion, was recorded by video
cameras. Although courts must construe evidence in light most favorable to
the nonmoving party, we will not adopt a plaintiff’s characterization of the
facts where unaltered video evidence contradicts that account. Id. at 381.




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       The    incident    occurred     on    Sunday,      December      18,    2011,    from
approximately 6:45 to 8:50 in the morning. 1 It is undisputed that Keith stole
a vehicle, kidnapped its sleeping occupant, and then fled for two hours at
speeds in excess of 100 miles per hour. The kidnapping victim—who was later
released—furtively dialed 911, allowing dispatchers to overhear Keith state
that he would “kill himself” when he “got to where he was going.” The victim
also revealed that there was a firearm in the vehicle.                    While in flight,
Thompson ignored traffic laws, did not yield to law enforcement, and was at
one point pursued by six vehicles representing four different law enforcement
units. Officers made multiple attempts to disable Keith’s vehicle, all of which
failed. Sheriff Mercer did not participate in the pursuit, but was kept apprised
of developments and was aware of these facts.
       It is equally uncontested that Sheriff Mercer laid in wait with a semi-
automatic “AR-15” assault rifle on the shoulder of FM 4, a rural road running
between the towns of Lone Camp and Santo, Texas. He did not position his
cruiser as a barricade or employ any device that might have disabled Keith’s
vehicle. When the vehicle came into view, Mercer fired into its hood, striking
the radiator. Mercer believed he had hit the radiator, but the vehicle did not
appear to slow down. 2 Mercer then aimed directly into the windshield, striking
Mercer three times in the head and neck after firing a total of twelve rounds.
The vehicle passed within three or four yards of Mercer. Mercer concedes that




       1  The court order inadvertently lists the date as December 17, 2011. See Thompson v.
Mercer, No. 4:12-cv-099-Y, slip op. at 1 (N.D. Tex. June 25, 2013) [hereinafter referred to as
“slip op.”].
        2 The Thompsons allege that Mercer must have known he had hit the radiator because

a “white cloud of steam” “poured from beneath [the] hood,” but the video indicates that this
only occurred after the vehicle collided with a stock pool.
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there were no bystanders in the area, and that he had seen no traffic in the
vicinity.
      The briefs reveal only one plausible factual dispute: the parties disagree
as to how many third parties were endangered by Keith’s flight.            Mercer
emphasizes the inherently dangerous nature of the driving, and points to the
passing cars seen in the video recordings.        The Thompsons argue that—
irrespective of how many third parties had already safely bypassed the chase—
their son never actually hurt anyone and was driving in an empty rural area
at the time he was shot. They contend that on a Sunday morning it was
particularly unlikely that additional driving would endanger anyone, and thus
that Mercer’s conduct was objectively unreasonable.
      The Thompsons did not dispute any other facts before the district court,
but instead objected to “all of the evidence” as “bias[ed]” and “irrelevant and
prejudicial.” Slip op. at 5. The district court overruled those objections, ibid.,
and the Thompsons do not appeal that decision.
                                        II.
      After reviewing the record and the relevant law, we conclude that the
court correctly awarded summary judgment to the defendants. We begin with
the § 1983 claim against Sheriff Mercer. Even construing the facts in favor of
the Thompsons, it seems clear that Mercer acted within the bounds of the
Constitution, and is entitled to qualified immunity even if we assume that he
did not. “The doctrine of 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.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity gives
government officials breathing room to make reasonable but mistaken

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judgments,” and “protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Ashcroft v. al–Kidd, --- U.S. ----, 131 S. Ct. 2074,
2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In order to
overcome a qualified immunity defense, a plaintiff must allege a violation of a
constitutional right, and then must show that “the right was clearly
established . . . in light of the specific context of the case.” Saucier v. Katz, 533
U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. 223. Courts may
address these two elements in either order, and need not proceed to the second
where the first is resolved in the negative. See Lytle v. Bexar Cnty., Tex., 560
F.3d 404, 409–10 (5th Cir. 2009) (citing Pearson, 555 U.S. at 201).
                                         A.
      The district court correctly concluded that the Thompsons have not
alleged a constitutional violation.     A plaintiff does not overcome qualified
immunity by merely alleging “that a violation arguably occurred.” Connelly v.
Comptroller of the Currency, 876 F.2d 1209, 1212 (5th Cir. 1989) (emphasis
original). “Rather, the court must be certain that if the facts alleged by plaintiff
are true, notwithstanding any credibility disputes with defendants, then a
violation has clearly occurred.”       Ibid. (emphasis original).       Here, even
construing the facts in the Thompsons’ favor, there was no Fourth Amendment
violation.
      The Fourth Amendment guarantees the right to be free from
“unreasonable searches and seizures.” U.S. Const. amend. IV. It is undisputed
that the apprehension of Keith Thompson by deadly force was a seizure.
Therefore, to prevail on their excessive force claim, the Thompsons need only
show that the use of deadly force was excessive, and “that the excessiveness of
the force was unreasonable.” Carnaby, 636 F.3d at 187 (citing Freeman, 483
F.3d at 416). In making that argument, the Thompsons recognize that “‘[u]se

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of deadly force is not unreasonable when an officer would have reason to
believe the suspect poses a threat of serious harm to the officer or others.’” Id.
at 188 (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003))
(alteration original). They dispute whether the requisite threat of serious
harm existed at the time Keith was killed. We find that it did.
      In Scott v. Harris, the Supreme Court addressed the extent of reasonable
force in the context of law enforcement’s need to curtail vehicular flight. See
generally 550 U.S. 372. Officer Scott ended a high-speed chase by using his
police cruiser to bump the suspect’s vehicle. Id. at 376. The ensuing collision
rendered that suspect a paraplegic.         Ibid.   Even so, the Supreme Court
ultimately rejected the suspect’s allegations of excessive force, holding that “[a]
police officer’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth
Amendment, even when it places the fleeing motorist at risk of serious injury
or death.” Id. at 386. In so holding, the Court established the framework by
which courts should evaluate the reasonableness of the force used:
             In determining the reasonableness of the manner in which a
      seizure is effected, “[w]e must balance the nature and quality of
      the intrusion on the individual’s Fourth Amendment interests
      against the importance of the governmental interests alleged to
      justify the intrusion.” United States v. Place, 462 U.S. 696, 703
      (1983). . . . [I]n judging whether Scott’s actions were reasonable,
      we must consider the risk of bodily harm that Scott's actions posed
      to respondent in light of the threat to the public that Scott was
      trying to eliminate. . . . We think it appropriate in this process to
      take into account not only the number of lives at risk, but also their
      relative culpability. It was respondent, after all, who intentionally
      placed himself and the public in danger by unlawfully engaging in
      the reckless, high-speed flight that ultimately produced the choice
      between two evils that Scott confronted. Multiple police cars, with
      blue lights flashing and sirens blaring, had been chasing
      respondent for nearly 10 miles, but he ignored their warning to

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      stop. By contrast, those who might have been harmed had Scott
      not taken the action he did were entirely innocent. We have little
      difficulty in concluding it was reasonable for Scott to take the
      action that he did.
Id. at 383–84 (citation formatting revised) (emphasis added). This court has
clarified that “Scott did not declare open season on suspects fleeing in motor
vehicles” in that “the real inquiry is whether the fleeing suspect posed such a
threat that the use of deadly force was justifiable.” Lytle, 560 at 414, 415.
      Applying these standards to the facts at hand, it seems clear that
Mercer’s use of deadly force was justified. There is no doubt that firing the
assault rifle directly into the truck created a significant—even certain—risk of
critical injury to Keith. Under these circumstances, however, the risk was
outweighed by “the extreme danger to human life posed by” reckless vehicular
flight. Scott, 550 U.S. at 383. In fact, even the Thompsons concede that their
son represented a grave risk when he “reached speeds exceeding 100 miles per
hour on the interstate, when he ran numerous stop signs, when he had
‘recklessly’ driven on the wrong side of the road, [and] when he avoided some
road spikes [and] took officers down Blue Flat Road where a horse was loose.”
Indeed, parts of the police camera footage might be mistaken for a video game
reel, with Keith disregarding every traffic law, passing other motorists on the
left, on the right, on the shoulder, and on the median. He occasionally drove
off the road altogether and used other abrupt maneuvers to try to lose his
pursuers. The truck was airborne at least twice, with Keith struggling to
regain control of the vehicle. In short, Keith showed a shocking disregard for
the welfare of passersby and of the pursuing law enforcement officers.
      Upon reflection it seems that Keith—who was in possession of a firearm
and had committed multiple felonies over the course of two hours—posed a
significantly greater threat than the Scott suspect, an unarmed driver

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suspected only of speeding in a pursuit that lasted less than six minutes. So if
the Scott chase “closely resemble[d] a Hollywood-style car chase of the most
frightening sort, placing police officers and innocent bystanders alike at great
risk of serious injury,” id. at 380, the chase here posed all the greater risk.
Accordingly, after multiple other attempts to disable the vehicle failed, it was
not unreasonable for Mercer to turn to deadly force to “terminate [the]
dangerous high-speed car chase.” Id. at 386.
      The Thompsons disagree, arguing that their son was no longer a risk
because he was driving on a “lonely” rural road and his vehicle had already
been disabled. The argument is not persuasive. The Supreme Court has
already rejected the defense that “the roads were mostly empty.” Scott, 550
U.S. at 378. Similarly, this court recognizes the “inherent danger” of vehicular
flight, “even when no bystanders or other motorists are immediately present.”
Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 580 (5th Cir. 2009). But more
importantly, the Thompsons’ characterization of the scene is belied by the
video evidence. Even when Keith was driving along this “virtually empty”
country road, multiple cars had to pull over as Keith and his pursuit caravan
raced back toward town. And rather than decreasing the inherent risk, the
rural nature of the road made the pursuit all the more dangerous, as there was
no shoulder for cars to pull onto, and visibility was often limited.
      Nor did the district court err in assuming that continued pursuit might
endanger “potential drivers” farther up the road. The Thompsons characterize
any such finding as purely “speculative,” arguing that there is no evidence that
any other motorists were “up ahead” on the road. This assertion is also belied
by the video. Even after Keith’s vehicle was disabled, several more cars are
seen driving back toward the interstate. The occupants of those vehicles would
have been in immediate danger if Keith had been allowed to continue on his

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reckless driving spree. The Thompsons contend that the existence of these
motorists is irrelevant to the present inquiry because Mercer was not aware of
their presence. Id. at 26. The argument is unavailing. Mercer testified that
he knew there might be other travelers on the road, and governing standards
allow law enforcement and the courts to take into account passersby that
“might have been present.” Scott, 550 U.S. at 384.
      Any suggestion that the threat to the officers had already passed is
equally unpersuasive. The Thompsons contend that Mercer’s decision was
unreasonable at the time it was made because Keith’s “truck didn’t pose a
sufficient threat of harm, especially after Mercer had struck the radiator with
three bullets . . . .” But the Thompsons’ argument counterfactually presumes
that Keith was only a threat to the extent that the truck was operational. Yet
the truck was not the only deadly weapon at Keith’s disposal. On the contrary,
it is undisputed that he was in possession of a stolen firearm and that Mercer
was aware of that fact. No one knows whether Keith had any intention of using
the gun, but assume for the purposes of summary judgment that he did not.
Even so, Mercer had no way of ascertaining Keith’s intent, and there was no
visible sign of surrender. Given that this unidentified suspect was admittedly
suicidal and had already acted with utter desperation in attempting to evade
law enforcement, Mercer was justified in assuming that there was an ongoing
“threat of serious harm to the officer or others,” even if Keith’s vehicle was
already disabled. Carnaby, 636 F.3d at 188; see also Plumhoff v. Rickard, ---
U.S. ----, 134 S. Ct. 2012, 2022 (2014) (rejecting argument that officer’s firing
of 15 rounds constituted excessive force because “if police officers are justified
in firing at a suspect in order to end a severe threat to public safety, the officers
need not stop shooting until the threat has ended”).


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      The Thompsons nevertheless contend that—to whatever extent law
enforcement was in danger—the officers created that danger by trying to
intercept Keith’s vehicle. The argument is wholly without merit. This court
has consistently rejected similar reasoning. E.g., Fraire v. City of Arlington,
957 F.2d 1268 (5th Cir. 1992) (rejecting argument that officers would not have
been in danger if they had acted differently). The question is not whether “the
force would have been avoided” if law enforcement had followed some other
“police procedures.” Id. at 1275–76 (quoting Young v. City of Killeen, 775 F.2d
1349, 1352 (5th Cir. 1985), reh’g denied, 778 F.2d 790 (5th Cir. 1985)). Instead,
“regardless of what had transpired up until the shooting itself,” the question is
whether “the officer [had] reason to believe, at that moment, that there was a
threat of physical harm.” Id. at 1276. As already explained, the requisite
threat was present here. Ultimately, it was Keith—not the officers—“who
intentionally placed himself and the public in danger by unlawfully engaging
in the reckless, high-speed flight that ultimately produced the choice” that
Sheriff Mercer had to make. Scott, 550 U.S. at 384.
      Finally, there is little merit in the Thompsons’ assertion that law
enforcement was constitutionally required to continue lesser efforts to disable
the vehicle. Officers from three agencies had already tried to intercept and
disable the vehicle four times.     They tried to deploy stop sticks on the
interstate, and a deputy later fired a shotgun at Keith’s tires. These attempts
were unsuccessful in part because officers had to remain mindful of the welfare
of the pursuing officers and other motorists. The record suggests that Sheriff
Mercer was the last one who could intercept Keith’s vehicle before he headed
into the town of Lone Camp, which the Thompsons describe as “approximately
a mile” away. It seems clear that law enforcement reasonably attempted
alternate means of seizure before resorting to deadly force.          Given the

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circumstances and the egregious nature of Keith Thompson’s flight, there was
no Fourth Amendment violation in that decision.
                                        B.
      Even assuming arguendo that Mercer’s use of force was excessive under
the Fourth Amendment, that decision was not so unreasonable so as to deprive
him of qualified immunity from § 1983 liability. To overcome the defense, the
Thompsons must allege an infraction so egregious that “no reasonable officer”
could have believed the conduct constitutional. See Mendenhall v. Riser, 213
F.3d 226, 231 (5th Cir. 2000) (articulating standard before finding defendant
entitled to qualified immunity), reh’g denied, 226 F.3d 645 (5th Cir. 2000), and
cert. denied, 531 U.S. 1071 (2001). Consider, then, the circumstances facing
the officer here. Mercer knew that this unidentified suspect had stolen a car
and abducted a woman. He also knew that the pursuit had lasted for two
hours, and that attempts to disable the vehicle had failed. He had been told
that the suspect was armed and suicidal, and he saw that the suspect was
headed toward a town a mile away. It was therefore manifestly reasonable for
law enforcement to assume that the unknown suspect represented a
tremendous risk to the officers and to the community that lay ahead. See
Martinez v. Maverick Cnty., 507 F. App’x 446, 449 (5th Cir. 2013) (per curiam)
(finding use of deadly force reasonable as a matter of law where woman’s
“erratic attempts to flee” from a routine traffic stop “posed a threat of serious
harm to [officers] and the surrounding community,” and where earlier
attempts to disable vehicle had failed), cert. denied, 133 S. Ct. (2013). Thus,
even if the force was excessive, that force was not so excessive that “no
reasonable   officer”    would   have   thought    the   conduct   constitutional.
Mendenhall, 213 F.3d at 231.


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      Moreover, a plaintiff must identify a “particular right” so clearly
established that the official had fair notice of that right and its concomitant
legal obligations. Camreta v. Greene, --- U.S. ----, 131 S. Ct. 2020, 2031 (2011).
This right must be articulated “in light of the specific context of the case, not
as a broad general proposition.” Saucier, 533 U.S. at 201. In other words, “the
contours of the right” must be “sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Here, the Thompsons seem to concede the
lack of clarity with respect to the use of deadly force in apprehending a fugitive
whose vehicle may have already been disabled. In fact, they explicitly ask this
court to “sharpen the contours” of relevant doctrine, and they admit that “Scott
does not provide a firm foundation” regarding “the use of deadly force per se in
this case.” We agree with the Thompsons that—at the very least—the relevant
law is not so well developed as to clearly establish a violation here. And it is
for that very reason that Mercer is entitled to qualified immunity. Saucier,
533 U.S. at 201.
      Yet the Thompsons ask the court to submit this case to a jury, arguing
that such an outcome is required by Lytle, 560 F.3d at 404. The case is
inapposite. Lytle was submitted to a jury for resolution of multiple outstanding
issues of fact. Id. at 407, 418. The case involved the pursuit of a serial
carjacker who was driving a stolen vehicle. Id. at 407. After a brief chase, the
suspect’s vehicle collided with a parked car, interrupting the flight. Ibid.
When the suspect unexpectedly resumed driving, the pursuing officer fired two
shots into the rear of the vehicle, striking and killing a child sitting in the back
seat. Id. at 408. There was no video of the pursuit, and it was unclear from
the record whether the suspect was resuming flight, whether he was moving
toward the officer, and whether the officer had endangered third parties by

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firing the weapon in a residential area. Id. at 412–13. As a consequence, the
district court found it impossible to determine whether the officer’s conduct
had been reasonable. Id. at 418. Upon interlocutory review this court agreed
that the outstanding factual questions should be resolved by a jury. Ibid. In
the present case, the plaintiffs have identified no analogous material dispute
to submit to a jury. As already explained, the uncontested facts reveal that the
Thompsons have not overcome Mercer’s qualified immunity defense.
Accordingly, the district court correctly concluded that Mercer is entitled to
qualified immunity as a matter of law.           See Scott, 550 U.S. at 381 n.8
(explaining that where the material facts are beyond dispute, the
reasonableness of the official’s use of force is “a pure question of law”).
                                       III.
      The only remaining question is whether the district court properly
granted summary judgment in favor of the County. The claim against Palo
Pinto County does not meet the federal pleading standard, and the deficiency
cannot be remedied by further amendment. A complaint must include “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). To state a claim against a municipality
under 42 U.S.C. § 1983, a plaintiff must allege “that there was either an official
policy or an unofficial custom, adopted by the municipality, that was the
moving force behind the claimed constitutional violation.” Duvall v. Dallas
Cnty., 631 F.3d 203, 209 (5th Cir. 2011) (per curiam) (citing Monell v. Dep’t of
Soc. Serv. Of City of N.Y., 436 U.S. 658, 694 (1978)), cert. denied, 132 S. Ct. 111
(2011).   Here, as already explained, there was no constitutional violation.
Moreover, neither the complaint nor the amended complaint makes any
mention of such a policy or custom.           The claim against the County was
therefore properly dismissed. Fed. R. Civ. P. 12(b)(6).

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      The Thompsons, however, argue that they could not effectively oppose
summary judgment because they were “denied” discovery on this issue. That
assertion is contradicted by the record. Although the summary judgment
motion unambiguously moved for dismissal of the claims against the County,
the Thompsons’ Rule 56 discovery request did not mention the County at all.
See id. 56(d) (allowing discretionary pre-summary-judgment discovery where
non-moving party “cannot present facts essential” to opposition). The court, in
fact, granted every one of the Thompsons’ specific discovery requests, and can
hardly be faulted for failing to grant a request that was never made. Moreover,
the Thompsons deposed Sheriff Mercer, and could presumably have asked him
about County policy if they had wished to do so. Regardless, because there was
no constitutional violation, further discovery would not have forestalled the
dismissal of the claims against the County.
                                     IV.
      For the reasons stated herein, we conclude that there was no Fourth
Amendment violation in the seizure of Keith Thompson. The Thompsons’
§ 1983 claims against Mercer and the County therefore fail as a matter of law,
and the Thompsons have not appealed the district court’s treatment of their
state claims. Accordingly, while we are not unsympathetic to the Thompsons’
loss of their son, we AFFIRM summary judgment in favor of the defendants.




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