     Case: 16-60561   Document: 00514372480     Page: 1   Date Filed: 03/05/2018




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

                                                                           FILED
                                                                        March 5, 2018
                                 No. 16-60561
                                                                        Lyle W. Cayce
                                                                             Clerk
ROGERS VANN, As Personal Representative and on Behalf of the Wrongful
Death Beneficiaries of Jeremy W. Vann,

             Plaintiff – Appellant,

v.

CITY OF SOUTHAVEN, MISSISSIPPI; LIEUTENANT JORDAN JONES,
Individually and in His Official Capacity as a Police Officer; SERGEANT
BRETT YOAKUM, Individually and in His Official Capacity as a Police
Officer; POLICE CHIEF TOM LONG, Individually and in His Official
Capacity as a Police Officer and Chief of Police; SERGEANT JEFF LOGAN,
Individually and in His Official Capacity as a Police Officer,

             Defendants – Appellees.




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


                      ON PETITION FOR REHEARING
Before SMITH, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
      Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is GRANTED. The panel opinion,
Vann v. City of Southaven, 876 F.3d 133 (5th Cir. 2017), is WITHDRAWN, and
the following is substituted:
     Case: 16-60561      Document: 00514372480        Page: 2    Date Filed: 03/05/2018



                                     No. 16-60561
      This lawsuit arises from the death of Jeremy W. Vann, who was shot and
killed by police in a retail parking lot in Southaven, Mississippi during a small-
scale drug sting operation. During the encounter, Vann was shot by two
officers, Sergeant Jeff Logan and Lieutenant Jordan Jones. Plaintiff sued the
officers involved and the City of Southaven under 42 U.S.C. § 1983, claiming
that the officers violated Vann’s Fourth Amendment right to be free from
unreasonable seizure, excessive force, and deadly force, and that the City had
failed properly to train its officers and had permitted an official practice or
custom that violated the constitutional rights of the public at large. The
officers and the City simultaneously moved for summary judgment. 1 The
district court granted the officers’ and the City’s summary-judgment motion.
      “This court reviews de novo the district court’s resolution of legal issues
on a motion for summary judgment on the basis of qualified immunity.” Hanks
v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) (quoting Griggs v. Brewer, 841 F.3d
308, 311 (5th Cir. 2016)). Summary judgment is appropriate only if “there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Id. (quoting Griggs, 841 F.3d at 311–12); see
also McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en
banc). “[W]e view the facts in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Hanks, 853 F.3d at 743
(quoting Griggs, 841 F.3d at 312); see also Tolan v. Cotton, 134 S. Ct. 1861,
1866 (2014) (“Our qualified-immunity cases illustrate the importance of
drawing inferences in favor of the nonmovant . . . .”).
      “A qualified immunity defense alters the usual summary judgment
burden of proof. Once an official pleads the defense, the burden then shifts to



      1  The City and the officers were and continue to be represented by the same counsel
in single briefs and motions.
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                                  No. 16-60561
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.” Hanks, 853 F.3d at 744 (citation omitted) (quoting Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010)).
      With respect to Jones, one of the two officers who shot Vann, it is
undisputed that Jones shot Vann after his colleague, Logan, was knocked to
the ground by Vann’s car and as Vann’s car approached Logan for a second
time. Under these circumstances, Jones’s use of force did not violate clearly
established law.
      With respect to Logan, the other officer who shot Vann, even assuming
arguendo that Logan used excessive force, the question then becomes, was
there law that put Logan on notice that shooting in the situation presented
violated the constitution? It is the plaintiff’s burden to find a case in his favor
that does not define the law at a “high level of generality.” Cass v. City of
Abilene, 814 F.3d 721, 732–33 (5th Cir. 2016). In the district court, Plaintiff,
Vann’s representative, cited nary a pre-existing or precedential case. That
alone dooms his case here. See id. at 733 (granting qualified immunity even
though the defendant did not cite any cases in his favor to the district court
because plaintiffs bears the burden of showing specific law on point). Even on
appeal, Plaintiff fails to cite a case on point from this court or the Supreme
Court that helps his case, instead relying on an out-of-circuit case.
      Accordingly, we AFFIRM the district court’s grant of summary judgment
to Jones, Logan, Yoakum, and Long. In addition, finding no error in the district
court’s analysis regarding the City, we AFFIRM the district court’s grant of
summary judgment to the City of Southaven.




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