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

                                                                         FILED
                                                                     March 12, 2014
                                 No. 13-30337
                                                                      Lyle W. Cayce
                                                                           Clerk
TYRALYN HARRIS, individually and on behalf of her minor children, Jai
Harris and Jalen Aubert; SHANNON GRACE, individually and on behalf of
her minor child, Branin Harris; BRIAN JOURDAN; BRIANIKA JOURDAN,

                                          Plaintiffs - Appellants
v.

RONAL SERPAS; STEPHEN MCGEE; CITY OF NEW ORLEANS, through
Mayor Mitchell Landrieu; JAMES KISH; JONATHAN PARKER; STUART
SMITH; ERIC GEISLER,

                                          Defendants - Appellees




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before KING, CLEMENT, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      On the evening of April 9, 2010, five police officers from the New Orleans
Police Department (NOPD) arrived at Brian Harris’s home after his former
wife called 911 when she feared Brian had possibly ingested an overdose of
sleeping pills. Mr. Harris had committed no crime and the officers were not
there to place him under arrest. After breaching the barricaded door to his
bedroom, the officers shot and killed Mr. Harris when he raised a knife above
his head and advanced toward them. Mr. Harris’s surviving children filed suit
against the officers for excessive force in violation of the Fourth Amendment
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and sued the City of New Orleans under a Monell theory. The district court
granted summary judgment for the officers on the basis of qualified immunity
and dismissed the claim against the City. We AFFIRM the district court’s
opinion for the following reasons.
                  FACTS AND PROCEDURAL HISTORY
      At the time of this incident, Brian Harris was in his bedroom at his home,
where he lived with his former wife, Tyralyn Harris, and two children, Jalen
Aubert and Jai Harris. On April 9, 2010, Tyralyn became concerned about
Brian’s well-being, as he was depressed after recently losing his job. That
night, Brian locked himself inside their bedroom and Tyralyn believed he may
have taken an overdose of sleeping pills in an effort to take his own life.
Fearing for Brian’s life, Tyralyn called 911 for help.
      NOPD Officers Stephen McGee, Jonathon Parker, and James Kish
responded to the call, along with Sergeants Stuart Smith and Eric Geisler.
When the officers arrived at about 10:22 p.m., Tyralyn met the officers in front
of the house, and explained to them that she believed Brian may have taken
an overdose of sleeping pills. She did not express any fear for her own safety
or that of their children, but she was worried that Brian may hurt himself. She
also told the officers that Brian did not have a gun, but may have a folding
knife with him that he usually carried due to his former job as a welder.
Tyralyn then gave the officers a set of keys to the bedroom door where Brian
had locked himself in.
      The officers carried two tasers that included small camera devices, which
recorded audio and video. The first video shows one of the officers, Sergeant
Smith, ordering the other officers to line up outside Brian’s bedroom door,
stating that “I want one gun and one taser right here.” An officer called out
the name “Brian” and got no response. When the officers unlocked the door,
they found it was barricaded by a large dresser that had been moved into the
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path of the doorway. The video shows the officers forcing the door open, calling
out “Brian” and then entering the room. The officers found Mr. Harris lying
on his back in his bed under a blanket, not moving.
      Upon entering his bedroom, the officers began to give verbal commands,
demanding to see Mr. Harris’s hands. When Mr. Harris did not respond,
Officer McGee removed his blanket revealing Mr. Harris, who was dressed in
under shorts and a tank top, lying on his bed. Mr. Harris was holding a folding
knife in his right hand. The officers began yelling for him to “put it down, put
it down! Put down the knife!” Mr. Harris, while still lying in his bed, crossed
his arms and responded, “It’s not coming down.” Mr. Harris continued not to
comply with the officers’ requests to put the knife down, and Sergeant Smith
then ordered Officer Kish to “tase him.” Officer Kish deployed his taser at Mr.
Harris, who was still lying in his bed at this point, about 26 seconds after the
officers first entered the room. One of the two steel darts that Officer Kish shot
at Mr. Harris missed him, and it appears that no shock was administered.
      The next taser video lasts only six seconds. As it begins, Mr. Harris is
already standing up and Officer Parker is using the second taser on him. Mr.
Harris stood up out of his bed after the first taser attempt, and he appears
agitated at this point. Officer Parker’s second taser attempt apparently failed
to work as well because Mr. Harris was not incapacitated. At this point, Mr.
Harris began flailing his arms at the taser wires, and raised the knife above
his right shoulder in a stabbing position. An officer yelled “Drop the knife” to
which Mr. Harris responded “I’m not dropping nothing.” The next instant, gun
shots rang out on the video, as Officer McGee fired three bullets at Mr. Harris
with a departmentally-issued Glock Model 22 semi-automatic handgun. Two
of the bullets hit Mr. Harris in the torso, and the third in his thigh. Mr. Harris
slumped to the floor at that point, and the second video ends. Mr. Harris was
transported to University Hospital, where he died from the gunshot wounds.
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       Tyralyn Harris filed suit in the Eastern District of Louisiana, on behalf
of herself and her minor children. 1 The Plaintiffs filed suit under 42 U.S.C. §
1983, contending that the officers used excessive force in violation of Mr.
Harris’s Fourth Amendment rights. They also contended that the City of New
Orleans is liable under Monell, alleging that the City’s inadequate policies and
training procedures led to Mr. Harris’s death. 2 The district court found that
the use of deadly force was not unreasonable and granted the officers’ motion
for summary judgment on the basis of qualified immunity. As such, the district
court dismissed the Monell claim, and granted summary judgment in favor of
the City of New Orleans. Plaintiffs timely appealed.
                              STANDARD OF REVIEW
       “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.”
Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). “[S]ummary judgment is
proper when, viewing the evidence in the light most favorable to the non-
movant, ‘there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.’” White ex rel. White v.
Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003). “A genuine issue
of material fact exists if the record, taken as a whole, could lead a rational trier
of fact to find for the non-moving party.” Tubos de Acero de Mexico, S.A. v. Am.
Int’l Inv. Corp., Inc., 292 F.3d 471, 478 (5th Cir. 2002). In reviewing a motion
for summary judgment, this Court views “the facts and inferences to be drawn


       1 Mr. Harris’s other former wife, Shannon Grace, joined as a plaintiff on behalf of
herself and the children she had with Mr. Harris. Upon a motion raised by the defendants,
the district court determined that both Tyralyn Harris and Shannon Grace did not have
standing to pursue any survival claims on behalf of Mr. Harris, as neither of them were
married to Mr. Harris at the time of his death. Mr. Harris’s children were permitted to
proceed as plaintiffs in this suit.
       2 Plaintiffs also sought relief under Louisiana’s wrongful death and survival statutes,

but the district court declined to exercise jurisdiction over these state law claims.
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therefrom in the light most favorable to the non-moving party.” Id. However,
when there is video evidence available in the record, the court is not bound to
adopt the nonmoving party’s version of the facts if it is contradicted by the
record, but rather should “view[] the facts in the light depicted by the
videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007); see also Carnaby v. City
of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (“Although we review evidence in
the light most favorable to the nonmoving party, we assign greater weight,
even at the summary judgment stage, to the facts evident from video
recordings taken at the scene.”).
                                 DISCUSSION
      “Qualified immunity protects officers from suit unless their conduct
violates a clearly established constitutional right.” Mace v. City of Palestine,
333 F.3d 621, 623 (5th Cir. 2003). Once the defendant raises the qualified
immunity defense, “the burden shifts to the plaintiff to rebut this defense by
establishing that the official’s allegedly wrongful conduct violated clearly
established law.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)
(quoting Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir.
2001)).   “Claims that law enforcement officers used excessive force are
analyzed under the Fourth Amendment.” Mace, 333 F.3d at 624 (citing
Graham v. Connor, 490 U.S. 386, 395 (1989)).
       “This court applies a two-step analysis to determine whether a
defendant is entitled to summary judgment on the basis of qualified
immunity.” Freeman, 483 F.3d at 410. First, this Court must determine
“whether, viewing the summary judgment evidence in the light most favorable
to the plaintiff, the defendant violated the plaintiff’s constitutional rights.” Id.
“If so, we next consider whether the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Id. at 410–11. “To prevail on an excessive force claim, a plaintiff
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must establish: (1) injury (2) which resulted directly and only from a use of
force that was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.”    Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008)
(internal quotations and citations omitted).
      The reasonableness inquiry “requires careful attention to the facts and
circumstances of each particular case, 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.” Graham, 490 U.S. at 396. The defendants conceded
that Brian Harris was not being placed under arrest for any suspected crime.
Therefore, the only applicable factor under Graham is whether Brian Harris
“posed an immediate threat to the safety of the officers or others.” Id. The
“[u]se of deadly force is not unreasonable when an officer would have reason to
believe that the suspect poses a threat of serious harm to the officer or others.”
Mace, 333 F.3d at 624.
             A. Excessive Force Claim
      Appellants argue that taken as a whole the officers’ actions in this case
were unreasonable.     To the extent that Brian Harris became agitated and
threatening, Appellants contend, it was only due to the provocation of the
officers.   Appellants point to the officers’ awareness that Brian had not
threatened his wife or children, and that they were only called to the home to
assist Brian, who was depressed and had possibly taken an overdose of
sleeping pills. Brian was engaged in lawful activity before and during the
incident, Appellants contend, up until the officers roused him from his bed by
breaching his bedroom door yelling commands and firing taser darts at him
seconds later. Accordingly, Appellants assert that under the totality of the
circumstances, the officers’ use of force was unreasonable.


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      The United States Supreme Court has long held that courts must look at
the “totality of the circumstances” when assessing the reasonableness of a
police officer’s use of force. Graham, 490 U.S. at 396 (citing Tennessee v.
Garner, 471 U.S. 1, 8–9 (1985)). This Court, however, has narrowed that test,
holding that “[t]he excessive force inquiry is confined to whether the [officer]
was in danger at the moment of the threat that resulted in the [officer’s]
shooting.” Bazan, 246 F.3d at 493. Therefore, any of the officers’ actions
leading up to the shooting are not relevant for the purposes of an excessive
force inquiry in this Circuit.
      This Court recently issued a published opinion that is analogous to the
instant case. In Rockwell v. Brown, 664 F.3d 985 (5th Cir. 2011), a mother
called 911 for assistance in helping her 27-year-old son get to a mental health
facility during a mental health crisis. Id. at 989.        After making repeated
unsuccessful attempts to convince the son to come out of his bedroom, the police
decided to breach the door. Id. Once the door was breached, the officers found
the mentally unstable son holding two eight-inch serrated knives, and after he
rushed towards the police officers and a struggle ensued, the officers fired their
weapons and killed him. Id. at 989–90. On appeal to this Court, the plaintiffs
in Rockwell argued that the officers’ breach of the locked door to their son’s
room should be included in the reasonable use of deadly force inquiry,
contending that the officers’ actions “carried a substantial risk of causing
serious bodily harm and was the immediate but-for cause of the resulting
altercation between [their son] and the officers.” Id. at 992 (internal quotation
marks omitted). In rejecting this argument, the Court explained,
      It is well-established that “[t]he excessive force inquiry is confined
      to whether the [officer or another person] was in danger at the
      moment of the threat that resulted in the [officer’s use of deadly
      force].” Bazan, 246 F.3d at 493. At the time of the shooting, [the
      Plaintiffs’ son] was engaged in an armed struggle with the officers,

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      and therefore each of the officers had a reasonable belief that [he]
      posed an imminent risk of serious harm to the officers. We need
      not look at any other moment in time.
Id. at 992–93 (emphasis in original).
      In the instant case, the taser video evidence confirms that Mr. Harris
was holding a knife above his head at the moment Officer McGee fired his
weapon. Notwithstanding, Appellants argue that the district court erred by
“making a finding of fact that [Officer] Kish was in imminent danger of being
stabbed by an advancing Brian Harris” at the time of the shooting. Appellants
contend that the parties’ locations and movements in the room at the time of
the shooting is a “hotly contested” material factual issue that precludes
summary judgment.
      The relevant law, however, does not require the court to determine
whether an officer was in actual, imminent danger of serious injury, but rather,
whether “the officer reasonably believe[d] that the suspect pose[d] a threat of
serious harm to the officer or to others.” Rockwell, 664 F.3d at 991 (internal
quotations and citations omitted).      Moreover, “[t]he ‘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. When looking at the “moment of the threat” that resulted in
Officer McGee’s use of deadly force, it is clear from the taser video that Mr.
Harris was standing up out of bed and had raised the knife above his head at
the time the shots were fired. Accordingly, the district court properly held that
under these circumstances, the officers reasonably feared for their safety at
the moment of the fatal shooting.
            B. Warrantless Entry Claim
      Appellants also argue that the officers violated Brian Harris’s Fourth
Amendment rights when they forcibly entered his bedroom without a warrant.

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This Court has previously held that “it is well established that the police may
conduct a warrantless search of an area without running afoul of the Fourth
Amendment if a third party with common control over the area consents to the
search.” United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002) (internal
quotation marks and citation omitted). Since Tyralyn Harris consented to the
officers’ entry by giving them the keys to the bedroom, in a home that she co-
occupied with Brian, Appellants have not shown that there was any Fourth
Amendment violation.     Therefore, it is not necessary to reach Appellants’
alternative argument regarding whether Mr. Harris’s possible suicide attempt
constituted exigent circumstances justifying a warrantless entry into his
bedroom.
            C. Monell Claim
      “To hold a municipality liable under [42 U.S.C.] § 1983 for the
misconduct of an employee, a plaintiff must show, in addition to a
constitutional violation, that an official policy promulgated by the
municipality’s policymaker was the moving force behind, or actual cause of, the
constitutional injury.” James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009).
Since Appellants have not shown that there was a constitutional violation in
this case, the district court properly dismissed the Monell claim against the
City of New Orleans.
                                CONCLUSION
      We affirm the district court’s opinion based solely on our examination of
the moment when the fatal shooting occurred.           We express no opinion
regarding the appropriateness of the officers’ conduct that preceded the
moment of the shooting in this case.
      In summary, the taser video evidence confirms the district court’s finding
that Brian Harris was holding a knife in a stabbing position at the moment of
the fatal shooting. Therefore, the district court properly concluded that the
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use of deadly force was not unreasonable. Accordingly, we AFFIRM the district
court’s grant of summary judgment for the officers based on qualified
immunity. As such, we also AFFIRM the dismissal of the Monell claim against
the City of New Orleans.




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