     Case: 13-30116      Document: 00512454429         Page: 1    Date Filed: 11/26/2013




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

                                                                                 FILED
                                                                         November 26, 2013
                                      No. 13-30116                          Lyle W. Cayce
                                                                                 Clerk

DEIDRA CLAYTON, Individually and on behalf of Jonathan Clayton;
ANGELA BURKE,

                                                 Plaintiffs - Appellants
v.

COLUMBIA CASUALTY COMPANY; DAVID JOHNSON, Individually and
in his Official Capacity as Livingston Parish Sheriff’s Deputy; WILLIE
GRAVES, Individually and in his Official Capacity as Livingston Parish
Sheriff,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-845


Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       In this challenge to summary judgment’s being granted Appellees,
primarily at issue is the qualified immunity granted Deputy David Johnson.
Concerning the Deputy, the district court ruled:               his use of deadly force
(shooting) against Jonathan Clayton did not violate the Fourth Amendment;


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-30116
in the alternative, the Deputy was entitled to qualified immunity.          The
judgment in favor of the Deputy, Sheriff Willie Graves, and Columbia Casualty
Company is AFFIRMED.
                                       I.
      As discussed infra, the following facts are presented, to the greatest
extent possible, in the light most favorable to Appellants Deidra Clayton and
Angela Burke, decedent’s mother and sister, respectively. See Scott v. Harris,
550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”).
      Summary-judgment evidence attributable to Clayton’s sister, Burke, is
provided through the recording of her 911 telephone call at 6:45 a.m. the
morning of the incident, 4 April 2011; her statement to law enforcement the
same day, approximately one hour after the incident; her 10 May 2012
deposition; and her 30 November 2012, post-summary-judgment declaration in
support of Appellants’ motion to alter or amend, or for relief from, the
judgment. Summary-judgment evidence attributable to Deputy Johnson is
provided, inter alia, through the 4 April 2011 radio log recording between the
Deputy and the sheriff’s office; his 14 April 2011 statement to law enforcement;
and his 18 September 2012 deposition.
      At approximately 6:30 a.m. on 4 April 2011, Burke witnessed Clayton
beating his girlfriend, Krystyna Westmoreland, on the porch of the trailer
located on the back of Burke’s property. Clayton beat Westmoreland on the
head with a metal bar, strangled her, and threatened to kill her.
Westmoreland, bleeding profusely, escaped to the front of the property where
Burke invited her into Burke’s house.         Once inside, Burke called 911.
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                                     No. 13-30116
(Although, in her deposition, Burke testified she never saw Clayton hit
Westmoreland with anything other than his fists, Burke reported to the 911
operator her brother had beaten his girlfriend with a metal pipe.)
      At   some    point,    Burke     saw    Clayton   smash    the   windows     of
Westmoreland’s vehicle, parked by the trailer.           Clayton walked up the
driveway to Burke’s house carrying a knife she described in her statement as
“a long filet knife” with a seven-inch blade. (In her deposition she stated the
blade was ten to 12 inches.) Burke then told the 911 operator she had a gun
and would shoot Clayton to protect her family and herself. As Burke heard
sirens getting closer, Clayton walked back to Westmoreland’s vehicle, slashed
its tires with the knife, and went inside the trailer.
      Deputy Johnson was dispatched to the Clayton residence and was
informed the subject beat his girlfriend with some type of object, there were
slashed tires, “busted windows”, possibly a knife, and the suspect’s sister was
threatening to shoot the suspect. Though the parties disagree over whether
Burke spoke with the Deputy when he arrived, at the very least Burke directed
the Deputy to the trailer.
      Approximately ten to 15 minutes elapsed between the Deputy’s arrival
and his shooting Clayton. The parties disagree over whether Clayton went
back into the trailer after the Deputy ordered him out. According to Burke,
once Clayton walked outside, he did not go back in; according to the Deputy,
Clayton walked out of the trailer once, went back inside, and then walked out
again.     The record correlates with the Deputy’s version of events.
Consequently, what follows is a description of what occurred according to the
Deputy, insofar as it is not directly contradicted by Burke. See Scott v. Harris,
550 U.S. at 380.


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                                  No. 13-30116
      After parking behind Westmoreland’s vehicle, the Deputy ran to the
trailer door with his firearm drawn and found the door locked. He holstered
his weapon and told Clayton to come out, but Clayton yelled through the closed
door that he had a gun. In response, the Deputy drew his firearm, backed off
the porch, and again told Clayton to come out. Clayton walked out and toward
the Deputy with a hand behind his back, ignored the Deputy’s commands to
show his hands, and repeatedly called the Deputy a “pussy” for not shooting
him. Clayton “hollered”: “If you’re going to pull a gun on me, you better use it”;
“I am going to shoot you, you fucking pussy”; and “I am going to make you shoot
me. I want to commit suicide”. The Deputy announced over the radio, “He’s
threatening to shoot!”, after which the dispatcher requested all available units
go to the Clayton residence because the suspect was “threatening to shoot”.
      Based on this exchange, the Deputy assumed Clayton was armed with a
gun. As Clayton made his way back up the porch, went inside, and shut the
door, the Deputy saw the weapon was instead a knife, after which he
announced over the radio: “He’s got a knife, he’s barricaded himself back in
the door”. Deputy Johnson tried to get Clayton to come outside again, but
Clayton only opened the door, remaining behind the closed screen. The Deputy
watched Clayton use the knife to cut his neck, after which Clayton came out of
the trailer and started quickly moving toward him; the Deputy announced over
the radio, “He’s cut himself with a knife”, and then later, “He’s cut himself
around the neck”; the Deputy also announced over the radio “He’s threatening
an 8-29 by cop” (which the Deputy clarified during his deposition means
suicide). Deputy Johnson repeatedly told Clayton to stop and “[l]ay the weapon
down”; but Clayton kept moving toward him, yelling “I am going to make you
shoot me you fucking pussy. Shoot me mother fucker. You are going to shoot
me you pussy”.
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                                 No. 13-30116
      In her statement, Burke explained: Clayton walked “real ugly like, scary
like” toward the Deputy; as Clayton walked, he screamed: “Shoot me! Shoot
me!”, called Deputy Johnson “‘pussy’ because he wouldn’t shoot him”, and
hollered other “stuff like that”; Clayton kept “aggressively walking” toward the
Deputy, screaming, hollering, and throwing his hands in the air; and, although
the Deputy told Clayton to “stop where you’re at”, Clayton would not comply
and ultimately came within five feet of the Deputy before he was shot.
Similarly, in her deposition, Burke testified Clayton called the Deputy a
“pussy” and hollered at him: “If you’re going to pull a gun on me, you better use
it”; and “Shoot me, mother fucker”. (Despite her earlier statement, when asked
at her deposition whether Clayton “aggressively walked” toward Deputy
Johnson, she responded: “He was holler—yes. He was hollering at him”.)
      As Clayton continued forward, the Deputy fired one shot, hitting Clayton
in the chest and killing him. The Deputy immediately announced “Shots fired”
over his radio, after which Deputy Fiske arrived. (After the radio log noted the
time as 7:06 a.m., Deputy Johnson can be heard on the recording yelling “Shots
fired! Shots fired!” Video from Deputy Fiske’s dashboard camera shows less
than ten seconds passed between the “Shots fired” announcement and when he
turned onto Burke’s driveway. Nevertheless, in her deposition, Burke stated
she stood in the middle of her driveway for longer than a minute, and Deputy
Fiske arrived a couple of minutes after the shooting. In his video, Burke is
neither seen on the driveway nor outside her house.)
      In December 2011, this action was filed, inter alia, pursuant to 42 U.S.C.
§ 1983 against the Deputy for, inter alia, excessive and unreasonable use of
deadly force; and against Sheriff Graves for, inter alia: maintaining a policy
and custom of ignoring the parish’s policy and procedure manual, as well as
failing to properly train and equip patrol deputies.        Columbia Casualty
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                                   No. 13-30116
Company, liability insurer for the sheriff’s office and the Sheriff, was included
as a party. Appellees invoked qualified immunity in their answer, and, after
discovery, moved for summary judgment.
      In granting summary judgment to Deputy Johnson, the district court
concluded: his use of deadly force was justified by the presence of an immediate
threat of serious harm or death to himself or others and, therefore, did not
violate the Fourth Amendment, irrespective of whether Clayton held a knife at
the moment the Deputy shot him; and, in the alternative, if the Deputy’s
conduct violated the Fourth Amendment, a reasonable officer in his position
would not have known the use of deadly force was unlawful in the light of
clearly-established law, vesting the Deputy with qualified immunity. Because
there was no violation of Clayton’s constitutional rights, the court granted
Sheriff Graves summary judgment with respect to all claims against him in
his individual and official capacity.      The state-law claims were dismissed
without prejudice and are not at issue in this appeal. Clayton v. Columbia Cas.
Co., No. 11–845, 2012 WL 5835676, at *19 (M.D. La. 16 Nov. 2012).
                                         II.
      A summary judgment is reviewed de novo. E.g., Tolan v. Cotton, 713
F.3d 299, 304 (5th Cir. 2013). It is proper if movant shows: no genuine dispute
as to any material fact; and entitlement to judgment as a matter of law. FED.
R. CIV. P. 56(a). “A dispute is ‘genuine’ if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (citation omitted). “A fact issue
is ‘material’ if its resolution could affect the outcome of the action.” Id. (citation
omitted). As discussed supra, generally “all facts and inferences are construed
in the light most favorable to non-movants”. Tolan, 713 F.3d at 304 (citation
omitted).
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                                    No. 13-30116
        To avoid summary judgment, the nonmovant may not rest, inter alia, on
conclusory allegations or unsubstantiated assertions. E.g., Tillman v. S. Wood
Preserving of Hattiesburg, Inc., 250 F. App’x 622, 624 (5th Cir. 2007) (citation
omitted); see also Winfrey v. San Jacinto Cnty., 481 F. App’x 969, 974 n.5 (5th
Cir.    2012)   (“Unsubstantiated    assertions,   improbable    inferences,   and
unsupported speculation, however, are not sufficient to defeat a motion for
summary judgment”.) (citation and internal quotation marks omitted).
Rather, the nonmovant must set forth specific facts to show a genuine dispute.
E.g., Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000).
                                        A.
        Deputy Johnson was sued in his official and individual capacity. On
appeal, Appellants failed, however, to brief their official-capacity claims
against the Deputy. Therefore, they are abandoned. E.g., Gates v. Tex. Dep’t
of Protective & Regulatory Servs., 537 F.3d 404, 438 (5th Cir. 2008) (citation
omitted). As a result, for the Deputy, we consider only his individual capacity.
(In the alternative, for the reasons that follow, no genuine dispute of material
fact would preclude the Deputy’s not being liable in his official capacity.)
        Concerning that individual capacity, qualified immunity promotes the
necessary, effective, and efficient performance of governmental duties, Harlow
v. Fitzgerald, 457 U.S. 800, 807 (1982), by shielding from suit “all but the
plainly incompetent or those who knowingly violate the law”. Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Circ. 2008) (citation and internal quotation
marks omitted); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (qualified
immunity is immunity from suit, not merely an affirmative defense to
liability). Accordingly, “for review of a summary judgment upholding qualified
immunity, plaintiff bears the burden of showing a genuine dispute of material
fact”. Tolan, 713 F.3d at 304 (citing Michalik v. Hermann, 422 F.3d 252, 262
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                                  No. 13-30116
(5th Cir. 2005) (qualified-immunity defense alters summary judgment burden
of proof)).
      In other words, after defendant properly invokes qualified immunity,
plaintiff bears the burden to rebut its applicability. Crostley v. Lamar Cnty.,
Tex., 717 F.3d 410, 422 (5th Cir. 2013) (quoting McClendon v. City of Columbia,
305 F.3d 314, 323 (5th Cir. 2002)). To abrogate a public official’s right to
qualified immunity, plaintiff must show: first, the official’s conduct violated a
constitutional or statutory right; and second, the official’s “actions [constituted]
objectively unreasonable [conduct] in [the] light of clearly established law at
the time of the conduct in question”. Brumfield, 551 F.3d at 326 (alteration
added) (citation omitted).
      For an excessive-force claim, plaintiff clears the first prong of the
qualified-immunity analysis at the summary-judgment stage by showing a
genuine dispute of material fact for whether plaintiff sustained: “(1) an injury
(2) which resulted from the use of force that was clearly excessive to the need
and (3) the excessiveness of which was objectively unreasonable”. Ramirez v.
Martinez, 716 F.3d 369, 377 (5th Cir. 2013) (quoting Rockwell v. Brown, 664
F.3d 985, 991 (5th Cir. 2011)).
      For the second prong at the summary-judgment stage, plaintiff must
similarly show a genuine dispute of material fact for two distinct, but
intertwined, elements. “The second prong of the qualified immunity test is
better understood as two separate inquiries: whether the allegedly violated
constitutional rights were clearly established at the time of the incident; and, if
so, whether the [defendant’s conduct] was objectively unreasonable in the light
of that then clearly established law.” Hare v. City of Corinth, Miss., 135 F.3d
320, 326 (5th Cir. 1998) (alteration added) (emphasis in original) (citation
omitted).
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                                  No. 13-30116
      In the excessive-force context at issue here, although the long-
established two prongs of the qualified-immunity analysis contain “objective
reasonableness” elements, those prongs remain distinct and require
independent inquiry. Brumfield, 551 F.3d at 326. Importantly, the sequence
of the analysis is immaterial, Pearson v. Callahan, 555 U.S. 223, 236 (2009);
qualified immunity may be granted without deciding the first prong if plaintiff
fails to satisfy the second, Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir.
2010). Deciding the second prong first is often advisable; for example, if, as
here, a constitutional right is claimed to have been violated (first prong), “[t]his
approach [of first addressing the second prong] comports with [the] usual
reluctance to decide constitutional questions unnecessarily”.           Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012) (alterations added).
      Appellants contend the summary judgment resulted from the district
court’s erroneously considering Deputy Johnson’s testimony that Clayton came
at him, with his hands in the air, yelling he was going to make the Deputy
shoot him. Based on these statements, the court concluded the Deputy faced
a threat of immediate harm and, therefore, was justified in his use of deadly
force. In Appellants’ motion to reconsider, which the district court
subsequently denied, they attached a declaration by Burke stating Clayton
never said he was going to make the Deputy shoot him. Rather, according to
Appellants, it is only undisputed that “Clayton and [Deputy] Johnson were
hollering back and forth”, Clayton waved his arms as he walked toward the
Deputy, Clayton was suicidal, and Clayton “invited [Deputy] Johnson to shoot
him”. According to Appellants, at the moment the Deputy shot Clayton, his
“arms were at his sides as he walked”.
      Moreover, Appellants claim there is a substantial difference between
whether Clayton yelled, “I am going to make you shoot me!” rather than “Shoot
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                                  No. 13-30116
me! Shoot me!”, called Deputy Johnson a “pussy” for not shooting him, and
stated: “if you’re going to pull a gun on me, you better use it”. But, the
undisputed summary-judgment evidence shows the Deputy was confronted
with an individual who attacked his girlfriend with a metal bar, damaged her
vehicle, and injured himself with a knife; his sister, Burke, threatened to shoot
him; Clayton claimed he had a gun; he threatened to shoot the Deputy; he
continued to “holler” and failed to obey the Deputy’s orders to stop; he
continued to walk toward the Deputy, causing him to move back toward
Burke’s house, even though the Deputy had a gun pointed at him; and the
Deputy stood between Clayton and the victim, and other innocent bystanders.
      Appellants emphasize Burke’s statement that, at the moment the
Deputy shot Clayton, his arms were at his sides as he walked. They emphasize
the significance of this alleged fact, claiming the “focus of the inquiry is the act
that led the officer to discharge his weapon”. Nevertheless, “strict reliance” on
the precise moment an officer fires his weapon is inappropriate when the
totality of the circumstances is “the touchstone of the reasonableness inquiry”.
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1318 (10th Cir. 2009).
      Finally, the parties dispute whether Clayton held a knife when he
walked toward the Deputy. Appellants continue to contend Clayton did not
have one.    In her post-shooting statement, when asked whether she saw
anything in Clayton’s hands, Burke answered: “Not at that time . . . . I saw the
knife earlier”.   When asked during her deposition whether Clayton held
anything, she answered: “No, because he was flailing [his hands] up in the air.
I can see whether—that his hands are empty”. Burke also stated in her
deposition: the knife Clayton approached her house with and used to slash
Westmoreland’s tires was not found near his body; rather, she found the knife


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                                 No. 13-30116
in the trailer after police left; and there was no knife near where Clayton fell
after being shot.
      On the other hand, Deputy Johnson explained in his 14 April 2011
statement to law enforcement and his 18 September 2012 deposition that, after
announcing “Shots fired”, he circled Clayton with his gun drawn until he saw
Deputy Fiske arrive, then kicked the knife out of Clayton’s hand. Though it is
not entirely clear in Deputy Fiske’s video, Deputy Johnson does kick something
away from Clayton’s body. The video also reflects: once by the trailer, Deputy
Fiske asked: “Where’s the weapon?”; Deputy Johnson pointed to the object and
stated, “Right there”; and, as Deputy Fiske secured the scene, an officer stood
over the knife so it was not disturbed by those arriving on the scene.
      In addition to Burke’s deposition and affidavit, Appellants rely on
Westmoreland’s deposition and statements given by first responders on the
scene. (The first responders included firemen and paramedics who arrived at
Burke’s residence before Deputy Johnson, but did not go on scene until law
enforcement arrived; once the Deputy arrived, the first responders moved on
scene to assist Westmoreland.) Westmoreland claimed she saw Clayton come
out of the trailer and walk toward Deputy Johnson. Although she did not see
the Deputy fire his gun, she did “see [Clayton’s] hands and could see that he
was not holding a knife or any other object”. Appellants also contend no first
responder on the scene “saw a knife in Clayton’s hand and none of them heard
[Deputy] Johnson tell Clayton to put down a knife”.
      Notably, first responders did not say they did not see a knife. Rather, no
first responder mentioned a knife in his statement. For example, one stated:
he saw the Deputy in the driveway with his gun drawn and pointed at Clayton;
the Deputy ordered Clayton to get on the ground, but Clayton would not follow
these commands; and Clayton then went “up the stairs of the trailer”.
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                                  No. 13-30116
Similarly, another stated: “[the] victim was aproching [sic] the officer in a
hostile manner with his hand behind his back. The officer was shouting
commands and the victim would not comply. The victim started to walk
backwards onto the porch”. Yet another explained: “We saw the deputy . . .
trying to get the victim to comply . . . . The victim had his right hand behind
his back . . . . We were then alerted by a female in the front residence that there
was a female victim in the house with her . . . [and] the [deputy] was telling
the victim to get on his knees, and show him his hands. The victim was not
complying”. The statements by first responders are far from enough to create
a genuine dispute of material fact. See Chappell v. City of Cleveland, 585 F.3d
901, 913-14 (6th Cir. 2009) (statements of witnesses who did not hear police
announcements did not refute detectives’ testimony that they made such
announcements).
      Appellants contrast the facts of this case with those in Tolan, and claim,
unlike Tolan, this case is not about an officer’s reasonable mistake. Instead,
they maintain: because Burke testified there was no knife in Clayton’s hands
and because Deputy Johnson is adamant Clayton held a knife, the Deputy is
lying. Along this line, they contend that, “to assume [] Clayton was unarmed
is to assume [Deputy Johnson] repeatedly offered false and perjured
testimony”. This is an unsubstantiated assertion. See Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (explaining non-moving
party’s burden is not satisfied by “some metaphysical doubt as to the material
facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence”). On the other hand, there is much evidence to show
Clayton held a knife, including: the knife found near Clayton’s body, the cut
on Clayton’s neck visible in his autopsy photographs, Clayton’s blood on the
knife (confirmed by DNA analysis), crime scene photographs of the knife near
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                                  No. 13-30116
Clayton’s body, video of an officer standing over the knife, as well as the radio-
log recording between Deputy Johnson and the sheriff’s office in which the
Deputy stated Clayton had a knife. In any event, whether Clayton held a knife
at the moment Deputy Johnson shot him is not determinative. Even assuming
there was no knife, the Deputy is entitled to qualified immunity.
      Despite evidence to the contrary, Appellants also claim a recording from
Deputy Johnson’s dashboard camera existed, was considered by one of
Appellees’ experts, and was subsequently destroyed or withheld by Appellees.
As a result, they claim this court is obligated to infer the missing video was
unfavorable to Appellees.      Appellants, however, do not offer supporting
evidence.   “[A]t the summary judgment stage, we require evidence—not
absolute proof, but not mere allegations either”. Ontiveros v. City of Rosenberg,
Tex., 564 F.3d 379, 383 (5th Cir. 2009) (quoting Reese v. Anderson, 926 F.2d
494, 499 (5th Cir. 1991) (internal quotation marks omitted)). A finding of
spoliation requires the “bad faith” destruction of evidence relevant to the
litigation. Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005)
(“The Fifth Circuit permits an adverse inference against the destroyer of
evidence only upon a showing of ‘bad faith’”.); Rimkus Consulting Group, Inc.
v. Cammarata, 688 F. Supp. 2d 598, 612-13 (S.D. Tex. 2010). But, again,
Appellants have not provided any evidence the video existed; instead, they
offer only a conclusory allegation.
                                        1.
      As noted, exercising the above-referenced “usual reluctance to decide
constitutional questions unnecessarily”, Reichle, 132 S. Ct. at 2093, we do not
reach the first prong of qualified-immunity analysis: whether a genuine
dispute of material fact exists for whether Deputy Johnson’s shooting Clayton
violated his Fourth Amendment right against excessive force. As discussed
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                                 No. 13-30116
above, showing a genuine dispute for violation of a constitutional right does
not end the inquiry when qualified immunity has been invoked properly.
                                       2.
      A right is sufficiently clear, and therefore “clearly established”, when
“every ‘reasonable official would have understood that what he is doing violates
that right’”.   Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[E]xisting precedent must
[] place[] the statutory or constitutional question beyond debate”. Reichle, 132
S. Ct. at 2093 (quoting al-Kidd, 131 S. Ct. at 2083). This “clearly-established”
standard balances the vindication of constitutional or statutory rights and the
effective performance of governmental duties by ensuring officials can
“reasonably . . . anticipate when their conduct may give rise to liability for
damages”. Davis v. Scherer, 468 U.S. 183, 195 (1984). As discussed supra, this
second-prong question of whether the law was clearly established cannot be
untethered from the concomitant question of whether the challenged conduct
was objectively unreasonable in the light of that clearly-established law. Poole,
691 F.3d at 630.
      It is undisputed that, when Deputy Johnson shot Clayton, an officer had
a clearly-established right to use deadly force if he harbored an objective and
reasonable belief a suspect presented an “immediate threat to [his] safety”.
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009); see also Ontiveros, 564
F.3d 379; Young v. City of Killeen, Tex., 775 F.2d 1349 (5th Cir. 1985). For
Appellants to prevent Deputy Johnson’s succeeding on this second prong, they
must show a genuine dispute of material fact on whether “every ‘reasonable
official would have understood’” the use of deadly force was objectively
unreasonable under the circumstances and clearly-established law. See al-


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                                  No. 13-30116
Kidd, 131 S. Ct. at 2083; Buchanan v. Gulfport Police Dep’t, No. 12-60496, 2013
WL 2421949, at *4 (5th Cir. 4 June 2013).
      Appellants rely upon Louisiana State Police Investigator Kennedy’s
deposition, in which the Investigator supposedly stated the Deputy’s use of
deadly force was reasonable solely because Clayton was armed with a weapon;
Appellants mischaracterize the Investigator’s testimony. Because Investigator
Kennedy concluded Clayton did have a knife at the moment the Deputy shot
him, he refused to speculate as to whether the use of deadly force would have
been justifiable if Clayton did not have a knife.
      Appellants also rely upon Deputy Johnson’s supposed admission he
would not testify at trial as to whether his use of force was reasonable if
Clayton was unarmed. Appellants seem to contend this statement would
preclude Appellees from presenting evidence the Deputy acted reasonably. In
reality, the Deputy’s supposed admission is irrelevant. “[O]ur review is
necessarily objective—reasonableness is our touchstone, and we lack any
benefit of 20/20 hindsight”. Poole, 691 F.3d at 630 (citation omitted); see also
Buchanan, 2013 WL 2421949, at *5 (citation omitted).
      There is no genuine dispute of material fact for the following: Deputy
Johnson was confronted by a non-compliant suspect with dangerous and
violent propensities who posed a “threat of serious physical harm” to himself
and others around him. Reese, 926 F.2d at 500-01 (citing Tennessee v. Garner,
471 U.S. 1, 11 (1985)); see also Mace v. City of Palestine, 333 F.3d 621, 624 (5th
Cir. 2003). The danger was enhanced because the Deputy had a gun pointed
at Clayton, yet Clayton continued toward the Deputy, ignoring his commands.
Reese, 926 F.2d at 500-01 (citing Garner, 471 U.S. at 11). Clayton was within
five feet of the Deputy before he fired his gun. Along that line, Clayton had
clear and obvious warning of the Deputy’s believing deadly force might be
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                                 No. 13-30116
required under the circumstances. E.g., Garner, 471 U.S. at 11-12 (deadly force
not unconstitutional when probable cause to believe crime involving threat of
serious physical harm has been committed and, if feasible, suspect warned
deadly force may be used). Because Appellants have not shown a genuine
dispute of material fact for whether the Deputy’s shooting Clayton was
objectively unreasonable under clearly-established law, summary judgment
based on qualified immunity was proper.
                                      B.
      By failing to properly present in their opening brief their claims against
Sheriff Graves, Appellants have abandoned any challenge to the adverse
summary judgment as it concerns the Sheriff. Gates, 537 F.3d at 438 (citation
omitted). Along that line, their attempt to do so in their reply brief is not
considered. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Because
Appellants’ claims against the Sheriff fail, their claim against the liability
insurer, Columbia Casualty Company, fails as well.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




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