     Case: 16-60561    Document: 00514246841     Page: 1   Date Filed: 11/22/2017




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

                                                                          FILED
                                                                     November 22, 2017
                                  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


Before SMITH, ELROD, and HAYNES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      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. Because there are genuine issues of material fact
that preclude the qualified-immunity determination as to one of the
defendants, we AFFIRM in part, VACATE in part, and REMAND to the
district court.
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                                 No. 16-60561
                                       I.
       The City of Southaven used prior arrestees as confidential informants to
buy small amounts of drugs from non-residents who agreed to sell them. When
the drug sale was intercepted by police, the police would seize cash and
property from the would-be drug sellers.
       Around 6:00 a.m. on May 28, 2014, Teon Katchens agreed through an
online chat system to sell one ounce of marijuana for $150 to someone in
Southaven, Mississippi. Later that morning, Katchens’s friend, Jeremy W.
Vann, drove Katchens and Katchens’s three-year-old son from Memphis,
Tennessee, to a parking lot in Southaven for the exchange. Neither Vann nor
Katchens was armed.
       Shortly after Vann arrived at the lot, his car was boxed in by unmarked
civilian cars driven by undercover Southaven police officers. The officers exited
their cars, and Vann reversed his car, trying to escape the cars that surrounded
him.    During Vann’s escape attempt, Vann’s car moved forward toward
Sergeant Jeff Logan, who shot Vann before being knocked to the ground by
Vann’s car. While Logan was on the ground, and as Vann’s car approached
him for a second time, Lieutenant Jordan Jones fired a second shot at Vann.
Vann died as a result of the shots fired by Logan and Jones. Katchens and his
son survived.
       The parties agree that Vann maneuvered his car in an attempt to escape,
was shot first by Logan, and was shot second by Jones. The parties disagree,
however, on the precise sequence and intent behind certain events between
Vann’s arrival at the parking lot and the moment Logan fired his weapon. The
parties also disagree on whether the police officers used lights and sirens, wore




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                                       No. 16-60561
police vests or badges, and shouted, “Police!” thus informing Vann of their
status as officers. 1
       According to the officers, in the course of Vann’s efforts to escape the cars
boxing him in, Vann’s car slammed into Logan’s and another officer’s cars
multiple times. As Logan was running between his own car and Jones’s car
away from Vann, Vann’s car struck him, causing Logan to shoot in self-defense
before rolling over the hood of the car and falling to the ground. In contrast,
Plaintiff, who is Vann’s representative, argues that rather than Vann’s car
striking Logan and causing him to shoot, Logan moved in front of the car and
shot Vann as Vann attempted to escape through a gap between the cars. It
was only then that Vann’s car hit Logan. As Plaintiff puts it, the disputed
central fact is therefore whether Logan ran to the opening and shot Vann to
prevent him from fleeing or whether, instead, Logan was hit as he ran out of
the way of Vann’s car.
       Plaintiff supports his account by noting that investigators found no
evidence of tire tracks or burnt rubber on the pavement and the fact that any
damage to the officers’ cars was either minimal or pre-existent. Plaintiff also
points to the testimony of Logan and Jones, both of whom agree that Vann was
trying to escape. In Plaintiff’s view, this concession forecloses the notion that




       1 Although Katchens states in a sworn affidavit that he did hear Logan yell, “Freeze!”
and that Vann revved the engine of his car at some point after that, he also states that he
never heard anyone yell, “Police!” and he did not know that the two men in front of Vann’s
car were police officers. In fact, in his affidavit, Katchens states he “remember[s] thinking
that the guy [Vann and him] were supposed to meet had set [them] up to be robbed.” Plaintiff
further supports the position that Vann and Katchens did not know that the people
surrounding them were police officers with the fact that the officers were in plain clothes, the
fact that neither Jones nor Logan wore a police vest, and additional testimony from Katchens
that he did not see any flashing lights on either of the vehicles in front of Vann’s car and
never heard a siren.


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                                        No. 16-60561
Vann intentionally drove toward Logan and instead suggests Logan
purposefully placed himself between Vann’s car and his escape route.
       Plaintiff sued the officers 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. 2
       The district court granted the officers’ and the City’s summary-judgment
motion. With respect to the officers, the district court concluded that Plaintiff
failed to show the violation of a clearly established right under either factual
scenario: Logan attempting to dodge Vann’s oncoming car or Logan attempting
to stop Vann from fleeing. 3 The district court concluded that Plaintiff’s alleged
causes of action against the City were insufficient, first, because Plaintiff failed
to show an underlying constitutional violation according to clearly established
law, and, second, because he failed to bring sufficient evidence or make
adequate arguments regarding a particular policy that led to the events at
issue. Plaintiff now appeals.
                                               II.
       “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



       2  The City and the officers were and continue to be represented by the same counsel
in single briefs and motions.
        3 Though acknowledging Logan’s and Plaintiff’s differing accounts and claiming to

accept Plaintiff’s account, the district court concluded it was unclear that Logan “did
anything other than his job duties required.” Vann v. City of Southaven, 199 F. Supp. 3d
1129, 1143 (N.D. Miss. 2016). In the district court’s view, “if criminals came to believe that
police officers would simply let them escape if they violently resisted arrest, . . . there would
be many more suspects crashing their vehicles against police cars rather than quietly
submitting to arrest.” Id.
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                                      No. 16-60561
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
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)).
                                            III.
       Because there are genuine disputed issues of material fact regarding
Logan’s actions, we vacate the district court’s grant of summary judgment to
Logan. 4 The central disputed fact is whether Logan ran to the opening and
shot Vann to stop him from fleeing or whether Logan ran between the cars to
get out of Vann’s way and then shot Vann because Vann was going to hit him.
Viewing the evidence in the light most favorable to Plaintiff, this fact is in
dispute.



       4See White v. Pauly, 137 S. Ct. 548, 553 (2017) (Ginsburg, J., concurring) (clarifying
that the qualified-immunity analysis as to one officer at the scene does not decide the
question for other officers at the scene).
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                                  No. 16-60561
      It is also material. The Supreme Court has “repeatedly told courts . . .
not to define clearly established law at a high level of generality.” Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011). “The dispositive question is ‘whether the
violative nature of particular conduct is clearly established.’” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 742).             In
Brosseau v. Haugen, 543 U.S. 194 (2004), for example, the specific conduct at
issue was “shoot[ing] a disturbed felon, set on avoiding capture through
vehicular flight, when persons in the immediate area are at risk from that
flight.” 543 U.S. at 200. In Mullenix, a qualified-immunity case involving a
fatal shooting, the relevant circumstances included “a reportedly intoxicated
fugitive, set on avoiding capture through high-speed vehicular flight, who twice
during his flight had threatened to shoot police officers, and who was moments
away from encountering an officer . . . .” 136 S. Ct. at 309.
      In this case, with respect to the reasonableness of Logan’s conduct, the
district court, to conclude that Logan’s conduct was reasonable, primarily
considered the fact that Logan was in the way of Vann’s accelerating car when
he shot at Vann. Vann v. City of Southaven, 199 F. Supp. 3d 1129, 1140, 1143,
1146 (N.D. Miss. 2016).      This conclusion, the district court suggested, is
supported by this circuit’s precedent. See, e.g., id. at 1147 (citing Hathaway v.
Bazany, 507 F.3d 312 (5th Cir. 2007)) (“The Fifth Circuit has thus made it clear
that, in situations where an officer feels threatened by an oncoming vehicle
and has little time to react, courts owe a great deal of deference to that officer’s
decision regarding whether . . . to fire his weapon.”).
      When viewing the facts in the light most favorable to Plaintiff, however,
Logan’s running into the way of Vann’s car and shooting at Van are not distinct
acts. Plaintiff contends that “Logan ran to the opening and shot Vann to
prevent him from fleeing.” Id. at 1134 (emphasis added) (quoting Pl.’s Br. at


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                                       No. 16-60561
6–7). As Logan himself admits, describing the moment when he ran, turned to
face Vann, and shot, “it all happened at one time.” 5 Id. at 1132 (quoting Defs.’
Br. at 12–14). Viewing these steps together as the relevant conduct, before a
car was headed in Logan’s direction, Logan was confronted with the following
situation: whether to shoot a misdemeanor suspect quickly maneuvering his
car to escape surrounding cars and driving in the direction of an area with no
officers. 6




       5  The following is the relevant portion of Logan’s deposition:
        Q. Let’s take it this way. You’re – are you running I guess between your
        vehicle and the Jones vehicle? Are you walking? Describe it.
        A. It’s kind of a run. I’m not really a runner. I’ve had surgery. I was old. I
        wouldn’t call it running, but I was going as fast as I could. You may call it a
        run, yes, sir.
        Q. So you’re going as fast as you can. What happens next?
        A. I know – I mean, I’m at kind of like an angle. I can see this is – he’s fixing
        to hit me and push me forward. So I turn and face him; and as a reaction, don’t
        know why I did it, instead of two handed grip and shoot like you’re supposed
        to, my left hand hit the hood of the car at the same time as I – I mean, it all
        happened at one time; and I fired one round into the windshield.
Furthermore, while Katchens’s affidavit seems to suggest by the order of his statements that
Logan yelled, “Freeze!” after Logan was already in front of Vann’s car, this timing is
inconsistent with Logan’s description of the relevant events. During his deposition, Logan
stated that he yelled, “Police Department,” before Vann allegedly backed his car into another
officer’s car and before he ran to the spot at which he was hit by Vann’s car. In the excerpts
provided from Logan’s deposition, Logan does not mention yelling, “Freeze!” at any point
between running in the way of and shooting at Vann. He also does not mention hearing the
engine rev at this time. In fact, in a signed statement by Logan, he states that he heard the
car’s engine rev before he started to move out of its way.
        6 The dissenting opinion disagrees as to the “moment” that is relevant to our inquiry.

In Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481 (5th Cir. 2001), we held 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] shooting [an individual].” 246 F.3d at 493 (citing Fraire
v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992)). But, here, Plaintiff argues that
Logan never faced a threat. And whether he did face a threat before running and shooting
Vann is a factual dispute. This is an important distinction, which was noted in Fraire, the
case on which Bazan relied. See 957 F.2d at 1276. We noted in Fraire that “[a]t the moment
of the shooting, [the officer did] not appear to have been trying to hinder [the suspect’s]
escape. Rather, as [the officer] avers, he clearly appears to have been trying to prevent his
own serious injury or death.” Id. Here, it is the former rather than latter.
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                                       No. 16-60561
       It has long been settled that “[w]here [a fleeing] suspect poses no
immediate threat to the officer and no threat to others, the harm resulting from
failing to apprehend him does not justify the use of deadly force to do so.”
Tennessee v. Garner, 471 U.S. 1, 11 (1985). Put simply, “[a] police officer may
not seize an unarmed, nondangerous suspect by shooting him dead.” Id. The
district court here rejected Garner’s application, determining instead that “a
more particularized, and hence more relevant” example is required to
guarantee that “[t]he contours of the right . . . [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Vann, 199 F. Supp. 3d at 1138 (citing Brosseau, 543 U.S. at 199). This court
has held, however, that Garner’s proposition “holds as both a general matter
and in the more specific context of shooting a suspect fleeing in a motor
vehicle.” Lytle v. Bexar Cty., 560 F.3d 404, 417–18 (5th Cir. 2009) (citations
omitted). The outcome in the present case therefore depends on the facts.
       On the one hand, if Logan was running away from Vann’s moving car
and thus being threatened by it at the time he shot Vann, this case could fall
in line with other car-related cases where courts have determined that a
reasonable officer would have resorted to deadly force. See, e.g., Mullenix, 136
S. Ct. at 311–12 (holding the officer acted reasonably where the suspect “was
speeding towards a confrontation with officers he had threatened to kill”);
Plumhoff v. Rickard, 134 S. Ct. 2012, 2021–22 (2014) (holding the officer acted
reasonably where the suspect’s reckless driving “posed a grave public safety
risk”); Scott v. Harris, 550 U.S. 372, 385–86 (2007) (holding the officer acted
reasonably where the car chase “posed a substantial and immediate risk of




        For the same reason, this decision does not implicate the “provocation doctrine,”
which, as the dissenting opinion explains, is “a theory that an earlier Fourth Amendment
violation can transform an otherwise reasonable use of force into a constitutional violation.”
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                                      No. 16-60561
serious physical injury to others”); Brosseau, 543 U.S. at 197–201 (holding the
officer did not violate clearly established law when faced with the following
situation: “whether to shoot a disturbed felon, set on avoiding capture through
vehicular flight, when persons in the immediate area are at risk from that
flight”).
       On the other hand, this case could fall into a group of “factually distinct”
cases involving “suspects who may have done little more than flee at relatively
low speeds.” Mullenix, 136 S. Ct. at 312 (citing Walker v. Davis, 649 F.3d 502,
503 (6th Cir. 2011); Kirby v. Duva, 530 F.3d 475, 479–80 (6th Cir. 2008); Adams
v. Speers, 473 F.3d 989, 991 (9th Cir. 2007); Vaughan v. Cox, 343 F.3d 1323,
1330–31, 1330 n.7 (11th Cir. 2003)). As this court has noted, even if a suspect
is in a car, the Supreme Court has not declared “open season on suspects
fleeing in motor vehicles.” Lytle, 560 F.3d at 414.
       “[C]ourts must take care not to define a case’s ‘context’ in a manner that
imports genuinely disputed factual propositions.” Tolan, 134 S. Ct. at 1866.
Here, we take such care. While it is possible that Logan fired at Vann because
Vann’s accelerating car posed a threat to him and the other officers, evidence
also supports the possibility that, absent a threat, Logan ran into the way of
Vann’s car and shot Vann to prevent him from successfully fleeing. Our case
law establishes that a reasonable officer would not shoot a fleeing suspect
where the suspect poses no threat to the officer or others. 7 Thus, resolving this
disputed fact is crucial to the summary-judgment analysis.


       7 With respect to Plaintiff’s burden of showing that Logan violated Vann’s clearly
established rights, see Cass v. City of Abilene, 814 F.3d 721, 732 (5th Cir. 2016), Plaintiff
satisfied his burden. First, Garner’s general prohibition against using deadly force in non-
threatening situations gave Logan a fair and clear warning against running in the way of
and shooting at Vann where he posed no threat to Logan or others in the area. See Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (“[G]eneral statements of the law are not inherently
incapable of giving fair and clear warning, and in [some] instances a general constitutional
rule already identified in the decisional law may apply with obvious clarity to the specific
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                                       No. 16-60561
                                              IV.
       The district court granted summary judgment to the City as to Vann’s
municipal liability claims. Finding no error in the district court’s analysis
regarding the City, we AFFIRM.
                                              V.
       For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to the City, Jones, Yoakum, and Long; VACATE the
district court’s grant of summary judgment to Logan; and REMAND for further
proceedings consistent with this opinion.




conduct in question, even though ‘the very action in question has not previously been held
unlawful.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))). Second, at the district
court level, Plaintiff cited to Godawa v. Byrd, 798 F.3d 457 (6th Cir. 2015), in which the Sixth
Circuit denied qualified immunity based on the open possibility that the officer shot the
suspect attempting to flee in a car at a low speed where the officer was not presented with
“an actual and imminent threat.” 798 F.3d at 468. While questioning Godawa’s factual
relevance, the district court did not engage with Godawa because the decision was issued
after the shooting in this case. Vann, 199 F. Supp. 3d at 1137 n.4. Nonetheless, the Sixth
Circuit’s analysis and conclusion in Godawa were not novel. The Godawa court discussed
the Sixth Circuit’s opinion in a similar case, Smith v. Cupp, 430 F.3d 766 (6th Cir. 2005), just
as this court did in reaching the same conclusion in Lytle in 2009. See Godawa, 798 F.3d at
464–65; Lytle, 560 F.3d at 416. Plaintiff thus successfully showed that the unlawfulness of
Logan’s actions was apparent in light of pre-existing law. McClendon, 305 F.3d at 332 (“[T]he
unlawfulness of the state official’s actions ‘must be apparent’ in light of pre-existing law to
preclude the official from invoking qualified immunity.”).
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                                  No. 16-60561
HAYNES, Circuit Judge, concurring in part and dissenting in part:
      I concur in the judgment of the court as to the City, Jones, Yoakum, and
Long. The majority opinion’s denying Logan qualified immunity under the
undisputed facts here, however, effectively creates a “stand down” rule for law
enforcement.     I respectfully dissent from the judgment vacating and
remanding as to Logan.
      This is an excessive force case under the Fourth Amendment. In such
cases, “a court must judge the reasonableness of the force used from the
perspective and with the knowledge of the defendant officer.” Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2474 (2015). The majority opinion primarily
recites the events from the perspective of Vann, the decedent. Katchens, the
surviving adult in Vann’s car, originally gave a statement that supported the
police officers’ account of the events in question. After speaking with Plaintiff’s
investigator, he gave an affidavit more favorable to Plaintiff that contradicts
several of his original statements. While there were a number of challenges to
that affidavit in the district court, I will assume arguendo that we should
consider it. Nonetheless, even doing so, several key undisputed facts remain.
I add a few of those undisputed facts in order to properly portray what
happened from the perspective of Logan, the officer.
      Early in the morning of May 28, 2014, one of Logan’s colleagues received
a report from a confidential informant. The CI had arranged a meeting with a
drug dealer in a convenience store parking lot to purchase one ounce of
marijuana. Logan was asked to be part of a team of five officers who planned
to bust the dealer. Neither Logan nor anyone on the team had any indication
about how much drugs the dealer had on him, who would be with him, or
whether he would be armed. When they arrived at the meet-up point, the CI
approached from the behind the store, moving to the front of it, while officers


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                                      No. 16-60561
staked out the parking lot in their vehicles. Waiting in a car were two men
(Vann, the driver, and Katchens, the passenger), one of whom waved to the CI
to come to the car. At that point, Logan and others stepped in to arrest the
dealers. They used their vehicles to corner in the dealers’ vehicle, leaving it
only one escape route.
       The precise details and sequence of events are disputed from there.
Because we are reviewing a motion for summary judgment, I accept the
evidence in the light most favorable to Plaintiff. At least one of the officers
wore a vest that said “POLICE” on it. Plaintiff contends (as the majority
opinion puts it) that Logan “purposefully placed himself between Vann’s car
and [Vann’s] escape route.” Maj. Op. at 4. Once there, Logan yelled, “Freeze!”
loudly enough that it could be heard in Vann’s car. In response, Vann revved
the engine. 1     Plaintiff’s Amended Complaint, which binds the plaintiff,



       1  Katchens’ affidavit makes these facts abundantly clear:
        14. The man in the red shirt [i.e., Logan] was leaning at about the center of the
        hood and I [i.e., Katchens] think he may have had one hand on the hood and
        in his other hand he had the gun pointed at us. The gun was about three feet
        away from us.
        15. I did hear the man in the red shirt yell FREEZE!
        16. I never heard anyone yell POLICE! Just FREEZE!
        17. I put my hands up in the air. [Vann] looked scared and I was scared too.
        18. This next part happened very fast, [sic] [Vann] tapped the gas and the
        engine revved but the car did not move and I told [Vann] “stop fool” meaning
        don’t rev the engine.
Later in the same affidavit Katchens acknowledged that one of the officers at the scene “had
on a vest that said POLICE on it,” even if Katchens did not see him originally.
        The district court ignored Katchens’ affidavit because it directly contradicted
Katchens’ earlier statements that the officers approached with sirens on and that Katchens
told Vann in the moment that the CI “done called the police on you.” See Vann v. City of
Southaven, 199 F. Supp. 3d 1129, 1145 (N.D. Miss. 2016). In contrast, I am assuming
arguendo that we must consider it over his earlier statements.
        The majority opinion, however, considers Katchens’ affidavit only from Katchens’
perspective. Maj. Op. at 3 n.1. The proper analysis is to assume the facts in Katchens’
affidavit are true and then determine from Logan’s perspective whether his actions were
reasonable. Whether Katchens or Vann subjectively believed the police were ordering them
to stop is irrelevant.
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acknowledges that “Vann attempted to flee” by driving away and that Logan
was then “struck by the vehicle . . . .” At some moment during this escape
attempt, when Logan was in front of the vehicle that ultimately struck him,
Logan fired his weapon.
      This expanded summary shows Logan used reasonable force. Analyzing
excessive force claims “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.” See Graham v. Connor, 490 U.S. 386, 396 (1989).
      Those factors all favor Logan, taking as true the facts alleged by Plaintiff
but viewing them from the perspective of a reasonable officer in Logan’s shoes.
Illegally dealing controlled substances is a serious crime.       See 21 U.S.C.
§§ 841(a), 846 (criminalizing distribution and conspiracy to distribute
marijuana); Miss. Ann. Code § 41-29-139(b)(2)(A) (criminalizing possession
with intent to distribute marijuana); see also United States v. Christie, 825 F.3d
1048, 1058–59 n.4 (9th Cir. 2016) (citing a memorandum from the Department
of Justice that “affirms DOJ’s ‘commitment to enforcing the CSA consistent
with’ Congress’s judgment ‘that marijuana is a dangerous drug and that the
illegal distribution and sale of marijuana is a serious crime that provides a
significant source of revenue to large-scale criminal enterprises, gangs, and
cartels.’” (internal brackets omitted)); United States v. Nunez, 386 F. App’x
757, 759 (10th Cir. 2010) (“Nunez’s violation offense—possession with intent
to distribute marijuana—is a serious crime which, if prosecuted in federal
court, would carry a statutory maximum penalty of five years’ imprisonment
for quantities less than 50 kilograms.”). Vann attempted to evade arrest by
driving his vehicle away. Even in Plaintiff’s account, Vann posed an immediate


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                                  No. 16-60561
threat to Logan’s and the other officers’ safety.       Vann and Logan were
surrounded by vehicles and police officers, at least one of whom was clearly
identified as law enforcement.      (Even if Vann may not have seen that
identification, Logan could reasonably conclude that he did.) In these tight
quarters, Logan yelled, “Freeze!” only to be met by Vann revving his engine.
Ultimately, Logan faced a vehicle that indisputably went on to hit him. Thus,
even accepting that the circumstances were as Plaintiff presented them,
Logan’s use of his firearm to protect himself and others was reasonable force.
      The majority opinion concludes that Logan is not entitled to summary
judgment because of a dispute over facts. I agree with the well-worn statement
that if there are material disputes of fact, then summary judgment is improper.
However, the key word here is “material.” Not all factual disputes qualify.
This one does not.
      The majority opinion intently focuses on a fact that our precedent says
is irrelevant—why Logan was in front of Vann’s vehicle in the first place. The
cases cited from the Supreme Court and our court by the majority opinion and
the parties do not hold that an officer’s actions prior to the use of deadly force
are relevant to the inquiry of whether the use of deadly force was reasonable.
Quite the opposite: “The excessive force inquiry is confined to whether the
[officer] was in danger at the moment of the threat that resulted in the [officer]
shooting [an individual].” Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d
481, 493 (5th Cir. 2001); see also Harris v. Serpas, 745 F.3d 767, 772–73 (5th
Cir. 2014) (rejecting the argument that officers’ decision to “breach[ an
individual’s] bedroom door yelling commands and firing taser darts at him”
was relevant to qualified immunity analysis in a deadly force suit even though
the officers’ actions caused the individual to become “agitated and
threatening”); Rockwell v. Brown, 664 F.3d 985, 993 (5th Cir. 2011) (“At the


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                                 No. 16-60561
time of the shooting, [the suspect] was engaged in an armed struggle with the
officers, and therefore each of the officers had a reasonable belief that [the
suspect] posed an imminent risk of serious harm to the officers. We need not
look at any other moment in time.”); Fraire v. City of Arlington, 957 F.2d 1268,
1276 (5th Cir. 1992) (“[R]egardless of what had transpired up until the
shooting itself, [the suspect’s] movements gave the officer reason to believe, at
that moment, that there was a threat of physical harm.” (emphasis added)).
      Indeed, the majority opinion runs afoul of the Supreme Court’s reasoning
rejecting the Ninth Circuit’s “provocation doctrine,” a theory that an earlier
Fourth Amendment violation can transform an otherwise reasonable use of
force into a constitutional violation. See County of L.A. v. Mendez, 137 S. Ct.
1539, 1546–48 (2017). The Court reaffirmed that an officer’s actions are judged
at the time the force is used, based on then-existing circumstances. Id. at
1546–47 (“Excessive force claims . . . are evaluated for objective reasonableness
based upon the information the officers had when the conduct occurred.”
(ellipsis in original) (quoting Saucier v. Katz, 533 U.S. 194, 207 (2001)). The
Court rejected the provocation doctrine even though the Ninth Circuit limited
the doctrine to reckless or intentional behavior by officers. Id. at 1548. The
majority opinion also runs afoul of many qualified immunity cases where one
could say that, had the officer acted differently, he or she might not have been
in “harm’s way.” See, e.g., Elizondo v. Green, 671 F.3d 506, 511 (5th Cir. 2012)
(DeMoss, J., concurring) (describing two then-recent cases where the officers
from the same department took actions that accelerated rather than
decelerated the crisis leading to fatal shootings and yet the officers received
qualified immunity).    Whether Logan “purposefully placed himself” in harm’s
way is thus irrelevant to our decision.




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                                        No. 16-60561
       The majority opinion tries to collapse the inquiry by “viewing these steps
[i.e., the decision to get in front of the vehicle and the decision to shoot] together
as the relevant conduct.”             Maj. Op. at 7. 2         While the totality of the
circumstances informs the officer’s knowledge relevant to the potential
arrestee, whether deadly force is excessive depends on the moment at which it
is used. The majority opinion suggests that the legal question is “whether


       2  The majority opinion also seemingly tries to transmute this legal issue into a factual
one by claiming that the evidence can be interpreted so that Logan’s alleged running in front
of the car and shooting were “not distinct acts.” See Maj. Op. at 6. But as Katchens’ affidavit
confirms, Logan at the very least yelled, “Freeze!” and heard a revving engine before he fired.
(On the officers’ versions of the events, Vann acted far more aggressively and Logan never
moved in front of the vehicle.) No evidence even implies that Logan’s alleged movement in
front of the vehicle and his shot occurred at the same moment.
        The majority opinion’s citations do not support interpreting these alleged actions as a
single moment. It first cites a statement from Plaintiff’s brief in the district court that “Logan
ran to the opening and shot Vann to prevent him from fleeing.” Maj. Op. at 6–7 (emphasis
omitted). Regardless of how that statement is interpreted, it was made in a brief without
citation to any record evidence supporting it, which means we must ignore it. See Garcia v.
LumaCorp, Inc., 429 F.3d 549, 555 (5th Cir. 2005) (“Needless to say, unsubstantiated
assertions are not competent summary judgment evidence.” (internal quotation marks
omitted) (quoting Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993))).
        The majority opinion also cites a statement from Logan’s deposition that “it all
happened at one time.” The majority opinion depicts this statement as applying to “the
moment when [Logan] ran, turned to face Vann, and shot.” Maj. Op. at 7. The biggest hole
in that citation is that Logan maintained that he was in front of the vehicle because Vann
positioned the vehicle toward him; any running Logan did was only to get out of the way of
the vehicle, not into its path. Thus, his deposition testimony could not support the notion
that his (1) decision to run in front of the car and (2) decision to fire happened at the same
time, because he never said he decided to run in front of the car.
        But even assuming Logan had admitted that he decided to run in front of the car, his
statement does not support the majority opinion’s reasoning. The “it” in “it all happened at
one time” was the car making contact with Logan and Logan firing his weapon—not his
decision to move in front of the car and his decision to fire. The excerpt of the deposition
included in the majority opinion makes this clear. Logan indicated that he began running;
the attorney deposing him then asked, “What happens next?” indicating that Logan’s next
answer followed the beginning of his run. Then, as Logan described the car coming down on
him, he reported that “my left hand hit the hood of car at the same time” and then stopped
mid-sentence to re-phrase his sentence, “I mean, it all happened at one time; and I fired one
round into the windshield.”
        The majority opinion grasps at other variations between Logan’s description of the
events and Katchens’ affidavit, but no matter whose story is believed, Logan faced a vehicle
acting aggressively, which ultimately hit him, when he fired.
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                                       No. 16-60561
[Logan was permitted] to shoot a misdemeanor suspect 3 quickly maneuvering
his car to escape surrounding cars and driving in the direction of an area with
no officers.” Maj. Op. at 7. This framing puts Logan out of the car’s path by
resetting the clock to before Logan allegedly tried to close off the vehicle’s
escape. In other words, the majority opinion wants to ask whether Logan’s
decision to get in front of the car was reasonable, not whether his use of force
was. See Bazan, 246 F.3d at 493.
       A recent unpublished decision from our court demonstrates well the
proper analysis. See Davis v. Romer, 600 F. App’x 926 (5th Cir. 2015) (per
curiam). In that case, the officer reacted to a driver’s failure to obey a command
to exit a vehicle. Id. at 927–28. Rather than let the truck go, the officer decided
to jump onto its running board (a metal step attached to the truck) as the driver
pulled away. Id. at 928. When the driver refused to stop the truck, the officer
“pulled his gun from the holster and fatally shot” the driver. Id.                 The panel
rejected the argument that the officer “caused the danger by jumping on the
running board of the vehicle. In other words, [the driver’s argument was] that
instead of jumping on the vehicle [the officer] should have moved away from
the fleeing vehicle.” Id. at 930. Relying on some of the same authorities I have
cited above, the panel concluded that the reasonableness of force had to be
judged based on when the officer was on the moving vehicle, not based on
whether he should have been there in the first place. See id. at 929–31. We
should follow that same analysis here.




       3  Again, while the amount to be sold pursuant to the staged buy was one ounce, there
is no indication that the officers reasonably believed Vann’s drug dealing to be limited to this
one ounce. Furthermore, possession with intent to sell even one ounce of marijuana is
punishable as a felony under state law, including up to three years of imprisonment. See
Miss. Code. Ann. § 41-29-139(b)(2)(A).
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                                  No. 16-60561
      The majority opinion effectively adopts a “stand down” rule for law
enforcement. Sadly, officers are required to put themselves in harm’s way in
a lot of situations where most people would run away. Society lauds honest
police officers precisely because they put themselves in harm’s way by
engaging dangerous people to keep us safe. It is hard to imagine that the
majority opinion is suggesting officers are required to stand down or face a
lawsuit. But to require Logan to stand trial for his alleged decision to step in
front of Vann’s vehicle does just that.
      Even assuming, arguendo, that Logan used excessive force, the question
then becomes, was there law that put Logan on notice that shooting in this
situation violated the constitution? The majority opinion says this law should
not be viewed at a “high level of generality” but turns that against Logan,
essentially requiring him to find a case in his favor. The law is just the
opposite: it is Plaintiff who must 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) (per curiam). In the district court, he 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 plaintiff bears the burden of showing
specific law on point). Even on appeal, he 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.   See Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en
banc) (“Where no controlling authority specifically prohibits a defendant’s
conduct, and when the federal circuit courts are split on the issue, the law
cannot be said to be clearly established.” (citing Wilson v. Layne, 526 U.S. 603,
617–18 (1999))).




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                                       No. 16-60561
       Supreme Court precedent provides no support to Plaintiff and, indeed,
counsels the opposite result. All of the recent cases from the Supreme Court
involving suspects in moving vehicles have found qualified immunity, even
despite disputes over facts: Mullenix v. Luna, 136 S. Ct. 305 (2015); Plumhoff
v. Rickard, 134 S. Ct. 2012 (2014); Scott v. Harris, 550 U.S. 372 (2007);
Brosseau v. Haugen, 543 U.S. 194 (2004). Far from clearly establishing (before
or after this incident in 2014) a constitutional norm that Logan violated, the
Court ruled in favor of the officers in these cases.
       The majority opinion is similarly unhelpful. It cites the following cases:
Tennessee v. Garner, 471 U.S. 1 (1985); Tolan v. Cotton, 134 S. Ct. 1861 (2014);
Lytle v. Bexar Cty., 560 F.3d 404 (5th Cir. 2009). 4 None of these cases involved
a moving vehicle except Lytle, 5 a case which the Supreme Court called into
question in Mullenix and cannot be squared with the more recent decisions in
Mullenix and Plumhoff. See Mullenix, 136 S. Ct. at 310 (“The Court has thus
never found the use of deadly force in connection with a dangerous car chase
to violate the Fourth Amendment, let alone to be a basis for denying qualified
immunity.”); Plumhoff, 134 S. Ct. at 2022 (“Under the circumstances at the
moment when the shots were fired, all that a reasonable police officer could
have concluded was that [the suspect] was intent on resuming his flight and


       4   The majority opinion also discusses the Sixth Circuit case of Godawa v. Byrd, 798
F.3d 457 (6th Cir. 2015), cited by the plaintiff, but decided after the events in question. Even
assuming arguendo that Godawa relied upon established Sixth Circuit precedent, we have
made clear that out-of-circuit precedent must establish a “robust” consensus to be considered
“clearly established.” Morgan, 659 F.3d at 371–72 (requiring us to be able to point to “robust
consensus of persuasive authority” to establish the “contours” of a right). One circuit is
hardly that. Lincoln v. Turner, No. 16-10856, 2017 U.S. App. LEXIS 21652, at *25 (5th Cir.
Oct. 31, 2017) (concluding that the opinions of two other circuits, while perhaps indicating
an emerging trend, are insufficient to establish “clearly established law”).

       5 Tennessee v. Garner, 471 U.S. 1, 11 (1985), involved a felon fleeing on foot, and in
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014), the parties in question had exited the vehicle
and were standing on the driveway at the time of the disputed incident.
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                                   No. 16-60561
that, if he was allowed to do so, he would once again pose a deadly threat for
others on the road.”).
      However, even assuming Lytle survives these cases, it does not support
the majority opinion’s decision as to Logan. As we acknowledged then, if the
vehicle had presented a threat of harm, the officer would “likely [have been]
entitled to qualified immunity. This is due to the threat of immediate and
severe physical harm that the reversing [vehicle] likely posed to [the officer]
himself.” Lytle, 560 F.3d at 412. Lytle, therefore, does not help us here because
the fleeing person there was not in a situation where he would have been an
immediate threat to anyone. See Sanchez v. Edwards, 433 F. App’x 272, 276
(5th Cir. 2011) (per curiam) (“We based our decision [in Lytle] on evidence
suggesting that the officer was three-to-four houses away from the vehicle
when he fired his weapon and that the vehicle was moving away from, rather
than towards, him at the time.”); see also Hathaway v. Bazany, 507 F.3d 312,
320 (5th Cir. 2007) (“The reasonableness of an officer’s use of deadly force is
therefore determined by the existence of a credible, serious threat to the
physical safety of the officer or to those in the vicinity.”).
      The majority opinion tries to nestle this case into a single line from
Mullenix categorizing certain cases as “involving ‘suspects who may have done
little more than flee at relatively low speeds.’” Maj. Op. at 9 (quoting Mullenix,
136 S. Ct. at 312). That line from Mullenix addressed our opinion that was the
subject of the certiorari petition and had denied qualified immunity based on
what the Court found to be “factually distinct” cases. See Mullenix, 136 S. Ct.
at 312 (“These cases shed little light on whether the far greater danger of a
speeding fugitive threatening to kill police officers waiting in his path could
warrant deadly force.”). Mullenix did not suggest those cases were correct. Nor
do those cases distinguished by Mullenix create clearly established law making


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                                No. 16-60561
Logan’s actions in this case unconstitutional; not one of them involves an
officer who was indisputably in the path of a vehicle at the time he fired his
weapon.
      In sum, even assuming the facts in a light most favorable to Plaintiff, I
conclude that, from the perspective of what Logan knew and could have
reasonably believed, he used reasonable force. At the very least, Logan is
entitled to qualified immunity because no clearly established law notified him
that his actions violated the Constitution. Accordingly, I respectfully dissent
from the portion of the judgment denying qualified immunity and remanding
the case as to him.




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