Joseph v. Bartlett

• Decision Date: 20 November 2020
• Docket Number: No. 19-30014,19-30014
• Citation: 981 F.3d 319
• Parties: Katie JOSEPH, ON BEHALF OF The ESTATE OF Kendole JOSEPH, Deceased; Sheresa Jackson, on behalf of her minor children, K.B.J. and K.A.J., Plaintiffs—Appellees, v. Damond BARTLETT, Officer; Eddie Martin, Officer; Arthur Morvant, Officer; Thomas Thompson, Officer; Brandon Leduff, Officer; Duston Costa, Officer; Shannon Dugas, Officer; Julius Rolland, Officer; Steven Verrett, Officer; Robert Faison, Officer, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

981 F.3d 319

Katie JOSEPH, ON BEHALF OF The ESTATE OF Kendole JOSEPH, Deceased; Sheresa Jackson, on behalf of her minor children, K.B.J. and K.A.J., Plaintiffs—Appellees,

v.Damond BARTLETT, Officer; Eddie Martin, Officer; Arthur Morvant, Officer; Thomas Thompson, Officer; Brandon Leduff, Officer; Duston Costa, Officer; Shannon Dugas, Officer; Julius Rolland, Officer; Steven Verrett, Officer; Robert Faison, Officer, Defendants—Appellants.

No. 19-30014

United States Court of Appeals, Fifth Circuit.

Filed November 20, 2020

Jared Kosoglad, Chicago, IL, Dylan Torvald Leach, Smith & Fawer, L.L.C., New Orleans, LA, for Plaintiffs-Appellees

Leonard L. Levenson, Christian Wayne Helmke, Esq., Leonard L. Levenson & Associates, New Orleans, LA, for Defendants-Appellants

Before Elrod, Willett, and Oldham, Circuit Judges.

Don R. Willett, Circuit Judge:

"What is the virtue of a proportional response?" an exasperated President Bartlet demands in a memorable scene from the first season of The West Wing.¹ Anything more, the Chairman of the Joint Chiefs of Staff coolly advises, would be a "staggering overreaction ... you'll have doled out a $5,000 punishment for a fifty-buck crime."²

For those in positions of public trust—from Commanders in Chief (who must "take Care that the Laws be faithfully executed"³ ) to City of Gretna Police Officers (who "vow to protect life and property while safe guarding constitutional guarantees"⁴ )—proportional responses are good policy. We expect those charged with executing and enforcing our laws to take measured actions that ascend in severity only as circumstances require. A disproportionate response is unreasonable. And if it describes physical force inflicted by a police officer, it is unconstitutional.

That's the issue here: Did Gretna police officers respond "with measured and ascending actions that corresponded to" Kendole Joseph's behavior?⁵ The Plaintiffs, Joseph's family, maintain that Joseph did not resist arrest, yet Officers Martin and Costa repeatedly tased and struck him, and nine other officers—Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett—did nothing to stop the abuse. The officers tell another story.

We must view the facts in the light most favorable to the nonmovants (here, Plaintiffs). Having done so, and based on the constitutional standard and the clearly established law, we conclude that Officers Martin and Costa are not entitled to summary judgment. But on this record, the nine "bystander officers" are, given Plaintiffs’ failure to make any arguments, and identify any cases, regarding clearly established law.

I

A

We begin with a 10,000-foot overview of the uncontroversial facts. A middle-school official saw Joseph near the school acting "strange" and asked school resource officers to check him out. When the school resource officers approached, Joseph ran into a nearby convenience store and jumped behind the checkout counter. The school resource officers followed and made radio calls, stating they were pursuing a "suspicious person." Twelve other officers joined them. About eight minutes after Joseph entered the store, the officers apprehended him and carried him to a police car, after which he became unresponsive and was taken to the hospital, where he died two days later.

The parties dispute what Joseph did and said during the eight-minute encounter in the store and what the officers saw, heard, and knew.

The evidence from surveillance video establishes when each officer entered the store and, to some degree, each officer's location and conduct in the store.⁶ For the most part, Joseph cannot be seen in the video.

B

We now proceed through the facts in detail, including the disputed facts, considering each officer's actions independently.⁷ We draw these facts from the record, prioritizing the video evidence.⁸ We view the facts and draw reasonable inferences in the light most favorable to Plaintiffs.⁹ "In qualified immunity cases," which often involve competing versions of events, we take "the plaintiff's version of the facts," unless that version "is blatantly contradicted by the record, so that no reasonable jury could believe it."¹⁰

We begin with the events occurring before Joseph jumped behind the convenience-store counter. Around lunchtime on February 7, 2017, the assistant principal of Gretna Middle School noticed a "strange guy" standing outside the gate of the school and contacted Officer Thompson, a Gretna police officer assigned as the school resource officer. The "strange guy" was later identified as Kendole Joseph, a man with paranoid schizophrenia who had not taken his medication. The assistant principal described Joseph as "nervous and shaky" and reported that he "was staring," "not walking straight but rather weaving," talking to himself, saying "stuff she couldn't make out," shaking his leg, and biting his nails.

She asked Officer Thompson and Officer Morvant, another school resource officer, to check Joseph out. Officer Morvant approached Joseph and heard him yelling, "Help me from the police." Before Officer Morvant said anything, Joseph began running away from the school and pulling on the locked door handles of nearby cars, pleading for "help [ ] from the police." Officer Morvant found this behavior "odd" and "erratic" and knew that Joseph was possibly "emotionally disturbed." He radioed other officers in the area to report "a suspicious person who was fleeing."

Officers Martin and Leduff heard this radio transmission and spotted Joseph near a convenience store. They parked their marked police car, exited, and gave loud verbal commands for Joseph to come to them. Despite these commands, Joseph entered the store, and the officers followed him.¹¹ Officer Martin saw no weapon in Joseph's hands or any indication that he had one in his waistband, nor did he make any threatening moves like he was reaching for a weapon.

As Officer Martin entered the store, he trained his gun on Joseph, who was shouting, "Help me, help me somebody call the cops .... They're trying to kill me." When Officer Martin instructed Joseph to get on the ground, Joseph jumped over the checkout counter.¹²

The convenience-store manager, who was behind the counter at the time, testified that Joseph looked scared and immediately "went face down." Once on the ground, Joseph covered his face with his hands and assumed the fetal position. Seconds later, Officers Martin and Leduff followed Joseph over the counter. Officer Martin, weighing 300 pounds, immediately placed his full weight onto Joseph, who was still lying on the floor with his legs bent toward his chest. Officer Leduff began holding Joseph's upper body down. Officer Morvant entered the store next, briefly stopped to look over the counter, then walked behind the counter and began holding Joseph's lower body down. Officer Thompson then entered, followed by Officer Dugas, and both observed Joseph and the officers from the front side of the counter. At that point, approximately thirty seconds after Officer Martin jumped over the counter, he ordered Joseph to put his hands behind his back and deployed his taser for eleven seconds. Meanwhile, Officers Thompson and Dugas walked around the counter and continued observing from behind the counter. Officer Dugas handed a baton to Officer Martin, who jabbed it downward, striking Joseph at least twice with the pointed end.

A few seconds later, Officers Varisco, Costa, and Rolland entered the store, followed shortly by Officer Faison. Officers Varisco and Faison observed from the front side of the counter, and Officers Costa and Rolland walked behind the counter. Officer Varisco reached over to offer his taser to the officers behind the counter. Officer Costa briefly observed from behind the counter, then entered the scrum, holding Joseph's lower body down. At that point, Officer Morvant left the scrum and made his way to the front side of the counter, where he continued to observe. Officer Rolland continued to observe from behind the counter.

Officer Verrett then entered the store. Two seconds later, Officer Martin deployed his taser again, for three seconds. A few seconds later, Officer Bartlett entered the store and began to observe from the front side of the counter. Officers Faison and Verrett walked behind the counter and observed from there.

Officers Martin, Thompson, Dugas, and Costa began attempting to drag Joseph from the narrower area behind the counter to the wider area, on the path to the door.

Officer Costa then kicked Joseph twelve to thirteen times while holding onto the counter. During this time, Officer Verrett entered the scrum. Officer Martin then punched Joseph in the head three times. Officers Martin, Thompson, Dugas, Costa, Faison, and Verrett resumed their efforts to drag Joseph toward the wider area, while Officer Leduff observed. Once in the wider area, Officer Martin punched Joseph in the face three times. Officer Bartlett then jumped over the counter and began holding Joseph down. Seconds later, Officer Costa punched Joseph in the head six times.

Three-and-a-half minutes after Officer Costa's last strike, Officers Martin, Costa, and Verrett placed Joseph in handcuffs and leg shackles. Officers Martin, Verrett, Rolland, and Varisco carried him, face down, to Officer Martin's patrol car. There, all officers except Officer Thompson placed Joseph feet-first in the car and pulled him "across the seat from the other side, bent his legs up, and shut the doors with [Joseph] in a prone position on the seat facedown." Joseph became unresponsive, at which point medical personnel, who had arrived on the scene before Joseph was carried out of the store, examined him for the first time. They performed CPR and took Joseph to the hospital, where he died from his injuries two days later.

In total, Joseph endured twenty-six blunt-force injuries to his face, chest, back, extremities, scrotum, and testes. Throughout the eight-minute encounter, Joseph was on the...