Shepherd v. City Of Shreveport

• Decision Date: 03 April 2019
• Docket Number: No. 18-30528,18-30528
• Parties: Marjorie SHEPHERD, ON BEHALF OF ESTATE OF John SHEPHERD, Plaintiff – Appellant, v. CITY OF SHREVEPORT; Phillip Tucker, Defendants – Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

920 F.3d 278

Marjorie SHEPHERD, ON BEHALF OF ESTATE OF John SHEPHERD, Plaintiff – Appellant,

v.CITY OF SHREVEPORT; Phillip Tucker, Defendants – Appellees.

No. 18-30528

United States Court of Appeals, Fifth Circuit.

FILED April 3, 2019

Nelson Welch Cameron, Shreveport, LA, for Plaintiff-Appellant.

Edwin H. Byrd, III, Zachary Alexander Wilkes, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Defendants-Appellees.

Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This lawsuit arises from the death of William Shepherd, who was shot and killed by Corporal Tucker of the Shreveport Police Department in October 2013. Mr. Shepherd’s mother brought excessive force claims against the officer and the city. The district court granted summary judgment for the defendants. We AFFIRM.

I.

On October 15, 2013, Corporal Tucker was dispatched to Mr. Shepherd’s home to assist the Shreveport Fire Department with a 911 call. Corporal Tucker was informed by dispatch that there was a potentially violent male who had possibly suffered a stroke and who the female caller feared might hurt her. While Corporal Tucker was en route, firefighters entered Mr. Shepherd’s home, encountered Mr. Shepherd with a knife in his hand, and fled the home. Mr. Shepherd followed them out into the yard but stopped at the sidewalk. The knife was later determined to be eight inches long with a four-inch blade. Dispatch updated Corporal Tucker that the subject was armed with a knife and directed that he expedite. During this time, a neighbor called 911 to erroneously report that shots had been fired, and dispatch then notified Corporal Tucker that there were reports of shots fired in the area.

Shortly after receiving the report of possible shots fired, Corporal Tucker arrived at Mr. Shepherd’s home. He was the first police officer at the scene and the dash-mounted camera in his patrol car captured much of what followed in the next two minutes. Corporal Tucker retrieved his shotgun and approached the firetruck around which the firefighters had gathered. At that time, Mr. Shepherd was standing in the yard with a knife in his hand, positioned between the firetruck and the house. The firefighters identified Mr. Shepherd as the person with a knife and informed Corporal Tucker there was at least one person—the female caller—inside the home.

Corporal Tucker made multiple commands for Mr. Shepherd to "get down" and "lay down." Mr. Shepherd did not comply with those commands. During the entire encounter, Mr. Shepherd did not directly engage in dialogue with Corporal Tucker, but he cursed aloud at multiple times, stating "f--k you." After approximately thirty seconds of ignoring commands to get down in the yard, Mr. Shepherd began moving back towards the residence—where the female caller was believed to be—and Corporal Tucker commanded him to "come to me now." That was the only time during the encounter that Corporal Tucker directed Mr. Shepherd to move towards him. Mr. Shepherd did not comply with that command and walked into the residence’s garage.

Mr. Shepherd was in the garage for approximately a minute. During that time, Corporal Tucker proceeded partially up the driveway to keep a visual on Mr. Shepherd and gave him multiple commands to put his hands up. Mr. Shepherd disregarded those commands as well. Mr. Shepherd then exited the garage and began moving down the inclined driveway towards Corporal Tucker. At approximately 19:53:45 on the videotape captured by the patrol car’s dash-mounted camera, Corporal Tucker can be seen backing down the driveway’s incline. At approximately 19:53:49, Mr. Shepherd comes into the videoframe and can be seen moving down the driveway towards Corporal Tucker. At the same time, Corporal Tucker can be heard commanding Mr. Shepherd to "get back." However, Mr. Shepherd continued to move towards Corporal Tucker at a relatively quick speed, while Corporal Tucker continued to move backwards.

The parties dispute whether Mr. Shepherd had the knife raised over his head or at his side at this point. The parties also dispute whether Mr. Shepherd was accelerating or "stumbling" toward Corporal Tucker. On appeal, the appellant also alleges that there is a dispute over whether Mr. Shepherd and Corporal Tucker were ten feet or ten yards apart. But what is undisputed is that Mr. Shepherd continued to move towards Corporal Tucker with a knife in his hand, disregarded a command to get back, and Corporal Tucker shot him once with his shotgun at approximately 19:53:51 on the videotape. Mr. Shepherd died from the injury. He was fifty years old at the time.

Marjorie Shepherd, Mr. Shepherd’s mother and the appellant in this case, subsequently filed a lawsuit in federal court against Corporal Tucker and the City of Shreveport, bringing excessive force claims under both 42 U.S.C. § 1983 and Louisiana state tort law. The district court had federal question jurisdiction over the Section 1983 claims, see 28 U.S.C. § 1331, and supplemental jurisdiction over the related state law tort claims, see 28 U.S.C. § 1367. The defendants eventually moved for summary judgment. Ms. Shepherd filed a response brief in opposition. Two weeks later, after the defendants had filed their reply to Ms. Shepherd’s response brief, Ms. Shepherd moved for leave to supplement her response brief. The district court denied Ms. Shepherd’s motion to supplement, as well as her subsequent motion to reconsider that denial.

The district court granted summary judgment for the defendants and dismissed all of Ms. Shepherd’s claims with prejudice. As to the Section 1983 claim against Corporal Tucker, the district court held that "[u]nder the totality of the circumstances and irrespective of whether the knife was over Shepherd’s head or by his side, ... Cpl. Tucker reasonably believed that Shepherd posed a threat of serious harm[.]" As such, the district court held that Corporal Tucker’s use of force was not excessive under the Fourth Amendment. In the alternative, the district court held that even if his force was excessive, Corporal Tucker was entitled to qualified immunity because his actions were not objectively unreasonable in light of clearly established law. For the Section 1983 claim against the City of Shreveport, the district court held the claim failed because there was no underlying constitutional violation. And for the state law claims, the district court held that the analysis for Louisiana excessive force claims mirrors the analysis for Fourth Amendment excessive force claims and dismissed for the same reasons.

Ms. Shepherd filed a timely notice of appeal, and this court has jurisdiction under 28 U.S.C. § 1291. On appeal, Ms. Shepherd argues that the district court erred by: (1) holding that Corporal Tucker’s use of force was not excessive under the Fourth Amendment; (2) holding, in the alternative, that Corporal Tucker was entitled to qualified immunity; (3) holding that the defendants were not liable under Louisiana tort law, and (4) denying her motion to supplement her brief in opposition to summary judgment.

II.

"We review a district court’s grant of summary judgment de novo, applying the same standards as the district court." DeVoss v. Sw. Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018) (citation and quotation marks omitted). Summary judgment is appropriate only when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is not "material" unless its resolution would affect the outcome of the case. Hamilton v. Segue Software, Inc ., 232 F.3d 473, 477 (5th Cir. 2000). When reviewing summary judgment decisions, we generally construe all purported facts in the light most favorable to the non-movant. Carnaby v. City of Houston , 636 F.3d 183, 187 (5th Cir. 2011). However, when there is a videotape that discredits the non-movant’s description of facts, we will "consider ‘the facts in the light depicted by the videotape.’ " Id. (quoting Scott v. Harris , 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).

We review a district court’s determination of state law de novo. Salve Regina Coll. v. Russell , 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

We review a district court’s denial of a motion to amend or supplement pretrial materials, such as briefs in opposition to summary judgment, for abuse of discretion. See Reliance Ins. Co. v. La. Land & Expl. Co. , 110 F.3d 253, 257 (5th Cir. 1997) ; Barker v. Norman , 651 F.2d 1107, 1128–29 (5th Cir. 1981).

III.

A.

First, we address the Section 1983 excessive force claim against Corporal Tucker. To prevail on a Section 1983 excessive force claim, "a plaintiff 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." Harris v. Serpas , 745 F.3d 767, 772 (5th Cir. 2014) (quoting Ramirez v. Knoulton , 542 F.3d 124, 128 (5th Cir. 2008) ); see also Graham v. Connor , 490 U.S. 386, 393–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In this circuit, "the 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. Therefore, any of the officers’ actions leading up to the shooting are not relevant[.]" Harris , 745 F.3d at 772 (internal quotation marks, citation, and alterations omitted). "Use 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 v. City of Palestine , 333 F.3d 621, 624 (5th Cir. 2003).

Ms. Shepherd argues that the district court erred in determining that there was no genuine dispute as to whether Corporal Tucker’s use of force was unreasonably excessive. She argues that genuine disputes of material facts exist as to: (1) the...