Vann v. City of Southaven

• Decision Date: 05 March 2018
• Docket Number: No. 16-60561,16-60561
• Citation: Vann v. City of Southaven, 884 F.3d 307 (5th Cir. 2018)
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

884 F.3d 307

Rogers VANN, as Personal Representative and on Behalf of the Wrongful DeathBeneficiaries 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.

No. 16-60561

United States Court of Appeals, Fifth Circuit.

FILED March 5, 2018

Daniel Marten Czamanske, Jr., Chapman, Lewis & Swan, Clarksdale, MS, for Plaintiff–Appellant.

Robert Edwin Hayes, Jr., Esq., Wayne Douglas Hollowell, III, Hayes Law Firm, P.L.L.C., Southaven, MS, Michael James Bentley, Esq., Bradley Arant Boult Cummings, L.L.P., Jackson, MS, Nicholas H. Manley, Butler Snow, L.L.P., Memphis, TN, for Defendant–Appellee City of Southaven, Mississippi.

Robert Edwin Hayes, Jr., Esq., Wayne Douglas Hollowell, III, Hayes Law Firm, P.L.L.C., Southaven, MS, Michael James Bentley, Esq., Bradley Arant Boult Cummings, L.L.P., Jackson, MS, for Defendants–AppelleesLieutenant 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.

Norman Ray Giles, William S. Helfand, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Houston, TX, for Amicus Curiae National Association of Police Organizations, Texas Municipal League, Louisiana Municipal Association, Texas City Attorneys' Association.

Luther T. Munford, Margaret Zimmerman Smith, Butler Snow, L.L.P., Ridgeland, MS, Norman Ray Giles, William S. Helfand, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Houston, TX, for Amici Curiae Mississippi Municipal League, Incorporated.

Before SMITH, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

Treating the petition for rehearingen banc as a petition for panel rehearing, the petition for panel rehearing is GRANTED.The panel opinion, Vann v. City of Southaven , 876 F.3d 133(5th Cir.2017), is WITHDRAWN, and the following is substituted:

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.During the encounter, Vann was shot by two officers, Sergeant Jeff Logan and Lieutenant Jordan Jones.Plaintiff sued the officers involved 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.¹The district court granted the officers’ and the City’s summary-judgment motion.

"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 v. Rogers , 853 F.3d 738, 743(5th Cir.2017)(quotingGriggs 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.(quotingGriggs , 841 F.3d at 311–12 );see alsoMcClendon 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(quotingGriggs , 841 F.3d at 312 );see alsoTolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895(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...