Brown et al v. Kenner Police Department et al, No. 2:2017cv03445 - Document 77 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 35 Motion for Summary Judgment on all claims. Signed by Judge Sarah S. Vance on 10/22/2018. (cg)
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Brown et al v. Kenner Police Department et al Doc. 77 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ARMOND BROWN, ET AL. VERSUS CIVIL ACTION NO. 17-3445 KENNER POLICE DEPARTMENT, ET AL. SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendants’ m otion for sum m ary judgm ent on the grounds that (1) defendant Officer Michael Rom ano is entitled to qualified im m unity, and (2) plaintiffs have failed to state a claim against defendant City of Kenner under Monell v. City of N ew York Departm ent of Social Services, 436 U.S. 658 (1978). 1 The undisputed evidence before the Court establishes that Officer Rom ano’s use of deadly force was not clearly unreasonable. He therefore did not violate the constitutional rights of Arm ond J airon Chauncey Brown (J airon Brown), and is entitled to qualified im m unity. And in the absence of a constitutional violation there can be no m unicipal liability under Monell. The Court therefore grants defendants’ m otion. 1 R. Doc. 35. Dockets.Justia.com I. BACKGROU N D This case arises out of the death of J airon Brown. 2 Brown, who was diagnosed with schizophrenia and bipolar disorder, was shot and killed by Officer Romano of the Kenner Police Department in the front yard of his hom e. 3 The m aterial facts are as follows. On the m orning of J anuary 23, 20 17, at 11:0 2 a.m ., the Kenner Police Department received a call from J oshua Brown, J airon Brown’s halfbrother. 4 J oshua told the dispatcher that his half-brother was “swinging a knife” at him when J oshua tried to enter the house in which the brothers resided. 5 J oshua later testified that when he arrived hom e, J airon went to the kitchen, retrieved a knife, and started “showing” the knife to him . 6 The brothers’ father, Arm ond Brown, Sr., who lived in the sam e house, testified that when J oshua cam e hom e, J airon “had a knife in his hand[] and told J oshua to roll out.”7 At least two Kenner police officers arrived at the scene, spoke with J oshua, and then approached the front door of the residence to attem pt to 2 3 4 5 6 7 R. Doc. 13. Id. at 6 ¶ 13; R. Doc. 50 -2 at 5-6. R. Doc. 35-4 at 2; R. Doc. 51-3. R. Doc. 51-3. R. Doc. 50 -2 at 40 -41. R. Doc. 50 -3 at 49. 2 m ake contact with J airon. 8 When these attempts were unsuccessful, the police officers told J oshua that in order to get help for his brother, he had to obtain an order for protective custody from the J efferson Parish coroner. 9 J oshua left the residence with an officer to sign the necessary paperwork, 10 and the coroner’s office issued the order for protective custody shortly before 1:30 p.m. 11 The order authorized the police officers to rem ove Brown from his home and take him to Oschsner Hospital in Kenner for an im mediate psychiatric exam ination. 12 More police officers had arrived at the scene by the time the order was form ally issued. 13 The officers established a secure perimeter around the house and an outer perim eter on the street to control traffic and bystanders. 14 Officer Ronnie Barger, the Kenner SWAT team negotiator, first attem pted to contact Brown by telephone. 15 When that proved unsuccessful, Officer Barger used a bullhorn to attem pt contact. 16 Officer Barger asked 8 9 10 11 12 13 14 15 16 R. Doc. 35-2 at 2; R. Doc. 50 -2 at 45. R. Doc. 35-2 at 3; R. Doc. 50 -2 at 46. Id. R. Doc. 35-2 at 3; R. Doc. 50 at 4. R. Doc. 35-5 at 5. R. Doc. 35-2 at 3; R. Doc. 50 -2 at 49-50 . R. Doc. 50 at 4. R. Doc. 35-2 at 4. Id.; R. Doc. 50 -2 at 50 . 3 Brown to leave the residence and told him that the police wanted to help him . 17 Mem bers of the Kenner SWAT team then attem pted to breach the front door of the house in order to m ake visual contact with Brown. 18 When the officers opened the front door, they observed Brown standing near the door with two knives in his hands and in a “squatted” or “defensive” stance. 19 Som e of the officers described Brown as having a “thousand-yard” or “blank” stare on his face. 20 The officers instructed Brown to drop his knives, but he did not com ply. 21 The officers then fired sponge rounds and a Taser at Brown. 22 The sponge rounds hit Brown in the thigh area but did not incapacitate him . 23 The Taser fire directly hit him , but it likewise had little effect. 24 17 R. Doc. 35-2 at 4; R. Doc. 50 -2 at 50 . R. Doc. 35-2 at 5; R. Doc. 50 -2 at 50 -51. 19 R. Doc. 35-12 at 2 (Officer Brent Donovan testifying that he observed Brown with two knives in his hands “in a squatted position, like alm ost like a karate fighting style”); R. Doc. 50 -6 at 40 -41 (Officer Christopher Mitchell testifying that he observed Brown holding the two knives “in a defensive stance, defensive posture”). 20 See R. Doc. 50 at 9. 21 R. Doc. 35-12 at 2. 22 R. Doc. 50 -2 at 52-54; R. Doc. 35-2 at 5. 23 Id.; R. Doc. 50 -6 at 42-43. 24 R. Doc. 50 -2 at 53; R. Doc. 50 -6 at 44-45. 4 18 After these attempts to incapacitate Brown, the Kenner Police Department fired tear gas into the house. 25 Brown exited the front door of the house shortly after the officers deployed the tear gas. 26 He was holding both knives and wiping his eyes with his sleeves. 27 A brick wall lines m uch of the Browns’ front yard. 28 A footpath extends from the Browns’ front door to a pedestrian gate that opens to the sidewalk. 29 Officers Rom ano and Brent Donovan were inside the brick wall in the front yard when Brown em erged from the house. 30 Both officers were to Brown’s right and arm ed with rifles containing live amm unition. 31 Officers Lewis Tusa and J ohn Cusim ano positioned them selves inside the gateway at the end of the footpath, not protected by the brick wall. 32 Neither officer was arm ed with lethal am m unition—Officer Tusa had a Taser gun, and Officer Cusim ano had sponge rounds. 33 There is inconsistent testim ony regarding whether the pedestrian gate was closed in front of Officers Tusa and Cusim ano when 25 26 27 28 29 30 31 32 33 R. Doc. 35-2 at 5; R. Doc. 50 at 4. R. Doc. 35-2 at 6; R. Doc. 50 -2 at 56-57. Id. R. Doc. 50 -12 at 6 (aerial photograph of the Browns’ residence). Id. R. Doc. 50 -15 at 45-46. R. Doc. 35-2 at 6; R. Doc. 50 -15 at 42. R. Doc. 35-2 at 6-7. Id. 5 Brown emerged from the house. 34 There is also inconsistent testim ony regarding whether, if closed and separating the officers from Brown, the pedestrian gate was locked so that Brown would have been unable to open it to attack the officers. 35 Brown, armed with both knives, began to walk down the footpath toward Officers Tusa and Cusim ano, yelling bible verses. 36 Officers Donovan and Rom ano walked parallel to Brown alongside the brick wall to Brown’s right. 37 The Kenner police officers repeatedly ordered Brown to drop his knives, but he refused. 38 Brown stopped when he was about halfway between the front door and Officers Tusa and Cusim ano. 39 34 The police officers R. Doc. 50 -14 at 33-34 (Officer Cusimano testifying that the gate was open, and that he was positioned in the gateway); R. Doc. 50 -11 at 50 , 61-65 (Officer Rom ano testifying that the gate stood in between Officers Cusimano and Tusa and Brown, but the gate would not lock and would “sway back and forth”); R. Doc. 50 -15 at 81 (Officer Donovan stating in his post-incident interview that the officers were “behind cover”); R. Doc. 50 -17 at 41 (Officer Tusa stating in his post-incident interview that Officer Cusim ano had “his foot in between the bars” of the pedestrian gate to “keep it shut” as Brown approached). 35 R. Doc. 50 -11 at 61-62 (Officer Rom ano testifying that the gate was not locked and “could have easily been pushed open”); R. Doc. 50 -12 at 3 (Arm ond Brown, Sr. stating in an affidavit that when the gate is closed, it “locks so that it cannot be pushed open”). 36 R. Doc. 35-2 at 6; R. Doc. 50 -2 at 57. 37 R. Doc. 35-2 at 6; R. Doc. 50 -15 at 46. 38 R. Doc. 35-2 at 6; R. Doc. 50 -2 at 56-57. 39 R. Doc. 50 at 10 ; R. Doc. 50 -15 at 46. 6 continued to give him verbal com m ands to drop the knives. 40 A short tim e later, Brown continued down the footpath. 41 When he got closer to them , Officers Tusa and Cusim ano each fired their non-lethal am m unition. 42 Shortly after they fired, Officer Rom ano fired m ultiple lethal rounds, killing Brown. 43 Officer Rom ano testified that when he fired his weapon, Brown’s arm s were “near his side with his hands out front,” and both knives were “vertical in the air.”44 Officer Rom ano further stated that Brown was not attem pting to strike Officer Tusa or Cusim ano when he fired. 45 Officer Donovan testified that Brown was “within an arm ’s reach” of the pedestrian gate when Officer Rom ano fired. 46 J oshua Brown testified that at the tim e his brother was shot he was about seven or eight feet from the front gate where Officers Tusa and Cusim ano stood. 47 Cynthia Morell, a neighbor who witnessed the incident, stated in a sworn affidavit that Brown was “about ten feet from the front gate.”48 40 41 42 43 44 45 46 47 48 R. Doc. 50 -15 at 48; R. Doc. 50 -2 at 56-57. R. Doc. 50 at 10 ; R. Doc. 50 -11 at 47. R. Doc. 35-2 at 6-7; R. Doc. 50 at 21 n.45. R. Doc. 35-2 at 6-7; R. Doc. 50 -2 at 57-58. R. Doc. 50 -11 at 59. Id. at 60 . R. Doc. 50 -15 at 59. R. Doc. 50 -2 at 58. R. Doc. 50 -7 at 4. 7 Photographs taken by the Kenner Crim e Scene Technician show that one of Brown’s knives was a stainless steel serrated kitchen knife with a seven-inch blade. 49 The other knife was a stainless steel kitchen knife with a five-inch blade. 50 J airon Brown’s parents, Arm ond Brown, Sr. and J aronet Whitaker, and brothers, J oshua Brown and J ames Whitaker, J r., filed a com plaint for dam ages, asserting state law claim s for wrongful death, survival, and intentional infliction of em otional distress, and federal civil rights claim s under 42 U.S.C. § 1983, against Officer Rom ano and the City of Kenner, through Mayor E. “Ben” Zahn, III. 51 Plaintiffs assert that Brown was wrongfully shot and killed without just cause. 52 Plaintiffs further allege that the City of Kenner adopted policies and practices that deprived Brown of his civil rights. 53 On J une 5, 20 18, defendants m oved for sum mary judgment. 54 49 R. Doc. 35-19; R. Doc. 35-24; R. Doc. 35-25. Id. 51 R. Doc. 1; R. Doc. 13; R. Doc. 28. The original com plaint nam ed the Kenner Police Departm ent as a defendant. See R. Doc. 1 at 2 ¶ 6. But the Kenner Police Departm ent was om itted in plaintiffs’ amended complaint, and is no longer a defendant in this m atter. See R. Doc. 13 at 3 ¶ 6. Plaintiffs had also included Kenner Police Departm ent Chief Michael Glaser as a nam ed defendant, but the Court has since dism issed all claim s against Chief Glaser. Id. ¶ 7; R. Doc. 31 at 12-13. 52 R. Doc. 13 at 8 ¶ 18. 53 Id. at 4-5 ¶¶ 10 -11. 54 R. Doc. 35. 8 50 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonm oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went 9 uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal citation om itted). The nonm oving party can then defeat the motion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or by “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). 10 III. D ISCU SSION A. Exce s s ive Fo rce Claim s As a public official, Officer Rom ano is entitled to qualified im m unity on plaintiffs’ Section 1983 excessive force claim unless his conduct “violate[d] a clearly established constitutional right.” Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 20 14); see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (20 18). Courts apply a two-step analysis to determ ine whether a defendant is entitled to sum mary judgm ent on the basis of qualified im m unity. Harris, 745 F.3d at 772. Under this analysis, officers are entitled to qualified im m unity unless “(1) [plaintiffs] have adduced sufficient evidence to raise a genuine issue of material fact suggesting their conduct violated an actual constitutional right, and (2) the officers’ actions were objectively unreasonable in light of clearly established law at the tim e of the conduct in question.” N ew m an v. Guedry , 70 3 F.3d 757, 761 (5th Cir. 20 12) (internal quotation om itted); see also Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982). Thus, even if the evidence supports a conclusion that plaintiffs’ rights were violated, qualified im m unity m ay still be invoked unless “the governm ent official violated clearly established statutory or constitutional rights of which a reasonable person would have known.” Manis v. Law son, 585 F.3d 839, 845 (5th Cir. 20 0 9). This two-prong approach ensures that “[q]ualified 11 im m unity shields from civil liability all but the plainly incom petent or those who knowingly violate the law.” Id. (internal quotations om itted). “Although qualified im m unity is nom inally an affirm ative defense, the plaintiff bears a heightened burden to negate the defense once properly raised.” N ew m an, 70 3 F.3d at 762. The Court need not apply these two prongs sequentially. See Pearson v. Callahan, 555 U.S. 223, 242 (20 0 9). Plaintiffs allege that Officer Rom ano killed J airon Brown without legal justification and in violation of his constitutional rights. 55 This excessive force claim im plicates Brown’s Fourth Am endment right to be free from unreasonable seizures. See Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). In order to show that a police officer’s use of force violated Brown’s Fourth Am endment rights (i.e., the first prong of the qualified im m unity analysis), “plaintiff[s] m ust establish: ‘(1) [an] 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.’” Freem an v. Gore, 483 F.3d 40 4, 416 (5th Cir. 20 0 7) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 20 0 5)). Claim s of excessive force are fact intensive and depend on “the facts and circum stances of each particular case.” Graham v. Connor, 490 U.S. 386, 396 (1989). The Suprem e Court has directed lower courts to 55 R. Doc. 13 at 3 ¶ 7. 12 consider three factors in this inquiry: (1) the severity of the crim e at issue; (2) whether the suspect poses an im m ediate threat to the safety of officers or others; and (3) whether the suspect is actively resisting arrest by flight. Id. The second factor is the only one relevant to this case. “The ‘reasonableness’ of a particular use of force m ust be judged from the perspective of a reasonable officer on the scene, rather than with the 20 / 20 vision of hindsight.” Id. This is an objective standard: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circum stances confronting them , without regard to their underlying intent or m otivation.” Id. at 397; see also Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (court must determ ine whether “the totality of the circumstances justified” the particular use of force). This test “allow[s] for the fact that police officers are often forced to m ake split-second judgm ents—in circum stances that are tense, uncertain, and rapidly evolving—about the am ount of force that is necessary in a particular situation.” Graham , 490 U.S. at 397. A clearly established right (i.e., the second prong of the qualified im m unity analysis) “is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 30 5, 30 8 (20 15). For plaintiffs to prevail against 13 sum m ary judgm ent on the second prong, “they m ust show a genuine dispute of m aterial fact on whether ‘every reasonable official would have understood’ the use of deadly force was objectively unreasonable under the circum stances and clearly-established law.” Clay ton v. Colum bia Cas. Co., 547 F. App’x 645, 653 (5th Cir. 20 13) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (20 11)). This analysis does not “require a case directly on point” prohibiting the official’s actions, “but existing precedent m ust have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S. Ct. at 30 8. The Court m ust not “define clearly established law at a high level of generality,” but rather m ust ask “whether the violative nature of particular conduct is clearly established.” Id. (emphasis in original). The inquiry therefore “m ust be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. Viewing the summ ary judgment evidence in the light m ost favorable to plaintiffs leads to the following picture of the incident. Officer Rom ano arrived at the scene after being notified that Brown had barricaded him self in his hom e, that Brown was arm ed with two knives, and that Brown was reportedly schizophrenic. 56 Officer Rom ano was aware that Kenner police officers had fired non-lethal m unitions at Brown, but that those m unitions 56 R. Doc. 50 -11 at 23-24. 14 failed to incapacitate him . 57 Officer Rom ano then observed Brown, still arm ed with two knives, leave his residence and haltingly walk down the footpath towards Officers Tusa and Cusim ano after the Kenner police department deployed tear gas into his hom e. 58 When Officer Rom ano fired his weapon, Brown was ten feet from Officers Tusa and Cusim ano and advancing, arm ed with two knives, and refusing to com ply with the officers’ repeated com mands to drop his weapons. 59 Again viewing the evidence in the light m ost favorable to plaintiffs, Officers Tusa and Cusim ano were positioned im m ediately behind a pedestrian gate that Officer Rom ano believed would swing open and not protect the officers. 60 Finally, Officer Rom ano testified—and plaintiffs have not clearly refuted with contrary evidence—that Brown was holding the knives in front of his body with the blades extended vertically. 61 The Court finds that under these circum stances, Officer Rom ano’s use of deadly force was not clearly unreasonable because he reasonably feared 57 Id. at 24; R. Doc. 50 -2 at 52-53. R. Doc. 50 -11 at 42-43; R. Doc. 50 -2 at 56-58. 59 R. Doc. 50 -2 at 56-57 (J oshua Brown testifying that J airon refused to drop his two knives despite verbal comm ands to do so, and that J airon was walking down the footpath towards the police officers when he was shot); R. Doc. 50 -7 at 4 (the Browns’ neighbor stating in a sworn affidavit that Brown was “about 10 feet from the front gate” when he was shot). 60 R. Doc. 50 -17 at 41; R. Doc. 50 -11 at 61-62. 61 See R. Doc. 50 -11 at 59. 15 58 that Brown posed an im m ediate threat to the safety of Officers Tusa and Cusim ano. See Graham , 490 U.S. at 396. Officer Rom ano therefore did not violate Brown’s Fourth Am endm ent rights, and he is entitled to qualified im m unity under the first prong of the im m unity analysis. The Fifth Circuit has found that officers who employed deadly force under sim ilar circum stances did not violate the victim ’s Fourth Am endment rights. In Mace v. City of Palestine, officers arrived on the scene to find the subject, J acob Vincent Revill, inside a m obile hom e with the door open, yelling, and “brandishing an eighteen to twenty inch sword.” 333 F.3d 621, 622 (5th Cir. 20 13). The officers told Revill to drop the sword, but he did not com ply. Id. Revill exited the m obile hom e, and began m aking punching m otions with the sword. Id. at 623. When Revill was “between eight and ten feet” from the officers, he turned toward them and raised the sword. Id. One of the officers fired and struck Revill in the right arm. Id. Revill later died of his injuries. Id. The Fifth Circuit ruled that the officer did not violate Revill’s constitutional right to be free from excessive force because it was not “objectively unreasonable for an officer in that situation to believe that there was a serious danger to him self and the other officers present.” Id. at 625. In Elizondo v. Green, Officer W.M. Green was dispatched to the home of Ruddy Elizondo after being notified that Elizondo, a 17-year-old, was 16 suicidal and had stabbed him self. 671 F.3d 50 6, 50 8 (5th Cir. 20 12). Green was directed to Elizondo’s room, where he found the teen unhurt but holding a knife to his stom ach. Id. Green drew his weapon and instructed Elizondo to drop his knife. Id. Elizondo did not com ply and tried to close his bedroom door, but Green held the door open. Id. Elizondo eventually “m oved closer to Green and raised the knife in a threatening m otion.” Id. Green fired his weapon and struck Elizondo three times, killing him. Id. The Fifth Circuit held that Green’s use of deadly force was not clearly unreasonable because Elizondo “ignored repeated instructions to put down” his weapon, and when Green fired his weapon Elizondo “was hostile, arm ed with a knife, in close proxim ity to Green, and m oving closer.” Id. at 510 . Finally, in Harris v. Serpas, New Orleans police officers arrived at Brian Harris’s home after being notified that Harris m ay have overdosed on sleeping pills. 745 F.3d at 770 . The officers entered Harris’s bedroom, where they found him lying on his back in his bed under a blanket. Id. The officers rem oved the blanket and saw that Harris was holding a folding knife. Id. The officers gave Harris verbal com m ands to drop the knife, but he refused. Id. The officers fired a Taser at Harris, but the Taser failed to incapacitate him . Id. Harris then stood up out of his bed and began flailing his arm s. Id. He continued to refuse to com ply with the officers’ demands to drop the 17 weapon, and then raised the knife above his right shoulder in a stabbing position. Id. One of the officers fired three bullets at Harris, killing him. Id. at 770 -71. The Fifth Circuit held that the officers were entitled to qualified im m unity because “they reasonably believed that the suspect posed a threat of serious harm to the officer or to others.” Id. at 773 (quoting Rockw ell v. Brow n, 664 F.3d 985, 991 (5th Cir. 20 11)). These cases establish that in this Circuit it is not unreasonable for an officer to fear for his safety or the safety of others when the subject (1) is wielding a knife in close proxim ity to the officer or others, (2) is advancing toward the officer or others, and (3) is refusing to com ply with com mands. This was precisely the situation Officer Rom ano faced. Indeed, Officers Tusa and Cusim ano both testified that they feared for their safety as Brown approached them . 62 And the undisputed fact that Officers Tusa and Cusim ano both fired their non-lethal weapons at Brown around the tim e that Officer Rom ano fired his weapon supports their testim onies. 63 Plaintiffs raise several points for why there is a genuine factual dispute as to whether Officer Rom ano’s use of deadly force was clearly unreasonable. First, plaintiffs invite the Court to take into account all of the Kenner Police 62 63 See R. Doc. 50 -14 at 55; R. Doc. 50 -17 at 31. R. Doc. 35-2 at 6-7; R. Doc. 50 at 21 n.45. 18 Department’s actions, including the “confrontational use of aggressive tactics and various non-lethal weapons” prior to Officer Rom ano’s use of deadly force, which plaintiffs allege “escalated the situation to the point where deadly force was m ore likely to be used.”64 But in this Circuit “the excessive force inquiry is confined to whether the officer or another person was in danger at the m om ent of the threat that resulted in the officer’s use of deadly force.” Rockw ell, 664 F.3d at 992-93 (quoting Bazan v. Hidalgo County , 246 F.3d 481, 493 (5th Cir. 20 11)) (em phasis in original); see also Harris, 745 F.3d at 772 (“[A]ny of the officers’ actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.”). Plaintiffs suggest that the Court should disregard the Fifth Circuit’s rule in light of Officer Rom ano’s testim ony that he took into account everything that had transpired during the course of the day when determ ining that Brown posed an imm ediate threat. 65 But plaintiffs are conflating two distinct standards courts use when analyzing excessive force claim s. While the Court cannot consider the police officers’ actions preceding the use of deadly force, the Court m ust “consider the totality of the circum stances as perceived by a reasonable officer” when determ ining 64 65 R. Doc. 50 at 15. See R. Doc. 50 -11 at 54. 19 whether the officer’s use of deadly force was unreasonable. Hatcher v. Bem ent, 676 F. App’x 238, 243 (5th Cir. 20 17) (citing Graham , 490 U.S. at 396). Officer Rom ano’s awareness of Brown’s m ental instability and noncom pliance with com m ands throughout the day is thus relevant to the Court’s analysis, but the Kenner police officers’ other actions preceding the use of deadly force are not. See Rockw ell, 664 F.3d at 992-93; Ram irez v. Knoulton, 542 F.3d 124, 131 (5th Cir. 20 0 8) (finding that an officer reasonably feared for his life when he was previously “on notice that [the victim ] was armed, em otionally unstable, and potentially suicidal”). Second, plaintiffs argue that there is a genuine and m aterial dispute as to whether Officers Tusa and Cusim ano were safely behind the pedestrian gate when Brown approached them. 66 Arm ond Brown, Sr. states in a sworn affidavit that when the pedestrian gate is closed, it “locks so that it cannot be pushed open.”67 Plaintiffs appear to conclude that when viewing this evidence in the light m ost favorable to them , Officers Tusa and Cusim ano were safely behind a locked gate when Brown approached, and that it was 66 R. Doc. 50 at 19-22; see also R. Doc. 50 -17 at 41 (Officer Tusa explaining in his post-incident interview that the gate was shut); R. Doc. 50 14 at 34 (Officer Cusim ano testifying that the gate was open). 67 R. Doc. 50 -12 at 3. 20 thus objectively unreasonable for Officer Rom ano to conclude that they were in im m ediate danger. But the Court m ust view the scene from Officer Rom ano’s perspective and ask whether it was unreasonable for him to believe that Officers Tusa and Cusim ano were in danger. Graham , 490 U.S. at 396. The m aterial inquiry is not whether the gate was in fact locked, but whether Officer Rom ano reasonably believed that the gate was not locked and did not provide the officers any protection. See Ontiveros v. City of Rosenberg, Texas, 564 F.3d 379, 381, 384 (5th Cir. 20 0 9) (officer entitled to qualified im m unity when he fired lethal shots at a victim he reasonably believed was reaching into his boot for a weapon, even though a subsequent search revealed there were no weapons); Reese v. Anderson, 926 F.2d 494, 50 0 -0 1 (5th Cir. 1991) (in a deadly force Section 1983 lawsuit, ruling it was “irrelevant” whether the victim was “actually unarm ed” when an officer reasonably believed the victim was reaching for a weapon). Officer Rom ano testified that when Brown advanced, Officers Tusa and Cusim ano “were on the sidewalk on the outside of the fence . . . in between the fence and the street,” but that he believed the gate did not provide them any protection because it “swayed both ways” and could not be locked. 68 Officer Rom ano held this belief 68 R. Doc. 50 -11 at 49-50 , 61-62. 21 because he had been standing near the gate earlier in the day and was notified by another officer that the gate did not lock. 69 Officer Rom ano thus had reason to believe that the pedestrian gate did not provide Officers Tusa and Cusim ano any protection. Finally, plaintiffs argue that by Officer Rom ano’s own adm ission, Brown did not raise the knives over his head or m ake any stabbing m otions or thrusts, which plaintiffs suggest m ade it unreasonable for Officer Rom ano to perceive Brown as an im m ediate threat. 70 The Court notes that unlike here, in Mace, Elizondo, and Harris the victim s raised their weapons in a threatening m anner before the officers fired. Mace, 333 F.3d at 623 (the victim “raised [his] sword toward the officers” imm ediately before the officer fired his weapon); Elizondo, 671 F.3d at 50 8 (Elizondo “m oved closer” to the officer and “raised [his] knife in a threatening m otion”); Harris, 745 F.3d at 770 (Harris “raised the knife above his right shoulder in a stabbing position”). Brown, by contrast, never raised his knives over his head or m ade an attem pt to strike Officer Tusa or Cusim ano; rather, he held the knives out in front of his body pointed vertically when Officer Rom ano fired. 71 69 Id. at 64-65. Officer Cusim ano sim ilarly testified that the gate did not offer him any protection because it could not be locked and would freely swing open if Brown attem pted to push it. R. Doc. 50 -14 at 35. 70 R. Doc. 50 at 9; see also R. Doc. 50 -11 at 60 . 71 R. Doc. 50 -11 at 59-60 . 22 But this m inor distinction from Mace, Elizondo, and Harris does not render Officer Romano’s use of deadly force unreasonable. First, the Court does not find it unreasonable for an officer to perceive as a threat a noncom pliant individual holding two knives in front of his body pointed vertically and advancing towards others, even if the individual does not raise the knives over his head or m ake a stabbing m otion. Second, plaintiffs’ argument suggests that the reasonableness of Officer Rom ano’s actions turns on whether Brown was attem pting to strike the officers the m om ent Officer Rom ano fired his weapon. But that is not the case. In Mace, for instance, the victim m ade the threatening m otions with his sword “within eight to ten feet” of the officers when he was shot. 333 F.3d at 625. He was not in the m idst of rendering a blow on anyone the m oment the officer fired. The m aterial inquiry is instead whether Officer Rom ano reasonably feared that Officers Tusa and Cusim ano were in im m ediate danger. And this Circuit’s precedents establish that it is not unreasonable for an officer to fear for his safety or the safety of others when the victim is wielding a knife, refusing to com ply with dem ands, and advancing to within ten feet of the officer or others. Here, Officer Rom ano was additionally aware that Brown was suffering from a mental illness, that Officers Tusa and Cusim ano were armed with only non-lethal weaponry, and that sponge rounds and Tasers had 23 previously failed to incapacitate Brown. 72 When viewing these facts and this Circuit’s precedents as a whole, the Court cannot find that Officer Romano’s use of force was clearly unreasonable. And even if the Court were to determ ine that Officer Rom ano violated Brown’s constitutional rights, the Court could not say that he violated clearly established law under the second prong of the qualified im m unity analysis. When the Fifth Circuit has found at the sum m ary judgm ent stage that an officer violated a clearly established constitutional right, the offending officers fired their weapons when the victim was com pletely incapacitated or standing still at a safe distance away, and thus did not pose an im m ediate threat to anyone’s safety. See, e.g., Mason v. Lafay ette City -Par. Consol. Gov’t, 80 6 F.3d 268 (5th Cir. 20 15); Rey es v. Bridgw ater, 362 F. App’x 40 3 (5th Cir. 20 10 ). In Mason, a police officer shot the victim , Quam aine Mason, five tim es when the officer believed Mason was reaching for a gun in his waistband. 80 6 F.3d at 273. The officer then fired two additional shots into Mason’s back while he lay face down in a prone position. Id. at 274. The factual evidence, when viewed in a light m ost favorable to the plaintiffs, suggested that Mason only “pick[ed] up his head and put it back down” while he was 72 Id. at 23-24, 50 -51. 24 lying face down, and did not m ove any other part of his body. Id. at 277. The Court denied defendants’ m otion for sum m ary judgm ent because a reasonable jury could conclude that when the officer fired the final two shots, Mason would have appeared incapacitated to an objectively reasonable officer. Id. at 278. The Court held that shooting an incapacitated subject is inconsistent with the clearly established rule “that deadly force is unconstitutional when a ‘suspect poses no im m ediate threat to the officer and no threat to others.’” Id. (quoting Garner, 471 U.S. at 11). In Rey es, the officers were called to a residence because two brothers were fighting. 362 F. App’x at 40 4. The officers confronted J ose Ceballos, J r. in the entryway to the apartm ent. Id. at 40 5. Ceballos held a knife in one hand and a cigarette in the other. Id. The officers instructed Ceballos to drop his knife, but he refused. Id. According to Ceballos’s fam ily m em bers who witnessed the incident, Ceballos then flicked his cigarette butt nonaggressively, stood still while swaying side to side, and did not raise his knife. Id. One of the officers then fatally shot Ceballos in the chest. Id. The Fifth Circuit ruled that there was a genuine dispute whether the officer was entitled to qualified im m unity, because the fam ily mem bers’ version of events indicated Ceballos did not pose an im m ediate threat to the officers’ safety. Id. at 40 8-0 9. 25 Here, there is no genuine dispute that when Officer Rom ano fired his weapon, Brown was neither incapacitated nor standing still with the knives at his side. J oshua Brown testified that when J airon was shot he was holding two knives, advancing towards Kenner police officers, and refusing to com ply with the officers’ com m ands. 73 Under these circum stances, it is not the case that every reasonable officer would have understood that Officer Rom ano’s use of deadly force was objectively unreasonable and in violation of clearly established law. See Clay ton, 547 F. App’x at 653 (finding that an officer did not violate clearly established law when he shot and killed a noncom pliant, belligerent m an who approached to within five feet of the officer, even though the parties disputed whether the victim was armed the m oment he was shot). B. M o n e ll Claim s In the absence of a constitutional violation, there can be no m unicipal Monell liability for the City of Kenner. See Harris, 745 F.3d at 774; Jam es v. Harris County , 577 F.3d 612, 617 (5th Cir. 20 0 9). The Court therefore grants sum m ary judgment for the defendants on plaintiffs’ claim s under Monell. 73 R. Doc. 50 -2 at 56-58. 26 C. State Law Claim s Having determ ined that plaintiffs’ federal claim s m ust be dism issed, the Court declines to exercise supplemental jurisdiction over their remaining state law claims. See 28 U.S.C. § 1367(c)(3) (“The district court m ay decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dism issed all claim s over which it has original jurisdiction.”). “When a court dism isses all federal claim s before trial, the general rule is to dism iss any [supplemental] claim s.” Bass v. Parkw ood Hosp., 180 F.3d 234, 246 (5th Cir. 1999). Further, “the Suprem e Court has counseled that the dism issal of all federal claim s weighs heavily in favor of declining jurisdiction.” McClelland v. Gronw aldt, 155 F.3d 50 7, 519 (5th Cir. 1998), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433 (5th Cir. 20 0 3). The Court therefore dism isses plaintiffs’ rem aining state law claim s without prejudice. See Bass, 180 F.3d at 246 (“[T]he dism issal of . . . pendent [state] claim s should expressly be w ithout prejudice so that the plaintiff m ay refile his claim s in the appropriate state court.”) (emphasis in original). 27 IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendants’ m otion for sum m ary judgment on all claim s. New Orleans, Louisiana, this _ 22nd _ _ _ _ day of October, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 28
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