Case: 23-30775 Document: 67-1 Page: 1 Date Filed: 09/23/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-30775 September 23, 2024
____________
Lyle W. Cayce
Clerk
Brandy McKay, Individually, and on behalf of her minor child, P.M.,
Plaintiff—Appellee,
versus
David LaCroix, Trooper; Rohn Bordelon, Sergeant,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-2304
______________________________
Before Jones, Willett, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Louisiana State Police (“LSP”) senior trooper August McKay
committed suicide in his own home after learning that the LSP was
reassigning him and preparing to execute a search warrant on his house. His
widow sued several LSP officers, alleging claims under 42 U.S.C. § 1983 and
Louisiana state law in connection with his death. The district court declined
to grant qualified immunity to two of the officers. We reverse that decision.
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No. 23-30775
I.
A.
In December 2020, the LSP Narcotics Division began investigating
allegations that senior trooper August McKay was using fraudulent
prescriptions to obtain controlled substances from a local pharmacy. As part
of this investigation, LSP officers obtained a warrant to search August’s
residence. 1 On the morning that they planned to execute the search warrant,
they asked Appellants, Sergeant Rohn Bordelon and Trooper David LaCroix,
for their assistance. They instructed Sgt. Bordelon and Trooper LaCroix to
inform August that he was going to be reassigned and to gain a “Code
Four”—a police signal code that indicates to other officers that “everything
is under control and the scene is safe”—so that other detectives could
execute the search warrant.
On the way to August’s home, Sgt. Bordelon and Trooper LaCroix
“discussed different scenarios,” including the possibility that August might
arm himself and attempt to commit “suicide by cop.” August had been “in
and out of the hospital for medical reasons and had been out on [family and
medical leave]” so they “were not sure about the state of mind [he] would be
in” and “were not sure how things were going to go.” They created a
contingency plan that if August armed himself and attempted to commit
suicide by cop, they would retreat and treat the situation as a “barricaded
subject.”
When Sgt. Bordelon and Trooper LaCroix arrived at August’s
residence, they noticed that his take-home police vehicle was not there. They
knocked on the door and were greeted by August’s minor child, P.M., and
_____________________
1
Because the decedent, August McKay, and the appellee, Brandy McKay, share a
last name, we refer to them by their first names to ensure clarity.
2
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No. 23-30775
wife, Brandy McKay. Brandy invited the officers in the house to wait for
August’s arrival. Once August returned home, Sgt. Bordelon informed him
that he was being placed on administrative leave and that he needed to go
outside to sign some paperwork. Outside, Sgt. Bordelon told August that the
LSP had a search warrant for the residence and intended to execute it. Sgt.
Bordelon asked August if Brandy, P.M., and P.M.’s minor friend who was
visiting could leave the residence. August agreed that they should leave, and
Sgt. Bordelon and Trooper LaCroix accompanied him back inside.
Upon reentering the house, August made his way to the master
bedroom closet. Trooper LaCroix observed two handguns on a closet shelf
and confiscated them over August’s objection. Trooper LaCroix told him
that “the department was going to take them anyway, so he would hold
them.” August then proceeded to use his master restroom while Trooper
LaCroix stood outside the open door and observed.
By the time August returned to the master bedroom, Sgt. Bordelon
and Brandy had entered the bedroom. While Brandy spoke to the officers
about what was happening, August walked back into the closet and retrieved
his LSP department-issued firearm. As August chambered a round, Trooper
LaCroix exclaimed, “Gus, no, what are you doing?” Following the
contingency plan they made that morning, Sgt. Bordelon told Trooper
LaCroix to “back out,” and both officers left the McKay home. Brandy
unsuccessfully attempted to take the firearm from August, who then fatally
shot himself.
B.
Appellee Brandy McKay, in her individual capacity and on behalf of
her minor child, sued several LSP officers, including Sgt. Bordelon and
Trooper LaCroix. She brought claims under 42 U.S.C. § 1983 for alleged
violations of August’s Fourth, Eighth, and Fourteenth Amendment rights,
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as well as various Louisiana state laws. In response, the defendants filed a
Rule 12(b)(6) motion to dismiss, or in the alternative, a motion for more
definite statement under Rule 12(e). They also asserted qualified immunity.
The district court granted the defendants’ motion as to Brandy’s § 1983
claim for alleged violations of the Eighth Amendment, but otherwise denied
the motion, and granted Brandy leave to amend her complaint to allege facts
tailored to qualified immunity.
Brandy filed a supplement to her original complaint, this time limiting
her claims to the Fourteenth Amendment and various state laws. The
defendants again filed a Rule 12(b)(6) motion to dismiss and asserted
qualified immunity. When ruling on the motion, the district court noted that
Brandy had voluntarily dismissed her claims against several defendants and
granted their dismissals. This left only four defendants: Sgt. Bordelon,
Trooper LaCroix, and two others.
When addressing the remaining defendants’ assertions of qualified
immunity, the district court concluded that Brandy had pled sufficient facts
to state § 1983 claims against Sgt. Bordelon and Trooper LaCroix but
dismissed the § 1983 claims against the other two defendants. To reach this
conclusion, the court asked whether, accepting the pleaded facts as true,
defendants: (1) had subjective knowledge of August’s risk of suicide; and (2)
responded to August’s risk of suicide with deliberate indifference. The
district court also concluded that Brandy stated negligence claims against
Sgt. Bordelon and Trooper LaCroix but dismissed the negligence claims
against the other two defendants. Sgt. Bordelon and Trooper LaCroix timely
filed this interlocutory appeal.
II.
We first assess whether we have jurisdiction. Carswell v. Camp, 54
F.4th 307, 310 (5th Cir. 2022). Absent an exception, non-final district court
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orders are not immediately appealable. Leonard v. Martin, 38 F.4th 481, 485–
86 (5th Cir. 2022). The denial of a defendant’s motion to dismiss asserting
qualified immunity is an immediately appealable decision under the collateral
order doctrine, Mitchell v. Forsyth,
472 U.S. 511, 527–30 (1985), because qualified immunity provides immunity not just from liability but also from suit,
Pearson v. Callahan,
555 U.S. 223, 231 (2009).
The collateral order doctrine only applies to the qualified immunity
portion of a district court order. Morin v. Caire, 77 F.3d 116, 119 (5th Cir.
1996). Nonetheless, in the interest of judicial economy, we may have discretion to exercise pendent appellate jurisdiction to review other claims at the
same time.
Id. Pendent appellate jurisdiction is only proper in “rare and
unique circumstances” though, Thornton v. Gen. Motors Corp.,
136 F.3d 450,
453 (5th Cir. 1998), and is always discretionary, Mi Familia Vota v. Ogg,
105
F.4th 313, 333 (5th Cir. 2024).
Sgt. Bordelon and Trooper LaCroix seek interlocutory review of the
district court’s entire order denying their motion to dismiss, wherein they
sought dismissal of the § 1983 claims and Louisiana state law claims. As to
the § 1983 claims, they asserted qualified immunity. 2 We have jurisdiction,
under the collateral order doctrine, to review the district court’s denial of
qualified immunity. See Mitchell, 472 U.S. at 527–30. As to the portion of the
district court’s order that denied dismissal of the state law claims, we only
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2
Here, Sgt. Bordelon and Trooper LaCroix contend that qualified immunity bars
Brandy’s state law claims too. They did not raise this as a jurisdictional basis for an
interlocutory appeal, however. Even if they had, they did not assert state law qualified
immunity at the district court, which forfeits their ability to raise it here. See Rollins v. Home
Depot USA, 8 F.4th 393, 397–98 (5th Cir. 2021) (“A party forfeits an argument
by failing to raise it in the first instance in the district court—thus raising it for the first
time on appeal[.] . . . We do not ordinarily consider issues that are forfeited because they
are raised for the first time on appeal.”).
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have jurisdiction if we can exercise pendent jurisdiction. See Morin, 77 F.3d
at 119. Sgt. Bordelon and Trooper LaCroix have neither asked us to exercise
pendent jurisdiction, nor demonstrated why this is the rare and unique case
where it is warranted. We therefore decline to review the state law claims. 3
III.
We review orders on Rule 12(b)(6) motions to dismiss for failure to
state a claim under the de novo standard of review. Petrobras Am., Inc. v. Samsung Heavy Indus. Co., Ltd., 9 F.4th 247, 253 (5th Cir. 2021). In doing so, we
must accept all facts in the complaint as true, but do not accept conclusory
allegations, unwarranted factual inferences, or legal conclusions. Arnold v.
Williams,
979 F.3d 262, 266 (5th Cir. 2020).
IV.
A.
The defense of qualified immunity protects state officials from civil
suit and liability when they could have reasonably believed that their actions
were legal. Pearson, 555 U.S. at 231. A state official is entitled qualified immunity unless: (1) the plaintiff alleged a violation of a constitutional right; and
(2) that right was “clearly established” at the time of the alleged violation.
Cope v. Cogdill,
3 F.4th 198, 204 (5th Cir. 2021) (citing Pearson,
555 U.S. at
232).
We may address either prong first. Id. (citing Pearson,
555 U.S. at 236).
Here, our inquiry begins and ends with whether Brandy alleged a violation of
August’s constitutional rights.
_____________________
3
In declining to review the state law claims, we do not opine on whether this is a
case where we would have discretion to exercise pendent jurisdiction.
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B.
A state generally has no affirmative obligation to protect its citizens
from private harm. M.D. by Stukenberg v. Abbott, 907 F.3d 237, 248 (5th Cir.
2018) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189,
197 (1989)). “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against
invasion by private actors.” DeShaney,
489 U.S. at 196. But when a state affirmatively acts to restrain an individual’s freedom “through incarceration,
institutionalization, or other similar restraint of personal liberty,” the state
establishes a “special relationship” with the individual. McClendon v. City of
Columbia,
305 F.3d 314, 324 (5th Cir. 2002) (en banc) (per curiam) (quoting
DeShaney,
489 U.S. at 200). Where a special relationship exists, a state may
have a constitutional duty to protect the individual from dangers, including
in certain circumstances, private harm such as private violence,
id., or selfinflicted harm, Hare v. City of Corinth,
74 F.3d 633, 650 (5th Cir. 1996) (en
banc). Such a relationship has arisen between a state and prisoners, see, e.g.,
Farmer v. Brennan,
511 U.S. 825, 832–33 (1994), pretrial detainees—including suspected criminals injured while being apprehended by police, see City
of Revere v. Massachusetts Gen. Hosp.,
463 U.S. 239, 244 (1983), and involuntarily-committed mental patients, see, e.g., Youngberg v. Romeo,
457 U.S. 307,
317 (1982).
Yet, no constitutional duty exists where, like here, the state has not
restrained an individual’s liberty. This is not a case like City of Revere, where
police injured a suspect while apprehending him. 463 U.S. at 244. There is
no indication from the alleged facts that Sgt. Bordelon and Trooper LaCroix
planned or attempted to arrest August or confine him to his home. They visited August’s home to inform him that he was being reassigned at work, and
to confirm that the premises were safe for the LSP to execute the search warrant. After they left his house, August tragically proceeded to commit suicide.
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Indeed, Brandy does not allege in her complaint that Sgt. Bordelon or
Trooper LaCroix restrained August’s liberty. To the contrary, she seeks to
hold them responsible for August’s death because they “allowed [him] to enter his home, where his guns were,” “allowed [him] to roam around his
home,” “d[id] nothing to restrict his movements,” and then “took no action
whatsoever to attempt to disarm [August]” but instead “elected to flee the
home.” Put otherwise, she blames them because they did not restrain his liberty.
Without a restraint of liberty, there is no constitutional duty. Without
a constitutional duty, there can be no constitutional violation. And without
a constitutional violation, Sgt. Bordelon and Trooper LaCroix are entitled
qualified immunity.
…
Because Sgt. Bordelon and Trooper LaCroix are entitled qualified immunity, we REVERSE the district court’s judgment as to qualified immunity.
As to the state law claims, we DISMISS the appeal without prejudice. We
REMAND this matter to the district court for further proceedings consistent
with this opinion.
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