Case: 20-30052 Document: 00515810111 Page: 1 Date Filed: 04/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 6, 2021
No. 20-30052
Lyle W. Cayce
Clerk
Mark David Cloud; Patti Brandt Cloud,
Plaintiffs—Appellants,
versus
Mike Stone, Lincoln Parish Sheriff; Kyle Elliott Luker, Deputy
Sheriff,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:18-CV-1070
Before Smith, Willett, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Lincoln Parish Deputy Sheriff Kyle Luker tased and then shot and
killed Joshua Cloud while trying to arrest him during a traffic stop. Cloud’s
parents sued Luker for excessive force, but the district court granted Luker
summary judgment after finding no constitutional violation. Like the district
court, we conclude Luker reasonably deployed his taser when Cloud
continued to resist arrest. We also conclude Luker justifiably used deadly
force when Cloud lunged for a revolver that had already discharged and
struck Luker in the chest. The district court’s judgment is affirmed.
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I
Around midday on August 29, 2017, Deputy Luker observed Cloud
speeding on I-20 in Simsboro, Louisiana.1 Luker followed Cloud off the
interstate and pulled him over on Highway 80, across the street from
Simsboro High School. When Luker wrote Cloud a ticket for driving 13
m.p.h. over the speed limit, Cloud protested that Luker could not possibly
have seen him on the interstate. Cloud refused to sign his ticket, which is
grounds for arrest under Louisiana law. See La. Stat. Ann. § 32:391(B).
Luker attempted to arrest Cloud. He had Cloud exit his pickup truck
and face its side with his hands behind his back. Standing behind Cloud,
Luker handcuffed his left wrist, at which point Cloud turned partially around
to his left. (Plaintiffs contend Cloud turned around, not to keep arguing, but
because he had a hearing impairment. We address that assertion below. See
infra Section III.A & n.9.) Luker ordered Cloud to turn back around and
reached for his right hand to finish handcuffing him. But Cloud then spun all
the way around, turning away from Luker’s reach and facing him head-on,
with the handcuffs hanging from his left wrist.
With Cloud now facing him, Luker stepped a few feet back and tased
Cloud in the chest. Though both taser prongs hit Cloud and began cycling,
they did not incapacitate him. Cloud yelled and pulled the prongs from his
chest. Luker then released his police dog from his car with a remote button
1
The factual record comes principally from the testimony of Deputy Luker,
Deputy Taff Randall Watts, and a bystander witness named Quinton Crowe, as well as
physical evidence and a cellphone video Crowe recorded from some distance away that
captured parts of the incident. See infra note 4.
2
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and tried to regain control of Cloud. Luker grabbed Cloud around the waist
and tased him again, now with the taser in “drive-stun” mode.2
The two men, grappling with each other, moved toward the truck’s
open door. Cloud produced a revolver from somewhere near the driver’s
seat.3 As the two struggled for control of the gun, it discharged twice, the
second shot hitting Luker in the chest. Luker was in pain but unable to tell
how badly he was injured: as it turned out, his protective vest spared him all
but a minor injury. As the struggle continued, Luker managed with one hand
to radio police dispatch that shots had been fired. Luker was then able to
wrest the revolver out of Cloud’s hands and throw it to the ground on the
street behind him. With Cloud disarmed and the police dog now engaging,
Luker drew back a short distance, withdrew his duty weapon, and ordered
Cloud to get on the ground.
At this point, Cloud was crouching in his truck’s doorway, keeping
the dog at arm’s length with his hand on the dog’s head. Cloud’s revolver
was on the ground, behind Luker and to his left. Then, according to Luker,
Cloud rushed toward him—“directly at [his] chest or to [his] left a little
bit”—and started to move past him. Luker turned to his left, with Cloud’s
shoulder brushing across his chest. As Cloud lunged toward the revolver
lying on the ground, Luker fired two shots into Cloud’s back. Cloud was
pronounced dead at the scene shortly thereafter.4
2
When taser prongs are deployed, they conduct an electric current that can
immobilize a person by causing his muscles to seize up. A taser in drive-stun mode inflicts
a painful electric shock on contact, but does not cause the same seizing effect.
3
Luker testified that he first saw the gun in Cloud’s hand underneath the steering
wheel.
4
The altercation was partially captured on a cellphone video taken from across the
street by Quinton Crowe, a Simsboro High employee on a cigarette break. The video shows
the struggle in the car door, cuts out, then picks up when Luker is aiming his gun at Cloud,
3
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Cloud’s parents (“Plaintiffs”) filed suit in federal district court
against Luker, Lincoln Parish Sheriff Mike Stone, and Lincoln Parish District
Attorney John Belton, the latter two in their official capacities. They alleged
excessive force claims under 42 U.S.C. § 1983 and the Fourth and
Fourteenth Amendments, state-law survival and wrongful death claims, and
disability discrimination claims under the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq. Belton was voluntarily dismissed, and the remaining
Defendants moved for summary judgment, which the district court granted
as to all claims.
As relevant here, the court held Luker did not use excessive force.
First, it found his taser use reasonable, primarily because a reasonable officer
would have believed that Cloud was resisting arrest at the time. Second, it
found that shooting Cloud was not excessive force because Luker reasonably
believed Cloud posed an immediate threat of serious harm. Finally, the court
found that, assuming arguendo a constitutional violation, Luker would still be
entitled to qualified immunity because he did not violate clearly established
law. The court therefore dismissed all claims with prejudice, and Plaintiffs
appealed.5
who is crouching in the open truck door. The video again cuts out momentarily before the
gunshots. It next shows Cloud lying on the ground, near where his revolver had previously
come to rest. Crowe testified that he did not see the shots, but only saw Cloud on the
ground afterwards.
5
The court likewise granted summary judgment on the official-capacity claims
against Sheriff Stone, all state law claims, and the ADA claim. Plaintiffs appeal only the
dismissal of their excessive force claim against Luker and have therefore abandoned their
other claims. See Robertson v. Intratek Comput., Inc., 976 F.3d 575, 579 n.1 (5th Cir. 2020),
petition for cert. filed (U.S. Mar. 1, 2021) (No 20-1229).
4
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II
“We review a summary judgment de novo, applying the same
standards as the district court.” Arenas v. Calhoun, 922 F.3d 616, 620 (5th
Cir. 2019). “The movant must show ‘there is no genuine dispute as to any
material fact and [he is] entitled to judgment as a matter of law.’” Garcia v.
Blevins,
957 F.3d 596, 600 (5th Cir. 2020) (quoting Fed. R. Civ. P. 56(a)),
cert. denied, No. 20-498,
2021 WL 78130 (U.S. Jan. 11, 2021). “However, a
good-faith assertion of qualified immunity alters the usual summary
judgment burden of proof, shifting it to the plaintiff to show that the defense
is not available.”
Ibid. (quoting Ratliff v. Aransas Cnty.,
948 F.3d 281,
287 (5th Cir. 2020), cert. denied,
141 S. Ct. 376 (2020) (cleaned up)). “We
still draw all inferences in the plaintiff’s favor.”
Ibid. (citation omitted).
III
To rebut Luker’s qualified immunity defense, Plaintiffs must point to
summary judgment evidence “(1) that [Luker] violated a federal statutory or
constitutional right and (2) that the unlawfulness of the conduct was ‘clearly
established at the time.’” Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019)
(quoting District of Columbia v. Wesby,
138 S. Ct. 577, 589 (2018)), cert. denied,
140 S. Ct. 388 (2019). “We can analyze the prongs in either order or resolve
the case on a single prong.” Garcia,
957 F.3d at 600 (citing Morrow v.
Meachum,
917 F.3d 870, 874 (5th Cir. 2019)). Here, prong one resolves the
case. We address separately Luker’s taser use and his subsequent shooting of
Cloud, in that order.
A
Plaintiffs claim that Luker’s nonlethal force—first tasing Cloud from
a few feet away, then using his taser in drive-stun mode while grappling with
Cloud—violated Cloud’s Fourth Amendment right against excessive force
during an arrest. We disagree.
5
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An officer violates the Fourth Amendment when an arrestee “suffers
an injury that results directly and only from a clearly excessive and objectively
unreasonable use of force.” Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d
319, 332 (5th Cir. 2020); see also Graham v. Connor,
490 U.S. 386, 395 (1989).
“Crucially, this analysis must be objective: To make out a Fourth
Amendment violation . . . ‘the question is whether the officer[’s] actions are
objectively reasonable in light of the facts and circumstances confronting
[him], without regard to their underlying intent or motivation.’” Poole v. City
of Shreveport,
691 F.3d 624, 628 (5th Cir. 2012) (quoting Graham,
490 U.S.
at 397) (cleaned up). “The ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396.
Graham identifies several factors bearing on the reasonableness of
force: with “careful attention to the facts and circumstances of each
particular case,” courts consider “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Ibid. We consider “not only the need for force, but also the
relationship between the need and the amount of force used.” Joseph,
981
F.3d at 332 (quoting Deville v. Marcantel,
567 F.3d 156, 167 (5th Cir. 2009))
(internal quotation marks omitted). Faced with an uncooperative arrestee,
officers properly use “measured and ascending actions that correspond to
[the arrestee’s] escalating verbal and physical resistance.”
Id. at 332–33
(quoting Poole,
691 F.3d at 629) (cleaned up).
Of the factors identified in Graham, the extent of Cloud’s resistance
is the most important to analyzing Luker’s use of his taser. The other two
factors—the “severity of the crime at issue” and the “immediate threat to
the safety of the officers or others”—are less illuminating. Cloud was
suspected of only a minor offense, at least before resisting arrest. On the other
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hand, Luker was the lone officer on the scene, and Cloud’s confrontational
manner, culminating in his turning around to face Luker squarely (with one
hand uncuffed and the door of his truck open next to him) created some
threat to the officer’s safety. The parties chiefly dispute the degree to which
Cloud was resisting arrest when Luker deployed his taser.
Our cases on police use of tasers have paid particular attention to
whether officers faced active resistance when they resorted to a taser. Where,
as here, the severity of crime and immediate safety threat are relatively
inconclusive, a suspect’s active resistance to arrest may justify this degree of
force. For example, we have held that two officers were reasonable to tase an
arrestee because he had “aggressively evaded [their] attempts to apprehend
him,” and because they did so after the arrestee “continuously failed to
comply,” other “efforts to subdue [him] were ineffective,” and the arrestee
had “continued to resist handcuffing” and “kicked an officer after being
taken to the ground.” Pratt v. Harris Cnty., 822 F.3d 174, 182 (5th Cir. 2016).
In that case, we took as further evidence of “measured and ascending” action
that “neither officer used [his] taser as the first method to gain [the arrestee’s]
compliance.” Ibid.; see also Buchanan v. Gulfport Police Dep’t,
530 F. App’x
307, 314 (5th Cir. 2013) (“[W]here a suspect resists arrest or fails to follow
police orders, officers do not violate his right against excessive force by
deploying their tasers to subdue him.”). In another case—one not involving
a taser but nonetheless relevant—we held that an officer reasonably pushed
an arrestee onto the hood of a police cruiser, causing some bruises and chest
pain, because the arrestee “resisted when [the officer] attempted to place
handcuffs on him.” Collier v. Montgomery,
569 F.3d 214, 219 (5th Cir. 2009).
Specifically, the arrestee had “pulled his hand back and turned away from
the officer,” then grappled with him briefly.
Id. at 216.
By contrast, we have found excessive force when officers tased
someone offering only passive resistance or no resistance at all. For example,
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we held that officers could not tase someone who had not committed a crime,
attempted flight, or disobeyed any commands, and who may have only
provoked police with an “off-color joke.” Newman v. Guedry, 703 F.3d 757,
762–63 (5th Cir. 2012). Under those circumstances, police could not
“immediately resort[] to taser and nightstick without attempting to use
physical skill, negotiation, or even commands.”
Id. at 763. In another case,
we found excessive force when an officer tased someone who did no more
than pull his arm out of the officer’s grasp, and who was not even suspected
of a crime up to that point. Ramirez v. Martinez,
716 F.3d 369, 372, 378 (5th
Cir. 2013); see also Trammell v. Fruge,
868 F.3d 332, 341–42 (5th Cir. 2017)
(arrestee pulling his arm away from officer’s grasp did not alone justify two
officers’ tackling him to the ground). Likewise, we recently found excessive
force when officers repeatedly beat and tased a man who “was not suspected
of committing any crime, was in the fetal position, and was not actively
resisting.” Joseph,
981 F.3d at 336; see also
id. at 335 (“If Joseph was not
actively resisting, [officers] inflicted force beyond what the Fourth
Amendment permits.”).6
6
Other circuits addressing police tasing have drawn a similar line between actively
and passively resisting subjects. Cases generally “adhere to this line: If a suspect actively
resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment
by using a taser to subdue him.” Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509
(6th Cir. 2012); see
id. at 509–10 (collecting cases); see also Draper v. Reynolds,
369 F.3d
1270, 1278 (11th Cir. 2004) (reasonable to tase suspect who “used profanity, moved around
and paced in agitation, and repeatedly yelled at [officer]” while refusing series of verbal
commands); Meyers v. Baltimore Cnty.,
713 F.3d 723, 733–34 (4th Cir. 2013) (tasers were
reasonable while arrestee “posed an immediate threat to the officers’ safety, and was
actively resisting arrest,” but excessive after threat and active resistance relented); Brown
v. City of Golden Valley,
574 F.3d 491, 497–98 (8th Cir. 2009) (excessive to tase suspect
“who had disobeyed two orders to end her phone call with a 911 operator”); but see Mattos
v. Agarano,
661 F.3d 433, 446 (9th Cir. 2011) (en banc) (tasing of woman was excessive
when she “actively resisted arrest insofar as she refused to get out of her car when
instructed to do so and stiffened her body and clutched her steering wheel to frustrate the
8
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The record in this case shows that Cloud actively resisted arrest,
which gave Luker reasonable grounds to tase him. While Cloud’s left hand
was being handcuffed, he turned partially around. Luker responded by
commanding Cloud to turn back around. But when Luker reached for
Cloud’s right hand, Cloud turned to face him, with the handcuffs dangling
from his left wrist. In other words, Cloud took a confrontational stance,
deprived Luker of the use of his handcuffs, and thwarted efforts to complete
the arrest. Cf. Collier, 569 F.3d at 216, 219 (reasonable to use force on arrestee
who “physically resisted when [officer] attempted to place handcuffs on
him”). Up to then, Luker had addressed Cloud’s general uncooperativeness
and modest resistance with verbal commands and milder force. But at this
juncture things took a more serious turn, making Luker’s resort to his taser
reasonable.
Plaintiffs argue that Cloud’s resistance was merely passive, but this
mischaracterizes the record. Cloud was more than merely uncooperative or
argumentative: his actions—not just his failure to follow directions—
prevented Luker from completing a lawful arrest. This conduct compares
unfavorably with our passive-resistance cases, as well as those of other courts.
In Newman, for example, we found a man’s resistance was passive when he
did not disobey any commands and at most pushed himself backwards off a
car after officers struck him. 703 F.3d at 762–63. Likewise, in Ramirez, we
found passive resistance when a man not yet under arrest or any suspicion
exchanged angry words with an officer and pulled his arm out of the officer’s
grasp. 716 F.3d at 372, 378; see also, e.g., Brown v. City of Golden Valley, 574
officers’ efforts to remove her from her car.”);
id. at 451 (same, where subject “minimally
resisted [another person’s] arrest while attempting to protect her own body”).
9
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F.3d 491, 494, 497 (8th Cir. 2009) (passive resistance where passenger in
pulled-over car refused command to hang up her phone).
Plaintiffs also argue that Cloud was only turning around to read
Luker’s lips due to Cloud’s hearing impairment.7 But we measure excessive
force by the objective circumstances, not by the subjective intentions of the
arrestee. Graham, 490 U.S. at 397. Luker testified he did not know Cloud had
any hearing problem, and Plaintiffs have pointed to no evidence suggesting
he should have known. To the contrary, Cloud was not wearing hearing aids
at any point while in Luker’s view and had previously communicated with
Luker without any apparent difficulty.8 Even if Plaintiffs’ assertion about
Cloud’s reason for turning around is correct, it does not change the objective
excessive-force analysis.
Finally, Plaintiffs argue that even if Luker’s initial tase was justified,
his subsequent drive-stun maneuver was excessive. It is true that the same
incident can include both lawful and unlawful uses of force. See, e.g., Carroll
v. Ellington, 800 F.3d 154, 174, 176–78 (5th Cir. 2015) (granting qualified
immunity for one officer’s initial taser use but not others’ subsequent uses of
force); Joseph,
981 F.3d at 335 (“Force must be reduced once a suspect has
been subdued.”). Because Luker’s initial tase had no effect, however, the
circumstances justifying force were still present during the drive-stun tasing.
Plaintiffs have not pointed to evidence that Cloud complied with any
commands or ceased to resist arrest after the first tase. Although Plaintiffs
7
Plaintiffs offered testimony of two lay witnesses regarding this hearing
impairment.
8
Plaintiffs offered a video presentation Cloud made some time before the incident
and, based on this, argue that his speech pattern would have demonstrated to a reasonable
listener that he was hearing-impaired. The district court correctly found, however, that this
video did not raise a genuine dispute as to whether Luker reasonably should have known
that Cloud was hearing-impaired.
10
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suggest that only a few seconds elapsed between Luker’s initial tase and his
drive-stun maneuver, the situation remained “tense, uncertain, and rapidly
evolving.” Graham, 490 U.S. at 397. Under these circumstances, Luker’s
continued force to complete the arrest, like his initial tase, was reasonable.
B
We next address whether Luker’s use of lethal force was excessive.
“Where the officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force.”
Tennessee v. Garner, 471 U.S. 1, 11 (1985); see also Ontiveros v. City of
Rosenberg,
564 F.3d 379, 382 (5th Cir. 2009). Our precedent teaches that
officers use lethal force justifiably if they reasonably believe the individual is
reaching for a gun. See, e.g., Salazar-Limon v. City of Houston,
826 F.3d 272,
278–79 (5th Cir. 2016). We have adhered to this standard even in cases when
officers had not yet seen a gun when they fired, or when no gun was ever
found at the scene. See, e.g., Manis v. Lawson,
585 F.3d 839, 844–45 (5th Cir.
2009); Reese v. Anderson,
926 F.2d 494, 500–01 (5th Cir. 1991). To show a
triable issue, a plaintiff must generally “present[] competent summary
judgment evidence that [the arrestee] did not reach . . . for what [the officer
reasonably] perceived to be a weapon.” Salazar-Limon,
826 F.3d at 278.
It is evident from the record that Luker could have reasonably believed
that Cloud threatened him with serious physical harm. At a minimum, Luker
knew that a loaded revolver lay on the ground behind and to his left. More
than that, though, he knew that the gun had just discharged twice—once into
his chest—and that he had had to wrest it from Cloud’s hands and toss it
away. Finally, he saw Cloud make a sudden move in the gun’s direction. Even
drawing all inferences in Plaintiffs’ favor, the record shows that Cloud was
shot while moving toward the revolver and potentially seconds from
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reclaiming it.9 Plaintiffs contend Cloud was likely trying to flee, not to regain
the revolver, but even if true, that would be irrelevant. Whatever Cloud’s
intentions, the circumstances warranted a reasonable belief that Cloud
threatened serious physical harm. The lethal force was therefore not
constitutionally excessive.
IV
Because we find no constitutional violation, we need not reach prong
two of the qualified immunity defense and consider whether Luker violated
any clearly established law.
AFFIRMED.
9
As noted, the cellphone video footage does not show Cloud’s movement or
Luker’s shots due to a gap in the recording, but the video confirms that both occurred
within a four-second span. Luker testified that Cloud lunged across the officer’s chest as
Luker turned to his left and fired two shots. Analysis by Plaintiffs’ forensic consultant
corroborates this story: he concluded that Cloud’s wounds showed he was shot at pointblank range in the left posterior flank and middle back. Video frames also show that after
the shots, Cloud was lying on the ground to the left of Luker’s initial position, near where
the revolver had been lying earlier.
12
