Henry Malbrough v. Police Department of Rayne, et ( 2020 )

Case: 19-30269 Document: 00515416220 Page: 1 Date Filed: 05/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-30269 May 14, 2020
Lyle W. Cayce
HENRY LEE MALBROUGH, Individually and on Behalf of Anthony Clerk
Campbell,
Plaintiff–Appellant
v.
CARROLL J. STELLY, In His Official Capacity as Chief of Police for the
Rayne Police Department; PARISH OF ACADIA; WAYNE MELANCON, In
His Official Capacity as Sheriff of Acadia Parish; JACKIE BODDYE,
Individually and in Her Official Capacity; JOSEPH CREDEUR, Individually
and in His Official Capacity; CITY OF RAYNE; SHERIFFS OFFICE
ACADIA PARISH; CHRISTOPHER CORMIER, Individually and in His
Official Capacity; GEORGE BRAD WARE, Individually and in his Official
Capacity,
Defendants–Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 10-107-SDD-CBW
Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit
Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1
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Anthony Campbell was in his GMC Yukon with two friends outside his
home in Acadia Parish, Louisiana when Police arrived to execute a search
warrant. Officers surrounded Campbell’s vehicle, shouted commands for the
occupants to exit, and pulled one of Campbell’s friends out onto the ground.
Campbell refused to exit, threw his Yukon in reverse, smashed into the police
cruiser parked behind him—then switched gears and took a hard-left turn,
attempting to flee while surrounded by officers. One officer was either bumped
to the ground or fell. The officers fired. And Campbell was hit. Tragically, the
bullet, which remains lodged in Campbell’s brain, disabled him for life.
Campbell’s father, Henry Lee Malbrough, on behalf of his son and himself, sues
the city, the parish, the police department, the sheriff’s office, and a handful of
officers. The district court granted Defendants’ motion for summary judgment
on all claims, finding no constitutional violation, because Campbell posed an
immediate threat to the officers and civilian bystanders. We AFFIRM.
I1
In January 2009, the Rayne Police Department obtained a search
warrant for the home of Anthony Campbell, who was known in the area as a
drug dealer. 2 Officers from the Acadia Parish Sheriff’s Office and Louisiana
State Police assisted the Rayne Police Department in executing the warrant. 3
1 Our factual recitation largely adopts the district court’s statement of facts, which
properly views the facts in the light most favorable to Malbrough, as the non-moving party.
See, e.g., Flores v. City of Palacios, 381 F.3d 391, 394 (5th Cir. 2004) (adopting the district
court’s findings of fact); Kinney v. Weaver, 367 F.3d 337, 376 (5th Cir. 2004) (“[W]e have
jurisdiction to accept the facts as assumed by the district court . . . .”).
2Malbrough argues that, even though the warrant stipulates, “any/all vehicles on the
property,” the warrant did not, in realty, properly include Campbell’s Yukon. But this
argument is raised for the first time on appeal, and we do not entertain arguments that were
not before the district court. Pluet v. Frasier, 355 F.3d 381, 385 (5th Cir. 2004).
3 The decision of the Rayne Police Department to request help from the Acadia Parish
Sheriff’s Office and Louisiana State Police was informed in part by information from
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Malbrough and Defendants tell remarkably different stories. We start with
Defendants’ version of events.
Defendants contend that all officers, regardless of agency, were wearing
either “Class A” law enforcement uniforms or clothing with clear insignia
indicating they were police. When the officers arrived, Campbell’s GMC Yukon
was parked in the driveway. Because of Campbell’s darkly tinted windows, the
officers could not see inside the vehicle.
The officers surrounded the Yukon and shouted commands for any
occupants to exit. Brian Smith, who was in the passenger seat, exited
immediately and was handcuffed. Campbell was in the driver’s seat, and Ricky
Monceaux was in the backseat. Defendants contend that Campbell was
repeatedly told to exit with his hands up. Rather than comply, Campbell
reached behind the driver’s seat for an unknown object. He then suddenly put
the vehicle in reverse, accelerated backward, and crashed into a cop car that
was intentionally parked behind his Yukon to block his exit. Then, even though
several officers had surrounded his vehicle, Campbell revved the engine and
made a hard-left turn. Defendants allege that Campbell struck Deputy George
Ware 4 of the Acadia Parish Sheriff’s Office, who was in front of the vehicle
screaming for Campbell to exit.
informants that a large shipment of drugs had arrived. It was also informed by an incident
at Campbell’s home that occurred one month before the shooting that gave rise to this
litigation. Defendants contend that Campbell was arrested at his home and admitted to
selling drugs out of the house. Drugs and weapons were found. And multiple people were
seen attempting to destroy the drugs. Chief Stelly of the Rayne Police Department testified
that Campbell attempted to stop the officers from entering by holding his door shut.
4 Deputy George Brad Ware is sometimes referred to as “Brad Ware” and sometimes
as “George Ware” by the parties and district court. Here, we refer to him as “Ware.” But
Deputy George Ware should not be confused with his nephew, Reserve Officer Adam Ware.
When we refer to Officer Adam Ware, we do so by his full name.
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Defendants assert that after seeing Ware struck, and as the Yukon kept
moving, the officers believed that Ware was being dragged under the vehicle.
The officers fired. Ware was not dragged, nor was he seriously injured. But he
did testify that the Yukon struck him, knocked him over, and kept coming at
him, which forced him to move out of the way to avoid being run over. Once out
of the way of the Yukon, Ware jumped up and began firing at the vehicle. He
claims that he attempted to shoot out the tires. Campbell continued driving
down the street and came to a stop at an adjoining block next to a graveyard,
having been struck by a bullet.
Backseat passenger Ricky Monceaux gave a recorded statement to police
shortly after the incident, and he essentially confirmed the officers’ telling of
the event. Monceaux told police at least twenty times that Campbell “ran over
the cop.” Monceaux confirmed that Campbell reached behind the seat “like he
was trying to hide something.” Mounceaux also stated that the police were
“doing their jobs professionally” and that “none of the cops were in the wrong.”
Monceaux gave a similar statement to Malbrough’s counsel a few weeks
later. He said that after they pulled up to the house in the Yukon, Smith said
that cops were “hitting” the house. The cops then surrounded the Yukon. When
Campbell attempted to flee, Monceaux shouted at Campbell to stop, but
Campbell accelerated anyway. Monceaux confirmed that the shooting did not
start until Campbell had taken a hard left and the cop—apparently Ware—fell
in the bushes: “When the cop fell down in the bushes, they started shooting.”
Monceaux confirmed that all the officers were in uniform. He didn’t see anyone
in plain clothes until after the shooting.
Malbrough’s story is different in some key respects: He claims that most
defendants arrived in unmarked vehicles and most wore unmarked uniforms.
Campbell testified that he didn’t know the officers were police; he thought they
4
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were robbers. 5 Officer Adam Ware failed to announce that he was a police
officer when he approached the Yukon. Officer Joseph Creduer approached the
Yukon as it was backing into the patrol unit, and he shattered Campbell’s
driver-side window with a hasp.6 Malbrough also contends that Ware’s
testimony about his location contradicts other testimony. Likewise, according
to Malbrough, Ware was never struck by the Yukon but merely slipped near
bushes, or outside near a kitchen window, depending on the witness.
Malbrough filed this lawsuit individually and on behalf of his son
pursuant to 42 U.S.C. § 1983. On behalf of Campbell, he alleged constitutional
violations under the Fourth and Fourteenth Amendment as well as various
state law claims. 7 On behalf of himself, Malbrough asserted a “bystander”
claim against Defendants for the heart attack he suffered on the day of the
5 It should be noted that Campbell’s testimony, like many of the other witnesses,
occurred six years after the event. And Campbell falters on many important details about the
incident. For example, he remembers nothing after he put the Yukon in reverse.
6 A hasp is a baton-like weapon. And for this proposition—that the window was
shattered while Campbell reversed—Malbrough cites to testimony that was not before the
district court, and thus, not properly before us. Pluet, 355 F.3d at 385. Monceaux, on the other
hand, testified that the police punched out the window after the Yukon came to a stop.
7 In Malbrough’s jurisdictional statement of his opening brief on appeal, he asserts
violations of Campbell’s Fourth, Fifth, Eight, and Fourteenth Amendment rights. But
Malbrough’s brief only makes constitutional arguments about excessive force, which here are
properly analyzed under the Fourth Amendment. And when a claim is properly analyzed
under the Fourth Amendment, the Fourteenth is inapplicable. Graham v. Connor, 490 U.S.
386, 395 (1989) (holding that “all claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard,
rather than under a ‘substantive due process’ approach”). Malbrough also claims that
Defendants are liable under Louisiana State law for Campbell’s injuries. But Malbrough’s
brief fails to mention what state law is applicable. Nor does he cite a single case, statute, or
treatise for this proposition. These state law claims on behalf of Campbell are therefore
forfeited, along with any constitutional arguments other than excessive force under the
Fourth Amendment. DeVoss v. Sw. Airlines Co., 903 F.3d 487, 489 n.1 (5th Cir. 2018) (noting
that inadequately briefed arguments are forfeited).
5
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incident. Defendants moved for summary judgment on all claims, which the
district court granted. Malbrough now appeals.
II
We review a district court’s summary judgment ruling de novo. Gowesky
v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003). Summary
judgment is appropriate only if there is “no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A genuine dispute of material fact exists “if the record, taken as
a whole, could lead a rational trier of fact to find for the non-moving party.”
Tubos de Acero de Mexico, S.A. v. Am. Int’l Inv. Corp., Inc., 292 F.3d 471, 478
(5th Cir. 2002). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249–50 (1986). And the “mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient” to defeat
summary judgment; “there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. All reasonable
factual inferences are drawn in the non-movant’s favor. Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985). But “[w]hen opposing parties
tell two different stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007).
III
6
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Malbrough alleges that Defendants used excessive force against
Campbell. We disagree. The officers’ conduct did not constitute excessive force
under the Fourth Amendment. 8
A
To prevail on an excessive force claim, Malbrough 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.”
Ramierez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (quoting Freeman v.
Gore, 483 F.3d 404, 416 (5th Cir. 2007)). The reasonableness of the use of force
“must be judged from the perspective of a reasonable officer on the scene,
rather than with 20/20 hindsight.” Graham, 490 U.S. at 396. We are required
to pay “careful attention to the facts and circumstances of each particular case,
including 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.” Id. That
second factor is the most important: We must determine whether Campbell
“posed an immediate threat to the safety of the officers or others.” Id. And
critically, “[t]he calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments—in
8 Defendants also collectively assert the defense of qualified immunity. But neither
party discusses which defendants are entitled to the defense. “Qualified immunity attaches
only to officials in their individual, not their official capacities.” Foley v. Univ. of Hous. Sys.,
355 F.3d 333, 337 (5th Cir. 2003). Likewise, municipalities are not entitled to qualified
immunity. Owen v. City of Independence, 445 U.S. 622, 638 (1980). So four of the Defendants
(two sheriffs sued only in their official capacities, a city, and a parish) cannot assert the
defense. But officers Boddye, Credeur, Cormier, and Ware can. Because we find that no
constitutional violation occurred, we need not specifically address the qualified immunity
defense. But in any event, qualified immunity does attach to the officers entitled to the
defense because there was no constitutional violation. Pearson v. Callahan, 555 U.S. 223, 232
(2009) (describing prong one of the qualified immunity analysis—“a court must decide
whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional
right”).
7
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circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Graham, 490 U.S.
at 396–97.
B
We first discuss Malbrough’s state-created-need theory. Citing a Tenth
Circuit case—Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997)—
Malbrough argues that our excessive force inquiry must consider whether the
officers “created the need to use such force” through their own “reckless or
deliberate conduct.” Malbrough contends that “the deliberate and reckless
actions of law enforcement that took place immediately following their arrival
. . . directly contributed to [Campbell’s] reaction, which [Defendants] then use
as the basis to justify the use of deadly force.” Malbrough claims that Campbell
did not know that the officers were police. When the cops surrounded
Campbell’s car with guns, ordering him to exit, he thought he was being
robbed. Because the officers were reckless in arriving out of uniform, in mostly
unmarked cars, and in approaching his vehicle unannounced, according to
Campbell, their own reckless conduct created the need to use deadly force.
But the law of the Fifth Circuit—not the Tenth—applies. And we have
rejected the idea that a police officer uses excessive force simply because he
has “manufactured the circumstances that gave rise to the fatal shooting.”
Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir. 1992); Hover v. Brenner, No.
99-60462, 2000 WL 1239118, at *1 (5th Cir. Aug. 7, 2000) (per curiam) (noting
that, “[i]n this circuit, § 1983 liability cannot be premised on the fact that an
officer ‘creates the need’ to use excessive force by failing to follow police
procedure”). 9 In the Fifth Circuit, the excessive force inquiry zeros in on
9 See also Young v. City of Killeen, 775 F.2d 1349, 1353 (5th Cir. 1985) (“The
constitutional right to be free from unreasonable seizure has never been equated by the Court
with the right to be free from a negligently executed stop or arrest. There is no question about
8
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whether officers or others were “in danger at the moment of the threat that
resulted in the officer’s use of deadly force.” Harris v. Serpas, 745 F.3d 767, 773
(5th Cir. 2014) (emphasis in original).
Moreover, even if the Fifth Circuit did recognize something like the
Tenth Circuit’s state-created-need theory, Defendants would still not be liable.
We must draw all reasonable factual inferences in favor of the non-moving
party. Galindo, 754 F.2d at 1216. And we may not make credibility
determinations. But we need not credit evidence that is “blatantly contradicted
by the record,” especially by video or photographic evidence. Scott, 550 U.S. at
380. 10 Here, Malbrough offers testimony taken six years after the event that
most of the officers were not in uniform. 11 But Malbrough’s own stipulated
photographic evidence contradicts this testimony.
Malbrough and Defendants jointly introduced (and heavily cited) the
Louisiana State Police Report, which contains photographs of all officers in this
lawsuit except for Ware. The photographs show that all officers wore uniforms
or clothing with clear police insignia. Trooper Katie Morel testified under oath
that none of the officers were allowed to go home or change before being
photographed at the Rayne Police Department immediately following the
incident. As for Ware, he left the scene in an ambulance and was taken straight
to the hospital, so he isn’t in the photographs. But the hospital collected his
uniform.
the fundamental interest in a person’s own life, but it does not follow that a negligent taking
of life is a constitutional deprivation.”).
10 In Scott, the Supreme Court held that the Court of Appeals should not have relied
on the plaintiff’s version of events when that story was contradicted by videotape. Scott, 550
U.S. at 380. We have analyzed still photography similarly to video evidence under the Scott
v. Harris rubric. Curran v. Aleshire, 800 F.3d 656, 663 (5th Cir. 2015).
The three deponents who claimed that at least some police were out of uniform were
11
Campbell, Milson, and Smith.
9
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We do draw all reasonable factual inferences in favor of the non-movant.
Galindo, 754 F.2d at 1216 (emphasis added). But considering the photographic
evidence, Malbrough’s story—based on three depositions taken six years after
the event—is wholly contradicted by the record, and no reasonable jury could
believe it. Thus, the district court was correct to find that the officers were in
uniform. And it was reasonable for the officers to expect Campbell to recognize
them as law enforcement and comply with their commands.
Moreover, even if we accepted Malbrough’s contradicted assertions at
face value, our inquiry focusses on the officers’ conduct at the moment of the
threat—not the manner of their arrival. So even if the officers negligently
spooked Campbell, the officers did not act unreasonably if they reasonably
believed that Campbell posed an immediate threat to officers or others. The
reasonableness of that assessment—whether Campbell posed a threat—is
where we turn next.
C
Having disposed of Malbrough’s state-created-need theory, we must
determine whether it was reasonable for the officers to believe that Campbell
posed a threat to the officers near the Yukon or the civilians on the street. The
district court answered “yes.” And we agree.
In analyzing the reasonableness of the officers’ actions, we are guided by
Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007). In Hathaway, an officer on
foot fired his weapon at a car that accelerated toward him. The bullet struck
and killed the driver. We emphasized two factors in determining that the
officer’s use of deadly force was reasonable: (1) the limited time the officer had
to respond, and (2) the officer’s proximity to the path of the vehicle. Id. at 322. 12
12We also take note of a case remarkably similar to Hathaway—Sanchez v. Edwards,
433 Fed. App’x 272 (5th Cir. 2011) (per curiam). In that unpublished opinion, the court also
10
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We further highlighted “our circuit’s general acknowledgment that police
officers are often required to make instantaneous decisions that ought not be
second-guessed merely because other options appear plausible in hindsight.”
Id. at 321.
Here, we must be mindful of “proximity and temporal factors.” Id.
Malbrough asserts that Ware’s location, and whether Ware was ever in a
position of danger, are of critical importance in our reasonableness inquiry.
That’s almost right. Ware’s location matters, but it’s not relevant whether, in
hindsight, he was ever in real danger. We must ask whether it would have
appeared to a reasonable officer on the scene that Ware, other officers, or
bystanders were in danger.
Malbrough questions Ware’s location by attempting to point out
discrepancies in Ware’s testimony with testimony of other officers. 13 Ware
claimed to be inside Campbell’s house when Ware heard Campbell’s Yukon
crash into the patrol unit. Ware came running out the backdoor and ended up
in front of the Yukon, where, he alleges, he was knocked down and nearly ran
over. Malbrough says that’s impossible. Because the whole incident took place
in a matter of seconds, according to Malbrough, Ware didn’t have enough time
to get from inside the front of the house to the backyard in the time it took for
the Yukon to accelerate forward after backing into the patrol unit.
focused its attention on the officers’ proximity to the car and the limited time for the officers
to react.
13 The testimony would not help Malbrough in any case, but we also note that much
of it is not properly before us because it was introduced for the first time on appeal. Pluet,
355 F.3d at 385. In the section of Malbrough’s brief dealing with Ware’s location, that new
evidence includes testimony of Jacoby Grant, Chad Abshire, and Joseph Credeur. Malbrough
also attempts to introduce new evidence in the form of Rayne Police Department
radio/dispatch log entries and ballistic evidence (bullet casings found in the yard).
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The district court saw no trouble with the supposedly competing
narratives because the stipulated photographic evidence of Campbell’s home
and driveway show that Ware could have exited the back door and been
immediately in front of the Yukon within one or two steps. But there’s another
reason Malbrough’s alleged discrepancies don’t reveal a dispute of material
fact: No one contends that Ware was in the house or otherwise far from the
Yukon at the moment Campbell took the hard-left turn, attempting to flee the
scene. Wherever Ware was when Campbell backed into the patrol unit—and
however long it took him to get in proximity to the Yukon—the fact that he
was in proximity is beyond dispute.
Malbrough needs to show that Ware (as well as the other officers and
bystanders) were far enough away from the Yukon and its path, as it moved
forward, that no reasonable officer could have thought anyone was in danger.
Like the district court, we have no trouble believing Ware was able to reach
the Yukon quickly from inside the house. But Malbrough’s evidence, at best,
would simply indicate that Ware was mistaken about his location when he
heard the Yukon smash into the patrol unit. And his location at that precise
moment is completely irrelevant.
Next, Malbrough insists that, contrary to the officers’ story, Ware was
never struck by the Yukon. He merely fell. But even assuming that Ware
wasn’t struck but rather fell by the bushes, the record is clear that: (1) Ware
went to the ground near the Yukon; (2) it was announced that an officer was
down; and (3) the firing did not take place until the officers saw Ware go to the
ground near the fleeing vehicle. As the district court aptly put it, “[o]nce it was
announced that an officer was down, it was objectively reasonable for the
officers to respond with force in light of the circumstances.” Malbrough v. City
of Rayne, No. 10-107-SDD-CBW, 2019 WL 1120064, at *9 (W.D. La. March 11,
2019). The precise location of Ware vis-à-vis the Yukon, and whether he was
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struck by the vehicle, is in dispute. But what’s not in dispute is that the officers
thought Ware was in danger. 14
Malbrough also avers that once the vehicle had passed Ware and the
other officers, any further shooting was unreasonable. When the officers were
out of danger, they should have holstered their weapons. But as the district
court noted, the Supreme Court rejected a similar argument in in Plumhoff v.
Rickard, 572 U.S. 765 (2014). There, a high-speed chase came to a stop after
the suspect “spun out into a parking lot and collided with [an officer’s] cruiser.”
Id. at 769. The officers then stepped out of their cruisers and banged on the
suspect’s passenger window, attempting to get him to surrender. But the
suspect again punched the gas. Id. at 770. One of the officers fired three shots
at the suspect’s car. Id. The suspect sped away, and after the officers were
safely out of the pathway of the fleeing car, they fired an additional twelve
shots. Id.
The Court held that the officers did not act unreasonably: “It stands to
reason that, if police officers are justified in firing at a suspect in order to end
a severe threat to public safety, the officers need not stop shooting until the
threat has ended.” Id. at 777. And the Court found that the threat had not
ended precisely because the suspect “never abandoned his attempt to flee.” Id.
The case would be different, the Court noted, “if [the officers] had initiated a
second round of shots after the initial round had clearly incapacitated [the
suspect] and had ended any threat of continued flight, or if [the suspect] had
clearly given himself up.” Id. The same is true here. The officers were not
aware that Campbell was “clearly incapacitated” by a bullet, and Campbell
14And because Campbell had just reversed into a police car before he took a hard-left
turn, the officers could have reasonably believed that any of them who were near the
vehicle—not just Ware—were in danger.
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never stopped his vehicle or gave himself up. The officers continued firing until
Campbell’s vehicle came to a stop, which was when the threat was over.
It is tragic that Campbell was so severely injured. But we are obligated,
in circumstances such as these—“tense, uncertain, and rapidly evolving”—to
give allowance “for the fact that police officers are often forced to make split-
second judgments” about the amount of force needed to confront a dangerous
situation. Graham, 490 U.S. at 396–97. We cannot allow the “theoretical,
sanitized world of our imagination to replace the dangerous and complex world
that policemen face every day.” Stroik v. Ponseti, 35 F.3d 155, 158 (5th Cir.
1994) (quoting Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992)). Because
the officers here reasonably believed that Campbell posed an immediate threat
to officers and others, the officers did not use excessive force in violation of the
Fourth Amendment. 15
IV
The district court did not err in granting summary judgment for
Defendants. We AFFIRM.
15 Malbrough also asserts Monell claims against the city of Rayne and Sheriff
Melancon. But because Malbrough failed to establish a constitutional violation, the city and
the sheriff are not liable under Monell. A municipality cannot be held liable when its
employee did not violate the Constitution. City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986). Likewise, Malbrough brought a bystander claim under Louisiana law for his own
alleged injuries. That claim fails for the same reason. Under Louisiana law, a defendant is
not liable to a family member under a bystander theory when the defendant is not held liable
to the injured party. Jenkins v. Willis Knighton Med. Ctr., 986 So. 2d 247 (La. App. 2 Cir.
6/4/08); Williams v. East Baton Rouge Parish Sch. Bd., 723 So. 2d 1093 (La. App. 1 Cir.
12/28/98).
14