Facts
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On May 3, 2021, law enforcement responded to a shooting in Baker, Louisiana. Two individuals had been fatally shot, and a baby—La’Mello Parker—was missing. The initial investigation identified La’Mello’s father, Eric Smith, as the suspected shooter and kidnapper. A warrant was issued for Smith’s arrest, and law enforcement soon located him traveling eastbound on Interstate 10 near the Mississippi state line. Officers initiated pursuit and deployed spike strips to disable his vehicle. After driving over the spike strips and puncturing multiple tires near mile marker 11, Smith pulled over, exited the vehicle with La’Mello pressed to his chest, and fired a round at a Mississippi Highway Patrol trooper. No officers returned fire at that time.
Smith reentered his vehicle and continued east on I-10. More officers joined the pursuit, and they deployed additional spike strips near mile markers 29 and 31. Throughout the chase, officers remained in communication with Harrison County Dispatch, repeatedly confirming that Smith was armed, had already fired at law enforcement, and that an infant hostage was in the vehicle. Farther ahead, officers established roadblocks at mile markers 41 and 44 and positioned snipers and a hostage negotiator. But before Smith could
reach those roadblocks, Harrison County Deputy Chris Allen rammed Smith’s vehicle from behind with his patrol car, pushing it into the median and disabling it.
Deputy Allen exited his vehicle and joined officers nearby. With their weapons drawn, officers surrounded Smith, who was still holding La’Mello. A few seconds later, Deputy Allen noticed that his K9 had exited the patrol car and went to retrieve it. As Deputy Allen pursued the dog, Smith lowered his car window and fired his handgun.
In response, at least ten officers—including Harrison County Deputy Harry Moskowitz, Gulfport Police Officer Michael Moran, a U.S. Marshall serving on a regional task force, and John Doe Mississippi Highway Patrol
Troopers 1–8—opened fire. Tragically, one of the unidentified Mississippi troopers fatally shot La’Mello.
On La’Mello’s behalf, his grandfather and brother sued the officers for excessive force and bystander liability. The district court granted qualified immunity. The 5th affirmed.
Analysis
A. Excessive force by shooting
A1. Constitutional violation
Neither our circuit nor others have definitively resolved whether a seizure occurs when law enforcement
intentionally targets a suspect but unintentionally strikes an innocent hostage. But because the parties agree that La’Mello was seized when Doe Trooper 1 shot him, we assume—without deciding—that a seizure occurred,
and proceed to consider whether the use of force was reasonable.
La’Mello’s death plainly satisfies the injury element. We therefore focus on the second and third elements, which “collapse into a single objective-reasonableness inquiry.” Under these standards, we cannot conclude that it was objectively unreasonable for the officers to return fire at Smith—even knowing there was a substantial risk they might strike La’Mello. Smith—who that very morning had murdered two people, opened fire on law enforcement, and abducted his infant son—posed a grave and immediate threat to officers and to the public. Ample precedent supports the reasonableness of using deadly force against an active shooter.
Although we have never addressed a case in which officers returned fire at an active shooter knowing they might strike an innocent bystander, we have granted qualified immunity in similar situations—where officers used deadly force with an innocent person in dangerous proximity. The officers’ awareness of the high likelihood of striking La’Mello does not alter our conclusion. The use of force here satisfies the Graham factors, as well as broader principles that justify the use of deadly force.
Beginning with the first Graham factor, officers were pursuing Smith for double homicide and the kidnapping of La’Mello—offenses both grave and violent. Second—and most critically in a deadly force case —Smith posed a clear and immediate threat to the safety of officers and the surrounding public. Smith had already fired at law enforcement once and had just done so again. All this unfolded on open interstate. Westbound traffic was halted on I-10, and Smith could have, in seconds, turned his weapon on passing vehicles or reentered his car to resume the chase. Even accepting Plaintiffs’ claim that Smith fired only at Deputy Allen, the tense and evolving factual circumstances justified the officers’ belief that Smith posed a continuing threat to them and to the public along the highway.
Third, Smith was actively evading arrest—fleeing and firing at law enforcement. That Smith had La’Mello in his arms does not alter the fact that each of the Graham factors weighs decisively in favor of the officers.
Nor does Plaintiffs’ suggestion—that Deputy Allen created the danger necessitating deadly force—alter the analysis. As the Supreme Court recently clarified, the reasonableness of force requires analyzing the totality of the circumstances, including whether officers allegedly created the danger necessitating deadly force. To be sure, Deputy Allen ended the chase by ramming Smith’s vehicle and exposed himself to gunfire to retrieve his K9. And perhaps, but for those actions, the ensuing shootout might not have occurred. But it was Smith—not Deputy Allen—who created the encounter by opening fire, prompting the officers to respond in kind.
The reasonableness analysis also considers how quickly officers resort to force, and how close they are to the threat when doing so. Both factors favor the officers here. Aware that a child’s life was at risk, they did not rush
to employ deadly force. When Smith fired at officers earlier, they held their fire and instead employed nonlethal measures—roadblocks, spike strips, and ramming his vehicle. Only after Smith fired again did the officers return fire.
Deputy Allen was just fifteen feet from Smith’s vehicle when he left cover— and Smith opened fire. At that moment, officers did not have the luxury of engaging in negotiation or deliberation to persuade Smith to put down his weapon or step away from La’Mello. They returned fire swiftly, in direct response to Smith’s own shot—more than what the law requires to justify deadly force.
The tragic facts of this case make our conclusion difficult. We do not and cannot condone the shooting of an innocent child by law enforcement. But the law requires us to assess reasonableness from the vantage of a
reasonable officer on the scene—not with the clarity of 20/20 hindsight. And from that perspective, we cannot deem it unreasonable for officers to return fire at an active shooter who had endangered both them and the public—even if, tragically, the shooter used an innocent child as a shield. To hold otherwise would risk discouraging officers from taking decisive action in active-shooter situations. Would it be preferable for officers to hesitate—to allow an armed assailant using an innocent shield to escape, risking still more potential lives? The officers here were forced to make that fraught moral judgment in the split second after Smith fired on one of their own—in haste, under pressure, and without the luxury of a second chance. We cannot second-guess that decision after the fact—from the remove and repose of our chambers.
The officers’ use of force, while tragic in consequence, was not excessive. They did not violate La’Mello’s Fourth Amendment rights.
A2. Clearly established
Even assuming a constitutional violation, the officers are entitled to qualified immunity because the unlawfulness of their conduct was not clearly established at the time. We have never held that returning fire at an active shooter who is holding a hostage constitutes a Fourth Amendment violation.
Plaintiffs chiefly rely on Coon v. Ledbetter {780 F.2d 1158 (5th. Cir. 1986)}, which upheld a constitutional claim after an officer fired indiscriminately into a trailer, knowing the suspect’s four-year-old daughter was inside. But Coon turns on a critical distinction: The suspect there was no longer actively shooting when
officers returned fire.
Here, by contrast, Smith had just fired at Deputy Allen and was visibly aiming his weapon through the vehicle window. The officers did not fire “indiscriminately”—they fired directly at Smith, who, tragically, was holding La’Mello in his arms. Smith’s active use of deadly force at the moment officers fired back places this case outside Coon’s ambit. Coon therefore cannot provide the clearly established law necessary to overcome qualified immunity.
Plaintiffs also cite Grandstaff v. City of Borger {767 F.2d 161 (5th Cir. 1985)} but it, too, is distinguishable. There, officers mistakenly shot and killed an innocent man, believing he was an armed suspect they were pursuing nearby. But unlike the Grandstaff officers— who poured their gunfire at the truck and into the innocent person without awaiting any hostile act or sound —the officers here fired only after Smith shot first. Moreover, the Grandstaff officers showed no inclination to avoid inflicting unnecessary harm upon innocent people. They simply saw a target and fired. Here, by contrast, the officers exercised restraint—holding their fire even after Smith shot at them once and only responding when he fired directly at Deputy Allen. The recklessness that doomed the officers’ conduct in Grandstaff is absent here. That case thus cannot provide “clearly established law” rendering the officers’ conduct unconstitutional.
In sum, no case cited by Plaintiffs—nor any precedent in this circuit— would have provided fair warning to the defendants that their alleged conduct was unconstitutional. Accordingly, even if the officers’ decision to fire at Smith while he held La’Mello constituted a constitutional violation, the law was not clearly established at the time of the incident—and qualified immunity applies.
B. Excessive force by ramming car
The ramming of Smith’s car plainly constituted a seizure as to Smith. But whether it also amounted to a seizure of La’Mello—who was not the intended target—is far less certain. Still, even assuming the ramming
qualifies as a seizure of La’Mello, Plaintiffs’ excessive-force claim falters for want of a critical element: injury. Plaintiffs acknowledge that La’Mello sustained no injury from the ramming itself—only from the gunshot that ultimately claimed his innocent life.
Because Plaintiffs do not allege that La’Mello suffered any injury from the ramming, they have not shown that Deputy Allen used excessive force in violation of La’Mello’s constitutional rights. Deputy Allen is therefore
entitled to qualified immunity.
C. Bystander liability
Plaintiffs assert bystander liability under § 1983 against each individual officer. The district court properly dismissed these claims. Bystander liability requires Plaintiff to plead an underlying constitutional violation. As discussed above, Plaintiffs have not plausibly alleged a violation of La’Mello’s Fourth Amendment rights. Accordingly, we agree with the district court that Plaintiffs’ bystander-liability claims fail.
D. Conclusion
La’Mello Parker’s death is an unspeakable tragedy. And no outcome in this case can undo the anguish of a life cut short or ease the sorrow of those who mourn him. But the constitutional standards that bind us do not turn on hindsight or heartbreak. Judged from the perspective required by law—that of officers forced to make split-second decisions under threat of lethal violence—we cannot say their conduct was unconstitutional. Faced
with an armed fugitive who had murdered two people, who posed a grave and immediate danger to officers and the public, and who despicably used his infant son as a shield—the officers’ decision to return fire, though
devastating in its consequence, was not unreasonable, nor did it rise to the level of conduct that shocks the conscience.
https://www.ca5.uscourts.gov/opinions/pub/24/24-60208-CV0.pdf