Qualified immunity granted for former JPD officers as clearly established prong not addressed


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On October 27, 2017, officers Kenneth Short and Cobey Smith, former police officers for the city of Jackson, Mississippi,  responded to a report of a shooting incident at a known drug house. The victim described the shooter as a 150-pound black male wearing a maroon shirt. On their way to the house, the officers encountered a group of people standing around outside, one of whom fit the description of the shooter. That man was Devon Modacure, who fled as soon as the officers singled him out and commanded he “come here.”

A brief foot chase commenced and ended with the officers shooting Modacure. The officers testified that Modacure reached toward his waistline, as if to grab a gun, and turned his torso toward the officers, precipitating their use of lethal force. Video footage of the event, captured from a residential security camera, is grainy and does not show the orientation of Modacure’s torso or hands when the first shot was fired. Modacure insists he ran because he was paranoid, having just been released from a two-year stint in prison and having seen other people shot by the police. A handgun was recovered from the area; Modacure swears it was not his and that he was unarmed on the day of the incident.

Relevant to this appeal, Modacure sued Short and Smith in their individual capacities under 42 U.S.C. § 1983, alleging the officers violated his Fourth Amendment right against the use of excessive force and his Fourteenth Amendment due process right to receive timely medical care. The district court denied the officers’ motion for summary judgment based on qualified immunity. The 5th reversed and granted qualified immunity to the officers.


An officer merits qualified immunity unless (1) he violated a statutory or constitutional right of the plaintiff and (2) the right was clearly established at the time of the violation. See Betts. Further, we may resolve the case on a single prong. See Garcia.

Jumping straight to the second prong, Modacure may show that the officers violated his clearly established constitutional rights by identifying an “on-point case” or satisfying the “obvious-case exception. See Henderson. Rights are clearly established when existing precedent squarely governs the specific facts at issue. And specificity is especially important in the Fourth Amendment context. See SCOTUS Mullenix v. Luna, 577 U.S. 7 (2015).

Modacure does not invoke the “obvious case” exception and fails to cite a single “on-point case” to support his argument, even after the officers highlighted this deficiency in their opening brief. We have overlooked such shortcomings in cases where the district court carried the plaintiff’s burden for him. See Bartlett.

But here, instead of engaging in this prong of the analysis, the district court merely announced the presence of factual disputes and recited the general contours of excessive force and due process violations on its way to denying summary judgment. In other cases where this court has been presented with a similarly deficient record, we have not hesitated to reverse the denial of qualified immunity. See Laviage. We must do so here as well. Where the plaintiff fails to carry his burden to show a violation of his clearly established rights, and where the district court does not step in to fix that shortcoming, we cannot assent to the denial of qualified immunity.

We REVERSE the district court’s judgment and RENDER judgment for officers Short and Smith.