# United States Court of Appeals **for the Fifth Circuit**

No. 20-30442

Carrington Jackson, on behalf of the minor child Travon Carter; Travis Watson, on behalf of the minor child Travon Carter; Phyllicia Carter, on behalf of the minor child Travon Carter; Cassandra Carter, on behalf of the minor child Travon Carter, Plaintiffs—Appellants ,

versus Sidney J. Gautreaux, III, Sheriff , East Baton Rouge Parish ; Shannon Broussard, Detective ; Charles Montgomery, Detective ; Scott Henning, Detective ; Christopher Masters, Detective ; Verner Budd, Sergeant ; Michael Birdwell, Lieutenant , Defendants—Appellees

.

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:17-CV-105

Before Davis , Duncan , and Oldham , Circuit Judges

. Andrew S. Oldham , Circuit Judge : Travis Stevenson repeatedly slammed his vehicle into a police cruiser and a concrete pillar in front of an apartment building while yelling “Kill United States Court of Appeals Fifth Circuit 

### FILED June 30, 2021 Lyle W. Cayce Clerk Case: 20-30442 Document: 00515920865 Page: 1 Date Filed: 06/30/2021No. 20-30442

2 me!” to officers who were trying to co ntrol the scene. After making repeated but unsuccessful efforts to deescalate the situation and to disable Stevenson’s vehicle, officers shot an d killed him. At summary judgment, the district court granted the officers qualified immunity. We affirm.
I. At approximately 8:30 p.m. on Fe bruary 23, 2016, Kimula Porter called 911 to report that her boyfriend, Travis Stevenson, physically assaulted her and her daughter with pepper spray, smashed a hole in the wall with a beer bottle, took her wallet, and fled from their shared apartment. After Stevenson left, he called and texted Po rter to say he was going to commit suicide. Around 9:50 p.m., Michael Birdwell, a lieutenant in the East Baton Rouge Sherriff’s Office, located Steven son. Stevenson was in a car, which was turned off and parked ne xt to an apartment building. An SUV was parked to the left of Stevenson, an industria l-sized dumpster was on his right, and the building was directly in front of him. The Louisiana State Police (“LSP”) Criminal Investigation Di vision created a scale diagram of the scene: Case: 20-30442 Document: 00515920865 Page: 2 Date Filed: 06/30/2021No. 20-30442

3 Lieutenant Birdwell parked his patrol unit behind and perpendicular to Stevenson’s car, approach ed the driver’s side wh ere Stevenson was seated, and knocked on the window. Stevenson ig nored him at first, so Birdwell kept knocking. But then Stevenson turned on the car as if to drive away. Lieutenant Birdwell attemp ted to end the confrontation peacefully by using his pocketknife to break the driver’s -side window and remove Stevenson from the vehicle. Before Lieutenant Birdwell could remove Stevenson, however, Stevenson placed his car in reverse and slammed into the patrol unit so hard that it caused the patrol unit to crash into a nearby parked car and deployed its airbags. Detective Scott Henning arrived on the scene. He ordered Stevenson to exit the vehicle. Stevenson refused to comply and repeat edly yelled “Kill me!” By this time, Lieutenant Bird well was positioned in front of Stevenson’s car—between the car and the apartment building. Stevenson then shifted the car into drive and ac celerated toward Lieutenant Birdwell. Believing Stevenson was trying to run over Birdwell and that Birdwell was in a position to be injured or killed, Detective Henningshot his firearm toward Stevenson. The bullet didn’t hit Steven son; it hit one of the windows, and some of the shattered glass hit Lieutena nt Birdwell. As Stevenson accelerated toward him, Lieutenant Birdwell jump ed back and hit the parked SUV. Stevenson crashed into a pole in fron t of the apartment building. He then shifted back into reverse and slammed into the patrol unit again. Shortly thereafter, several other deputies arrived on the scene. One fired two or three shots into the driver’s -side tire in an a ttempt to disable the vehicle. The shots didn’t stop Steven son, who accelerated forward and then back into the patrol unit again and again. While Stevenson was oscillating between the apartment building and the patrol unit, Lieutenant Birdwell was trapped in Stevenson’s path. Case: 20-30442 Document: 00515920865 Page: 3 Date Filed: 06/30/2021No. 20-30442

4 Eventually, officers opened fire on the vehicle. Stevenson sustained seven gunshot wounds and was pronounced dead on the scene. The entire episode—from the time Lieutenant Birdwell spotted the car to the time officers notified dispatch that Stev enson was down—lasted 85 seconds. After the incident, the Sheriff’s Office contacted the LSP Criminal Investigations Division to study the shooting. The LSP interviewed Porter, her daughter, and each of the officers. The LSP ultimately concluded there was no criminal miscondu ct, as the officers’ action s were consistent with those of a reasonably prudent police offi cer facing the same circumstances.
Stevenson’s survivors sued the officers under 42 U.S.C. § 1983. Plaintiffs alleged that six officers used excessive force to seize Stevenson in violation of the Fourth Amendment. Plai ntiffs further alleged that a seventh defendant, Sheriff Gautreaux, vi olated the Fourth Amendment by unreasonably failing to train his office rs. At summary judgment, the district court held that Plaintiffs failed to overcome the officers’ qualified immunity. Plaintiffs timely appealed.
II.
Our review is de novo. Morrow v. Meachum , 917 F.3d 870, 874 (5th Cir. 2019). “Qualified immunity includes two inquiries. The first question is whether the officer violated a constituti onal right. The second question is whether the right at issue was clearly established at the time of the alleged misconduct.” Ibid. (quotation omitted). Here we need only decide the first question: Plaintiffs cannot show a Fourth Amendment violation for (A) excessive force or (B) failure to train.
A.
We start with excessive force. “To establish excessive force under the Fourth Amendment, a plaintiff mustdemonstrate (1) an injury, which Case: 20-30442 Document: 00515920865 Page: 4 Date Filed: 06/30/2021No. 20-30442

5 (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessivene ss of which was (3) objectively unreasonable.” Hutcheson v. Dallas County , 994 F.3d 477, 480 (5th Cir. 2021) (quotation omitted). When an injury is uncontested, th e court need only consider the second two elements—asking whether each officer’s “resort to deadly force was unreasonable and exce ssive when the facts are viewed ‘from the perspective of a reason able officer on the scene, rather than with the 20/20 vision of hindsight.’” Ratliff v. Aransas County , 948 F.3d 281, 287–88 (5th Cir. 2020) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The “excessive” and “unreasonable” inquir ies require the court to exercise “cautio[n] about second-guessing a polic e officer’s assessment, made on the scene, of the danger presented by a particular situation.” Ryburn v. Huff , 565 U.S. 469, 477 (2012) (per curiam). The “reasonableness” inquiry always requires the court to consider “the crime’s severity, the suspect’s threat, and whether the suspect is actively resisting arrest or trying to flee.” Hutcheson , 994 F.3d at 480. But courts assess the reasonableness of using deadly force by considering whether a “suspect poses a threat of serious phys ical harm, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). “Stated differently, ‘[a]n officer’s use of deadly force is not ex cessive, and thus no constitutional violation occurs, when the officer reason ably believes that the suspect poses a threat of serious harm.’” Batyukova v. Doege , 994 F.3d 717, 725 (5th Cir. 2021) (alteration in original) (quoting Manis v. Lawson , 585 F.3d 839, 843 (5th Cir. 2009)). While conducting this analysis, we must remain ever mindful that “Fourth Amendment reasonableness is predominantly an objective inquiry.” Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (emphasis added) (quotation omitted). If “the circumst ances, viewed objectively, justify the challenged action,” then subjective intent doesn’t matter. Ibid. (quotation omitted). Case: 20-30442 Document: 00515920865 Page: 5 Date Filed: 06/30/2021No. 20-30442

6 “This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts; and it promot es evenhanded, uniform enforcement of the law.” Ibid. (citation omitted). Although our inquiry is necessarily fact-intensive, three of our precedents all but determine today’s outcome. The first is Fraire v. City of Arlington , 957 F.2d 1268 (5th Cir. 1992). There, an officer chased a car until it struck a curb. Id. at 1270–71. The driver then backed up toward the officer’s car and sped away. Id. at 1271. The officer chased again; the driver crashed again; and the driver sped away again. Ibid. Eventually, the driver turned around and drove toward the officer. Ibid. The officer fired one shot and killed the driver. Id. at 1271–72. We held the offi cer did not violate the Fourth Amendment because he reasonably att empted to defend himself against the driver. Id. at 1274–77. Second, consider Hathaway v. Bazany , 507 F.3d 312 (5th Cir. 2007). There, an officer stopped a car and started walkin g to the driver’s-side window. Id. at 316. When the officer got about 8 to 10 feet from the car, the driver suddenly accelerated toward him. Ibid. As soon as the officer realized he wasn’t going to be able to get out of the car’s path, he drew his firearm and fired one bullet at the car. Ibid. The bullet went straight through the driver’s lungs and heart, and he died of his wounds. Ibid. We held the officer responded reasonably “in firing his weapon when threatened by a nearby accelerating vehicle, even if, owing to the limited time available to respond, the shot was fired when or immed iately after the officer was hit.” Id. at 322. Third, take Ramirez v. Guadarrama , 2021 WL 257199, --- F.4th --- (5th Cir. Feb. 8, 2021). That case did no t involve a driver using a vehicle as a weapon against an officer. But Ramirez held that an officer’s conduct cannot be held “unreasonable” under the Fo urth Amendment in the absence of allegations or evidence regarding an “alternative course the defendant Case: 20-30442 Document: 00515920865 Page: 6 Date Filed: 06/30/2021No. 20-30442

7 officers should have followed that wo uld have led to an outcome free of potential tragedy.” Id. at *4. We rejected the plaintiffs’ Fourth Amendment claim because it was “not apparent whatmight have been done differently to achieve a better outcome under these circumstances.” Ibid.
Fraire , Hathaway , and Ramirez require us to find no Fourth Amendment violation here. That’s for th ree independent reasons. First, like the drivers in Fraire and Hathaway , Stevenson was using his car as a weapon. See Fraire , 957 F.2d at 1271–72; Hathaway , 507 F.3d at 316. It does not matter whether Stevenson (unlike the driver s in our precedents) “ha[d] not threatened or attempted to harm any of the deputies.” Blue Br. 34. Suppose a small child finds his parents’ loaded pistol and plays with it, not intending to shoot anyone. Is the pistol any less a weapon when the child doesn’t intend to shoot it? Obviously not. Does the pistol constitute a deadly threat to others when the child doesn’t intend to shoot it? Obviously. So too with Stevenson’s car. Second, Stevenson and the drivers in our precedents exhibited volatile behaviors that contributed to the officers’ “justifi[cation] in firing to prevent . . . death or great bodily harm.” Fraire , 957 F.2d at 1276; see id. at 1276 n.30 (stating the driver was “drinking while dr iving, erratic[ally] driving, [driving at a] high speed through a residential subdivision, [and] twice crashing the car”); Hathaway , 507 F.3d at 315–16 (stating the driver was swerving while he and his passengers were hanging out the window, making gang signs, and yelling the name of a well-known gang). Before the incident, Stevenson was drinking and using drugs; he pepper sp rayed his girlfriend and her daughter in a fit of rage; he stole his girl friend’s wallet an d drove away while intoxicated; he repeatedly told his gi rlfriend and the officers that he was suicidal; he repeatedly yelled “Kill me!” at one officer while ignoring commands from other officers; and he repeatedly rammed his car into a patrol unit and a concrete pillar while inches away from hitting Lieutenant Case: 20-30442 Document: 00515920865 Page: 7 Date Filed: 06/30/2021No. 20-30442

8 Birdwell. Stevenson’s immunity to reason was patent; the risk of injury or death to the Lieutenant was equally patent. Third, Plaintiffs have not produced any evidence that suggests the officers might’ve had a reasonable alternative course of action. See Ramirez , 2021 WL 257199, at *4. When asked at oral argument for a reasonable alternative, Plaintiffs’ counsel said th at officers should’ve “step[ped] back and allow[ed] Mr. Stevenson to finish th e episode, and then they could have acted.” Oral Arg. at 42:33–41. That’s absurd. Lieutenant Birdwell was inches from the front left bumper of Stevenson ’s car while he was repeatedly driving it backwards and forwards and violen tly crashing into things. Whatever reasonable alternatives officers might’ ve had, doing nothing and praying for the best is not one of them. And with out a reasonable alternative to the officers’ conduct, Plaintiffs are withou t a Fourth Amendment claim that the officers behaved “unreasonably.” See Ramirez , 2021 WL 257199, at *4.
The district court therefore correc tly held, in accordance with our precedent, that Plaintiffs’ excessive -force claim fails as a matter of law. *
B. Plaintiffs also contend that the district court erred by granting summary judgment on their failure-to-tr ain claim against the Sheriff. The district court held that Plaintiffs forfei ted this claim by failing to plead it in

* For the first time at oral argument, Pl aintiffs attempted to distinguish between the officers’ first four shots and their subsequent ones. As we’ve repeatedly and emphatically held, we cannot and will not cons ider arguments raised for the first time at oral argument. See, e.g. , Hoyt v. Lane Constr. Corp. , 927 F.3d 287, 297 (5th Cir. 2019); Martinez v. Mukasey , 519 F.3d 532, 545–46 (5th Cir. 2008); United States v. Bigelow , 462 F.3d 378, 383 (5th Cir. 2006); United States v. Ogle , 328 F.3d 182, 191 n.9 (5th Cir. 2003); Comsat Corp. v. FCC, 250 F.3d 931, 936 n.5 (5th Cir. 2001); Whitehead v. Food Max of Miss., Inc. , 163 F.3d 265, 270 (5th Cir. 1998). Case: 20-30442 Document: 00515920865 Page: 8 Date Filed: 06/30/2021No. 20-30442

9 their complaint and raising it only in response to the officers’ motion for summary judgment. We agree with the district court.
It is well settled in our circuit that “[a] claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.” Cutrera v. Bd. of Supervisors of La. State Univ. , 429 F.3d 108, 113 (5th Cir. 2005) (citing Fisher v. Metro. Life Ins. Co. , 895 F.2d 1073, 1078 (5th Cir. 1 990)). We’ve repeatedly emphasized this rule. See, e.g. , Pittman v. U.S. Bank, N.A. , 840 F. App’x 788, 789–90 (5th Cir. 2021) (per curiam); Price v. Wheeler, 834 F. App’x 849, 859 n.8 (5th Cir. 2020); Park v. Direct Energy GP, LLC, 832 F. App’x 288, 295 (5th Cir. 2020) (per curiam); Lumar v. Monsanto Co. , 795 F. App’x 293, 294 n.1 (5th Cir. 2020) (per curiam); Brown v. Wilkinson Cnty. Sheriff Dep’t , 742 F. App’x 883, 884 (5th Cir. 2018) (per curiam); Sims v. City of Madisonville , 894 F.3d 632, 643 (5th Cir. 2018) (per curiam); Strong v. Green Tree Servicing, Inc. , 716 F. App’x 259, 265 n.7 (5th Cir. 2017) (per curiam); Jones v. Wells Fargo Bank, N.A. , 858 F.3d 927, 935 (5th Cir. 2017); United Motorcoach Ass’n v. City of Austin , 851 F.3d 489, 492 n.1 (5th Cir. 2017); Byrnes v. City of Hattiesburg, 662 F. App’x 288, 290 n.1 (5th Cir. 2016) (per curiam). Plaintiffs alleged that Sheriff Gautre aux failed to adequately train his officers to avoid excessive force . After the officers moved for summary judgment, Plaintiffs argued for the fi rst time that the Sheriff failed to adequately train his officers to deal with mentally unstable individuals . This is precisely the sort of surprise switch eroo that our precedents forbid.
Plaintiffs contend that the district court should have construed their new summary-judgment argument as an implied motion to amend their complaint under Federal Rule of Civil Proc edure 15. It’s true that we’ve done that in the past, see, e.g. , Pierce v. Hearne Indep. Sch. Dist. , 600 F. App’x 194, 200 (5th Cir. 2015) (per curiam), al though it’s unclear how cases like Pierce Case: 20-30442 Document: 00515920865 Page: 9 Date Filed: 06/30/2021No. 20-30442

10 are consistent with our rule of or derliness and our numerous published precedents holding litigants forfeit ar guments raised for the first time at summary judgment. Moreover, th e sort of relief mentioned in Pierce

— construing a request for X as an implied request for Y —is normally reserved for pro se litigants. See, e.g. , United States v. Riascos , 76 F.3d 93, 95 (5th Cir. 1996) (“conclud[ing] that the district co urt’s failure to construe [the pro se plaintiff’s] ‘traverse’ as a motion to amend was an abuse of discretion”); Cooper v. Sherriff, Lubbock Cnty. , 929 F.2d 1078, 1081 (5th Cir. 1991) (“Under the liberal construction given to pro se pleadings, the magistrate judge should have construed Cooper’s reply to the defendant’s new answer as a motion to amend the complaint.”). Of course, Plaintiffs in this case did not appear pro se; they were represente d by experienced counsel. Plaintiffs’ counsel never moved to amend under Rule 15. Their failure to do so forfeited the issue and prevented the district court from considering the merits of their summary-judgment argument.
AFFIRMED

. Case: 20-30442 Document: 00515920865 Page: 10 Date Filed: 06/30/2021