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: 06/30/2021
No. 20-30442 

2 

me!” to officers who were trying to control the scene. After making repeated 

but unsuccessful efforts to deescalate the situation and to disable Stevenson’s 

vehicle, officers shot and killed him. At summary judgment, the district court 

granted the officers qualified immunity. We affirm. 

I. 

At approximately 8:30 p.m. on February 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 Porter 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 Stevenson. Stevenson was in a car, which 

was turned off and parked next to an apartment building.An SUV was parked 

to the left of Stevenson, an industrial-sized dumpster was on his right, and 

the building was directly in front of him. The Louisiana State Police (“LSP”) 

Criminal Investigation Division created a scale diagram of the scene: 

Case: 20-30442 Document: 00515920865 Page: 2 Date Filed: 06/30/2021
No. 20-30442 

3 

Lieutenant Birdwell parked his patrol unit behind and perpendicular to 

Stevenson’s car, approached the driver’s side where Stevenson was seated, 

and knocked on the window. Stevenson ignored him at first, so Birdwell kept 

knocking. But then Stevenson turned on the car as if to drive away. 

Lieutenant Birdwell attempted 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 repeatedly yelled “Kill 

me!” By this time, Lieutenant Birdwell was positioned in front of 

Stevenson’s car—between the car and the apartment building. Stevenson 

then shifted the car into drive and accelerated toward Lieutenant Birdwell. 

Believing Stevenson was trying to run over Birdwell and that Birdwell was in 

a position to be injured or killed, Detective Henning shot his firearm toward 

Stevenson. The bullet didn’t hit Stevenson; it hit one of the windows, and 

some of the shattered glass hit Lieutenant Birdwell. As Stevenson accelerated 

toward him, Lieutenant Birdwell jumped back and hit the parked SUV. 

Stevenson crashed into a pole in front 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 attempt to disable the 

vehicle. The shots didn’t stop Stevenson, 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: 06/30/2021
No. 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 Stevenson 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 misconduct, as the officers’ actions were consistent with 

those of a reasonably prudent police officer 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. Plaintiffs further alleged that a seventh 

defendant, Sheriff Gautreaux, violated the Fourth Amendment by 

unreasonably failing to train his officers. 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 constitutional 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 must demonstrate (1) an injury, which 

Case: 20-30442 Document: 00515920865 Page: 4 Date Filed: 06/30/2021
No. 20-30442 

5 

(2) resulted directly and only from the use of force that was clearly excessive 

to the need; and the excessiveness 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, the court need only 

consider the second two elements—asking whether each officer’s “resort to 

deadly force was unreasonable and excessive when the facts are viewed ‘from 

the perspective of a reasonable 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” inquiries require the court to exercise 

“cautio[n] about second-guessing a police 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 physical 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 excessive, and thus no constitutional 

violation occurs, when the officer reasonably 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 circumstances, viewed objectively, justify the challenged 

action,” then subjective intent doesn’t matter. Ibid. (quotation omitted). 

Case: 20-30442 Document: 00515920865 Page: 5 Date Filed: 06/30/2021
No. 20-30442 

6 

“This approach recognizes that the Fourth Amendment regulates conduct 

rather than thoughts; and it promotes 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 officer did not violate the Fourth 

Amendment because he reasonably attempted 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 walking 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 immediately 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 not 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 Fourth Amendment in the absence of 

allegations or evidence regarding an “alternative course the defendant 

Case: 20-30442 Document: 00515920865 Page: 6 Date Filed: 06/30/2021
No. 20-30442 

7 

officers should have followed that would have led to an outcome free of 

potential tragedy.” Id. at *4. We rejected the plaintiffs’ Fourth Amendment 

claim because it was “not apparent what might 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 three 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 drivers 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 driving, 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 sprayed his girlfriend and her daughter 

in a fit of rage; he stole his girlfriend’s wallet and drove away while 

intoxicated; he repeatedly told his girlfriend 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: 06/30/2021
No. 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 that officers should’ve “step[ped] back 

and allow[ed] Mr. Stevenson to finish the 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 violently crashing into things. Whatever 

reasonable alternatives officers might’ve had, doing nothing and praying for 

the best is not one of them. And without a reasonable alternative to the 

officers’ conduct, Plaintiffs are without a Fourth Amendment claim that the 

officers behaved “unreasonably.” See Ramirez, 2021 WL 257199, at *4. 

The district court therefore correctly 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-train claim against the Sheriff. The 

district court held that Plaintiffs forfeited this claim by failing to plead it in 

*

 For the first time at oral argument, Plaintiffs 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 consider 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: 06/30/2021
No. 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. 1990)). 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 Gautreaux failed to adequately train his 

officers to avoid excessive force. After the officers moved for summary 

judgment, Plaintiffs argued for the first time that the Sheriff failed to 

adequately train his officers to deal with mentally unstable individuals. This is 

precisely the sort of surprise switcheroo 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 Procedure 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), although it’s unclear how cases like Pierce

Case: 20-30442 Document: 00515920865 Page: 9 Date Filed: 06/30/2021
No. 20-30442 

10 

are consistent with our rule of orderliness and our numerous published 

precedents holding litigants forfeit arguments raised for the first time at 

summary judgment. Moreover, the 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 court’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 represented 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