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1B ecatuhsceeh iladrrmeei nn otrhsCe,o uwirltrl e fteotr h eomn layJs C a nAdC S.e e WestDeirsnt rLiocuti sLoiofac Rnauall 5 e. 7.12(6). and as to Plaintiffs’ negligence claims against Boyett and Faulkner. Because the parties do not directly address the claim, the Court makes no ruling as to Hall and Coley’s claims for “loss of consortium, love, service and society due to injuries to their children.” [Record Document 19 at 8]. BACKGROUND On the night of April 1, 2017, Coley and his daughters, JC and AC, were at the Stone Vista Apartments in Shreveport, Louisiana where they were visiting with a friend. [Record Document 41-10 at 49]. When it was dark outside, JC, AC, and Coley intended to walk a few blocks to a house where the girls lived with their mother, Hall. [Record Document 41-10 at 49-50] As they were preparing to leave the apartment building, Coley halted the girls because he heatd police sirens and observed a white Honda and police cars driving past. [Record Document 41-10 at 50]. Coley then observed the line of vehicles continue until they passed the Stone Vista complex. [Record Document 41-10 at 50-51]. What Coley witnessed was a police chase that began earlier that night in Bossier City, Louisiana. [Record Document 41-9 at 10-11]. Bossier City police officers pursued the vehicle in a chase that crossed the Texas Street Bridge from Bossier City to Shreveport, Louisiana. [Record Document 41-9 at 12]. As the chase proceeded onto Interstate 49, Officer Chad Boyett of the Bossier City Police Department led the chase because, per the Bossier City “General Orders,” the officer with a canine takes the lead in a pursuit when possible, and Officer Boyett had canine Torres (“Tortes’’) in his vehicle that night. [Record Documents 41- 5 at 21:25, 41-9 at 12-14, and 41-11 at 6, 53].

The car chase continued through Shreveport, eventually passing the Stone Vista Apartments complex, where Coley had first noticed the procession. [Record Documents 1 at 3, 41-5 at 21:35-21:36]. The white Honda then continued driving past the apartments before circling back to the Stone Vista Apartments where it entered one of the complex parking lots, slowed to a roll, and two men fled from the vehicle. [Record Documents 41-6 at 21:37-21:38 and 41-11 at 19]. At this point, Boyett also exited his vehicle and let Torres out of the back seat. [Record Document 41-5 at 21:38]. Torres was not on a leash. [Record Documents 41-5 at 21:38 and 41-11 at 69]. One officer pursued the man who exited from the passenger side of the white Honda while Boyett and Torres pursued the suspect who exited from the driver’s seat, Trevier Williams (“Williams”). [Record Documents 41-2 at 1, 41-5 at 21:38, 41-6 at 21:38, and 41-13 at 18]. Almost immediately after the pursuit began, Boyett gave Torres the command to apprehend Williams (“bite command”). [Record Document 41-11 at 82]. He did not give a vetbal warning. [Record Document 41-11 at 85]. According to Boyett, he did not observe anybody outside except other police officers and the suspects. [Record Document 41-11 at 86-87]. When Boyett gave the bite command, Williams was still fully visible to Boyett. [Record Document 41-11 at 83]. Torres began running after Williams, eventually following him out of the complex and across a street where Torres “hit Williams and knocked] him to the ground in the gtass.”2 [Record Document 41-11 at 83-84]. As Boyett observed Torres knocking Williams to the ground, he “was preparing to jump down from [a] retaining wall” located at but significantly the inadvertent excessive force occurred during the course of the officer’s intentional seizure of the man. Stamps, 813 F.3d at 35-36. While the application of the excessive force to Mr. Stamps was unintentional, it was a product of the officer’s unreasonable behavior during an intentional seizure of Mr. Stamps. Id. at 32. In this case, there is no evidence in the record that Boyett’s willful act, releasing Torres, was intended to seize anyone other than Williams. Thus even if JC was an “unintended person” or the victim of inadvertent excessive force, the lack of intent to seize her at all means there can be no Fourth Amendment violation. “The Fourth Amendment addresses ‘misuse of power,’ not the accidental effects of otherwise lawful government conduct.” Brower, 489 U.S. at 596 (internal citations omitted). Because Officer Boyett did not release Torres with the intent of stopping JC, the bite JC suffered was not the product of “means intentionally applied” and, therefore, was not a Fourth Amendment seizure. Plaintiffs’ 42 U.S.C. § 1983 claim based on a Fourth Amendment violation is DISMISSED WITH PREJUDICE. B. Failure to Intervene Plaintiffs assert that Faulkner is liable under 28 U.S.C. § 1983 for failure to intervene to stop Boyett’s use of excessive force. [Record Documents 19 at 5 and 45 at 29-30]. Plaintiffs ate correct that an officer who is present at the scene where excessive force is used and fails to intervene may be liable for a Fourth Amendment violation under § 1983, but “the presence of excessive force [is] essential to a failure to intervene § 1983 violation.” Spencer v. Rau, 542 F. Supp. 2d 583, 594 (W.D. Tex. 2007). See also Gilbert v. French, 364 F. App’x 76, 83 (5th Cir.

2010). This Court found that there was no excessive force violation and, thus, Plaintiffs’ § 1983 claim against Faulkner likewise fails and is DISMISSED WITH PREJUDICE. C. Plaintiffs’ Fourteenth Amendment Claim 1. Allowing Plaintiffs’ Claim Under the Fourteenth Amendment Plaintiffs also assert a standalone Fourteenth Amendment substantive due process claim against Boyett. [Record Documents 19 at 1 and 45 at 24]. Defendants argue that Plaintiffs’ Fourteenth Amendment claim should be dismissed because the substantive due ptocess claim is based on excessive force, which must be adjudicated under the Fourth Amendment because that is the most specific constitutional protection applicable. [Record Document 41-1 at 14-15]. Plaintiffs respond that, in the event that the Court rules that they do not have an actionable Fourth Amendment claim, then they do have a Fourteenth Amendment claim. [Record Document 45 at 24]. First, the Court tutns to whether Plaintiffs’ clatm should be considered under the Fourteenth Amendment. When a “particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the mote generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Ofver, 510 U.S. 266, 273 (1994) (plurality opinion) (quoting Graham, 490 U.S. at 395) Gnternal quotation marks omitted). This does not mean that “all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments|,]’” but only that those clatms which are “covered by” the Fourth Amendment must be evaluated under Fourth Amendment standards. Czy. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)) Gnternal quotation marks omitted). The Fourth Amendment only applies to seatches and seizures. Id. Plaintiffs do not allege a search occurted in this case and the Court held that there was no seizure. Thus, the Fourth Amendment is not applicable, and the Court must address the merits of Plaintiffs’ Fourteenth Amendment claim. Id at 843-44. 2. The Merits of Plaintiffs’ Fourteenth Amendment Claim Defendants argue that Plaintiffs’ Fourteenth Amendment claim should be dismissed

on the merits because Plaintiffs have not met their burden of establishing that there is a triable issue of fact. [Record Document 49 at 11]. Plaintiffs assert that the evidence presented thus far is sufficient to establish that Defendants’ actions rise to the level of a substantive due process violation. [Record Document 45 at 24-25]. The Fourteenth Amendment protects individuals against deprivation of life, liberty, or ptoperty without due process of law. U.S. Const. amend. XIV, § 1. This is both a substantive and a procedural protection. Czy. of Sacramento, 523 U.S. at 840. The “core concept” behind the term “due process” is the “protection against arbitrary action.” Id at 845. To establish a substantive due process claim based on executive action, “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense[.]”’ Id. at 846 (quoting Codkns v. City of Harker Heights, Texas, 503 U.S. 115, 129 (1992)). The “cognizable level of executive abuse of power [is] that which shocks the conscience.” Id. Conduct amounting to mere negligence is “categorically beneath the threshold of constitutional due process.” Id. at 849. Recognizing the difficulties police officers face when engaged in pursuit of a fleeing suspect, the Supreme Court held that “only a purpose to cause harm unrelated to the legitimate object of atrest will satisfy the element of arbitrary conduct shocking to the conscience” in that context and noted that “even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock” that rises to the level of a Fourteenth Amendment violation. Id. at 836, 853. Plaintiffs enumerate several of Boyett’s actions that they believe constitute a Fourteenth Amendment violation. The Court will address each individually. First, Plaintiffs

argue that Boyett’s decision to telease Torres when he either knew or should have known there would be people present “shocks the conscience.” [Record Document 45 at 23-24]. Under the County of Sacramento standard, Boyett’s knowledge of others at the scene is immaterial.^[4] When Tortes was released, the officers were engaged in the chase of suspects the police believed to be armed. [Record Documents 41-11 at 85 and 41-12 at 55]. There is no evidence in the record to suggest that Torres was released for any purpose other than to catch Williams, and certainly no evidence to prove an intent to cause harm that was unrelated to the legitimate object of arrest. To the extent that Plaintiffs argue Boyett was negligent in failing to look for the presence of others, this too fails to rise to a substantive due process violation. Relatedly, Plaintiffs assert that Boyett’s failure to give a verbal warning when releasing Totres tises to the level of a Fourteenth Amendment violation. [Record Document 45 at 24]. Boyett admits that, “dependent on the situation,” a canine handler should give a verbal watning before giving a bite command. [Record Document 41-11 at 70]. He also admits that the Bossier City Police Department “General Orders” require that officers give a verbal warning. [Id.] Boyett acknowledges that he did not give a warning when releasing Torres that night, but says that decision was based on a fear for officer safety because he had reason to believe Williams was armed and the warning may have caused Williams to begin shooting. [Record Document 41-11 at 85]. Plaintiffs present no evidence that Boyett failed to give a warning with the intent to cause harm unrelated to his stated reason, which is related to the legitimate object of his arrest. Hence Boyett’s omission does not rise to the level of shocking the conscience. Plaintiffs next argue that Boyett’s decision to use the “choke off’ release technique instead of verbally commanding Torres to release his bite on JC shocks the conscience because it exacerbated her injuries. [Record Document 45 at 24-25]. Plaintiffs cite expert Kyle Heyen’s (“Heyen’”) explanation that the use of a “choke off” increased JC’s pain and injuries because this technique causes the dog to first increase the intensity of the bite before releasing.® [Record Documents 41-18 at 11-13 and 45 at 25]. Heyen states that there are only three reasons a canine handler would use a “choke off’ maneuver instead of a verbal command: (1) the handler has reason to believe the dog will not release by a verbal command alone; (2) the handler was improperly trained; or (3) the handler “knowingly and maliciously wants to inflict

mote pain.” [Record Document 41-18 at 12-13]. Heyen noted that the use of a “choke off” release does not meet the “current patrol dog standards in the United States.” [Record Document 41-18 at 13]. Boyett explained that he chose to use a combination of the “choke off’ and an “out command” because he worried that had he just given an “out command,” Tortes would have released his bite on JC and instantly turned to attack Coley because Coley was holding and hitting the dog while trying to help JC. [Record Document 41-11 at 99-100]. At the time this incident occurred, Boyett was in pursuit of a fleeing suspect. He was forced to make the very type of split-second decision that the Supreme Court considered when holding that officers engaged in high speed chases were not liable under the Fourteenth Amendment absent evidence that the officer intended to harm the suspect or worsen his legal plight. Cty. Of Sacramento, 523 U.S. at 853-854. Boyett was forced to make an instant decision about how best to get Tortes to release JC without causing Torres to turn his attack on another

person, as Boyett knew was likely to happen in that situation. Given this, the Court cannot conclude that Boyett’s decision to use a “choke off’ release shocks the conscience. While this technique very well may have exacerbated JC’s injuries, and possibly was not the best way to have handled the situation, there is no evidence that Boyett made that decision with the intent to cause JC more hatm. At most his decision was negligent or showed precipitate recklessness, but this does not tise to the level of a Fourteenth Amendment violation. Plaintiffs have failed to identify any actions or decisions which rise to the level of shocking the conscience, and therefore have failed to establish that Defendants violated their Fourteenth Amendment rights. Thus, Plaintiffs’ 42 U.S.C. § 1983 claim based on a Fourteenth Amendment violation is DISMISSED WITH PREJUDICE. Ill. Official Capacity Claims Against Officer Boyett and Sergeant Faulkner Plaintiffs assert that Boyett and Faulkner are liable in both their individual and official capacities. [Record Document 19 at 2]. An official capacity suit against a municipal officer duplicates a suit against the officer’s municipality. Turner v. Houma Mun. Fire C» Police Civil Serv. Ba., 229 F.3d 478, 483 (5th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). A district court faced with both claims may dismiss the official capacity claim. Castro Romero v. Becken, 256 F.3d 349, 355 (th Cir. 2001) (citing Flores v. Cameron Cty., 92 F.3d 258, 261 (5th Cir. 1996)). The official capacity claims against Boyett and Faulkner ace DISMISSED WITH PREJUDICE as duplicative of the municipal liability claims against the City of Bossier City. IV. Section 1983 Municipal Liability Claim Plaintiffs assert that the City of Bossier City is able under 42 U.S.C. § 1983 for failure to ptoperly train Boyett and Torres. [Record Document 19 at 7-8]. The Supreme Court has held that municipalities such as the City are “persons” within the meaning of § 1983, and are therefore subject to potential liability under the statute. Mone// v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A municipality is only responsible for a constitutional harm if the execution of one its customs or policies caused, or was the “moving force” of, the injury. Id at 694. To impose liability on a municipality under § 1983, a plaintiff must prove three elements: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose “moving force” is the policy. Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 US. at 694). In the instant case, Plaintiffs have failed to establish a violation of any constitutional right, and therefore their claim against the City of Bossier City is DISMISSED WITH PREJUDICE. V. Plaintiffs’ State Law Claims Having dismissed all of Plaintiffs’ federal claims, the Court must address jurisdiction ovet the remaining state law claims. When a federal court has jurisdiction over a claim, it can also hear any claims overt which it has supplemental jurisdiction. 28 U.S.C. § 1367. If the claims initially conveying jurisdiction upon the federal court ate dismissed for reasons other than a lack of jurisdiction, the court has discretion to continue exercising jutisdiction over the supplemental claims. 28 U.S.C. § 1367(c). See also Baker v. Farmers Elec. Coop., 34 F.3d 274, 283 (5th Cir. 1994) (“The pendent jurisdiction may continue even after the federal claims upon which jurisdiction is based have been dismissed or rendered moot.”). Although the federal claims have now been dismissed, the Court exercises its discretion to retain jurisdiction over Plaintiffs’ state law claims. A. Battery and Excessive Force Plaintiffs argue that Boyett is liable under Louisiana Civil Code Article 2315 for “battery committed against [JC]” under the theory that when an officer uses excessive force, what is normally a protected use of force is converted to a battery. [Record Document 45 at 30-31]. Under Louisiana law, a police officer has the right to use force when effectuating a lawful attest. Deville v. Marcantel, 567 F.3d 156, 173 n.9 (5th Cir. 2009) (citing La. Code. Crim. P. art 220). “Excessive force transforms ordinarily protected use of force into an actionable battery, rendering the defendant officer and his employer liable for damages.” Penn v. St. Tammany Par. Sheriff's Office, 02-0893 (La. App. 1 Cir. 4/2/03); 843 So. 2d 1157, 1161. “A battery is ‘[a] harmful ot offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact . ...” Landry v. Bellanger, 02-1443 (La. 5/20/03); 851 So. 2d 943, 949 (quoting Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987)). Under Louisiana law, there was no battery here because battery is the intentional application of force and Boyett did not intend to apply force to JC by releasing Torres to attack. Therefore, Plaintiffs’ state law excessive force claim is DISMISSED WITH PREJUDICE. B. Strict Liability 1. Plaintiffs’ Right to Raise Strict Liability Plaintiffs allege that the City of Bossier City is strictly liable for the damage inflicted by Tortes under Louisiana Civil Code Article 2321. [Record Document 45 at 31]. Plaintiffs first formally stated a claim for strict liability in theit opposition to Defendants’ motion for

summaty judgment. [Id] Defendants argue that the Court should not consider this argument because it was raised at a “highly improper” time. [Record Document 49 at 9]. Plaintiffs contend that the Court should consider this claim because it is not a “new” claim. [Record Document 53 at 2]. They further argue that should the Court find this is a new claim, the Court must construe it as a motion to amend the Plaintiffs’ complaint. [Id] When a claim is raised for the first time in response to a motion for summary judgment, a court should treat the claim as a motion to amend the complaint under Federal Rule of Civil Procedure 15(a). Riley v. School Bd. Union Parish, 379 F. App’x 335, 341 (6th Cir. 2010) (citing Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008)). “The Supreme Court lists five considerations in determining whether to deny leave to amend a complaint: ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, [and] futility of the amendment... .”’ Rosenzwezg v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). When these factors ate absent, leave should be “freely given.” Id In this case, Plaintiffs have already filed an amended complaint that failed to expressly sttict liability. [Record Document 19]. This fact alone does not mean they should not be gtanted leave to amend their complaint to now add the strict liability claim, though. See Rosenzweig, 332 F.3d at 864 (“Merely because a claim was not presented as promptly as possible, however, does not vest the district court with authority to punish the litigant.”) (quoting Carson

v. Polley, 689 F.2d 562, 584 (5th Cir. 1982)). The other factors the Court must consider all lead the Court to allowing Plaintiffs to amend the complaint. First, allowing Plaintiffs’ strict hability claim to go forward will not cause any undue delays or undue prejudice to Defendants as the facts relevant to the strict liability claim are the same facts that are relevant to the negligence claims properly raised in Plaintiffs’ complaint. Second, there is no evidence that strict lability was taised in bad faith or with a dilatory motive. Third, amending the pleading to raise strict liability is not futile. Having concluded that it is in the interest of justice to allow Plaintiffs to amend their complaint to raise a strict liability claim, the Court will allow until October 31, 2019 for Plaintiffs to file an amended complaint. C. Negligence Against the City of Bossier City Plaintiffs allege that the City of Bossier City is liable in negligence for failure to train and supetvise Boyett “in tactics concerning the use and handling of a K-9 dog under these kinds of citcumstances including the presence of innocent bystanders.” [Record Document 19 at 9]. Defendants contend that Bossier City is entitled to discretionary acts immunity under Louisiana Revised Statute § 9:2798.1. [Record Document 41-1 at 25].

Louisiana Revised Statute § 9:2798.1(B) provides that “([lJiability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts ate within the course and scope of their lawful powers and duties.” The statute defines “public entity” to include the state and any of its branches and political subdivisions and the departments, offices, and agencies of such political subdivisions. La. Rev. Stat. § 9:2798.1(A). See also Roberts v. City of Shreveport, 397 F.3d 287, 296 (Sth Cir. 2005) (applying La. Rev. Stat. § 9:2798.1 to claims of negligent training against a city police chief). This immunity is not absolute, however. “The Supreme Court of Louisiana considers the immunity conferred on

state public officials by this law to be ‘essentially the same as the immunity conferred on the federal government by the exception to the Federal Tort Claims Act @TCA).” Id (quoting Jackson v. State ex rel. the Dep’t of Corrections, 00-2882 (La. 5/15/01); 785 So. 2d 803, 809). The City of Bossier City is only immune, then, if “no state law, regulation, or policy specifically” ptosctibed “the officer’s course of action” and if “the challenged action is grounded in political, economic, ot social policy.” Id. Simply put, if the official exercised “policy-based discretion,” he or she is immune from state tort liability. Id. In this case, the parties have provided information about and discussed the training in which Boyett and Torres participated but have not established that the initial training, the ongoing training, or the supervision of Boyett was “grounded in political, economic or social policy.” Defendants have thus failed to establish that the City of Bossier City is entitled to immunity under § 9:2798.1(B).

Likewise, Defendants have failed to catty their summary judgment burden on the merits of Plaintiffs’ negligence claim. In support of their argument, Defendants assert that “Plaintiffs have no evidence showing that Bossier City failed to adequately train or supetvise Officer Boyett on the use of police dogs.” [Record Document 41-1 at 25]. They then argue that the summary judgment evidence demonstrates that “Officer Boyett received all necessary and appropriate police dog training.” [Id] These ate conclusory allegations for which no record evidence or binding authority was cited. The Court recognizes that Defendants addressed the training Boyett received with Totres in another section of their brief. [Record Document 41-1 at 17]. In this section, Defendants establish that Boyett “completed a twelve-week handler course, passed written tests, and completed a two-week field training phase” with Tortes. [I@.].'They also cite evidence that Boyett was National Police Canine Association (“NPCA”) certified in 2016 and that NPCA training is the “best practice standard in the police dog industry.” [Id.] While these facts

ate illuminating, they have not been addressed in the context of the Plaintiffs’ negligence claim. Accordingly, summary judgment is DENIED. D. Negligence Against Officer Boyett and Sergeant Faulkner Plaintiffs allege that Boyett was negligent in deploying Tortes and that Faulkner was negligent in failing to intervene to stop the attack. [Recotd Documents 19 at 8-9 and 45 at 33]. Defendants argue that Plaintiffs cannot satisfy all elements of a negligence claim because they cannot show that Boyett and Faulkner breached any duty by acting unreasonably. [Record Document 41-1 at 26-27]. The briefing submitted by the parties failed to address whether Boyett ot Faulkner owed a duty to JC, AC, and Coley under the circumstances of this case.

Furthermore, questions of material fact remain that are relevant to determining the reasonableness of Boyett and Faulkner’s actions. Summary judgment on these claims is therefore DENIED. CONCLUSION For the teasons discussed above, Defendants’ motion for summary judgment [Record Document 41] is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to all of Plaintiffs’ federal claims and Plaintiffs’ state law excessive force claim. It is DENIED as to Plaintiffs’ negligence claim against the City of Bossier City and their negligence claims against Boyett and Faulkner. Plaintiffs shall have until October 31, 2019 to file their amended complaint including their strict lability claim. THUS DONE AND SIGNED in Shteveport, Louisiana, on this AQ} day of October, 2019.

ELIZABEYRLE. FOOTE UNITED STAT fpsguc JUDGE