United States District Court, N.D. Mississippi, Aberdeen Division
PEGGY SHUMPERT, individually and as the Administrator of the Estate of Antwun Shumpert, Sr., THE ESTATE OF ANTWUN SHUMPERT, SR., and CHARLES FOSTER PLAINTIFFS
CITY OF TUPELO, MISSISSIPPI, MAYOR JASON SHELTON, CHIEF BART AGUIRRE, and OFFICER TYLER COOK DEFENDANTS
SHARION AYCOCK UNITED STATES DISTRICT JUDGE
their Second Amended Complaint , the Plaintiffs assert a
federal claim for excessive force under 42 U.S.C. § 1983
and the Fourth Amendment to the United States Constitution
against Tupelo Police Officer Tyler Cook
individually. The Plaintiffs also ask the Court to
exercise supplemental jurisdiction over a number of state law
claims. Cook filed a Motion for Summary Judgment ,
requesting that the Court dismiss all of the Plaintiffs'
claims against him. The Plaintiffs filed a Response ,
and Cook filed a Reply  making these issues ripe for
and Procedural Background
evening of June 18, 2016, the Tupelo Police Department
Special Operations Unit was conducting surveillance of the
Townhouse Motel due to complaints of drug activity. One of
the surveillance team members watched a vehicle enter the
motel parking lot without stopping at the office and then
exit about three minutes later. Suspecting that the occupants
of the vehicle were involved in narcotics activity, the
surveilling officer notified the team that the vehicle was
now headed north on South Gloster Street.
officer, Joseph Senter, was in his unmarked patrol car near
that location and started following the suspect vehicle.
After observing the vehicle make a right turn without
signaling, Senter activated his blue lights and attempted to
initiate a traffic stop. Senter radioed that the vehicle was
“slow rolling” him and continued to follow. The
vehicle went through a three-way stop without stopping and
made a left hand turn on Harrison Street. Then, the vehicle
stopped and the driver, Antwun “Ronnie” Shumpert,
exited the vehicle and ran into a nearby neighborhood. The
passenger, Charles Foster, remained with the vehicle. Senter
gave chase on foot, identifying Shumpert over the radio as a
black male wearing shorts and a maroon jersey with the number
five on it.
Cook was in the area, parked his patrol vehicle and set out
on foot with his K9, Alec, in an effort to locate Shumpert.
Alec led Cook to the rear of a nearby house where Cook
observed a hand trying to hold the door to the crawlspace
under the house closed from the inside. The area was dark,
and the only light illuminating the area was the light
attached to Cook's drawn gun. Cook opened the crawlspace
door and announced, “Tupelo Police Department, show me
your hands, come out from under the house, I have a dog, and
he will bite.” At this point Shumpert attempted to flee
further under the house. Cook gave the bite command to Alec
and released him sending him under the house through the
crawlspace door. K9 Alec engaged Shumpert, and Shumpert began
punching the dog and slamming the dog's head up against
the floor joists above. Shumpert fought Alec off, but Alec
held on to Shumpert's jersey. Still engaged in a
struggle, Alec and Shumpert came out from under the house,
and in the process, Shumpert's maroon jersey came off. As
he exited the crawlspace, Shumpert charged and tackled Cook
with a football style tackle, with Shumpert ending up on top
of Cook punching him. Cook attempted to strike back at
Shumpert with his fist and gun. Cook started to lose
consciousness, and as he did, he shot Shumpert four times in
succession, twice in the chest, once in the stomach, and once
in the groin.
officers were in the area and heard the gunshots. Officers
Senter and Adam Merrill were the first to arrive at the
scene. Senter handcuffed Shumpert and requested an ambulance.
Emergency medical personnel arrived within approximately five
minutes, administered aid to Shumpert, and then transported
him to the hospital. Cook was also transported to the
hospital where he was treated for bruising to his face.
Shumpert ultimately died from his wounds.
Rule of Civil Procedure 56 governs summary judgment. Summary
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “but only when . .
. both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). When such contradictory
facts exist, the Court may “not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000).
moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323, 106 S.Ct.
2548. The nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324, 106 S.Ct. 2548 (citation omitted).
Cook asserts that he is entitled to the protection of
qualified immunity in this case the Court notes, “A
good-faith assertion of qualified immunity alters the usual
summary judgment burden of proof, shifting it to the
plaintiff to show that the defense is not available.”
Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016)
(quoting Cass v. City of Abilene, 814 F.3d 721, 728
(5th Cir. 2016) (internal quotation marks
omitted)). A plaintiff “must rebut the defense
by establishing that the officer's allegedly wrongful
conduct violated clearly established law.” Wolfe v.
Meziere, 566 F. App'x 353, 354 (5th Cir. 2014)
(citing Michalik v. Hermann, 422 F.3d 252, 262 (5th
Cir. 2005); Bazan ex rel. Bazan v. Hidalgo Cnty.,
246 F.3d 481, 489 (5th Cir. 2001)). The Plaintiff
“cannot rest on conclusory allegations and assertions
but must demonstrate genuine issues of material fact
regarding the reasonableness of the officer's
Smith, a resident of San Antonio, Texas, is Shumpert's
brother-in-law. The Plaintiffs produced an affidavit from
Smith that they argue creates several material factual
disputes. In the affidavit, Smith recounts an anonymous
telephone call he received early in the morning on June 19,
2016. According to Smith, the anonymous male caller related a
very different version of the events involving Shumpert and
Cook. Smith made attempts to identify the caller but was
Defendants object to this affidavit arguing that it is
hearsay and inadmissible for consideration here under the
Federal Rules of Evidence and Federal Rule of Civil Procedure
states, in relevant part:
(2) A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence. [. . .]
(4) An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56 (c)(2)(4). The Plaintiffs do not dispute
that the affidavit is hearsay, but argue that the affidavit
is admissible under the present sense impression and excited
utterance exceptions to the hearsay rule. See Fed.
R. Evid. 803(1-2). The relevant text of Rule 803 states:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
(1) Present Sense Impression. A statement describing or
explaining an event or condition, made while or immediately
after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling
event or condition, made while the declarant was under the