ROGERS VANN, As Personal Representative and on Behalf of the Wrongful Death Beneficiaries of Jeremy W.Vann, Plaintiff - Appellant,
CITY OF SOUTHAVEN, MISSISSIPPI; LIEUTENANT JORDAN JONES, Individually and in His Official Capacity as a Police Officer; SERGEANT BRETT YOAKUM, Individually and in His Official Capacity as a Police Officer; POLICE CHIEF TOM LONG, Individually and in His Official Capacity as a Police Officer and Chief of Police; SERGEANT JEFF LOGAN, Individually and in His Official Capacity as a Police Officer, Defendants - Appellees.
from the United States District Court for the Northern
District of Mississippi ON PETITION FOR REHEARING
SMITH, ELROD, and HAYNES, Circuit Judges.
the petition for rehearing en banc as a petition for
panel rehearing, the petition for panel rehearing is GRANTED.
The panel opinion, Vann v. City of Southaven, 876
F.3d 133 (5th Cir. 2017), is WITHDRAWN, and the following is
lawsuit arises from the death of Jeremy W.Vann, who was shot
and killed by police in a retail parking lot in Southaven,
Mississippi during a small-scale drug sting operation. During
the encounter, Vann was shot by two officers, Sergeant Jeff
Logan and Lieutenant Jordan Jones. Plaintiff sued the
officers involved and the City of Southaven under 42 U.S.C.
§ 1983, claiming that the officers violated Vann's
Fourth Amendment right to be free from unreasonable seizure,
excessive force, and deadly force, and that the City had
failed properly to train its officers and had permitted an
official practice or custom that violated the constitutional
rights of the public at large. The officers and the City
simultaneously moved for summary judgment. The district
court granted the officers' and the City's
court reviews de novo the district court's resolution of
legal issues on a motion for summary judgment on the basis of
qualified immunity." Hanks v. Rogers, 853 F.3d
738, 743 (5th Cir. 2017) (quoting Griggs v. Brewer,
841 F.3d 308, 311 (5th Cir. 2016)). Summary judgment is
appropriate only if "there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Id. (quoting Griggs,
841 F.3d at 311-12); see also McClendon v. City of
Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc).
"[W]e view the facts in the light most favorable to the
non-moving party and draw all reasonable inferences in its
favor." Hanks, 853 F.3d at 743 (quoting
Griggs, 841 F.3d at 312); see also Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) ("Our
qualified-immunity cases illustrate the importance of drawing
inferences in favor of the nonmovant . . . .").
qualified immunity defense alters the usual summary judgment
burden of proof. Once an official pleads the defense, the
burden then shifts to the plaintiff, who must rebut the
defense by establishing a genuine fact issue as to whether
the official's allegedly wrongful conduct violated
clearly established law." Hanks, 853 F.3d at
744 (citation omitted) (quoting Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010)).
respect to Jones, one of the two officers who shot Vann, it
is undisputed that Jones shot Vann after his colleague,
Logan, was knocked to the ground by Vann's car and as
Vann's car approached Logan for a second time. Under
these circumstances, Jones's use of force did not violate
clearly established law.
respect to Logan, the other officer who shot Vann, even
assuming arguendo that Logan used excessive force,
the question then becomes, was there law that put Logan on
notice that shooting in the situation presented violated the
constitution? It is the plaintiff's burden to find a case
in his favor that does not define the law at a "high
level of generality." Cass v. City of Abilene,
814 F.3d 721, 732-33 (5th Cir. 2016). In the district court,
Plaintiff, Vann's representative, cited nary a
pre-existing or precedential case. That alone dooms his case
here. See id. at 733 (granting qualified immunity
even though the defendant did not cite any cases in his favor
to the district court because plaintiffs bears the burden of
showing specific law on point). Even on appeal, Plaintiff
fails to cite a case on point from this court or the Supreme
Court that helps his case, instead relying on an
we AFFIRM the district court's grant of summary judgment
to Jones, Logan, Yoakum, and Long. In addition, finding no
error in the district court's analysis regarding the
City, we AFFIRM the district court's grant of summary
judgment to the City of Southaven.
 The City and the officers were and
continue to be represented by the same counsel in single