CA5: Excessive force ptf has to show how clearly established law was violated; here, they did not

A search for business records was done with force and guns drawn because of officers’ fear of retaliation because the business owner didn’t like the ordinance he was to pay sales taxes under. When police entered, the owner drew his gun and was shot. The plaintiff fails to address how any of this violated clearly established law. Merely saying one is entitled not to be subjected to excessive force isn’t enough. Cass v. City of Abilene, 2016 U.S. App. LEXIS 3235 (5th Cir. Feb. 24, 2016):

However, Appellants also have the burden to show that Smith violated Cass’s clearly established rights. Appellants’ entire argument on this second prong of the qualified immunity test is that “it is clearly established in the law that citizens are protected against unjustified, excessive police force.” This general statement is insufficient to meet Appellants’ burden. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2084, 179 L. Ed. 2d 1149 (2011) (“We have repeatedly told courts … not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.”) (citations omitted).

We note that the district court did not reach the “clearly established” prong. Moreover, Smith entirely failed to argue that Cass’s right was not clearly established, and on an ordinary affirmative defense, Smith would bear the burden of proving the defense. Nevertheless, our precedent dictates that “once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.” Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010). We conclude that on this record, Appellants have not shown a violation of clearly established law so as to satisfy this burden.

See WaPo: Federal appeals court finds fatal raid was bad policy, but declines to hold officers accountable by Radley Balko: “Another day, another regrettable decision from a federal court. This one comes from a panel of judges from the U.S. Court of Appeals for the 5th Circuit granting summary judgment to the police officers who shot and killed Marcus Cass, a resident of Abilene, Tex.”