Schilly et al v. Marcal et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JADE SCHILLY DAUTERIVE, ET AL. 	CIVIL ACTION
VERSUS 	NO. 22-3067
SERGEANT JOSEPH MARCAL, ET AL. 	SECTION: “P” (4)
ORDER AND REASONS
This action, brought under 42 U.S.C. § 1983 and Louisiana law, arises out of the tragic
death of 65-year-old Anne Schilly, on September 1, 2021.1 Plaintiffs, Jade Schilly Dauterive and
Tylere Schilly,2 are her surviving adult children. Plaintiffs contend their mother, who suffered
from mental illness, was in the midst of a mental health crisis when she was confronted by
Jefferson Parish Sheriff Sergeant Joseph Marcal and Deputy Brian Khars, after Schilly was
accused of harassing and threatening some Jefferson Parish utility workers who were repairing a
water main in the aftermath of Hurricane Ida.3 This fateful encounter ended in Schilly’s death after
she was shot by Deputy Khars.
Pending before the Court is a motion for summary judgment filed by Defendants, Marcal
and Khars, in their individual capacities, and Joseph P. Lopinto, III, in his official capacity as the
Sheriff of Jefferson Parish.4 Plaintiffs opposed the motion,5 and Defendants filed a reply,6 and
Plaintiffs 	and 	Defendants 	thereafter 	filed 	supplemental 	memoranda.7 	Having 	considered
Defendants’ motion and the extensive briefing and other materials filed in connection with the
motion, along with the applicable law, the Court GRANTS Defendants’ Motion.
1 R. Doc. 1.
2 Jade Schilly Dauterive is suing in both her individual capacity and as Independent Executrix of the Succession of
Anne Schilly. R. Doc. 1.
3 Id. at ¶ 6.
4 R. Doc. 34.
5 R. Doc. 38.
6 R. Doc. 39.
7 R. Docs. 41, 46.
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I. 	BACKGROUND
On September 1, 2021, Sergeant Joseph Marcal, a twenty-year-veteran of the Jefferson
Parish Sheriff’s Department, who served as a member of the SWAT team8 and as a firing instructor
at the department’s training academy,9 was providing extra help in the days immediately after
Hurricane Ida struck South Louisiana.10 	While driving westbound on Park Manor Drive in
Metairie,11 with the police lights on his unmarked Ford Explorer flashing to remind motorists to
slow down because the area’s traffic signals were not working,12 Sergeant Marcal was “flagged
down” by two Jefferson Parish utility workers.13 One of the workers told Sergeant Marcal that a
woman had made racial slurs toward him and had threatened to kill him and possibly other people
in his vicinity.14
The worker pointed to a woman, who would later be identified as Schilly, sitting in a dark-
colored sports utility vehicle.15 Sergeant Marcal broadcast the woman’s description over his police
radio and requested assistance.16 The dispatcher reported that 911 had already been called in
reference to an irate woman who was threatening parish workers.17
Meanwhile, Deputy Brian Khars, a six-and-a-half-year veteran of the department’s Fourth
District, who had previously served for a little over four years as a patrol officer with the police
department in Kenner, Louisiana,18 had been dispatched to a call, arising out of a driver blocking
8 R. Doc. 34-6 at 24.
9 R. Doc. 34-4 at 6.
10 R. Doc. 34-4 at 24.
11 R. Doc. 34-4 at 30.
12 R. Doc. 34-4 at 35.
13 R. Doc. 34-4 at 30.
14 R. Doc. 34-4 at 37-38.
15 R. Doc. 34-4 at 38.
16 R. Doc. 34-4 at 41.
17 R. Doc. 34-4 at 41.
18 R. Doc. 34-5 at 10
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the roadway and yelling obscenities, in the 6500 block of Park Manor Drive.19 He advised dispatch
that he was en route,20 and when he arrived, he saw Sergeant Marcal and “a bunch of people on
the sidewalk and in the street,” and a dark SUV blocking the roadway.21
Sergeant Marcal, dressed in plain clothes,22 had gone to the front of Schilly’s vehicle, with
his Jefferson Parish Sheriff’s ID in hand.23 Marcal testified that he looked directly at Schilly, so
he could communicate with her,24 and he greeted her “in a calm, very collected voice.”25 He told
her he was Sergeant Marcal with the sheriff’s department, and that he was “[j]ust trying to talk to
her.”26 Schilly “cracked [her window] a little bit,” and said “f*ck you” to Sergeant Marcal and
called him a “piece of sh*t.”27 As Marcal continued to try and talk to Schilly, she cursed him and
indicated she did not want to speak with him.28 Marcal, who had left his weapon in his police
unit,29 was standing on the driver’s side of Schilly’s vehicle, near its A-pillar with the driver’s side
mirror near his abdomen.30
Meanwhile, Khars, who arrived in a marked police unit31 and wearing his full uniform,32
noticed Schilly’s car window was half up and half down, and she was flailing her arms.33 Khars
said he walked up to Schilly’s car and introduced himself, saying, “Hello, I’m Deputy Brian
Khars,” and asked Schilly how she was doing and what was happening.34 Khars testified Schilly
19 R. Doc. 34-5 at 24.
20 R. Doc. 34-5 at 25.
21 R. Doc. 34-5 at 26.
22 R. Doc. 34-4 at 26.
23 R. Doc. 34-4 at 43.
24 R. Doc. 34-4 at 42-43.
25 R. Doc. 34-4 at 43.
26 R. Doc. 34-4 at 43.
27 R. Doc. 34-4 at 43.
28 R. Doc. 34-4 at 44.
29 R. Doc. 34-4 at 44.
30 R. Doc. 34-4 at 49.
31 R. Doc. 34-5 at 36.
32 R. Doc. 34-5 at 35.
33 R. Doc. 34-5 at 27.
34 R. Doc. 34-5 at 31.
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was yelling in a loud voice, using obscenities, and was making racial slurs regarding the workers
who were nearby.35 Schilly did not cooperate with Khars’ request to see her driver’s license, and
instead rolled up her window and yelled at him.36
The testimony of the defendant officers differs somewhat over exactly what else happened
at the initial scene. Khars, who had received crisis intervention training to deal with the mentally
ill,37 had dealt with a lot of mentally ill persons as a law enforcement officer.38 Khars believed,
based on his training and experience, that Schilly had some kind of mental health issue.39 He
testified that he and Marcal decided they “were going to 2853L her,”40 which is when a law officer
makes a determination that a person is “a danger to [herself], a danger to others, or gravely
disabled,” and the person needs to be evaluated by a medical professional.41
The officers’ plan, according to Khars, was to attempt to get Schilly to open the window
again, and Marcal would reach inside Schilly’s car and unlock her door, while Khars would grab
the door handle and open the door,42 and the officers would take her out of the car and bring her
to a hospital.43 Khars testified that when they knocked on Schilly’s car to get her to open the
window, she gave them “the middle finger” and “the mouth movement of the F word.”44
35 R. Doc. 34-5 at 33.
36 R. Doc. 34-5 at 34.
37 R. Doc. 34-5 at 16.
38 R. Doc. 34-5 at 18.
39 R. Doc. 34-5 at 37.
40 La. R.S. 28:53 provides, generally, that a person suffering from mental illness may be admitted, on an emergency
basis, to a treatment facility for observation, diagnosis, and treatment. At subpart L(1), the statute provides that a law
enforcement officer may take a person into protective custody and transport the person to a treatment facility for a
medical evaluation “when, as a result of his personal observation, the peace officer . . . has reasonable grounds to
believe the person is a proper subject for involuntary admission to a treatment facility because the person is acting in
a manner dangerous to himself or dangerous to others, is gravely disabled, and is in need of immediate hospitalization
to protect such a person or others from physical harm.”
41 R. Doc. 34-5 at 37.
42 R. Doc. 34-5 at 36.
43 R. Doc. 34-5 at 38.
44 R. Doc. 34-5 at 39.
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Marcal, too, had received training in dealing with the mentally ill.45 He testified that the
goal when dealing with a mentally ill person is to get them help by bringing them to a medical
facility for treatment.46 Unlike Khars, however, he did not make an initial assumption about
Schilly’s mental health. He was interested in “trying to figure out a way to deal with the
situation.”47 Marcal, contrary to Khars’ testimony, testified he “was the one talking” because he
had “already established a rapport with Ms. Schilly.”48 Marcal said he and Khars had talked and
“formulated an opinion about what may be the best course of action,” which Marcal said was to
“get her out of the vehicle and just interview her.”49 Marcal was trying to understand whether he
was dealing with someone to whom the Louisiana protective custody and transport statute50
applied, or if this was “going to be just a person who got upset and said some things probably she
shouldn’t have said.”51 Marcal explained, referring to the immediate aftermath of Hurricane Ida,
that it was “a situation of distress,” and he was aware that “people are upset” and are “not in their
normal state” in this kind of situation, and he “did not want to make an assumption.”52
According to Khars, as the officers were trying to get Schilly to open the window, “her
vehicle started to idle forward.”53 Khars said that while he was standing on the driver’s side of the
vehicle, and Marcal was standing at “the front driver’s side fender,”54 Schilly “took her foot off
the brake, and her vehicle started to roll forward.”55 Schilly rolled for 15 to 20 feet, according to
45 R. Doc. 34-4 at 16-17.
46 R. Doc. 34-4 at 18.
47 R. Doc. 34-4 at 45.
48 R. Doc. 34-4 at 45.
49 R. Doc. 34-4 at 49.
50 See supra note 40.
51 R. Doc. 34-4 at 49.
52 R. Doc. 34-4 at 50.
53 R. Doc. 34-5 at 39.
54 R. Doc. 34-5 at 39.
55 R. Doc. 35-5 at 39.
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Khars, and then “hit[] the gas.”56 As Schilly’s vehicle began rolling, Khars told Schilly to stop the
vehicle,57 and he saw Marcal hitting Schilly’s windshield with his hand, asking her to stop.58
Instead, Schilly took off at a high rate of speed.59 Marcal, according to Khars, was “clipped” by
Schilly’s car, and while he did not fall, he spun, caught his balance, and then ran back to his
unmarked unit to pursue Schilly.60 Meanwhile, Khars, who did not draw his weapon at any point
at the initial scene,61 ran to his own marked police unit to pursue Schilly.62
Marcal described the last few moments at the initial scene a little differently. He testified
that Schilly “somehow put the vehicle in drive, unless her foot was already on the brake,” which
he admitted he did not know, and then turned the vehicle to her left, pushing it into Marcal, who
“just held on as she dragged [him] down the street,” causing Marcal’s feet to get “sucked
underneath the vehicle.”63 Marcal said Schilly’s vehicle “accelerated really fast,” and made contact
with his abdomen, dragging him “about maybe 15, 20 feet,” as he was “trying to push away from
it.”64 He could not see Khars because he was busy trying not to get “sucked underneath the vehicle
and rolled over,” and was yelling “Please stop, please stop.” 65 Marcal was eventually able to push
off Schilly’s vehicle, backpedal, and regain his balance, and he could then see Khars “following
her” in “a fully marked JPSO unit, lights and sirens, everything on it,” while he got into his own
unit to assist.66 A cell phone video recording made by one of the utility workers captured Ms.
Schilly cursing and making racial slurs toward the worker and some of her interaction with the
56 R. Doc. 34-5 at 40.
57 R. Doc. 34-5 at 45-46.
58 R. Doc. 34-5 at 46.
59 R. Doc. 34-5 at 47.
60 R. Doc. 34-5 at 47-48.
61 R. Doc. 34-5 at 40.
62 R. Doc. 34-5 at 49.
63 R. Doc. 34-4 at 52.
64 R. Doc. 34-4 at 53.
65 R. Doc. 34-4 at 54.
66 R. Doc. 34-4 at 56-57.
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officers on Park Manor, including after she accelerated with Sergeant Marcal holding onto and
then pushing off her moving vehicle, as well as the officers’ initial pursuit of Schilly from the
scene on Park Manor Drive.67
Marcal described Khars’ action upon leaving the initial Park Manor Drive scene, as
“following,” not chasing,68 and Marcal could not say how fast Schilly was going because they
were initially too far ahead of him.69 The video evidence, however, shows Schilly and the police
vehicles leaving the initial scene at a high rate of speed.70 Even at this point, while Marcal was
“concerned for her state of mind,” he testified he could not evaluate her mental health because
“[s]he wouldn’t get out of the car.”71 Marcal’s “plan was to try to assist Deputy Khars in the best
way possible and the safest way possible,” to help “get her whatever help she needed,” but “more
importantly,” Marcal said, he “was concerned for the safety of the public, given that she had just
dragged [him] down the street.”72
Meanwhile, Khars notified headquarters that Schilly’s vehicle had taken off, and they were
in a vehicle pursuit.73 Khars pursued Schilly down Park Manor Drive onto northbound Downs
Boulevard, and then westward onto Veterans Boulevard.74 Khars did not lose sight of Schilly’s
vehicle, as he pursued her with lights and sirens, and as Marcal pursued with flashing lights.75 At
first, Khars was the lead police unit,76 but when the vehicles moved to Veterans Boulevard, Marcal
pulled ahead of both Schilly and Khars.77 Eventually, Schilly reached Lisa Drive where “a bunch
67 R. Doc. 34-6.
68 R. Doc. 34-4 at 57.
69 R. Doc. 34-4 at 57.
70 R. Doc. 34-6.
71 R. Doc. 34-4 at 57-58.
72 R. Doc. 34-4 at 58.
73 R. Doc. 34-5 at 51-52.
74 R. Doc. 34-5 at 52.
75 R. Doc. 34-5 at 53.
76 R. Doc. 34-5 at 54.
77 R. Doc. 34-5 at 55.
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of vehicles were stopped.”78 Khars estimated the pursuit reached speeds of up to 50 miles per hour
on Veterans Boulevard, where the speed limit was 35 or 40 miles per hour depending on the
location, and Khars believes Schilly “[weaved] in and out of the middle to right lane.”79 Khars
testified he continued his pursuit of Schilly because he was concerned she could endanger other
drivers.80
Schilly stopped when the vehicle in front of her stopped for traffic.81 Khars exited his
vehicle and went toward Schilly’s driver’s side door, while asking Schilly to stop the vehicle.82
Marcal testified he had driven ahead of the car that had stopped in front of Schilly because of a
nonfunctioning traffic signal. Marcal parked in front of this vehicle, while Khars parked directly
behind Schilly. Marcal’s goal would have been to “box her in,”83 to prevent her from driving off,
with Khars’ unit directly behind Schilly, and his unit directly in front of Schilly, but he was unable
to do this because the other car had stopped immediately ahead of Schilly.84 Marcal ran from his
unit to the front of Schilly’s car,85 and Khars could see him in front of Schilly’s vehicle.86
Khars said he drew his weapon because he “was concerned about [Marcal’s] safety, of
[Marcal] receiving a great bodily harm, or getting killed and run over by [Schilly’s] vehicle.”87
Khars did not get in front of Schilly’s vehicle because Marcal was already in front, and Jefferson
Parish officers are taught to use a Tactical-L formation to avoid an officer-on-officer shooting.88
78 R. Doc. 34-5 at 55.
79 R. Doc. 34-5 at 57.
80 R. Doc. 35-4 at 61.
81 R. Doc. 34-5 at 61-63.
82 R. Doc. 34-5 at 63.
83 R. Doc. 34-4 at 60.
84 R. Doc 34-4 at 60-61.
85 R. Doc. 34-4 at 61.
86 R. Doc. 34-5 at 64.
87 R. Doc. 34-5 at 68.
88 R. Doc. 34-5 at 68-69.
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When Khars drew his weapon, he was about 10 feet away from Schilly’s car, and he yelled
for her to stop and get out of her car.89 Meanwhile, Marcal could see Khars had his weapon pointed
directly at Schilly.90 At this point, Marcal was standing “[i]n the front of the vehicle, on the driver’s
side, looking directly at her through the window,”91 and he made eye contact with Schilly and
asked her to “Stop, stop. Please, stop.”92 Marcal said he was positioned with part of his body in
front of her car and part of his body on the side, at the corner of the driver’s side front bumper, “in
a more 	advantageous 	position 	to 	push 	off.”93 Marcal 	explained 	this 	was 	not 	really 	an
“advantageous position,” but he thought it was the only position from which he could maintain
effective communication with Schilly.94 He testified he would not put himself directly in the front
center of Schilly’s vehicle, however, because he did not want “to get run over” or “pinned
between” Schilly’s car and the car in front of it.95 He chose this position in case Schilly “pulled
something like before,” so he could “be safe, within reason” because “a car can accelerate very
rapidly,” and it can be “very difficult to sometimes get out of the way.”96
Marcal testified that, as this was unfolding, Schilly was staring straight ahead, and was not
“even really looking” at Marcal, when “[t]he engine revved up, and the car lurched forward.”97
Khars testified that “fairly quickly”98 after he yelled at Schilly to stop and get out of her vehicle,
it appeared to him that Schilly had taken her foot off the brake and, based on what he had seen on
Park Manor, he thought she was “about to go accelerate.”99 Marcal, who did not remember Khars
89 R. Doc. 34-5 at 70-71.
90 R. Doc. 34-4 at 63.
91 R. Doc. 34-4 at 65-66.
92 R. Doc. 34-4 at 65.
93 R. Doc. 34-4 at 66-68.
94 R. Doc. 34-4 at 69.
95 R. Doc. 34-4 at 70.
96 R. Doc. 34-4 at 70.
97 R. Doc. 34-4 at 72.
98 R. Doc. 34-5 at 73.
99 R. Doc. 34-5 at 74.
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saying anything to Schilly,100 described the sound as “kind of strange,” and “almost like it was –
like, a racecar,”101 and he attempted to push off, and although the vehicle hit his left leg when the
vehicle lurched forward, he was ultimately not injured.102 Marcal yelled at Schilly to stop, and
then he very quickly heard gunshots.103
Khars fired eight Glock 9 millimeter rounds though Schilly’s driver’s side door and
window, in rapid succession.104 When Khars saw, through the shattered window of her car, that
Schilly had been shot in the neck, he holstered his weapon.105 Khars testified that while he had
drawn his weapon many times while working as a law enforcement officer, this was the first time
he had ever fired his weapon while on duty, other than at practice on the firing range.106
On August 31, 2022, Plaintiffs brought this civil action, asserting the following causes of
action: (1) excessive force and failure to intervene under § 1983 against Marcal and Khars; (2)
respondeat superior claims against Sheriff Lopinto; and (3) Louisiana state law battery,
negligence, wrongful death, and survival action claims against Marcal, Khars, and Lopinto.
II. 	THE PRESENT MOTION
Defendants seek summary judgment under Rule 56 of the Federal Rules of Civil Procedure
on grounds that Plaintiffs have failed to show that: (1) any Defendant deprived Anne Schilly of
her right to be free from excessive force, (2) any Defendant violated Anne Schilly’s rights by
failing to intervene to prevent Khar’s alleged use of excessive force, (3) Sheriff Lopinto had a
100 R. Doc. 34-4 at 71.
101 R. Doc. 34-4 at 72.
102 R. Doc. 34-4 at 73.
103 R. Doc. 34-4 at 72-73.
104 R. Doc. 34-5 at 76-78.
105 R. Doc. 34-5 at 78-79.
106 R. Doc. 34-5 at 19.
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policy or practice of violating civil rights, or (4) any Defendant committed a battery or was
otherwise liable under Louisiana state law.107
Plaintiffs argue Defendants have failed to carry their threshold burden of demonstrating
the absence of a dispute of fact when viewing the facts in the light most favorable to Plaintiffs
because, they contend, Defendants’ motion avoids the adverse facts in the record which Plaintiffs
contend are fatal to summary judgment on the reasonableness of Deputy Khars’ decision to shoot
Schilly. Similarly, Plaintiffs argue that notwithstanding Defendants’ contention that Marcal was
in no position to know that Khars would shoot Schilly and, therefore, could not intervene, Marcal
should have intervened and reoriented Khars to determine whether Schilly was suffering from a
mental health crisis. Plaintiffs also maintain that Marcal and Khars are not entitled to qualified
immunity because, under the relevant legal test, the officers violated a clearly established
constitutional right at the time of this incident. Plaintiffs concede, however, there is “no evidence
linking Sheriff Lopinto to the incidents in this case.”108 Plaintiffs also agree there is no evidence
in the record “as to any policy or practice that would establish liability as a Monell claim,”109 and
Plaintiffs concede the Court should grant Defendants’ motion regarding the claims against Sheriff
Lopinto. Finally, Plaintiffs contend their state law claims should not be dismissed because there
are material issues of fact regarding whether Defendants used excessive force.
107 R. Doc. 34-1 at 1.
108 R. Doc. 38 at 18.
109 R. Doc. 38 at 18.
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III. 	RELEVANT LEGAL STANDARDS
A. Summary Judgment
Summary judgment is proper when “there is no genuine issue as to any material fact, and
the movant is entitled to judgment as a matter of law.”110 A federal court must view the facts in
the light most favorable to the nonmovant.111 Initially, the movant bears the burden of showing the
absence of a genuine issue as to any material fact,112 but the burden then shifts to the nonmovant
to come forward with specific facts showing there is a genuine dispute for trial.113 A fact is
“material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under
the applicable law in the case.114 A dispute about a material fact is “genuine” if it is one upon
which a reasonable jury could return a verdict for the nonmoving party based upon the jury’s
resolution of the particular factual issue.115 “When assessing whether a dispute as to any material
fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making
credibility determinations or weighing the evidence.”116
B. Qualified Immunity
Qualified immunity protects government officials from liability for damages when they
violate the law, but reasonably could have believed they were acting lawfully.117 The qualified
immunity defense “balances two important interests—the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield officials from harassment,
110 FED. R. C IV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).
111 Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
112 Celotex, 477 U.S. at 323.
113 See FED. R. CIV. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
114 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
115 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).
116 Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d 395, 398–99 (5th Cir. 2008) (first citing Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and then citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
117 Ramirez v. Killian, 113 F.4th 415, 421 (5th Cir. 2024).
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distraction, and liability when they perform their duties reasonably.”118 A plaintiff can defeat a
qualified immunity defense by showing “(1) that the official violated a statutory or constitutional
right, and (2) that the right was clearly established at the time of the challenged conduct.”119 Courts
are “permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the particular
case at hand.”120 When a defendant official moves for summary judgment on the basis of qualified
immunity, the burden shifts to the plaintiff, who must rebut the defense by establishing a genuine
issue of fact as to whether the official’s allegedly wrongful conduct violated clearly established
law.121
IV. 	LAW AND ANALYSIS
A. Excessive Force Claim & Qualified Immunity
The Court will first address Plaintiffs’ § 1983 claims against Marcal and Khars for the
alleged deprivation of their mother’s Fourth Amendment right against unreasonable seizure, which
they assert in the form of an excessive force claim. To establish a violation of the Fourth
Amendment based on the use of excessive force, Plaintiffs must show an injury that resulted
directly from a use of force that was clearly excessive, and that the excessiveness was clearly
unreasonable.122 Defendants argue they are entitled to summary judgment on Plaintiffs’ excessive
force claims because Plaintiffs cannot show that Defendants’ use of force was unreasonable.
Defendants separately argue that, even if Plaintiffs can establish a Fourth Amendment violation,
118 Pearson v. Callahan, 555 U.S. 223, 231 (2009).
119 Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011)).
120Pearson, 555 U.S. at 231.
121 Crane v. City of Arlington, 50 F.4th 453, 461 (5th Cir. 2022) (citations omitted).
122 Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th
Cir. 2005)).
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Defendants are otherwise entitled to qualified immunity as a matter of law. The Court considers
each argument in turn.
1. 	No Fourth Amendment Violation for Use of Excessive Force
Excessive force claims are necessarily fact-intensive, and whether the force used is
excessive or unreasonable depends upon the facts and circumstances of each particular case.123
Here, because Khars used deadly force against Schilly, the injury and causation elements of
Plaintiffs’ 	excessive 	force 	claim 	are 	established, 	leaving 	only 	the 	excessiveness 	and
reasonableness elements of the equation.124
When determining whether an officer’s use of force was excessive, federal courts consider
the three Graham factors, namely: (1) the severity of the suspected crime; (2) whether the suspect
posed an immediate threat to the safety of the officer or others; and (3) whether the suspect was
actively resisting arrest or attempting to evade arrest by flight.125 In cases involving deadly force,
the threat-of-harm factor will usually predominate such that the excessive and reasonableness
elements become two sides of the same coin.126 In other words, an officer’s use of deadly force is
not excessive, and no constitutional violation can occur, when the officer reasonably believes a
suspect poses a threat of serious harm to the officer or others.127
The Supreme Court has counseled that the reasonableness of “a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight,” and that “[t]he calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments—in circumstances that
123 Graham v. Connor, 490 U.S. 386, 396 (1989).
124 McVae v. Perez, 120 F.4th 487, 492 (5th Cir. 2024).
125 Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021) (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)).
126 McVae, 120 F.4th at 492.
127 Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).
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are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.”128 The Supreme Court has also counseled that in evaluating excessive force
claims, courts are required to look beyond the moment an officer employs force and should
consider how earlier facts and circumstances could affect how a reasonable officer might perceive
and respond to later events.129 In other words, “[t]he history of the interaction, as well as other past
circumstances known to the officer, thus may inform the reasonableness of the use of force.”130
Turning to the Graham factors, the Court will first consider the severity of the crime. Here,
the testimony of Khars and Marcal is in conflict about the severity of Schilly’s potential criminal
conduct. Marcal testified he was not sure what was going on with Schilly. While Marcal could not
rule out that she was mentally ill, Marcal was cognizant Schilly had potentially committed several
crimes including, possibly, simple assault by threatening the parish workers and battery upon a
police officer by striking Marcal with her car.131 Khars, meanwhile, testified contradictorily to
Marcal, saying he did not believe Schilly had committed any crimes.132 While Khars is likely
factually wrong in this regard—because it appears Schilly may have actually committed several
crimes—what matters here is Khars’ perception, and looking at this conflicting testimony in the
light most favorable to Plaintiffs, it is undisputed that the officers who encountered Schilly had
not, for example, been informed that she was a violent felon who had a history of violence and
possession of firearms.133 Thus, this factor, when considering the facts in the light most favorable
to Plaintiffs, falls in Plaintiffs’ favor.
128 Graham, 490 U.S. at 396-97.
129 Barnes v. Felix, 605 U.S. 73, 80 (2025).
130 Id. at 80-81.
131 R. Doc. 34-4 at 58-59.
132 R. Doc. 34-5 at 60-61.
133 Cf. Searles v. City of Houston, No. H-24-1534, 2025 WL 2294333, at *5 (S.D. Tex. Aug. 8, 2025) (“Randle was a
convicted felon who was wanted on three active felony warrants . . . including being a felon in possession of a weapon,
and for evading arrest in a motor vehicle . . . the officers involved in pursuing and apprehending Randle knew that he
had a history of violence and of illegally possessing firearms.”).
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The second Graham factor is whether the suspect posed an immediate threat to the safety
of the officer or others. Again, in cases where the officer uses deadly force, the “threat-of-harm”
factor is typically the most critical.134 Here, when Khars fired the shots that killed Ms. Schilly, he
was aware of several critical facts. Just a couple of days after a major hurricane had left large parts
of South Louisiana, including the part of Metairie where Khars was patrolling, without critical
infrastructure, including functioning traffic lights, Khars had been dispatched to a scene in which
an irate woman was threatening parish utility workers who were working on a broken water main.
Khars had arrived at the scene in a marked police unit with its lights flashing, while dressed in a
police uniform that identified him as a law enforcement officer. He then identified himself as a
police officer when he encountered Schilly. He had knocked on her window and had asked her to
roll it down, but she had refused and told him “f*ck you.” While, based on his testimony, Khars
did not necessarily believe he was dealing with a serious criminal, he believed Schilly was
undergoing some kind of mental health episode, based upon his training in dealing with the
mentally ill. He had just witnessed Schilly roll slowly and then quickly drive off from the initial
scene, striking Marcal in the process. With flashing lights and sirens, he had followed Schilly, at
speeds in excess of the posted speed limit, while Marcal also followed with flashing lights, on at
least three different streets at a time when traffic lights were not functioning properly, presenting
a danger to the public. At the final, fateful scene on Veterans Boulevard, Schilly had stopped
because traffic ahead of her came to a stop due to a nonfunctioning traffic signal. Marcal, who was
unarmed, was facing Schilly’s vehicle from the front driver’s side,135 waving his hands, and Khars
testified he drew his weapon because he was concerned about Marcal’s safety. 136 Specifically, in
134 McVae v. Perez, 120 F.4th 487, 492 (5th Cir. 2024); Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir.
2021).
135 R. Doc. 34-5 at 67.
136 R. Doc. 34-5 at 68.
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his own words, he said he was afraid Sergeant Marcal was in danger of “receiving great bodily
harm, or getting killed and run over” by Schilly.137 Khars testified Schilly’s vehicle began to move
forward “like she took her foot off the brake,”138 and he thought she was “about to go
accelerate,”139 something he had seen Schilly do just moments earlier at the initial scene. When
asked why he shot Ms. Schilly, his response was “[s]he was going forward toward Sergeant
Marcal. He was about to receive great bodily harm or be killed by that vehicle.”140
When addressing the reasonableness of an officer’s use of deadly force on the driver of a
motor vehicle when perceiving that the motor vehicle poses the threat of injury or death, the Fifth
Circuit has focused on a variety of relevant factors, including the prior hazardous activity of the
vehicle, but it has found “proximity and temporal factors,” i.e. the closeness of an officer to the
projected path of a vehicle, to be particularly relevant.141 And, as a result, when a law officer’s
actions are predicated on responding to what the officer perceives as a serious threat quickly and
decisively, it is not unreasonable for an officer to use deadly force.142 In this case, the Court finds
no material dispute of fact relevant to this prong of Graham—namely whether, judging from
Deputy Khars’ perspective, under the totality of the circumstances, Schilly posed an immediate
threat to the safety of Sergeant Marcal, who was positioned in the front corner of Schilly’s vehicle
as it began to roll forward.143
137 R. Doc. 34-5 at 68.
138 R. Doc. 34-5 at 75.
139 R. Doc. 34-5 at 75.
140 R. Doc. 34-5 at 76.
141 See Hathaway v. Bazany, 507 F.3d 312, 321 (5th Cir. 2007).
142 Id. at 322; see also Jackson v. Gautreaux, 3 F.4th 182, 187-88 (5th Cir. 2021); Fraire v. City of Arlington, 957 F.2d
1268, 1274-77 (5th Cir. 1992).
143 Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“Where the officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force.”).
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Because there is no dispute of material fact to counter Defendants’ contention that Schilly
“was going forward toward Sergeant Marcal,” who was standing very close to Schilly’s vehicle,
and who was actually struck by her vehicle as a result of her movement, and because of the other
undisputed facts in this case’s record, including the video evidence of Schilly’s actions at the initial
scene, the Court finds no material issue of fact that would support the conclusion that Khars was
unreasonable in his belief that Marcal was “about to receive great bodily harm or be killed by that
vehicle.”144 The Fifth Circuit has explained that it is not even “relevant whether, in hindsight,” an
officer in Sergeant Marcal’s position “was ever in real danger,” but rather whether it would have
appeared to a reasonable officer on the scene that a fellow officer or others were in danger.145 The
second Graham factor falls in Defendants’ favor.
The third Graham factor is whether Schilly was actively resisting arrest or attempting to
evade arrest. In the minutes leading up to her tragic death, Ms. Schilly had repeatedly refused law
enforcement commands, had cursed at law enforcement officers, had sped off from the initial
scene, striking Marcal with her vehicle in the process, and had just led the officers on a pursuit
over multiple streets. And, in the final moments after coming to a stop because of traffic in her
path, she again refused to listen to Sergeant Marcal’s commands to “please stop,” and had begun
rolling forward like she had done moments earlier before speeding off and leading officers on a
pursuit. Under these circumstances—in which Ms. Schilly had just fled the initial scene and led
officers on a pursuit during which both officers had followed her with flashing police lights, while
she had exceeded the posted speed, the Court finds no material issue of fact that would preclude a
reasonable police officer from assuming Scilly was actively resisting arrest or attempting to evade
arrest. Indeed, regardless of the “plan,” i.e. whether to arrest her or bring her into protective
144 R. Doc. 34-5 at 76.
145 Malbrough v. Stelly, 814 F. App’x, 798, 805 (5th Cir. 2020).
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custody as Khars understood the objective, or to get her out of the car to talk with her and
understand what was going on with her, as Marcal understood the plan, Ms. Schilly, was, very
tragically, and likely for reasons that will never be fully known, actively resisting the efforts of the
officers. On this score, there is no material issue of fact. This Graham factor also falls in
Defendants’ favor.
Tasked with looking at all “relevant events coming before”146 Khars shot and killed Schilly,
the Court, judging the question of whether Khars’ use of deadly force was justified from the
perspective of a reasonable officer on the scene, taking due account of both the individual and
governmental interests at stake,147 finds no material issue of fact sufficient to overcome a finding
that Khars’ use of force, while tragic, was reasonable. Under applicable law, this question can only
be answered by considering the “totality of the circumstances,” after an analyzing court has
“slosh[ed] its way through a factbound morass,” paying “‘careful attention to the facts and
circumstances’ relating to the incident, as then known to the officer.”148 Applying this standard to
the facts of this tragic shooting, the Court finds that the use of deadly force on September 1, 2021,
was reasonable. In reaching this conclusion, the Court has tried to identify the factual disputes,
and to consider those facts in the light most favorable to the Plaintiffs, without weighing the
evidence, but in this tragic case, there are no disputed issues of material fact, and this Court,
therefore, must grant summary judgment in Defendants’ favor on the excessive force claims.149
2. 	Officers Entitled to Qualified Immunity
146 Barnes v. Felix, 605 U.S. 73, 83 (2025).
147 Id. at 79.
148 Id. at 80.
149 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“[T]he substantive law will identify which facts
are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”).
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Even if the Court had found, contrary to its conclusion above, that Khars violated Schilly’s
Fourth Amendment right, summary judgment would nonetheless be required on the individual
claims against the officers because the officers’ conduct was objectively reasonable in light of the
clearly established legal rules at the time of this tragic shooting. Here, Plaintiffs cannot show a
violation of a clearly established right of which a reasonable officer would have known when
Schilly was shot.150 Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law” from civil liability.151 Even when an officer has a mistaken
understanding of the law, he is shielded from liability if his actions are reasonable.152 And,
resolution of the question of whether qualified immunity is available in this case turns on whether,
when Deputy Khars shot Ms. Shilly, a reasonable officer would have believed deadly force was
unlawful when Schilly’s vehicle began rolling toward Sergeant Marcal who was standing directly
in front of Schilly’s vehicle, after Khars had just observed Schilly’s repeated failure to obey
officers’ commands, her flight from the initial scene, striking Marcal with her car at the initial
scene, forcing the police pursuit that had just ended (or, for all Khars knew, was merely in a
momentary pause).153 Plaintiffs have failed to point to a single authority that would have informed
Khars, beyond debate, that using lethal force during this tragic situation, when Schilly’s vehicle
was moving toward Marcal, was a violation of established law.154 On the contrary, it is abundantly
clear in the Fifth Circuit that when a law officer perceives an imminent danger of injury or death
150 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
151 Malley v. Briggs, 475 U.S. 335, 341 (1986).
152 Brousseau v. Haugen, 543 U.S. 194, 198 (2004).
153 See Mullenix v. Luna, 577 U.S. 7, 12 (2015) (explaining that the inquiry of whether something is a clearly
established law should focus on whether the violative nature of particular conduct is clearly established in light of the
specific context of a given case and not as a broad general proposition because it is sometimes difficult for an officer
to determine how the relevant legal doctrine will apply to the factual situation confronting the officer).
154 Id. at 13-14.
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from a motorist who could use a motor vehicle as a weapon, it is permissible to use deadly force.155
Under the facts of this case, the Court finds that the doctrine of qualified immunity insulates these
officers from personal liability arising from the tragic death of Ms. Anne Schilly.
B. Failure to Intervene/Bystander Liability Claim
Plaintiffs loosely assert a “failure to intervene” claim, along with their excessive force
claim,156 arguing that “Marcal had ample time to diffuse the weapon wielding Deputy Khars and
return him to the original plan.”157 A law enforcement officer can be held liable under § 1983 on
a theory of bystander liability if an officer knows a fellow officer is violating an individual’s
constitutional rights, and has a reasonable opportunity to prevent the harm, but chooses not to
act.158 It follows that an officer cannot be held liable on a theory of bystander liability if the third
party’s actions that he failed to prevent do not, themselves, amount to a constitutional rights
violation.159
For the reasons discussed above, this Court has determined that Plaintiffs cannot show that
there was a violation of Ms. Schilly’s Fourth Amendment right against unreasonable seizure. Thus,
Plaintiffs’ failure to intervene claim against Marcal necessarily fails, and Marcal is entitled to
summary judgment as a matter of law.
Even if Plaintiffs had established a constitutional rights violation, Marcal would still be
entitled to summary judgment on Plaintiffs’ failure to intervene claim because Plaintiffs have not
produced any evidence to show that Sergeant Marcal, who was dealing in real time with a fluid
and dynamic situation that was fraught with potential danger, was aware of any constitutional
155 See Jackson v. Gautreaux, 3 F.4th 182, (5th Cir. 2021); Davis v. Romer, 600 F. App’x 926, 931 (5th Cir. 2015);
Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007); Fraire v. City of Arlington, 957 F.2d 1268, 1277 (5th Cir. 1992).
156 R. Doc. 1, ¶ 27.
157 R. Doc. 38 at 17.
158 Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).
159 See Griffin v. City of Sugarland, 787 F. App’x 244, 245 (5th Cir. 2019) (per curiam) (“[B]ecause there was no
violation of his constitutional rights, [the plaintiff’s] bystander liability theory also fails.”).
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violation based on Khars’ drawing of his weapon, or that Marcal actually had any time to act in
the extremely brief moment from when he heard Schilly’s car, which he described as sounding
like a racecar, to when he heard Khars’ shots.
C. Claims Against Sheriff Lopinto in His Official Capacity
Plaintiffs’ operative complaint maintains that the alleged wrongful conduct by Marcal and
Khars occurred when they were in the scope of their employment as Sheriff Lopinto’s agents,
“rendering [Sheriff Lopinto] liable as principal for all torts committed by his agents.”160 A suit
against a public servant in his official capacity is treated as a suit against a public entity,161 and
while a public entity can be held liable when an official policy or custom is the cause of a plaintiff’s
injuries, a public entity cannot be held liable under theories of respondeat superior or vicarious
liability.162
In their opposition memorandum, Plaintiffs concede “[d]efendants are correct that there
has been no evidence linking Sheriff Lopinto to the incidents in this case . . . [and] [t]here has been
no evidence . . . as to any policy or practice that would establish liability [against Sheriff Lopinto]
as a Monell claim.”163 Based on this, Plaintiffs concede “the court should grant the motion as to
Plaintiffs’ claims against Sheriff Lopinto.”164 After review, not only does the Court find that
summary judgment is appropriate because the Plaintiffs have failed to put forth any evidence that
Ms. Schilly’s death arose from a constitutional violation that was caused by a violation of an
official policy or custom of Sheriff Lopinto’s department,165 the Court also deems Plaintiffs’
160 R. Doc. 1 at ¶¶ 29-30.
161 Brandon v. Holt, 469 U.S. 464, 471-72 (1985).
162 Est. of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005).
163 R. Doc. 38 at 18.
164 Id.
165 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); see also City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (explaining that a municipality cannot be held liable if its employee does not violate the Constitution).
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official capacity claims against Sheriff Lopinto waived166 and abandoned,167 and the Court grants
summary judgment as to all claims against Sheriff Lopinto.168
D. State Law Claims
Relying on the same factual allegations that formed the basis of Plaintiffs’ excessive force
claims under federal law, Plaintiffs also brought claims under Louisiana state law, arguing that
Schilly was the victim of a battery and of negligence that caused her death, entitling Plaintiffs to
wrongful death and survival damages. Under Louisiana law, however, the standard of care owed
by a policeman when approaching and interacting with a person like Ms. Schilly, under
circumstances like those in the instant case, is one of “reasonableness under the totality of the
circumstances.”169 Indeed, it is widely recognized that “excessive force claims under both federal
and Louisiana law turn on whether the use of force was objectively reasonable given the totality
of the circumstances.”170 For all the reasons the Court has previously cited to support its finding
that the officers in this case did not act unreasonably and, therefore, did not violate Schilly’s
constitutional rights, Plaintiffs’ state law claims cannot survive Defendants’ motion for summary
judgment and must also be dismissed in their entirety.
166 JMCB, LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (“[F]ailure to brief an argument
in the district court waives that argument in that court.”).
167 See Windsor v. Olson, No. 3:16-CV-934-L, 2019 WL 2080021, at *9 (N.D. Tex. May 10, 2019) (“When a plaintiff
fails to defend a claim in response to a motion to dismiss or summary judgment motion, the claim is deemed
abandoned.”).
168 See Livingston v. Gaviolo, No. 04-1303, 2006 WL 37029, at *3 (W.D. La. Jan. 5, 2006) (dismissing claim with
prejudice after concession by party in opposition to summary judgment that it cannot maintain the claim).
169 See Mathieu v. Imperial Toy Corp., 646 So. 2d 318, 322 (La. 1994) (quoting Kyle v. City of New Orleans, 353 So.
2d 969, 973 (La. 1977)).
170 Shepherd ex rel Est. of Shepherd v. City of Shreveport, 920 F.3d 278, 286 (5th Cir. 2019) (collecting cases).
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V. 	CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendants’ Motion for Summary
Judgment (R. Doc. 34) is GRANTED, and Plaintiffs’ claims against all Defendants are dismissed
with prejudice.
New Orleans, Louisiana, this 15th day of December 2025.
________________________________________
DARREL JAMES PAPILLION
UNITED STATES DISTRICT JUDGE
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