FIFTH CIRCUIT GRANTS QUALIFIED IMMUNITY FOR POLICE IN SHOOTING OF CHILD BEING USED AS A HUMAN SHIELD WHILE SUSPECT SHOT AT OFFICERS

On June 6, 2025, the Fifth Circuit Court of Appeals decided Estate of Parker v. Miss. Dept of Pub. Safety[i], in which the court examined whether officers were entitled to qualified immunity when a child who was being used as a human shield was shot by police as they returned fire on a suspect who was shooting at the officers.  The facts, taken directly from the case, are as follows:

On May 3, 2021, law enforcement responded to a shooting in Baker, Louisiana. Two individuals had been fatally shot, and a baby—La’Mello Parker—was missing. The initial investigation identified La’Mello’s father, Eric Smith, as the suspected shooter and kidnapper.

A warrant was issued for Smith’s arrest, and law enforcement soon located him traveling eastbound on Interstate 10 near the Mississippi state line. Officers initiated pursuit and deployed spike strips to disable his vehicle. After driving over the spike strips and puncturing multiple tires near mile marker 11, Smith pulled over, exited the vehicle with La’Mello pressed to his chest, and fired a round at a Mississippi Highway Patrol trooper. No officers returned fire at that time.

Smith reentered his vehicle and continued east on I-10. More officers joined the pursuit, and they deployed additional spike strips near mile markers 29 and 31. Throughout the chase, officers remained in communication with Harrison County Dispatch, repeatedly confirming that Smith was armed, had already fired at law enforcement, and that an infant hostage was in the vehicle.

Farther ahead, officers established roadblocks at mile markers 41 and 44 and positioned snipers and a hostage negotiator. But before Smith could reach those roadblocks, Harrison County Deputy Chris Allen rammed Smith’s vehicle from behind with his patrol car, pushing it into the median and disabling it.

Deputy Allen exited his vehicle and joined officers nearby. With their weapons drawn, officers surrounded Smith, who was still holding La’Mello. A few seconds later, Deputy Allen noticed that his K9 had exited the patrol car and went to retrieve it. As Deputy Allen pursued the dog, Smith lowered his car window and fired his handgun.

In response, at least ten officers—including [a] Harrison County Deputy [ ], [a] Gulfport Police Officer [ ], a U.S. Marshal serving on a regional task force, and John Doe Mississippi Highway Patrol Troopers 1-8—opened fire. Tragically, one of the unidentified Mississippi troopers fatally shot La’Mello.[ii]

La’Mello’s grandfather and brother filed suit on behalf of his estate for, among other things, violating La’Mello’s rights under the Fourth Amendment by using excessive force when they shot him.  The district court granted qualified immunity to the officers on this claim and the plaintiffs appealed.

The Fifth Circuit Court of Appeals first noted that

The Supreme Court has explained that a Fourth Amendment seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied. Scott v. Harris, 550 U.S. 372, 381, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (quoting Brower, 489 U.S. at 596-97) (emphasis added).[iii]

The Fifth Circuit noted that they have not previously decided, and there is a split between other federal circuits, on whether a seizure under the Fourth Amendment occurs when the police intentionally target a suspect but unintentionally strike an innocent hostage.  In La’Mello’s case, both plaintiffs and defendants conceded that a seizure occurred, therefore the court stated they would “assume, without deciding,” that La’Mello was seized under the Fourth Amendment.  Thus, the court set out to determine if the seizure was reasonable under the Fourth Amendment.

The court first discussed the legal principles regarding reasonable force under the Fourth Amendment and stated

To assess whether the force used was reasonable, we apply the factors outlined by the Supreme Court in Graham v. Connor: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” This analysis considers factors such as the time officers had to make decisions, whether the force used is “measured and ascending” in accordance with the suspect’s aggression, whether the suspect signaled that he was armed, and whether he moved toward or away from law enforcement.

We assess reasonableness “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” And we are rightly hesitant to “second-guess[ ] a police officer’s assessment, made on the scene, of the danger presented by a particular situation” from the calm remove of chambers.[iv]

The court then examined the facts of the case and noted that Smith, the suspect shooting at police, and intended target of the officers’ shots, had already murdered two people, abducted his infant son, La’Mello, and led police in a vehicle pursuit.  The court stated

Under these standards, we cannot conclude that it was objectively unreasonable for the officers to return fire at Smith—even knowing there was a substantial risk they might strike La’Mello.[v]

The court of appeals observed that, while they have not decided a case such as this, they have previously granted qualified immunity under circumstances where officers used deadly force even though an innocent person was in dangerous proximity.

The court analyzed the Graham factors as follows:  (1) Smith had committed very serious crimes, specifically two murders and a kidnapping; (2) most critical in a deadly force case, Smith “posed a clear and immediate threat” to the safety of officers and the surrounding public, as he had shot multiple times at police, and was doing so along an interstate;  and (3) Smith was actively resisting arrest and had been evading arrest by leading police on a vehicle pursuit.  The court stated

That Smith had La’Mello in his arms does not alter the fact that each of the Graham factors weighs decisively in favor of the officers.[vi]

Additionally, the court stated

The officers’ awareness of the high likelihood of striking La’Mello does not alter our conclusion. The use of force here satisfies the Graham factors, as well as broader principles that justify the use of deadly force.[vii]

The plaintiffs argued that a deputy created the danger that necessitated the use of deadly force by ramming Smith’s vehicle and then running from cover to retrieve his canine.  However, the court disagreed and stated

But it was Smith—not Deputy Allen—who created the encounter by opening fire, prompting the officers to respond in kind. That singular fact distinguishes this case from Barnes, where the officer invited danger by leaping onto a suspect’s moving vehicle to prevent flight. Barnes, 145 S. Ct. at 1358 (quoting County of Los Angeles v. Mendez, 581 U.S. 420, 427-28, 137 S. Ct. 1539, 198 L. Ed. 2d 52 (2017))[viii]

The court of appeals then explained that, while the death of an innocent child is tragic, that does not render the officers’ use of deadly force in this situation unreasonable.  The court explained

[T]he law requires us to assess reasonableness from the vantage of a reasonable officer on the scene—not with the clarity of 20/20 hindsight. And from that perspective, we cannot deem it unreasonable for officers to return fire at an active shooter who had endangered both them and the public—even if, tragically, the shooter used an innocent child as a shield. To hold otherwise would risk discouraging officers from taking decisive action in active-shooter situations. Would it be preferable for officers to hesitate—to allow an armed assailant using an innocent shield to escape, risking still more potential lives? The officers here were forced to make that fraught moral judgment in the split second after Smith fired on one of their own—”in haste, under pressure, and . . . without the luxury of a second chance.” We cannot second-guess that decision after the fact—from the remove and repose of our chambers.  As the First Circuit has aptly observed:

It is inevitable that the police response to violent crime will at times create some risk of injury to others, including innocent bystanders. We decline to hold that the mere presence of risk reflects a callous indifference to the constitutional rights of those individuals potentially harmed. Any other conclusion would both chill law enforcement officers in the performance of their duties and encourage hostage-taking and criminal activity in public settings so as to minimize police intervention.[ix]

Therefore, the court of appeals held that officers’ use of deadly force did not violate La’Mello’s rights under the Fourth Amendment, despite the tragic consequences.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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[i]No. 24-60208 (5th Cir. June 6, 2025)

[ii] Id. at 3-5

[iii] Id. at 13 (emphasis added)

[iv] Id. at 14-15 (emphasis added) (internal citations omitted)

[v] Id. at 15 (emphasis added)

[vi] Id. at 16-17

[vii] Id. at 16 (emphasis added)

[viii] Id. at 17(emphasis added)

[ix] Id. at 18-19 (emphasis added)