Case: 18-30528   Document: 00514901211     Page: 1   Date Filed: 04/03/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                 No. 18-30528
                                                                         FILED
                                                                      April 3, 2019
                                                         Lyle W. Cayce
MARJORIE SHEPHERD, on behalf of Estate of John Shepherd,      Clerk

             Plaintiff – Appellant,

v.

CITY OF SHREVEPORT; PHILLIP TUCKER,

             Defendants – Appellees.



                Appeal from the United States District Court
                   for the Western District of Louisiana


Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      This lawsuit arises from the death of William Shepherd, who was shot
and killed by Corporal Tucker of the Shreveport Police Department in October
2013. Mr. Shepherd’s mother brought excessive force claims against the officer
and the city. The district court granted summary judgment for the defendants.
We AFFIRM.
                                       I.
      On October 15, 2013, Corporal Tucker was dispatched to Mr. Shepherd’s
home to assist the Shreveport Fire Department with a 911 call. Corporal
Tucker was informed by dispatch that there was a potentially violent male who
had possibly suffered a stroke and who the female caller feared might hurt her.
While Corporal Tucker was en route, firefighters entered Mr. Shepherd’s
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                                 No. 18-30528
home, encountered Mr. Shepherd with a knife in his hand, and fled the home.
Mr. Shepherd followed them out into the yard but stopped at the sidewalk. The
knife was later determined to be eight inches long with a four-inch blade.
Dispatch updated Corporal Tucker that the subject was armed with a knife
and directed that he expedite. During this time, a neighbor called 911 to
erroneously report that shots had been fired, and dispatch then notified
Corporal Tucker that there were reports of shots fired in the area.
      Shortly after receiving the report of possible shots fired, Corporal Tucker
arrived at Mr. Shepherd’s home. He was the first police officer at the scene
and the dash-mounted camera in his patrol car captured much of what followed
in the next two minutes.       Corporal Tucker retrieved his shotgun and
approached the firetruck around which the firefighters had gathered. At that
time, Mr. Shepherd was standing in the yard with a knife in his hand,
positioned between the firetruck and the house. The firefighters identified Mr.
Shepherd as the person with a knife and informed Corporal Tucker there was
at least one person—the female caller—inside the home.
      Corporal Tucker made multiple commands for Mr. Shepherd to “get
down” and “lay down.” Mr. Shepherd did not comply with those commands.
During the entire encounter, Mr. Shepherd did not directly engage in dialogue
with Corporal Tucker, but he cursed aloud at multiple times, stating “f--k you.”
After approximately thirty seconds of ignoring commands to get down in the
yard, Mr. Shepherd began moving back towards the residence—where the
female caller was believed to be—and Corporal Tucker commanded him to
“come to me now.” That was the only time during the encounter that Corporal
Tucker directed Mr. Shepherd to move towards him. Mr. Shepherd did not
comply with that command and walked into the residence’s garage.
      Mr. Shepherd was in the garage for approximately a minute. During
that time, Corporal Tucker proceeded partially up the driveway to keep a
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                                No. 18-30528
visual on Mr. Shepherd and gave him multiple commands to put his hands up.
Mr. Shepherd disregarded those commands as well. Mr. Shepherd then exited
the garage and began moving down the inclined driveway towards Corporal
Tucker. At approximately 19:53:45 on the videotape captured by the patrol
car’s dash-mounted camera, Corporal Tucker can be seen backing down the
driveway’s incline. At approximately 19:53:49, Mr. Shepherd comes into the
videoframe and can be seen moving down the driveway towards Corporal
Tucker. At the same time, Corporal Tucker can be heard commanding Mr.
Shepherd to “get back.” However, Mr. Shepherd continued to move towards
Corporal Tucker at a relatively quick speed, while Corporal Tucker continued
to move backwards.
      The parties dispute whether Mr. Shepherd had the knife raised over his
head or at his side at this point.    The parties also dispute whether Mr.
Shepherd was accelerating or “stumbling” toward Corporal Tucker. On appeal,
the appellant also alleges that there is a dispute over whether Mr. Shepherd
and Corporal Tucker were ten feet or ten yards apart. But what is undisputed
is that Mr. Shepherd continued to move towards Corporal Tucker with a knife
in his hand, disregarded a command to get back, and Corporal Tucker shot him
once with his shotgun at approximately 19:53:51 on the videotape.           Mr.
Shepherd died from the injury. He was fifty years old at the time.
      Marjorie Shepherd, Mr. Shepherd’s mother and the appellant in this
case, subsequently filed a lawsuit in federal court against Corporal Tucker and
the City of Shreveport, bringing excessive force claims under both 42 U.S.C.
§ 1983 and Louisiana state tort law. The district court had federal question
jurisdiction over the Section 1983 claims, see 28 U.S.C. § 1331, and
supplemental jurisdiction over the related state law tort claims, see 28 U.S.C.
§ 1367.   The defendants eventually moved for summary judgment.             Ms.
Shepherd filed a response brief in opposition. Two weeks later, after the
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                                  No. 18-30528
defendants had filed their reply to Ms. Shepherd’s response brief, Ms.
Shepherd moved for leave to supplement her response brief. The district court
denied Ms. Shepherd’s motion to supplement, as well as her subsequent motion
to reconsider that denial.
      The district court granted summary judgment for the defendants and
dismissed all of Ms. Shepherd’s claims with prejudice. As to the Section 1983
claim against Corporal Tucker, the district court held that “[u]nder the totality
of the circumstances and irrespective of whether the knife was over Shepherd’s
head or by his side, . . . Cpl. Tucker reasonably believed that Shepherd posed
a threat of serious harm[.]” As such, the district court held that Corporal
Tucker’s use of force was not excessive under the Fourth Amendment. In the
alternative, the district court held that even if his force was excessive, Corporal
Tucker was entitled to qualified immunity because his actions were not
objectively unreasonable in light of clearly established law. For the Section
1983 claim against the City of Shreveport, the district court held the claim
failed because there was no underlying constitutional violation. And for the
state law claims, the district court held that the analysis for Louisiana
excessive force claims mirrors the analysis for Fourth Amendment excessive
force claims and dismissed for the same reasons.
      Ms. Shepherd filed a timely notice of appeal, and this court has
jurisdiction under 28 U.S.C. § 1291. On appeal, Ms. Shepherd argues that the
district court erred by: (1) holding that Corporal Tucker’s use of force was not
excessive under the Fourth Amendment; (2) holding, in the alternative, that
Corporal Tucker was entitled to qualified immunity; (3) holding that the
defendants were not liable under Louisiana tort law, and (4) denying her
motion to supplement her brief in opposition to summary judgment.




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                                        II.
      “We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” DeVoss v. Sw. Airlines Co.,

, 490 (5th Cir. 2018) (citation and quotation marks omitted).
Summary judgment is appropriate only when “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is not
“material” unless its resolution would affect the outcome of the case. Hamilton
v. Segue Software, Inc., 

, 477 (5th Cir. 2000). When reviewing
summary judgment decisions, we generally construe all purported facts in the
light most favorable to the non-movant. Carnaby v. City of Houston, 

, 187 (5th Cir. 2011). However, when there is a videotape that discredits
the non-movant’s description of facts, we will “consider ‘the facts in the light
depicted by the videotape.’ ” 

v. Harris, 

, 381
(2007)).
      We review a district court’s determination of state law de novo. Salve
Regina Coll. v. Russell, 

, 231 (1991).
      We review a district court’s denial of a motion to amend or supplement
pretrial materials, such as briefs in opposition to summary judgment, for abuse
of discretion. See Reliance Ins. Co. v. La. Land & Expl. Co., 

, 257
(5th Cir. 1997); Barker v. Norman, 

, 1128–29 (5th Cir. 1981).
                                       III.
                                        A.
      First, we address the Section 1983 excessive force claim against Corporal
Tucker. To prevail on a Section 1983 excessive force claim, “a plaintiff must
establish: (1) injury (2) which resulted directly and only from a use of force that
was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” Harris v. Serpas, 

, 772 (5th Cir. 2014) (quoting
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                                 No. 18-30528
Ramirez v. Knoulton, 

, 128 (5th Cir. 2008)); see also Graham v.
Conner, 

, 393–97 (1989). In this circuit, “the excessive force
inquiry is confined to whether the officer was in danger at the moment of the
threat that resulted in the officer’s shooting. Therefore, any of the officers’
actions leading up to the shooting are not relevant[.]” 

(internal quotation marks, citation, and alterations omitted). “Use of deadly
force is not unreasonable when an officer would have reason to believe that the
suspect poses a threat of serious harm to the officer or others.” Mace v. City of
Palestine, 

, 624 (5th Cir. 2003).
      Ms. Shepherd argues that the district court erred in determining that
there was no genuine dispute as to whether Corporal Tucker’s use of force was
unreasonably excessive. She argues that genuine disputes of material facts
exist as to: (1) the distance between Mr. Shepherd and Corporal Tucker at the
time the shot was fired; (2) the manner in which Mr. Shepherd approached
when he was shot; and (3) the level of threat Mr. Shepherd presented with the
knife when he was shot. We address each alleged dispute in turn.
      First, we consider the distance between Mr. Shepherd and Corporal
Tucker when the shot was fired. This is a primary focus of Ms. Shepherd’s
appeal. In her original complaint, Ms. Shepherd alleged that Corporal Tucker
was approximately eight to ten feet away when he fired. Corporal Tucker and
several witnesses also testified to that approximate distance of ten feet. Ms.
Shepherd did not dispute that distance in her brief in opposition to summary
judgment. As such, the district court determined that the distance at the time
of the shooting was approximately ten feet. Now on appeal, Ms. Shepherd tries
to create a dispute by alleging that the distance was ten yards rather than ten
feet. Her counsel does so by misleadingly citing parts of the record which
indicate that Corporal Tucker tried to maintain a ten-yard distance before Mr.
Shepherd began moving towards him.
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                                  No. 18-30528
      However, even if this court were willing to consider an issue that was
conceded before the district court and then raised as a dispute for the very first
time on appeal, that issue is discredited by the videotape in this case. Though
the videotape is far from the paragon of clarity, it shows that the distance at
the time of the shot was much closer to ten feet than to thirty feet. So, viewing
this alleged factual dispute “in the light depicted by the videotape[,]” 

, we hold that there is no material issue of fact as to the distance
between Mr. Shepherd and Corporal Tucker at the time of the shot. Counsel’s
attempt to manufacture a dispute over this point on appeal borders on
frivolous.
      Second, we consider the manner of Mr. Shepherd’s approach at the time
of the shot. Ms. Shepherd asserts that there are material disputes as to
whether Mr. Shepherd was obeying Corporal Tucker’s commands to leave the
garage when he was shot and whether he was moving slowly at that time
because he was staggering and stumbling. However, these assertions are also
belied by the videotape. The videotape clearly shows that Corporal Tucker did
not command Mr. Shepherd to leave the garage in the moments before he was
shot; to the contrary, the videotape shows that Tucker instead ordered him to
“get back.” In addition, the videotape also shows that Mr. Shepherd was
advancing down the driveway at a relatively quick speed in the final moments
before being shot—in a motion that looks much more like directed running
than errant stumbling. Thus, once again viewing this alleged factual dispute
“in the light depicted by the videotape[,]” 

, we hold that
there is no genuine issue of material fact on this issue either.
      Third, we turn to the level of threat that Mr. Shepherd presented with
the knife when he was shot. Ms. Shepherd repeats her argument, rejected by
the district court, that the dispute over whether Mr. Shepherd had the knife
up by his head or down by his side at the time when he was shot is material.
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                                  No. 18-30528
Her argument is that Mr. Shepherd could not have reasonably posed a threat
if the knife was by his side. The videotape does not clearly show how Mr.
Shepherd was holding the knife in the moments leading up to the shot.
However, we agree with the district court that this dispute is not material to
the outcome of the case. Under the totality of circumstances present in this
case, even if we were to accept that Mr. Shepherd still had the knife at his side
at the moment when he was shot, there is ample reason to conclude that he
posed a real threat of serious bodily harm to the officer. As such, we hold that
Corporal Tucker’s use of deadly force was reasonable.
      In addition, Ms. Shepherd’s counsel repeatedly makes the assertion that
knives cannot be used as projectile weapons, and states that a knife could not
be a sufficient threat even at ten feet. Counsel cites no authority for this
assertion; counsel simply proclaims it as if it is a fact. But it is not a fact.
Furthermore, it disregards the actual fact that Mr. Shepherd was continuing
to move toward Corporal Tucker even after being commanded to get back and
having a shotgun pointed at him.         Counsel’s unsupported assertion that
holding a knife could not pose a threat of serious bodily injury under the facts
of this case is not sufficient to create a genuine issue of material fact.
      As such, all of the alleged disputes raised by Ms. Shepherd in this appeal
are either immaterial or discredited by the videotape, and we affirm the
district court’s judgment that Corporal Tucker’s use of force was neither
excessive nor unreasonable under the Fourth Amendment.
                                        B.
      Next, we address the district court’s conclusion that, in the alternative,
Corporal Tucker is entitled to qualified immunity.          “Qualified immunity
protects officers from suit unless their conduct violates a clearly established
constitutional right.”    

.      For a right to be clearly
established, “existing precedent must have placed the statutory or
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                                  No. 18-30528
constitutional question beyond debate.” Kisela v. Hughes, 

, 1152
(2018) (quoting White v. Pauly, 

, 551 (2017)). The Supreme Court
has repeatedly told courts not to define clearly established rights “at a high
level of generality.” Mullenix v. Luna, 

, 308 (2015) (quotation
marks and citation omitted).       “The dispositive question is ‘whether the
violative nature of particular conduct is clearly established.’ . . . Such
specificity is especially important in the Fourth Amendment context[.]” 

v. al-Kidd, 

, 742 (2011)).
      Ms. Shepherd argues that Corporal Tucker is not entitled to qualified
immunity because “the constitutional right to be free of deadly force” is clearly
established. However, her argument lacks the level of specificity required to
survive a motion for summary judgment. See Brown v. Callahan, 

, 253 (5th Cir. 2010) (“A 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.” (citation omitted)).
      Caselaw at the time of the shooting (and at the time of this opinion) has
not clearly established that it violates the Constitution for a police officer to
shoot someone who is behaving erratically, advancing toward the police officer
with a knife in his hand, and disregarding a command to get back. Indeed,
caselaw supports the opposite conclusion. See, e.g., 

–
55 (holding that it was not clearly established that an officer’s use of deadly
force was excessive when used against someone who continued to approach a
bystander after ignoring commands to drop a knife); Elizondo v. Green, 

, 510 (5th Cir. 2012) (holding that an officer did not use excessive force
when the individual “ignored repeated instructions to put down the knife, . . .
[was] in close proximity to [the officer], and [was] moving closer”).
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                                       No. 18-30528
       As such, even if Corporal Tucker’s use of force was unreasonably
excessive based on the totality of circumstances in this case (which we hold it
was not), we also affirm the district court’s alternate determination that
Corporal Tucker is entitled to qualified immunity. 1
                                              C.
       We now turn to the district court’s summary judgment on the state law
tort claims. The district court determined that a claim of excessive force under
Louisiana tort law mirrors a claim of excessive force under the Fourth
Amendment and granted summary judgment for the defendants accordingly.
On appeal, Ms. Shepherd argues that the analysis for excessive force under
Louisiana law materially differs from the analysis for excessive force under the
Fourth Amendment. She also argues that she properly raised state law claims
of negligence against the firefighters and dispatch personnel that are distinct
from the excessive force analysis. We address each argument in turn.
       First, we address Ms. Shepherd’s argument that the analysis for
excessive force under Louisiana law materially differs from the analysis for
excessive force under the Fourth Amendment in this case. We reject this
argument.
       As the district court noted, 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. This has been widely recognized by
this court, Louisiana federal district courts, and the Louisiana Supreme Court.
See, e.g., Delville v. Marcantel, 

, 172 (5th Cir. 2009) (“Louisiana's
excessive force tort mirrors its federal constitutional counterpart. . . .
‘Whether the force used is reasonable depends upon the totality of the facts


       1 “This circuit follows the rule that alternative holdings are binding precedent and not
obiter dictum.” Melton v. Phillips, 

, 265 n.8 (5th Cir. 2017) (en banc) (quoting
United States v. Potts, 

, 237 n.3 (5th Cir. 2011)).
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                                  No. 18-30528
and circumstances in each case[.]’ . . . These considerations are sufficiently
similar to the Graham factors that our decision on this claim mirrors our
decision of plaintiffs’ § 1983 excessive force claim.” (quoting Kyle v. City of New
Orleans, 

, 973 (La. 1977))); Reneau v. City of New Orleans, No.
03-1410, 

, at *4 (E.D. La. Jul. 2, 2004) (“Under Louisiana
law, the same standard is used in analyzing a state law claim of excessive force
as a constitutional claim, namely reasonableness under the circumstances. . .
. As the Court has found that the officers acted reasonably under the
circumstances, the Plaintiffs state law claims must fail as well.”); Mathieu v.
Imperial Toy Corp., 

, 323 (La. 1994) (stating that “[t]he
reasonableness test we employed in Kyle is based upon the text of the Fourth
Amendment to the United States Constitution[,]” and citing Graham in a
footnote).
      Ms. Shepherd nevertheless argues that the district court erred in
granting summary judgment on her state law excessive force claims because
at least one Louisiana appellate court has affirmed an excessive force inquiry
that looked to the reasonableness of the events leading up to the use of force
rather than just looking solely at the reasonableness at the moment of the
threat, see Harris v. Carter, 

, 835 (La. App. 2d Cir. 2000), and
because Louisiana negligence law allows for fault to be comparatively
apportioned.
      To our knowledge, the Louisiana Supreme Court has not spoken
explicitly to the question of whether the reasonableness inquiry for excessive
force under Louisiana tort law is limited to the moment of threat or if it should
be expanded to consider the events leading up to it. However, we need not
hazard an Erie guess here. Ms. Shepherd has failed to raise a genuine dispute
of material fact that Corporal Tucker’s actions were objectively unreasonable
at any stage in the events leading up to the use of force, so under either
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                                 No. 18-30528
standard the outcome is the same. Moreover, because Corporal Tucker acted
reasonably, he did not breach any duty owed to Mr. Shepherd and there is no
fault to comparatively apportion. Therefore, the district court did not err in
granting summary judgment to the defendants on the state law excessive force
claims.
      Second, we address Ms. Shepherd’s argument that she properly raised
state law claims of negligence pertaining to the firefighters and dispatch
personnel that are distinct from the excessive force analysis. We reject this
argument as well.
      Under the Federal Rules of Civil Procedure, a complaint needs to provide
“a short and plain statement of the claim[.]” Fed. R. Civ. P. 8(a)(2). That
statement needs to be sufficient to “give the defendant fair notice of what the
[plaintiff’s] claim is and the grounds upon which it rests[.]” Bell Atl. Corp. v.
Twombly, 

, 555 (2007) (quoting Conley v. Gibson, 

, 47
(1957)). In other words, “a complaint must do more than name laws that may
have been violated by the defendant; it must also allege facts regarding what
conduct violated those laws.” Anderson v. U.S. Dep’t of Hous. & Urban Dev.,

, 528 (5th Cir. 2008).
      In this case, Ms. Shepherd’s complaint alleged that Corporal Tucker was
at fault for using excessive force and that the city was at fault for failing to
train and supervise Corporal Tucker. Ms. Shepherd pleaded that firefighters
were on the scene, but nowhere does her complaint say anything that would
reasonably put the defendants on notice that she is alleging negligence on the
part of either the firefighters or the dispatchers. The first time that Ms.
Shepherd comes close to articulating a clear allegation of negligence on the
part of either the firefighters or the dispatchers is after the defendants moved
for summary judgment, in her brief in opposition.


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                                  No. 18-30528
      However, as a general matter, we “carefully scrutinize” any attempts to
raise new theories of recovery after the opposing party has filed a motion for
summary judgment. Parish v. Frazier, 

, 764 (5th Cir. 1999). As
such, we hold that the claims of alleged negligence on the part of the
firefighters and the dispatchers were not properly raised before the district
court and have no bearing on the analysis of the state law excessive force
claims brought by Ms. Shepherd in this case. Furthermore, even if those
claims had been properly raised before the district court, the argument that
negligence on the part of the firefighters or the dispatchers was somehow
responsible for Mr. Shepherd advancing towards Corporal Tucker with a knife
in his hand while disregarding a command to get back is specious at best.
      Therefore, we affirm the judgment of the district court granting
summary judgment to the defendants on Ms. Shepherd’s state law tort claims.
                                       D.
      Last, we address the district court’s denial of Ms. Shepherd’s motion to
supplement her brief in opposition to summary judgment.           Ms. Shepherd
argues the district court abused its discretion when it denied her motion to
supplement her brief. Ms. Shepherd states that the supplemental brief would
have “represented mostly elaboration of points prior made” by expanding upon
an expert report and developing arguments related to the alleged negligence of
the firefighters and dispatch personnel.
      The Federal Rules of Civil Procedure state that a pretrial schedule may
be modified “only for good cause.” Fed. R. Civ. P. 16(b)(4). “We consider four
factors in determining whether the district court abused its discretion in
[declining a motion to supplement a report considered at summary judgment]:
‘(1) the explanation for the failure to submit a complete report on time; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony;
and (4) the availability of a continuance to cure such prejudice.’ ” Reliance Ins.
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                                 No. 18-30528

(alterations omitted) (quoting Geiserman v. MacDonald,

, 791 (5th Cir. 1990)).
      In this case, the first two factors weigh strongly in favor of affirming the
district court’s decision. Ms. Shepherd offered no explanation for why the
supplemental materials were not included in the first brief other than the
statement that “[p]laintiff was unable to fully set forth all the grounds” in her
original opposition brief. And she did not explain why the addition to the
expert’s report was not ready to be timely submitted. Likewise, she has failed
to offer any better explanation on appeal. Moreover, by her own description,
the supplemental materials merely “represented mostly elaboration of points
prior made.” As such, she falls far short of demonstrating that there was good
cause for receiving a schedule adjustment to permit supplemental briefing.
      District courts must have the power to control their dockets by holding
litigants to a schedule. See Reliance Ins. 

. We hold that
the district court did not abuse its discretion in this case when it denied Ms.
Shepherd’s motion to supplement her brief in opposition to summary
judgment.
                                      *   *    *
      Under the totality of circumstances present in this case, Corporal
Tucker’s use of deadly force was reasonable, and the district court did not
abuse its discretion by denying Ms. Shepherd’s motion to supplement her brief.
The district court’s order granting summary judgment for the defendants and
dismissing all of Ms. Shepherd’s claims with prejudice is AFFIRMED.




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