Enlow v. Tishomingo County, Miss.

• Decision Date: 08 June 1992
• Docket Number: No. 91-1003,91-1003
• Citation: 962 F.2d 501
• Parties: Harold Wayne ENLOW, et al., Plaintiffs-Appellees, v. TISHOMINGO COUNTY, MISSISSIPPI, et al., Defendants, Jim Wall, in his individual capacity, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 501

962 F.2d 501

Harold Wayne ENLOW, et al., Plaintiffs-Appellees, v. TISHOMINGO COUNTY, MISSISSIPPI, et al., Defendants, Jim Wall, in his individual capacity, Defendant-Appellant.

No. 91-1003.

United States Court of Appeals,

Fifth Circuit.

June 8, 1992.

Rehearing and Rehearing En Banc

Denied Aug. 6, 1992.

Dalton McBee, Jr., T. Hunt Cole, Jr., Sp. Asst. Attys. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for defendant-appellant.

Jim Waide, Tupelo, Miss., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WILLIAMS, DUHE, and EMILIO M. GARZA, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Harold Wayne Enlow, Angela Deaton, and Harold's Enterprises, Inc., ¹ filed this suit under 42 U.S.C. § 1983 against Tishomingo County, Mississippi, Sheriff Richard Dobbs, sheriff of Tishomingo County, and Officer Jim Wall, a Mississippi Highway Patrol investigator, employed by the Mississippi Department of Public Safety. The suit alleges violations of the First, Fourth, Fifth, and Fourteenth Amendments, as well as state tort claims of malicious prosecution and abuse of process. As the focus of this interlocutory appeal by Officer Jim Wall, Enlow alleges that Wall had arrested him in violation of his First and Fourth Amendment rights. Enlow together with Deaton assert that Wall had violated their First Amendment rights through Wall's grand jury testimony. Finally, Enlow and Deaton claim that Wall was liable for malicious prosecution and abuse of process concerning the grand jury testimony. The district court denied Wall's motion for summary judgment based upon qualified or absolute immunity, finding that material fact questions remained as to those issues. We affirm the district court's decision.

I. FACTS AND PRIOR PROCEEDINGS

In September 1988, appellee Enlow, who had owned and operated a skating rink in Iuka, Mississippi, for nine years, agreed to lease his premises to Lincoln Employment Training Service ("LETS"). Enlow was advised by LETS that his rink would be used for bingo games and that the profits would benefit a non-profit entity. ² After distributing flyers, advertising the game, and inviting the general public, LETS prepared to open the rink to bingo on September 25, 1988.

Tishomingo County law enforcement officials received information that an illegal gambling operation run by LETS would soon operate from Enlow's rink. Pursuant to the information, the officials sought to investigate the entire operation and assigned Wall and other officers to work with Sheriff Dobbs in an undercover investigation of the rink. At the rink, the officers found a congested area with a large crowd, approximately 700-1000 people, and various illegal games, such as "Pull-tab" and bingo, in progress. They concluded that the operation was illegal gambling. The Sheriff decided to raid the premises and close down the operation. Sheriff Dobbs, Wall, and about a dozen other officers returned to the premises, and, without displaying any search or arrest warrants, declared a raid in progress. ³

On the day of the raid (also the first day of the bingo operation), Enlow maintains that he was present on the premises merely to assist in parking, while Deaton, his daughter, was there preparing to operate a concessions stand. ⁴ Both parties admit that when the law enforcement officials arrived, Enlow was outside the building helping direct traffic. At this juncture, however, the parties' versions of the facts differ significantly.

Wall contends that after the officers had entered the building, Enlow approached the Sheriff and asked what was occurring. The Sheriff responded that the place was being raided, the officers having determined that an illegal gambling operation existed on the premises. While standing next to his son-in-law, Enlow allegedly told the Sheriff that he could not carry out the raid because the building belonged to Enlow. The Sheriff replied: "Mr. Enlow, if you would, just don't interfere, just be nice and stand right here." Although Enlow's son-in-law put his arm around him and told him not to interfere, Enlow began "hollering": "You can't take a dime of this money and you will not leave this building with that money. It is not your money. It belongs to these people." Wall then contends that Enlow's actions provided the impetus for the unruly behavior by the crowd. ⁵ Just as Enlow had "hollered" at the Sheriff, the crowd began to "holler"--"Give us our money." Then suddenly, according to Wall, Enlow started taking pictures in close proximity to the Sheriff's face, rendering him temporarily blind. Because Enlow took the pictures and excited the crowd, Sheriff directed Wall to place Enlow under arrest. ⁶

In contrast, the crux of Enlow's account is that since he had contacted the Secretary of State, and believed the operation to be legal, he regarded the raid of the premises and the Sheriff's arrests of the lessees as unlawful. To this end, he made two inquiries: whether Sheriff had a search warrant and whether he had an arrest warrant. As to the first inquiry, the Sheriff informed him that he did not need to have a search warrant. As to the second inquiry, the Sheriff replied: "[I]f you don't shut your mouth ... and get out of the damn way, I'll put you under arrest for interference with a raid." Enlow asserts that after such an encounter, he remained silent; he did not want to be arrested. He does acknowledge, however, that he did borrow a camera from a bystander and did take a picture of the raid in progress. As soon as he took the picture, Sheriff Dobbs arrested him for interference with a raid. ⁷

Enlow was taken into custody and was required to post a two percent bond fee. On February 6, 1989, the Justice Court nol-prossed the interference charge against Enlow. Appellees then brought this section 1983 action in federal court. At the time, no criminal charges were pending against Enlow or Deaton.

Pursuant to grand jury testimony by Wall on April 6, 1989, the Tishomingo County Grand Jury indicted both Enlow and Deaton on criminal charges. The record indicates that Wall was the only witness who testified to the grand jury. In a trial before the Circuit Court of Tishomingo County, the jury (1) could not come to an agreement as to whether Enlow permitted a game prohibited by law to be carried on in his building in violation of Section 97-33-13 of the Mississippi Code, ⁸ creating a mistrial as to that charge; (2) found Enlow not guilty of vigorously and forcefully opposing the seizure of monies in violation of Section 97-33-19; and (3) found Deaton not guilty of willfully and unlawfully operating and exhibiting gambling tables. Finally, the court directed a verdict of not guilty on the charge that Deaton and Enlow publicly put up a lottery in violation of Section 97-33-31, ⁹ and the charge that Enlow was operating and exhibiting gambling tables.

In this appeal of the federal case before us, filed before the criminal prosecution, only claims against Wall are involved. Prior to any discovery, Wall filed his first motion for summary judgment, asserting that qualified immunity barred the claims against him arising out of Enlow's arrest on September 25, 1988. The district court subsequently denied Wall's first summary judgment motion, noting the existence of genuine issues of material fact. ¹⁰ After considerable discovery as well as the filing of several amended complaints, including a fourth amended complaint in which a new theory of recovery was asserted against Wall for retaliation claims growing out of his grand jury testimony, Wall again moved for summary judgment on qualified and absolute immunity grounds. Appellees then filed a cross-motion for summary judgment on various grounds not at issue on this appeal.

The district court first found that whether Wall acted as a reasonable officer with a reasonable understanding of Enlow's constitutional rights, under both the First and Fourteenth Amendments, depended on the actual occurrences on the night of the raid. Thus, although the court rejected Enlow's argument that Section 97-33-19 of the Mississippi Code was facially invalid as violative of First Amendment rights, it reserved ruling on the constitutionality of the statute as it applied to the arrest of Enlow until further fact finding occurred. According to the court, fact questions exist as to whether Wall may have infringed Enlow's First Amendment rights in applying the statute because there was no clear or present danger or incitement to riot on the night of the bingo raid. ¹¹ Conflicting testimony as to the size of the crowd and the nature of Enlow's comments to Sheriff Dobbs created a factual question--whether Enlow's arrest, allegedly for his speech only, was privileged under the First Amendment. The court properly denied the motion for summary judgment on the First Amendment claim.

The court also denied Wall's summary judgment motion based upon immunity from alleged Fourth Amendment violations. Wall appeals this denial. ¹² The district court determined that Enlow's claim of lack of probable cause was inextricably linked with the disputed circumstances surrounding his First Amendment claims. According to the court, Wall did not state that he aided in arresting Enlow because he had probable cause to believe that Enlow was engaged in illegal gambling. Wall relied upon Enlow's alleged inciteful speech to create the probable cause for the arrest. Since material facts remained in dispute as to what occurred the night of the bingo game, the court found that Wall was not entitled to summary judgment based on qualified immunity.

As to the First Amendment violations alleged by Deaton and Enlow concerning Wall's grand jury testimony, the district court concluded that the appellees had presented sufficient evidence to create factual disputes regarding Wall's motive and participation in the decision to renew the criminal charges. Consequentl...