Keller v. Fleming

• Decision Date: 20 February 2020
• Docket Number: No. 18-60081,18-60081
• Parties: Eleanor KELLER, individually and on behalf of all Heirs-at-Law and/or wrongful death beneficiaries of Gerald Simpson, Deceased; The Estate of Gerald Simpson, by and through Glen Simpson, Administrator of Estate, Plaintiffs - Appellees v. Darrin FLEMING, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

952 F.3d 216

Eleanor KELLER, individually and on behalf of all Heirs-at-Law and/or wrongful death beneficiaries of Gerald Simpson, Deceased; The Estate of Gerald Simpson, by and through Glen Simpson, Administrator of Estate, Plaintiffs - Appellees

v.Darrin FLEMING, Defendant - Appellant

No. 18-60081

United States Court of Appeals, Fifth Circuit.

February 20, 2020

Carlos Eugene Moore, Esq., Moore Law Office, P.L.L.C., Grenada, MS, for Plaintiffs - Appellees.

Daniel J. Griffith, Esq., Jacks Griffith Luciano, P.A., Cleveland, MS, for Defendant - Appellant.

Before STEWART, DENNIS, and WILLETT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The original opinion was filed on July 23, 2019 and later WITHDRAWN. Keller v. Fleming , 930 F.3d 746 (5th Cir. 2019). We substitute the following:

Following decedent Gerald Simpson's death in which a motorist struck and killed him, Plaintiffs¹ filed suit against, inter alia , Deputy Darrin Fleming of the Attala County Sheriff's Department, alleging Fourth and Fourteenth Amendment violations. Fleming filed a motion for summary judgment asserting a qualified immunity defense on each claim. The district court denied the motion, and Fleming timely filed an interlocutory appeal. Concluding that the district court erred in denying qualified immunity as to both the Fourth and Fourteenth Amendment claims, we REVERSE and RENDER judgment in Deputy Fleming's favor.

I.

On January 26, 2015, Gerald Simpson, a mentally infirmed man, was walking in the middle of Highway 12 in Kosciusko, Mississippi.² Around 5:00 p.m., an individual witnessed Simpson walking and contacted the authorities. The Kosciusko Police Department responded to the dispatch call. Officer Steve Allan arrived and stopped Simpson and "asked [him] to step out of the highway."³ He determined that Simpson was outside the city limits and within Attala County's jurisdiction so he alerted the Attala County Sheriff's Department. Waiting for Attala County law enforcement to arrive, Officer Allan attempted to question Simpson, but he was unable to understand Simpson due to his incoherent speech. Simpson continuously pointed westward down the highway.

Kosciusko Police Officer Maurice Hawthorne arrived and replaced Officer Allan, who left to respond to another call.

Simpson then began to resume his walk down the highway. "Officer Hawthorne followed him in his patrol vehicle until he was able to convince Simpson to sit in the backseat of his vehicle."⁴ Simpson sat with his feet on the ground with the door still open.

Deputy Fleming of Attala County arrived on the scene, "at which point the officers purportedly decided to take Simpson to his residence, though both officers acknowledge that Simpson was still incoherent."⁵ Deputy Fleming put Simpson in the back seat of his vehicle and asked Simpson where he resided. He was unable to articulate the location of his residence and instead pointed west on Highway 12, in the direction of Durant, Mississippi. Deputy Fleming did not ask for Simpson's exact address or identification card. Based on Simpson pointing west, Deputy Fleming transported Simpson in that direction until he reached the Attala County line which was sometime after 5:00 p.m. Deputy Fleming then pulled over, opened the back door of his patrol vehicle, Simpson exited the vehicle, and Simpson continued walking toward Durant on County Road 4101, outside of Attala County's jurisdiction. "Deputy Fleming testified that there was barely enough daylight to see someone walking, but that it was not dark yet."⁶ Later that night⁷ , Simpson was struck by a vehicle and killed as he "was walking east, back toward Kosciusko."⁸

Plaintiffs filed this wrongful death action against City of Kosciusko, Officers Allan and Hawthorne, Attala County, and Deputy Fleming. They alleged, pursuant to 42 U.S.C. § 1983, that the officers' actions violated Simpson's constitutional rights under the Fourth Amendment for wrongful seizure and the substantive due process clause of the Fourteenth Amendment. The district court granted summary judgment in favor of the City of Kosciusko and Officers Allan and Hawthorne.⁹ As to Attala County and Deputy Fleming, the court granted only partial summary judgment, finding that genuine issues of material fact existed as to Plaintiffs' constitutional claims. Deputy Fleming appealed.¹⁰

II.

An interlocutory order denying qualified immunity is immediately appealable "to the extent that it turns on an issue of law." Gobert v. Caldwell , 463 F.3d 339, 344 (5th Cir. 2006) (internal quotation marks and citation omitted). Our jurisdiction over such an appeal is limited. See id . We must accept the plaintiff's version of events as true, and we may review de novo "only whether the district court erred in assessing the legal significance of the conduct that [it] deemed sufficiently supported for purposes of summary judgment." Kinney v. Weaver , 367 F.3d 337, 348 (5th Cir. 2004) (en banc); Juarez v. Aguilar , 666 F.3d 325, 331–32 (5th Cir. 2011) ("Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiff's version of the facts as true." (quoting Kinney , 367 F.3d at 348 ) (cleaned up)). "[We also] must view the evidence ‘in the light most favorable to the opposing party’ "—here, Plaintiffs. Tolan v. Cotton , 572 U.S. 650, 134 S. Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ).

In turn, we accept the district court's determination that genuine "questions of material fact" existed as to whether "Deputy Fleming acted on a custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions so as to rid Attala County of the problem." Keller v. Attala County , No. 1:16-cv-136-SA-DAS, 2018 WL 615681, at *5 (N.D. Miss. Jan. 29, 2018).¹¹

If assuming the version of the disputed events (most favorably to the plaintiff) still does not give rise to a violation of clearly established law, then reversal is appropriate. Kinney , 367 F.3d at 347–48.

III.

Plaintiffs bear the burden to rebut Deputy Fleming's qualified immunity defense and demonstrate that there were Fourth and Fourteenth Amendment rights that were clearly established at the time of the constitutional violation. See, e.g. , King v. Handorf , 821 F.3d 650, 653–54 (5th Cir. 2016) (noting that a "good-faith assertion of qualified immunity alters the usual summary judgment burden of proof") (quoting Cass v. City of Abilene , 814 F.3d 721, 728 (5th Cir. 2016) ).

In evaluating the qualified immunity defense, the familiar two-step analysis controlling our review is whether (1) " ‘the facts alleged show the officer's conduct violated a constitutional right’; and [ (2) ], ‘whether the right was clearly established.’ " Trammell v. Fruge , 868 F.3d 332, 339 (5th Cir. 2017) (quoting Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). We review the district court's resolution of these legal issues—the scope of clearly established law and the objective reasonableness of the defendant government officials' actions—de novo. See Rockwell v. Brown , 664 F.3d 985, 991 (5th Cir. 2011) ; see also Lytle v. Bexar County , 560 F.3d 404, 409 (5th Cir. 2009). We have discretion to address either prong of the qualified immunity inquiry first. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (noting that "two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable").

We first "answer the constitutional violation question by determining whether the officer's conduct met the Fourth Amendment's reasonableness requirement." See Lytle , 560 F.3d at 410.

Fourth Amendment

Plaintiffs' wrongful seizure claim implicates the Fourth Amendment's prohibition on unreasonable seizures as the basis for a constitutional violation. U.S. Const. amend. IV.

Our Fourth Amendment de novo analysis begins with whether Simpson was seized, and assuming a seizure has occurred, we then evaluate the seizure's reasonableness and the clearly established law prong. McLin v. Ard ., 866 F.3d 682, 691 (5th Cir. 2017) (reviewing whether a seizure occurred under the qualified immunity framework de novo); United States v. Cooper , 949 F.2d 737, 744 (5th Cir. 1991) (stating that "the ultimate question of the legality of the ... seizure is a question of law alone [that this court must answer]" subject to a de novo review).

Seizure . The district court determined that Simpson was seized.¹²

Fleming's position is that the district court erroneously considered his subjective intentions of his encounter with Simpson, rather than applying an objectively reasonable standard. Irrespective of the court questioning Fleming's motive during these events, Fleming is silent on the issue of seizure.¹³ Plaintiffs, on the other hand, contend that Fleming improperly seized Simpson in placing Simpson in the back of his patrol vehicle and not allowing him to exit the car without Fleming's authority or assistance. While Fleming is correct that the court analyzes seizure using an objectively reasonable test, it is Plaintiffs who are ultimately correct.

Under the Fourth Amendment, a seizure occurs when, under the totality of the circumstances, a reasonable person would have thought he was not free to leave. Michigan v. Chesternut , 486 U.S. 567, 572, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (citation omitted). "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (internal quotations omitted).

Assuming the district court's version of the events to be true, Simpson's freedom of movement was restrained and a reasonable person in Simpson's position would not have felt free to leave. The officers'...