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Keller v. Fleming

United States Court of Appeals, Fifth Circuit

July 23, 2019

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
DARRIN FLEMING, Defendant-Appellant

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

          Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.


         We review the district court's denial of an officer's motion for summary judgment based on qualified immunity. Plaintiffs' decedent, Gerald Simpson, was struck and killed by a motor vehicle as he walked along a Mississippi highway in darkness; Simpson had been dropped off on the highway at the county line by Deputy Darrin Fleming of the Attala County Sheriff's Department. Plaintiffs, members of Simpson's family and his estate, sued the County of Attala and the City of Kosciusko, Mississippi, and law enforcement officials, alleging state law claims and Fourth and Fourteenth Amendment deprivations under 42 U.S.C. § 1983. The district court granted summary judgment to the City of Kosciusko and its officers but denied summary judgment to Attala County and Deputy Fleming. See Keller v. Attala County, No. 1:16-CV-136-SA-DAS, 2018 WL 615681 (N.D. Miss. Jan. 29, 2018). Deputy Fleming filed this interlocutory appeal, contending he is entitled to summary judgment based on his claim of qualified immunity. We AFFIRM the district court's judgment as to the Fourth Amendment claim, REVERSE as to the Fourteenth Amendment claim, and RENDER judgment.


         On the afternoon of January 26, 2015, Gerald Simpson was walking in the middle of Highway 12 in Kosciusko, Mississippi, eating from a box of chicken.[1] Kosciusko police officers responded to a dispatch call reporting Simpson's activity. By the time Kosciusko Officer Steve Allan arrived, Simpson had walked beyond the Kosciusko city limits and into Attala County. Officer Allan stopped Simpson and alerted the Attala County Sheriff's Department. While waiting for its Sheriff's deputy to arrive, Officer Allan questioned Simpson and discovered that Simpson could not speak coherently but kept pointing westward down the highway. Kosciusko Police Officer Maurice Hawthorne arrived and replaced Officer Allan, who left to respond to another call.

         When Simpson tried to walk down the highway again, Officer Hawthorne persuaded him to stop and sit in the backseat of his patrol car. Simpson sat in the backseat of the vehicle with his feet on the ground and the door open until Attala County Sheriff's Deputy Darrin Fleming arrived. Both officers acknowledged that Simpson's speech was still unintelligible. At this point, the officers allegedly decided that Simpson should be taken to his residence. The district court found a genuine dispute of fact about Deputy Fleming's motive in providing a ride to Simpson. Deputy Fleming alleged that he "merely wished to assist Simpson by providing a courtesy ride home." By contrast, Plaintiffs alleged that Deputy Fleming acted pursuant to an Attala County custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions to rid the county of vagrants. Deputy Fleming put Simpson in the backseat of his vehicle and asked him where he resided, but Simpson was unable to articulate where he lived and merely pointed west on Highway 12, in the direction of Durant, Mississippi. Deputy Fleming drove Simpson several miles in that direction, but throughout the ride, Deputy Fleming did not ask for Simpson's address or identification card, and Simpson did not identify his residence. Upon reaching the Attala County line sometime after 5:00 p.m., Deputy Fleming pulled over and opened the back door of his patrol vehicle. Simpson exited the vehicle and continued walking toward Durant on County Road 4101, outside of Attala County's jurisdiction. There was barely enough daylight to see a person walking, but it was not yet dark. Later that evening, after dark, a motorist struck and killed Simpson as he was walking east on the roadway back toward Kosciusko.

         The officers testified that they were aware Simpson's behavior was strange and Simpson's speech was incoherent. The officers were not aware that Simpson had recently been released from a state hospital after twelve years of confinement for certain developmental disabilities, including a speech impediment. On the day he was killed, Simpson had wandered away from his sister's home in Attala County, approximately seventeen miles from the location where Fleming ultimately dropped him.

         Plaintiffs[2] sued the City of Kosciusko, Officers Allan and Hawthorne, Attala County, and Deputy Fleming under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment and the substantive due process clause of the Fourteenth Amendment. Plaintiffs also brought state law claims. Defendants moved for summary judgment. The district court granted summary judgment in favor of the City of Kosciusko and Officers Allan and Hawthorne.[3] However, the district court denied Attala County's and Deputy Fleming's motion in part, finding that genuine issues of material fact existed as to Plaintiffs' constitutional claims. Deputy Fleming appeals from the district court's order denying him qualified immunity.[4]


         First, we must address our jurisdiction to hear Deputy Fleming's interlocutory appeal. "[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This is so because qualified immunity "is an immunity from suit rather than a mere defense to liability . . . [and] it is effectively lost if a case is erroneously permitted to go to trial." Id. at 526. However, our jurisdiction over such appeals is "significantly limited," and exists only if the district court's "denial of summary judgment turns on an issue of law." Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (cleaned up).

         When a district court denies a "motion for summary judgment predicated upon qualified immunity," the district court makes two distinct determinations, at least implicitly. Id. "First, the district court decides that a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law. Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct." Id. We have jurisdiction over the first type of determination, but not the second. Id. at 346-47. In other words, we can review factual disputes for materiality, but not for genuineness. See Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir. 2000). A fact is "material" only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "An issue is 'genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). "Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiff's version of the facts as true." Juarez v. Aguilar, 666 F.3d 325, 331-32 (5th Cir. 2011) (quoting Kinney, 367 F.3d at 348) (cleaned up). In reviewing the denial of a defendant's claim of immunity, we "need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim." Mitchell, 472 U.S. at 528. Instead, we need only determine "whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions." Id.


         When a defendant invokes the defense of qualified immunity, the burden is on the plaintiff to demonstrate its inapplicability. See McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). To overcome qualified immunity, the plaintiff must show that (1) there was a violation of a constitutional right; and (2) the right at issue was "clearly established" at the time of the defendant's conduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (discussing the framework set ...

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