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
from the United States District Court for the Northern
District of Mississippi
STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.
L. DENNIS, CIRCUIT JUDGE:
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
afternoon of January 26, 2015, Gerald Simpson was walking in
the middle of Highway 12 in Kosciusko, Mississippi, eating
from a box of chicken. 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.
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.
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 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. 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.
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)
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.
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 ...