On July 23, 2019, the Fifth Circuit Court of Appeals decided Keller v. Fleming[i], in which the court examined whether a deputy violated the Fourth or Fourteenth Amendment when he drove a vagrant to the county line, dropped him off, and the man was subsequently struck and killed by another motorist. The relevant facts of Fleming, taken directly from the case, are as follows:
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. 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.[ii]
Keller filed suit, on behalf of Simpson’s heirs, against the City of Kosciusko, the two city officers, Attala County, and Deputy Fleming for violating Simpson’s rights under the Fourth and Fourteenth Amendments, as well as state law claims. The district court dismissed the suit against the City of Kosciusko and its officers and denied qualified immunity and summary judgment regarding Attala County and Deputy Fleming. The deputy appealed the denial of qualified immunity to the Fifth Circuit Court of Appeals. [Note: This article will not discuss state law claims.]
In order for the plaintiff to defeat qualified immunity, the plaintiff must meet a two-prong test. First, the plaintiff must show that the deputy violated a constitutionally protected right. Second, the plaintiff must show that the right was clearly established such that every other reasonable officer would have known he was violating the constitution. Additionally, at this stage of the litigation, the court is required to view the evidence in a light most favorable to the plaintiff, unless there is clear evidence contrary to the plaintiff’s allegations (such as video).
The court first set out to determine if the deputy was entitled to qualified immunity on the Fourth Amendment claim. In order to defeat qualified immunity, the plaintiff must satisfy the two-prong test above. As such, the court first examined whether the deputy violated Simpson’s rights under the Fourth Amendment by affecting an unreasonable seizure when he transported Simpson, without consent, to the county line.
The court first discussed the applicable legal principles and stated
“[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 (1968). “A person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). This occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 554. The Fourth Amendment generally prohibits an officer from seizing and detaining an individual without “probable cause, defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.'” See Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. State of Ohio, 379 U.S. 89, 91 (1964)). However, in Terry v. Ohio, the Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22. We have also recognized that police engage in a wide variety of activities unrelated to the investigation and prosecution of crime and that seizures for these purposes may not be unreasonable. See United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (holding that an officer acted upon reasonable suspicion in detaining a man wearing dark clothing who was standing in the road and appeared drunk (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (describing the “community caretaking functions” that police officers serve))).[iii]
It was noted that the city officer’ reasonably seized Simpson under the “community caretaking function” at the beginning of the encounter when they did so to remove him from walking in the roadway. However, at issue is the Deputy Fleming’s conduct in placing Simpson in the backseat of the patrol car and driving him to the county line. The deputy stated that he was attempting to drive Simpson home, which would also be a “community caretaking function.” However, the court noted that, when they viewed the evidence in a light most favorable to the plaintiff, the deputy never obtained Simpson’s address, never asked Simpson for his address, never checked for his identification, and never took other steps to attempt to discover Simpson’s address. The plaintiff also alleged the county had a custom of driving suspected vagrants to other counties to remove them. Further, the deputy did not let Simpson out of the car until he had reached county line. Based upon this the court stated
Construing the facts in Plaintiffs’ favor—that is, that Fleming seized, detained, and transported Simpson to the next county pursuant to Attala County’s custom of vagrant dumping—and examining the reasonableness of Deputy Fleming’s actions in light of the Supreme Court’s jurisprudence on vagrancy and related stop-and-identify laws, we conclude that Deputy Fleming violated Simpson’s Fourth Amendment rights.[iv]
Therefore, having determined that the deputy violated the plaintiff’s rights under the Fourth Amendment, they then moved to the second prong of the qualified immunity analysis, particularly whether the law was clearly established such that any other reasonable officer would have known the conduct at issue violated the Fourth Amendment.
The court stated
A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A right may be clearly established, even in novel factual circumstances, where a defendant’s conduct clearly and obviously violates the Constitution. See Hope v. Pelzer, 536 U.S. 730, 741 (2002). The “salient question” is not whether there are previous cases with facts that are “fundamentally similar,” but rather, “whether the state of the law [at the time of defendants’ conduct] gave [them] fair warning that [plaintiff’s] alleged treatment was unconstitutional.” Id.[v]
The court then balanced Simpson rights under the Fourth Amendment with the government interest at stake. The court noted that legal principles at issue here, particularly that to seize a person it must be related to probable cause or reasonable suspicion of criminal activity, or alternatively an exception such as the “community caretaking function” are clearly established such that the deputy in this case should have had fair warning that driving someone without probable cause or without consent to the county line and putting them on the side of the road violates the Fourth Amendment. The court then held
Given the Supreme Court’s well-established jurisprudence limiting an officer’s unfettered discretion to act pursuant to an established vagrancy or vagrancy-related law, it would have been clear and obvious to every reasonable officer in Deputy Fleming’s position that arbitrarily seizing Simpson pursuant to an unwritten custom of ousting vagrants violated Simpson’s Fourth Amendment rights. See Hope, 536 U.S. at 741. We therefore conclude that, on Plaintiffs’ facts, Deputy Fleming violated Simpson’s clearly established Fourth Amendment rights.[vi]
As such, the Fifth Circuit affirmed the denial of qualified immunity for the deputy on the Fourth Amendment claim.
The court then set out to examine whether the deputy is entitled to qualified immunity on the Fourteenth Amendment claim. Thus, the court first had to determine whether the deputy violated Simpson’s rights under the Fourteenth Amendment.
The Fourteenth Amendment claim is centered around the whether the deputy bears liability for failing to protect Simpson when he put him out of the patrol car, and Simpson was later struck by a car. The court examined the applicable legal principles and stated
The Due Process Clause of the Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. As a general matter, a State does not have an affirmative duty to protect an individual from violence by private actors. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). However, the Supreme Court in DeShaney recognized that, in very limited circumstances, the State’s actions in taking a person into custody and holding him there against his will creates a “special relationship,” “impos[ing] upon [the State] a corresponding duty to assume some responsibility for his safety and general well-being.” Id. at 199-200. It is the state-imposed limitation on an individual’s freedom to act on his own behalf that triggers an affirmative duty to protect—not knowledge of the individual’s predicament or a State’s expressions of intent to help him. Id. The Supreme Court has expressly recognized that a “special relationship” exists between the State and prisoners, Estelle v. Gamble, 429 U.S. 97, 103-04 (1976), involuntarily committed mental patients, Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982), and suspected criminals injured while being apprehended by police, City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).[vii]
The plaintiff argued that there was a “special relationship” created when the deputy had custody of Simpson because he was unable to care for himself. The Fifth Circuit did not decide this issue, but rather noted that even if there was a special relationship, the law was still not clearly established such that the deputy would have been on notice regarding his conduct. As such, the Fourteenth Amendment claim would fail the second prong of the qualified immunity analysis, even if it passed the first prong. However, the court also discussed DeShaney v. Winnebago Cty. Dept of Social Services[viii], in which the Supreme Court clarified the state’s duty to protect individuals from third-party harm under the Fourteenth Amendment. The court stated
In DeShaney, the Supreme Court held that state officials had no duty to protect a child who was not in state custody at the time he was injured by his father. See 489 U.S. at 201. The Court explained: “That the State once took temporary custody of [the child] does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter.”[ix]
Thus, like the child in DeShaney, even if Simpson were unable to care for himself, the deputy’s conduct in the case at hand would still likely not violate the Fourteenth Amendment.
The court did mention that some federal circuits recognize a “state created danger” theory for Fourteenth Amendment liability where the state creates or exacerbates a dangerous situation; however, the Fifth Circuit stated that they do recognize this theory of liability.[x]
Thus, the Fifth Circuit held that because the law was not clearly established regarding the deputy’s conduct in this case, the deputy was entitled to qualified immunity on the Fourteenth Amendment claim.
[i] No. 18-60081 (5th Cir. Decided July 23, 2019)
[ii] Id. at 2-3
[iii] Id. at 6-7 (emphasis added)
[iv] Id at 9
[v] Id. at 12 (emphasis added)
[vi] Id. at 14
[vii] Id. at 14-15 (emphasis added)
[viii] 489 U.S. 189 (1989)
[ix] Keller at 16 (emphasis added)