On February 20, 2020, the Fifth Circuit Court of Appeals decided Keller v. Fleming [i], in which the court examined whether a deputy violated the Fourth and Fourteenth Amendment in giving a man a “courtesy ride” when the man was subsequently struck and killed by a motorist after being released at the county line. The relevant facts of Keller, taken directly from the case, are as follows:
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.[ii]“
Keller, the administrator on behalf of Simpson’s estate, sued all involved officers, the City of Kosciusko and Attalla County for violating Simpson’s rights under the Fourth and Fourteenth Amendments. The district court dismissed the suit against all defendants except Deputy Fleming and Attalla County. Deputy Fleming appealed the denial of qualified immunity.
In determining whether Deputy Fleming is entitled to qualified immunity, the court must consider a two-pronged test. First, the court must determine if the deputy violated the plaintiff’s rights under the Constitution. Second, if the first prong is answered affirmatively, the court must next determine if the law was clearly established such that any reasonable officer would have been on notice that his conduct was unlawful.
Issue One: Whether Simpson was seized by Deputy Fleming within the meaning of the Fourth Amendment?
The court of appeals first noted what constitutes a seizure of a person under the Fourth Amendment and stated
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 (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 (1968) (internal quotations omitted).[iii]
In Simpson’s case, he was stopped by an officer while walking in the roadway, and he was persuaded to sit in the back of a police car. When Deputy Fleming arrived on the scene, he put Simpson in the backseat of his vehicle and drove him several miles to the county line where he dropped him off. There was no evidence that Simpson consented to the “courtesy ride.” The court of appeals held that his was an example of a show of authority restraining Simpson’s freedom of movement, and as such, was a seizure under the Fourth Amendment.
Issue Two: Whether the seizure of Simpson violated the Fourth Amendment?
The court first stated
Absent probable cause, warrantless searches and seizures are presumptively invalid or “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); compare with United States v. Morris, 477 F.2d 657, 663 (5th Cir. 1973) (“A warrantless arrest is nevertheless valid if the arresting officer has probable cause to believe that the person arrested has committed or is in the act of committing a crime.”).[iv]
In light of the above legal principles, Deputy Fleming must show that his seizure of Simpson was supported by probable cause or falls within an exception warrant requirement. The court of appeals noted that Deputy Fleming’s appellate legal brief did not contend that he probable cause or reasonable suspicion to detain Simpson. Rather, Deputy Fleming only maintained that he was providing Simpson a “courtesy ride,” as is a practice of the Attala County Sheriff’s Office.
Therefore, the court of appeals held that Deputy Fleming did not meet his burden of providing a lawful reason for Simpson’s seizure and as such, the seizure violated the Fourth Amendment.
It is important to note that Deputy Fleming may have been able to allege that Simpson’s walking in the middle of the roadway may have provided probable cause to detain or arrest him for a traffic or pedestrian violation under state law; however, since Fleming did argue this point before the court, the court of appeals was not able to consider this possibility.
Issue Three: Whether the law was clearly established that such that Deputy Fleming was on notice that he was violating the Fourth Amendment when he drove Simpson several miles to the county line and dropped him off?
The court of appeals first noted the law related to this issue and stated
For purposes of determining whether the right was clearly established, “[t]he relevant question . . . is . . . whether a reasonable officer could have believed [his or her conduct] to be lawful, in light of clearly established law and the information the . . . officers possessed.” Anderson v. Creighton, 483 U.S. 635, 641 (1987). In other words, Plaintiffs must point this court to a legislative directive or case precedent that is sufficiently clear such that every reasonable official would have understood that what he is doing violates that law. Reichle v. Howards, 566 U.S. 658, 664 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).[v]
Thus, court precedent (from the Supreme Court or Fifth Circuit) must make it sufficiently clear that Deputy Fleming’s actions violated the Fourth Amendment such that every reasonable official would have understood his actions violated the Fourth Amendment.
The court noted that the plaintiff’s did not cite a single case that clearly established the law regarding Simpson’s courtesy ride by Deputy Fleming. In fact, in support of Fleming’s actions, the court noted that
[T]he community caretaker function (for example) which would be a legitimate government interest as to public safety. See, supra, Sect.III n.17 (collecting cases); see also Keller, 2018 WL 615681, at *5 (“[T]he initial interaction between Simpson and Deputy Fleming may have been reasonable, given the fact that Simpson possibly posed a danger to himself and the community by standing in oncoming traffic.”).
This community caretaker function would tend to cloud the perception of a reasonable officer regarding whether or not a courtesy ride, such as the one given to Simpson, was a clear violation of the Fourth Amendment.
As such, the court of appeals held that the law was not clearly established in this case. Therefore, they reversed the district court and granted qualified immunity to Deputy Fleming related to the Fourth Amendment claim.
In other words, the court did not hold Simpson’s “courtesy ride” was legal under the Fourth Amendment; rather, they held that it was not legal under the circumstances of Simpson’s case. However, because there was no court precedent that made the illegality clear to every reasonable officer, and because the community-caretaker function could cloud the issue for reasonable officers, Deputy Fleming was entitled to qualified immunity on this claim.
Issue Four: Whether Deputy Fleming is entitled to qualified immunity regarding the Fourteenth Amendment claim?
The court first state that
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. AMEND. XIV, § 1.[vi]
Additionally, regarding the Fourteenth Amendment and whether it creates a governmental, general duty to protect citizens, the court of appeals stated
[T]he [Supreme] Court in DeShaney held that states and their officials have no affirmative duty to protect individuals from violence by private actors.19 489 U.S. at 197. 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.[vii]
In DeShaney, the case quoted above, a state’s child protection agency took custody of a child from an abusive father. Eventually, the state returned the child to his father, and the father again abused the child and caused severe, permanent injury to the child. Other family members sued the state on behalf of the child. The Supreme Court held that the state had no duty under the Fourteenth Amendment to protect the child from violence. The Supreme Court noted that, when the state returned the child to the father, it placed the child in no worse a position than he would have been in had the state not acted at all. This is similar to the situation in Simpson’s case.
Additionally, the plaintiff was able to cite no precedent that would clearly establish a “duty to protect” Simpson in this situation such that every reasonable officer would have known he was violating the Fourteenth Amendment by dropping Simpson off at the county line.
Therefore, Deputy Fleming is also entitled to qualified immunity on the Fourteenth Amendment claim and the decision of the district court is reversed.
[i] No. 18-60081 (5th Cir. Decided February 20, 2020)
[ii] Id. at 2-3
[iii] Id. at 7 (emphasis added)
[iv] Id. at 9 (emphasis added)
[v] Id. at 11 (emphasis added)
[vi] Id. at 13(emphasis added)
[vii] Id. at 14 (emphasis added)