Case: 18-60081      Document: 00515317762        Page: 1     Date Filed: 02/20/2020




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                      Fifth Circuit

                                                                                 FILED
                                                                            February 20, 2020
                                     No. 18-60081
                                                                              Lyle W. Cayce
                                                                                   Clerk
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




                   Appeal from the United States District Court
                         Northern District of Mississippi


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      The original opinion was filed on July 23, 2019 and later WITHDRAWN.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, 

(5th Cir. 2019). We substitute the following:
      Following decedent Gerald Simpson’s death in which a motorist struck
and killed him, Plaintiffs 1 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


      1 Plaintiffs are Simpson’s estate and Eleanor Keller (Simpson’s sister), individually
and on behalf of other members of Simpson’s family.
     Case: 18-60081        Document: 00515317762           Page: 2     Date Filed: 02/20/2020



                                        No. 18-60081
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




       2  Our interlocutory review is based on the facts the district court accepted as sufficient
to deny summary judgment which are stated in Keller v. Attala County, No. 1:16-cv-136-SA-
DAS, 

, at *1 (N.D. Miss. Jan. 29, 2018); cf. Cantrell v. City of Murphy, 

, 922 (5th Cir. 2012) (“When considering an appeal from the denial of qualified
immunity . . . our inquiry concerns the purely legal question of whether the defendants are
entitled to qualified immunity on the facts that the district court found sufficiently supported
in the summary judgment record.”).
        3 Keller, 

, at *1.

                                                2
    Case: 18-60081      Document: 00515317762         Page: 3    Date Filed: 02/20/2020



                                    No. 18-60081
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 night 7, 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




      4 

      6 

operative complaint alleges that it was approximately 8:00 p.m.
      8 

18-60081       Document: 00515317762          Page: 4     Date Filed: 02/20/2020



                                       No. 18-60081
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,

, 344 (5th Cir. 2006) (internal quotation marks and citation
omitted). Our jurisdiction over such an appeal is limited. See 

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, 

, 348 (5th Cir. 2004) (en banc);
Juarez v. Aguilar, 

, 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 

) (cleaned up)).       “[We also] must view the evidence ‘in the light most
favorable to the opposing party’”—here, Plaintiffs. Tolan v. Cotton, 

, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 

, 157
(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



       9 Plaintiffs’ claims against Kosciusko officers are not the subject of this interlocutory
appeal. Keller, 

, at *8–9.
       10 The district court granted a stay pending this appeal because “the disposition of

claims against the County are significantly intertwined with the pending resolution of [this
appeal].” Order, Keller v. Fleming, No. No. 1:16-CV-136-SA-DAS (N.D. Miss. May 2, 2018),
ECF No. 103.
                                               4
     Case: 18-60081      Document: 00515317762         Page: 5    Date Filed: 02/20/2020



                                      No. 18-60081
neighboring jurisdictions so as to rid Attala County of the problem.” Keller v.
Attala County, No. 1:16-cv-136-SA-DAS, 

, 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. 

–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, 

, 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, 

, 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



       11 While we accept the district court’s determination as to the genuineness of this
vagrant policy, we do so because we adhere to the interlocutory standard for qualified
immunity. See Wagner v. Bay City, 

, 320 (5th Cir. 2000) (stating that on an
interlocutory appeal for qualified immunity, we can review the materiality of any factual
disputes, but not their genuineness).

       It is important to note that upon review of the second amended complaint, and the
parties’ appellate and district court summary judgment briefing, there are several
inconsistencies in what the parties presented to the district court and what the court
recognized in its summary judgment order, mainly this anti-vagrant policy theory. Indeed,
the operative complaint does not state such a theory, and there is no evidence in support
thereof. At summary judgment, Plaintiffs argued that the Attala County policy is that “it is
customary for law enforcement officers to give courtesy rides and not to travel beyond their
designated jurisdiction”—which the court recognized in its summary judgment order.
However, a courtesy ride policy in no way implicates a policy to transport vagrants to
neighboring jurisdictions for the purpose of ridding a county of vagrants.
                                             5
    Case: 18-60081      Document: 00515317762     Page: 6   Date Filed: 02/20/2020



                                  No. 18-60081
was clearly established.’” Trammell v. Fruge, 

, 339 (5th Cir. 2017)
(quoting Saucier v. Katz, 

, 201 (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, 

, 991 (5th Cir. 2011); see also
Lytle v. Bexar County, 

, 409 (5th Cir. 2009). We have discretion
to address either prong of the qualified immunity inquiry first. See Pearson v.
Callahan, 

, 236 (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 

.
                              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.,

, 691 (5th Cir. 2017) (reviewing whether a seizure occurred under
the qualified immunity framework de novo); United States v. Cooper, 

, 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).




                                        6
     Case: 18-60081        Document: 00515317762          Page: 7     Date Filed: 02/20/2020



                                        No. 18-60081
       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, 

, 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, 

, 16 (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’ collective supervision



       12  While not expressly stated, the district court clearly infers that Simpson was seized.
Keller, 

, at *6. We can draw this inference from the district court’s
reasonableness holding that the (1) “jury must resolve whether Deputy Fleming was fulfilling
his role as a community caretaker and whether that role eventually fell away, leaving only
an improper seizure to remain”; and (2) “Plaintiff’s Fourth Amendment claim is viable,
because it is questionable whether Simpson was improperly seized—whether Deputy Fleming
was acting as a community caretaker, whether Simpson ever felt as though he was free to
leave, and whether he was capable of giving his consent to be seized in the first place.” 

Said differently, the district court found that absent a warrant exception
or justification (e.g., the community caretaker exception), the jury question was whether
Simpson’s seizure was unreasonable or improper, not whether Simpson was seized. 

note, Deputy Fleming’s appellate brief provides a legal standard for seizure, but

he otherwise presents no arguments as to whether Simpson was seized.
                                               7
     Case: 18-60081       Document: 00515317762         Page: 8    Date Filed: 02/20/2020



                                      No. 18-60081
and actions support this finding. Here, when Simpson tried to walk down the
highway again 14, Officer Hawthorne followed him in his patrol car until he had
to pull off because there was “no room.” 15 Once the vehicle was pulled off to
the side, Officer Hawthorne persuaded Simpson to stop and sit in the backseat
of his patrol car. In other words, Officer Hawthorne interrupted Simpson’s
path and “intercept[ed] him to prevent his progress”—which is “probably
decisive” in assessing seizure. United States v. Berry, 

, 597 (5th
Cir. 1982) (blocking defendant’s path at an airport constituted a seizure)
(citation omitted). This is likely when the seizure began, and it likely did not
end until Simpson was dropped off because as the district court stated,
“Fleming [subsequently] put Simpson in the backseat of his vehicle” and drove
for several miles, and finally just “pulled over and opened the door of his patrol
vehicle” when he reached the county line. Keller, 

, at *1. This
is an example of a show of authority restraining Simpson’s freedom to leave,
triggering the Fourth Amendment.             Florida v. Bostick, 

, 434
(1991). (“The encounter will not trigger Fourth Amendment scrutiny unless it
loses its consensual nature . . . ‘Only when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen
may we conclude that a ‘seizure’ has occurred.’”) (quoting 

n.16).
         Consequently, we affirm the district court’s seizure finding.




         14We acknowledge that Officer Hawthorne’s initial stop of Simpson did not initiate
the seizure because “[o]ur cases make it clear that a seizure does not occur simply because a
police officer approaches an individual and asks a few questions.” Florida v. Bostick, 

, 434 (1991). But it is his actions thereafter that triggered the Fourth Amendment.
       15 In his deposition, Officer Hawthorne states “I shadowed him onto Sand Road; pulled

off on Sand Road to where it was a road where I could pull off at, because there wasn’t no
room . . . And asked Mr. Simpson would he like to sit down. And he sat down in the back of
my patrol car.”
                                             8
     Case: 18-60081       Document: 00515317762         Page: 9    Date Filed: 02/20/2020



                                      No. 18-60081
       Unreasonableness.         We now determine whether this seizure was
reasonable under the Fourth Amendment.
       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, 

, 357 (1967); compare with United States v.
Morris, 

, 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.”). As such,
Deputy Fleming now bears the burden in proving that the seizure of question
was either supported by probable cause or falls within one of the few well-
delineated exceptions to the warrant requirement. United States v. Roch, 

, 897 (5th Cir. 1993) (“While in general . . . the defendant has the
burden of proving . . . that the material in question was seized in violation of
his constitutional rights, there are several situations where the burden shifts
to the government.”) (citation omitted).
       Here, Deputy Fleming’s appellate brief is unclear as to what warrant
exceptions justified the seizure of Simpson. 16 Fleming does not contend that



       16 The district court opinion construes Deputy Fleming’s courtesy ride statements as
a basis for excepting the Fourth Amendment under the community caretaker doctrine and
consent warrant exception. Keller, 

, at *7−8. As to the former, our circuit
has yet to explicitly extend this community caretaker doctrine to unlawful detentions, but we
have suggested in dicta that such seizures may be reasonable. See United States v. Rideau,

(5th Cir. 1992) (en banc). Moreover, a majority of our sister circuits refer to
this doctrine as a warrant exception, but we recognize that this doctrine has also been
considered as a stand-alone justification. Taylor v. City of Signaw, 

, 334−35
(6th Cir. 2019) (referring to community caretaker doctrine as an exception to warrant
requirement); United States v. Parks, 

, 812−13 (8th Cir. 2018) (“One such
exception [to the warrant requirement] applies when police officers engage in a community
caretaking function.”) (quotation omitted); Vargas v. City of Phila., 

, 971 (3rd
Cir. 2015) (“That community caretaking doctrine . . . is an exception to the warrant
requirement of the Fourth Amendment.”); MacDonald v. Town of Eastham, 

, 13
(1st Cir. 2014) (same); compare with United States v. Gemma, 

, 32 (1st Cir. 2016)
                                             9
    Case: 18-60081       Document: 00515317762         Page: 10     Date Filed: 02/20/2020



                                      No. 18-60081
he had probable cause to believe that Simpson was guilty of criminal activity
nor does he state that he had a reasonable suspicion of such criminal activity.
He continues to rely on his subjective mindset. He also maintains that he was
only giving Simpson a courtesy ride and his brief states that “Attala County
Sheriff’s Department has a history of offering to give pedestrians courtesy rides
if there is a need for it or for their own safety.” 17 But he goes no further into
how this policy or this specific courtesy ride fits within the prism of our well-
delineated warrant exceptions. Therefore, Deputy Fleming did not satisfy his
burden in justifying this stop because any argument to that effect was
forfeited. See Cinel v. Connick, 

, 1345 (5th Cir. 1994) (“A party
who inadequately briefs an issue is considered to have abandoned the claim.”).




(ruling that evidence was admissible because evidence was retrieved in the course of the
officer’s community caretaker duties).

       17  Of note, there are arguments that can be made with regard to the community
caretaker function and consent. As to the community caretaker doctrine, Deputy Fleming
could arguably have advanced the public interest because Simpson posed an imminent threat
to himself or oncoming traffic. Cf. 

(“Police have long served the
public welfare by removing intoxicated people from the public streets, where they pose a
hazard to themselves and others.’” (citing Cady v. Dombrowski, 

, 441 (1973)));
Meehan v. Thompson, 

, 941 (8th Cir. 2014) (“We have recognized that it may be
reasonable under the Fourth Amendment for a police officer, acting in his capacity as
community caretaker, to seize an apparently intoxicated individual to ensure the safety of
the public and/or the individual.”) (internal quotation marks and citations omitted). On the
flipside, even if Officer Fleming arrived at the scene as a “community caretaker,” a material
fact question remains as to whether the procedures he employed (pursuant to that function)
were reasonable under the Fourth Amendment. Indeed, community caretaking stops must
be both reasonable in their inception and reasonable as conducted. Cf. United States v.
King, 

, 1562 (10th Cir. 1993) (stating that a detention must be justified at its
inception and as it proceeds). The same can be said with regard to arguments for and against
consent.

        But, as mentioned, none of these positions are before us on appeal and are therefore
forfeited. See Cinel v. Connick, 

, 1345 (5th Cir. 1994); Ragas v. Tenn. Gas
Pipeline Co., 

, 458 (5th Cir. 1998) (“Rule 56 does not impose upon the district
court a duty to sift through the record in search of evidence [and arguments] to support a
party’s opposition to summary judgment.”).
                                             10
    Case: 18-60081    Document: 00515317762      Page: 11    Date Filed: 02/20/2020



                                  No. 18-60081
      Accordingly, without a valid exception to the probable cause
requirement, the seizure is therefore presumptively unreasonable, and a
constitutional violation is present.
      Clearly Established Law. Plaintiffs must still demonstrate that there
was a clearly established right at the time of the challenged actions. Thus, the
question becomes whether there is precedent that put Deputy Fleming on
notice that he was committing a constitutional violation when he drove
Simpson several miles to the county line and dropped him off.
      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, 

, 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, 

, 664 (2012) (citing Ashcroft v. al-Kidd, 

,
741 (2011)).
      Here, Plaintiffs’ burden is not met. Plaintiffs’ clearly established law
contentions in their briefing are in fact a narrative as to why Deputy Fleming’s
seizure was unreasonable. Plaintiffs’ narrative argument is of no import of a
pre-existing or precedential case. Kovacic v. Villarreal, 

, 214 (5th
Cir. 2010) (“Plaintiffs have not referenced a single case in either the district
courts or the court of appeals of this circuit in which state actors were held
liable for private harm caused to an individual after he was released from
custody.”).    In turn, there is no binding Supreme Court or Fifth Circuit
precedent to anchor our de novo review of whether a similarly situated officer
violated a constitutional right acting under similar circumstances. See White
v. Pauly, 

, 551 (2017) (per curiam) (“[F]or a right to be clearly
                                        11
    Case: 18-60081    Document: 00515317762      Page: 12   Date Filed: 02/20/2020



                                  No. 18-60081
established, ‘existing precedent must have placed the statutory or
constitutional question beyond debate.’”) (quoting Mullenix v. Luna, 

, 308 (2015)). Without setting forth a clearly established right for which
the analysis can continue, Plaintiffs have not defeated Deputy Fleming’s
qualified immunity defense. 

–33 (granting qualified
immunity because plaintiffs failed to show an existing precedent of the
constitutional violation).
      Of note, the dissent cites to Hope v. Pelzer for the proposition that
“general statements of the law are not inherently incapable of giving fair and
clear warning” and “general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific conduct in
question.” 

, 741 (2002). The dissent argues that Deputy Fleming
was on clear notice that the reasonableness of the seizure of Simpson would be
subject to a Fourth Amendment balancing test (weighing individual intrusion
against legitimate government interests). Weighing the cognizable interests
of Simpson against the government interests here, the dissent’s position is that
the scale tips starkly in Plaintiff’s favor in light of Papachristou v. City of
Jacksonville’s holding that “anti-vagrancy” laws are void for vagueness as they
permit “unfettered discretion” in seizing an individual like Simpson. 

, 171 (1972).
      Assuming that general statements (under Hope) may suffice, the balance
of interests here are not so lopsided. As stated herein and by the district court,
there is an argument for the community caretaker function (for example) which
would be a legitimate government interest as to public safety. 

,
Sect.III n.17 (collecting cases); see also Keller, 

, 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.”). Because there are legitimate
                                       12
    Case: 18-60081      Document: 00515317762        Page: 13    Date Filed: 02/20/2020



                                    No. 18-60081
interests on both sides, this is not a one-sided balancing test where the officer
“do[es] not have any relevant, legitimate interests to put on their side of the[]
scales.” 

; cf. Sect.III n.17. 18
      Accordingly, Deputy Fleming’s qualified immunity defense as to
Plaintiffs’ Fourth Amendment claim prevails because Plaintiffs failed to prove
that a reasonable officer like Fleming would have understood his actions
violated clearly established law. Judgment is therefore rendered in Deputy
Fleming’s favor as he is entitled to qualified immunity on this claim.
                              Fourteenth Amendment
      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.
      Plaintiffs submit that Deputy Fleming’s conduct created the “special
relationship” under DeShaney v. Winnebago County Department of Social
Services and a “state-created-danger” resulted thereof. 

, 199−200
(1989). The district court held that Fleming was not entitled to qualified
immunity under this claim because, inter alia, there were genuine issues of
material fact as to whether there was a “special relationship” between Fleming
and Simpson that deprived Simpson of his liberty. Deputy Fleming argues
that the law does not clearly establish that a special relationship would have
existed under the facts of this case. We agree with Fleming because even if a
“special relationship” existed, Plaintiffs must show that Simpson’s Fourteenth
Amendment right was clearly established at the time of the alleged violation.
      The Supreme Court has “repeatedly told courts not to define clearly
established law at a high level of generality.” 

      18 In other words, denying qualified immunity under the dissent’s framework appears
to be inappropriate because a “real balancing” of interests would be required here. Cf.

.
                                           13
    Case: 18-60081        Document: 00515317762          Page: 14      Date Filed: 02/20/2020



                                        No. 18-60081
(quotation omitted) (cleaned up). Again, the dispositive question is “whether
the violative nature of particular conduct is clearly established.” 

Simpson was killed by a motorist after Fleming dropped him
off at the county line, the High Court in DeShaney held that states and their
officials have no affirmative duty to protect individuals from violence by
private actors. 

. 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.

have interpreted this language in Deshaney as creating a
second exception to “the rule against state liability for violence committed by
private actors in situations where the state actor played an affirmative role in
creating or exacerbating a dangerous situation that led to the individual’s
injury.” See 

(discussing Davis v. Brady, 

(6th Cir. 1998) (holding that officers violated a man’s substantive due process
rights by placing him at risk of harm when they abandoned him in an
inebriated condition on an unfamiliar highway against his will)) (internal
quotations omitted). But the Fifth Circuit has never recognized this “state-
created-danger” exception. See 

the law did not clearly
establish state actors could be liable for private harm to an individual after his
release from custody).


       19 It is worthy to note that the Supreme Court in DeShaney also recognized that, in
limited circumstances, the State’s actions in taking a person into custody and holding him
there against his will creates a “special relationship,” 

such as the relationship
between State and prisoners, Estelle v. Gamble, 

, 103–04 (1976), involuntarily
committed mental patients, Youngberg v. Romeo, 

, 315–16 (1982), and suspected
criminals injured while being apprehended by police, City of Revere v. Mass. Gen. Hosp., 

, 244 (1983).
                                              14
   Case: 18-60081    Document: 00515317762     Page: 15   Date Filed: 02/20/2020



                                No. 18-60081
      Plaintiffs therefore have not demonstrated a clearly established
substantive due process right on the facts they allege. Accordingly, we reverse
the district court’s denial of summary judgment and render judgment that
Deputy Fleming is entitled to qualified immunity on Plaintiffs’ Fourteenth
Amendment claim.
                                     IV.
      For these reasons, we REVERSE the district court’s judgment denying
Deputy Fleming qualified immunity and RENDER judgment granting him
qualified immunity from Plaintiffs’ Fourth Amendment and Fourteenth
Amendment claims.




                                      15
    Case: 18-60081     Document: 00515317762     Page: 16    Date Filed: 02/20/2020



                                  No. 18-60081
JAMES L. DENNIS, Circuit Judge, dissenting in part.
      The district court found that it was genuinely disputed whether Darrin
Fleming picked up and transported Gerald Simpson out of the county pursuant
to a local unwritten custom of ousting those perceived as vagrants from the
jurisdiction, and we must accept these facts as true at this juncture. See
Cantrell v. City of Murphy, 

, 922 (5th Cir. 2012) (“When
considering an appeal from the denial of qualified immunity . . . our inquiry
concerns the purely legal question of whether the defendants are entitled to
qualified immunity on the facts that the district court found sufficiently
supported in the summary judgment record.”). I agree with the majority that,
under these facts, Fleming violated Simpson’s Fourth Amendment rights. I
disagree, however, that Plaintiffs failed to demonstrate that these rights were
clearly established.
      The district court found that, “[i]n taking Plaintiffs’ allegations as true,
that [Fleming] wanted to remove Simpson from [his] jurisdiction as a means to
rid [Attala County] of a vagrancy problem, it cannot be said that Deputy
Fleming did not understand that what he was doing violated the law.” The
majority holds that this was error because Plaintiffs have failed to demonstrate
that the Fourth Amendment rights that Fleming violated were clearly
established at the time of the incident. But qualified immunity works only “to
ensure that before they are subjected to suit, officers are on notice their conduct
is unlawful.” Saucier, 

, 206 (2001). Under this framework, a right
may be clearly established even without on-point precedent where a
defendant’s conduct clearly and obviously violates the Constitution. See Hope
v. Pelzer, 

, 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.” 

18-60081     Document: 00515317762       Page: 17    Date Filed: 02/20/2020



                                   No. 18-60081
      At the time the incident at issue here occurred, Supreme Court precedent
provided clear notice that “the reasonableness of a seizure under the Fourth
Amendment is determined by balancing its intrusion on the individual’s
Fourth Amendment interests against its promotion of legitimate government
interests.” Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 

, 187 (2004) (internal quotations omitted). When the question of
whether a constitutional violation occurred depends on this sort of balancing
of interests, qualified immunity should not apply when, “given the factual
disputes identified by the district court and taking the plaintiffs’ side of those
disputes, [a] case does not require any real balancing at all” because the officers
“do not have any relevant, legitimate interests to put on their side of the[]
scales.”   

.        “Our cases show that it is entirely
appropriate to deny qualified immunity when the balance of cognizable
interests weighs so starkly in the plaintiff’s favor” because “the illegality of the
Police Official[‘s] conduct is sufficiently clear that [he] can fairly be said to have
been on notice of the impropriety of [his] actions.” 

facts that the district court found to be genuinely disputed,
there is simply no legitimate government interest against which to balance the
significant intrusion posed by Deputy Fleming’s decision to seize Simpson and
dump him in the next jurisdiction without his valid consent. The Supreme
Court has long made clear that the Constitution does not permit police to
“roundup . . . so-called undesirables” merely because they are “poor people,
nonconformists, dissenters, idlers.” Papachristou v. City of Jacksonville, 

, 171 (1972). With a balance so one-sidedly contrary to an individual’s
Fourth Amendment rights, every reasonable officer would have understood
that seizing Simpson under these circumstances was arbitrary and
unreasonable. See 

.


                                         17
   Case: 18-60081     Document: 00515317762     Page: 18   Date Filed: 02/20/2020



                                 No. 18-60081
      Further, precedent from the Supreme Court provided notice when these
events occurred that a law that provides officers with “unfettered discretion”
to arrest persons as vagrants merely on suspicion of future criminality is
impermissibly vague. See 

, 168 (invalidating a
vagrancy law that criminalized, inter alia, “common night walkers” or
“habitual wanderer[s]” and persons “habitually living without visible means of
support”); Kolender v. Lawson, 

, 361 (1983) (invalidating a stop-
and-identify statute as unconstitutionally vague “because it encourage[d]
arbitrary enforcement by failing to describe with sufficient particularity what
a suspect must do in order to satisfy the statute”). Given the Supreme Court’s
well-established jurisprudence limiting an officer’s discretion to act pursuant
to an established vagrancy or vagrancy-related law, it follows a fortiori that an
unwritten custom—which would provide even vaguer standards and grant
greater discretion—is necessarily unreasonable as a matter of law. When
combined with this principle, it is even more apparent that the clearly one-
sided balancing of interests served as clear and obvious notice to any
reasonable officer in Deputy Fleming’s position that seizing Simpson and
driving him to the county line violated Simpson’s Fourth Amendment rights.
See 

.
                                      ***
      Under the facts the district court found genuinely disputed, which we
must accept for purposes of this appeal of a denial of qualified immunity,
Deputy Fleming’s conduct clearly and obviously violated Simpson’s Fourth
Amendment rights. Accordingly, I would affirm the district court’s denial of
summary judgment on Plaintiffs’ Fourth Amendment claim.




                                       18