Opinion
No. 17-60287
03-12-2018
JOSEPH GERHART, Individually, and Next Friend of Brett Michael Gerhart, Ian Michael Gerhart, and Sarah Robillard, Minors; AMANDA JO GERHART, Individually, and Next Friend of Brett Michael Gerhart, Ian Michael Gerhart, and Sarah Robillard, Minors, Plaintiffs - Appellees, v. JOHNNY BARNES, in his Official and Individual Capacity; BRETT MCALPIN, Deputy, in his official and individual capacity, Defendants - Appellants.
Appeals from the United States District Court for the Southern District of Mississippi
USDC No. 3:11-CV-586 Before BARKSDALE, DENNIS, and ELROD, Circuit Judges. :
Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4.
In this interlocutory appeal, Officer Johnny Barnes and Deputy Brett McAlpin appeal the denial of their summary-judgment motions on qualified immunity and Mississippi tort law grounds. We AFFIRM the district court's denial of summary judgment on qualified immunity grounds and REVERSE the denial of summary judgment on the Mississippi tort claim and render judgment on that claim.
I.
A panel of this court previously ruled on an interlocutory appeal based on qualified immunity for the third individual, Agent Brad McLendon, who entered the Gerharts' home. See Gerhart v. McLendon, No. 17-60331, 2017 WL 4838405 (5th Cir. Oct. 25, 2017). We discussed the facts in detail in that opinion and we reiterate those facts below:
In that opinion, we affirmed the district court's judgment holding that McLendon was not entitled to qualified immunity. McLendon, 2017 WL 4838405, at *1. As we stated in that opinion, "we lack jurisdiction to review the district court's factual findings" and thus "base our legal conclusions on the facts that the district court found sufficiently supported in the summary judgment record, Gerhart v. Rankin Cnty., No. 3:11-CV-586, 2017 WL 1238028 (S.D. Miss. Mar. 31, 2017)." Id. at *1 n.1. "Due to our limited jurisdiction, we cannot review the district court's factual findings. Nor do we have the benefit of the evidence as it will emerge at trial. Thus, our opinion should not be read to preclude dismissing this case on qualified immunity grounds at another point in the proceedings." Id. at *5 n.6.
By June 2010, Detective Jamie Scouten of the Pearl Police Department had spent several months investigating the residence at 473 Robert Michael Drive in Pearl, Mississippi. As part of that investigation, Scouten used a confidential informant ("CI") to conduct "buy-bust" operations in which the informant would purchase methamphetamine at the residence. The U.S. Drug
Enforcement Administration ("DEA") learned about Scouten's operation. It requested that he conduct another buy-bust operation in order to "freshen up" the probable cause for arrest and search warrants. Based on the DEA's interest, Scouten requested back-up from other law enforcement agencies, including Rankin County and the Rankin County District Attorney's Office. Prior to the operation, he prepared warrants and supporting affidavits for 473 Robert Michael Drive. The plan was for the CI to purchase methamphetamine and bring it to the officers, who would test it. Scouten would then fill in the salient details in the warrant and get a judge's approval.
. . . .
The operation took place on June 7, 2010. Scouten held a briefing beforehand at the police station. During that briefing, Scouten told all of the officers participating that the target residence was 473 Robert Michael Drive. He then wrote "473 Robert Michael Drive" across the top of a sheet of paper and asked the CI to draw a diagram of the interior of the residence. Scouten and the CI also went over a number of other key details during that briefing, including the location, the persons involved, the type of narcotics, and the identity of the CI. This last piece of information was key because if the officers needed to enter the residence, it was important for the CI's safety that they could identify her. Scouten used Google Earth images to familiarize officers with the location and appearance of the target residence. Scouten also mentioned that an unusual van with a "dualie [sic] axle" was parked in the driveway of the target residence. Because the target residence had burglar bars around all windows, Scouten told the others that they would have to enter through a side door.
. . . .
Scouten divided the officers into several vehicles, making sure that at least one officer in each vehicle could access the Pearl Police Department's radio channels. McLendon was assigned to a vehicle with two other officers: Brett McAlpin of the Rankin County Sheriff's Department and John Barnes of the Pearl Police Department. Barnes, McAlpin, and McLendon were tasked with stationing themselves at the end of Robert Michael Drive, where they would maintain visual contact with the residence in order to track the CI and ensure that no suspects left. They were the only
officers who could see the target residence. The others were parked out of sight at a nearby church.
The CI and the officers left the station around 7:00 p.m. The plan was for McLendon to follow the CI to the residence. McLendon insisted that he did not follow the CI to the target residence, though others testified that he did. Barnes and Scouten, for instance, both testified that McLendon had to brake as the CI turned into the driveway of the target residence in order to avoid hitting her vehicle. McLendon then drove past the residence for about 200 yards, turned around, and parked facing the residence. It was still daylight when they arrived, weather conditions were normal, and the terrain between the officers and the target residence was level.
Barnes, McAlpin, and McLendon gave inconsistent testimony about who identified the target residence and how. Barnes claimed that he identified the target residence (at 473 Robert Michael Drive) correctly and pointed out the van with the unusual "dualie [sic] axle." McAlpin initially testified that both Barnes and McLendon identified 481 Robert Michael Drive as the target residence, though he later stated that only Barnes did so. McLendon also testified that Barnes identified 481 Robert Michael Drive as the target residence as they drove past and that he specifically pointed to a young man standing outside that residence.
The CI entered 473 Robert Michael Drive and bought $600 of methamphetamine. Suddenly, the CI texted Scouten to tell him she was in danger. Scouten broadcast to the other officers that the CI was in danger. He told them to converge on the target residence and do everything they could to help the CI. All vehicles acknowledged the signal—except McLendon's. Barnes testified that he had turned his radio off because McLendon was trying to tune into the radio broadcast from the CI's recording equipment. Scouten specifically requested a response from McLendon's vehicle. Barnes replied that he did not hear the prior transmission, and Scouten repeated it. McAlpin was aware of the second call to go to the target residence, whereas McLendon testified that it never happened.
Meanwhile, Brett Gerhart was standing in front of his house at 481 Robert Michael Drive when he noticed McLendon's black Cadillac Escalade drive by and park at the end of the street. Some time later, he heard McLendon's tires screech as McLendon raced
toward the Gerhart residence. McLendon drove onto the Gerharts' yard and parked between some trees. According to Brett, the blue siren lights on McLendon's car were not on, and so there was no indication that it was a police vehicle. As Scouten was rounding the corner, he saw McLendon driving down the street. After Scouten got out of his vehicle, he heard yelling and saw McAlpin, McLendon, and Barnes running across the Gerhart yard and into the house.
Barnes, McAlpin, and McLendon got out of the vehicle and pulled out their weapons. McAlpin told Brett to get on the ground, though it is disputed whether he identified himself as a police officer. All three officers were, however, wearing vests identifying them as police officers. Brett testified that he did not notice the vests until the officers left. When McClendon's vehicle came to a stop on the Gerharts' yard, Brett ran into the residence through a side door and locked the door behind him. He went through the residence, shouting, "They have guns!" McAlpin kicked in the side door and started to chase Brett. Brett testified that he then ran through the front door to prevent intruders from coming into the house. According to Brett, McAlpin caught him at the front door, threw him to the ground, and began kicking him in the side and back of the head. McAlpin acknowledges that he pointed his gun at Brett's head but denies kicking him. McAlpin then brought Brett into the living room.
McLendon encountered Joseph Gerhart, Brett's father, when he entered the residence. Joseph was on the floor by that time, and McLendon aimed his gun at Joseph's face. When Joseph tried to get up to help his son, McLendon put his hand on Joseph's back and repeatedly told him to stay down. Barnes was the last to enter the residence, where he encountered Amanda Gerhart in a fetal position, holding a baby in her arms. Amanda testified [that] she only assumed a fetal position after Barnes pointed his gun at her. After Barnes asked for Amanda's name, he realized that they were in the wrong house. Amanda, however, testified that Barnes never said anything to her. She managed to retreat to her son Ian's room and told him to call 911. Ian made the call and told the operator that there were men with guns in the house.
Barnes found McAlpin in the living room, where he had Brett pinned to the ground. After Barnes told McAlpin that they were in the wrong house, McAlpin got off of Brett and left.
McLendon likewise left when he discovered that they were in the wrong house.McLendon, 2017 WL 4838405, at *1-3 (footnote omitted).
While Barnes, McAlpin, and McLendon were inside the Gerhart residence, Scouten and the other officers had converged on the target residence. After Scouten arrived, he initially believed that it would not be possible to get in without breaching tools, and he went to look for McAlpin, who was supposed to bring them to the target residence. He walked toward the Gerhart residence and saw McAlpin and McLendon leaving. Someone yelled from the target residence that they had finally managed to break in without the breaching tools, and Scouten returned to the target residence.
Brett suffered injuries to his face and neck, and the city of Pearl ultimately paid for the door that McAlpin destroyed. The Pearl Police Department also conducted an investigation of the incident, which concluded that the officers were inattentive.
The Gerhart house did not have any burglar bars.
II.
The Constitutional Claims
We have jurisdiction to review a district court's denial of a claim of qualified immunity; such a denial is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 530 (1985). This is 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. "Because the plaintiff is the non-moving party, we construe all facts and inferences in the light most favorable to the plaintiff." Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (citing Mullenix v. Luna, 135 S. Ct. 305, 307 (2015)). Thus, "on interlocutory appeal the public official must be prepared to concede the best view of the facts to the plaintiff and discuss only the legal issues raised by the appeal." Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir. 2001).
Our review is limited to "the purely legal question whether a given course of conduct would be objectively unreasonable in light of clearly established law." Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). "[W]e cannot second-guess the district court's determination that genuine factual disputes exist." McLendon, 2017 WL 4838405, at *4 (citing Kinney, 367 F.3d at 348). "When the district court fails to set forth the factual disputes that preclude granting summary judgment, we may be required to review the record in order 'to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed.'" Kinney, 367 F.3d at 348 (quoting Johnson v. Jones, 515 U.S. 304, 319 (1995)).
"A good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available." Melton, 875 F.3d at 261 (quoting King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016)). To overcome the qualified-immunity defense, a plaintiff must show first "that the official violated a statutory or constitutional right" and second that "the right was 'clearly established' at the time of the challenged conduct." Id. (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)). To avoid summary judgment on qualified immunity, "the plaintiff need not present absolute proof, but must offer more than mere allegations." Id. (quoting King, 821 F.3d at 654).
A. Unlawful Entry
The officers contend that the unlawful-entry claim fails because the district court's order refers to this claim as one for "Fifth Amendment violations under 42 U.S.C. § 1983 for unlawful entry," even though the Fifth Amendment does not apply to claims against municipal actors like Barnes and McAlpin. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996) ("[T]he Fifth Amendment applies only to the actions of the federal government . . . ."). However, this appears to be a mere scrivener's error, as the district court conducted a lengthy Fourth Amendment analysis on the same unlawful-entry claim asserted against McLendon. See Gerhart v. Rankin County, No. 3:11- CV-586-HTW-LRA, 2017 WL 1238028, at *10-12 (S.D. Miss. Mar. 31, 2017), aff'd sub nom. Gerhart v. McLendon, No. 17-60331, 2017 WL 4838405 (5th Cir. Oct. 25, 2017).
"A warrantless search of a home is presumptively unreasonable, absent probable cause, consent, or exigent circumstances." McLendon, 2017 WL 4838405, at *5 (citing United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001)). "Nonetheless, no Fourth Amendment violation occurs when officers attempting to perform a valid search mistakenly search the wrong property—as long as they make 'a reasonable effort to ascertain and identify the place intended to be searched.'" Id. (quoting Maryland v. Garrison, 480 U.S. 79, 88 (1987)).
Here, both Barnes and McAlpin attended the briefing prior to the buy-bust operation, although McAlpin states that he was "in the hallway or on the outskirts of" the "immediate area" where the briefing occurred. The briefing discussed key details including the address of the target residence, a diagram of the residence, and the identity of the confidential informant. Scouten used Google Earth images to familiarize officers with the location and appearance of the target residence. In addition, Scouten mentioned that an unusual van with a "dualie [sic] axle" was parked in the driveway of the target residence. Scouten also told the officers that they would have to enter the target residence through a side door because the target residence had burglar bars around all windows.
As noted above, Barnes and McAlpin were responsible for maintaining visual contact with the residence in order to track the confidential informant and ensure that the suspect did not leave. Moreover, Scouten's case report indicates that McAlpin was assigned to carry door breaching tools and was "to use these tools to gain entry into the residence if needed." According to Scouten's case report, the vehicle in which Barnes and McAlpin rode followed the confidential informant's vehicle. It appears that Barnes, McAlpin, and the other officer were the only ones who followed the confidential informant all the way to the target residence.
Despite the importance of the briefing and their key leadership roles in the buy-bust operation (e.g., breaching the target residence if necessary, maintaining visual surveillance), Barnes and McAlpin both failed to absorb critical details of the plan. When asked whether he knew the correct address of the target residence from the briefing, Barnes testified, "I knew that area. I didn't know the exact house." McAlpin also testified that he was unaware of the exact address. When asked if he saw the confidential informant's vehicle pull into the driveway of the target residence, McAlpin responded that he did not. As noted above, all of this took place while it was daylight. We hold that the district court relied on these facts in determining not to grant summary judgment to the officers.
We have emphasized that "[w]hat's reasonable for a particular officer depends on his role in the search." McLendon, 2017 WL 4838405, at *6 (quoting Hunt v. Tomplait, 301 F. App'x 355, 362 n.8 (5th Cir. 2008)). In its opinion and order denying McLendon's summary-judgment motion on qualified immunity, the district court found that the investigative report on the entry into the Gerharts' residence "indicates that inattentiveness on the part of the officers was the direct cause of the Gerhart incident." Rankin County, 2017 WL 1238028, at *8. Consistent with our prior opinion in McLendon, we hold that fact issues on whether Barnes and McAlpin violated the Fourth Amendment precluded the district court from granting summary judgment to the officers on the unlawful-entry claim.
Arguments about exigent circumstances do not alter this conclusion. As we stated in McLendon, "[t]he danger facing the [confidential informant] was undoubtedly an exigent circumstance. But the [confidential informant] was at the target residence, not the Gerhart residence." 2017 WL 4838405, at *7. Barnes's and McAlpin's "determination that the danger was inside the Gerhart residence rather than the target residence was not reasonable" because there is a fact issue on whether the officers failed to take reasonable affirmative steps to ensure they knew the correct address. See id.
As for the second prong of the qualified-immunity analysis, we held in McLendon that it was clearly established at the time of the alleged unlawful entry that "an officer must make reasonable, non-feeble efforts to correctly identify the target of a search—even if those efforts prove unsuccessful." McLendon, 2017 WL 4838405, at *5 (citing Rogers v. Hooper, 271 F. App'x 431, 435 (5th Cir. 2008)). Accordingly, a fact issue on whether Barnes and McAlpin violated clearly established law precluded the district court from granting summary judgment to the officers on the unlawful-entry claim.
B. Excessive Force
McAlpin also appeals the denial of summary judgment on qualified-immunity grounds with regard to the excessive-force claim asserted against him. Whether a use of force is excessive and therefore a constitutional violation depends on whether there was "(1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable." Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009)).
We apply the Graham factors to determine whether the force used is "excessive" or "unreasonable." Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). These factors include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" with the recognition that "police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 396-97 (citation omitted).
In addition, the injury must be more than de minimis to be cognizable. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). "[T]he amount of injury necessary to satisfy our requirement of 'some injury' and establish a constitutional violation is directly related to the amount of force that is constitutionally permissible under the circumstances." Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996).
Here, viewing the facts in the light most favorable to the plaintiffs, there is a fact issue as to whether McAlpin kicked Brett Gerhart in the head repeatedly after throwing Brett facedown onto the concrete porch. Joseph Gerhart, Brett's father, testified that he heard his son screaming "I'm down, I'm down," and that the officer was kicking his son while his son was already on the ground. Moreover, Brett's father testified that McAlpin then brought Brett into the house, and rather than handcuffing him, pinned Brett to the floor with his knee, shoved a pistol in his face, and said, "If you move, I'll blow your f---ing head off." We hold that the district court relied on these facts in determining not to grant summary judgment to McAlpin on the excessive-force claim.
Applying the Graham factors, we note that there is a fact issue as to whether Brett posed an immediate threat to the officers' safety when he was lying prone on the concrete yelling that he was already down and whether Brett was actively resisting or attempting to evade arrest. Furthermore, there is some evidence that injuries to Brett's face resulted "directly and only from a use of force that was clearly excessive." See Poole, 691 F.3d at 628.
As to the second prong of the qualified-immunity analysis, we reiterate our holding in Brown v. Lynch that "[a]t the time of the incident, the law was clearly established in this circuit that repeatedly striking a non-resisting suspect is excessive and unreasonable force." 524 F. App'x 69, 81 (5th Cir. 2013) (unpublished) (citing Anderson v. McCaleb, 480 F. App'x 768, 773 (5th Cir. 2012); Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008); Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)). Thus, fact issues precluded granting summary judgment to McAlpin on the excessive-force claim.
III.
The Mississippi Tort Claim
The district court also denied the officers summary judgment on the Gerharts' state-law claim of reckless infliction of emotional distress. Barnes and McAlpin argue that we should exercise pendent appellate jurisdiction to review the Gerharts' state-law tort claim. The Gerharts do not contest this jurisdictional argument. Nonetheless, we have the responsibility to determine the basis of our jurisdiction. Alvidres-Reyes v. Reno, 180 F.3d 199, 203 (5th Cir. 1999).
While the district court refers to the tort claim as one for "reckless" rather than "intentional" infliction of emotional distress, we need not resolve whether the Gerharts properly pleaded a claim for reckless infliction of emotional distress. This is because neither claim here overcomes the Mississippi Tort Claims Act provision of immunity for government employees acting within the scope of employment and sued in their personal capacities.
"The denial of immunity under Mississippi law, like a denial under federal law, is appealable under the collateral order doctrine. Lampton v. Diaz, 661 F.3d 897, 899 (5th Cir. 2011); see also Hinds County v. Perkins, 64 So. 3d 982, 986 (Miss. 2011) (en banc) (noting that "denials of immunity at the summary judgment stage are reviewed via the interlocutory appeal process"). We have held that "[i]n the interest of judicial economy, this court may exercise its discretion to consider under pendant appellate jurisdiction claims that are closely related to the issue properly before us." Morin, 77 F.3d at 119 (footnote omitted). Exercising this discretion is appropriate when, as here, we confront a claim of immunity under state law regarding the same conduct at issue in the qualified-immunity context. See id. Otherwise, were we "to refuse to exercise jurisdiction over the state law claims, our refusal would defeat the principal purpose of allowing an appeal of immunity issues before a government employee is forced to go to trial." Id. at 119-20 (footnote omitted).
The Mississippi Supreme Court has recognized that "any tort claim filed against a governmental entity or its employee shall be brought only under the [Mississippi Tort Claims Act]." Conrod v. Holder, 825 So. 2d 16, 19 (Miss. 2002) (citation omitted). Under Mississippi law:
An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties.Miss. Code. Ann. § 11-46-7(2) (emphasis added). "The [Mississippi Tort Claims Act] contains an exception to this immunity if an officer's conduct 'constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations . . . .'" Rogers v. Lee County, 684 F. App'x 380, 391 (5th Cir. 2017) (unpublished) (quoting Miss. Code. Ann. § 11-46-5(2)).
The Mississippi Supreme Court "has been consistent in rejecting the viability of claims against public employees where their political subdivision employer has been eliminated as a defendant." Conrod, 825 So. 2d at 19 (quoting Cotton v. Paschall, 782 So. 2d 1215, 1218 (Miss. 2001)). "[U]nless the action is brought solely against an employee acting outside of the scope of his employment, the government entity must be named and sued as the party in interest under the Tort Claims Act." Id. (citation omitted). Moreover, it is "a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment." Miss. Code. Ann. § 11-46-5(3).
The Gerharts do not contest that the officers were acting within the course and scope of their employment here, nor do they argue that Barnes's and McAlpin's conduct constituted malice or criminal behavior. The district court dismissed Defendants Rankin County, Mississippi; Rankin County Sheriff's Office; and McAlpin in his official capacity. The Gerharts allege that McAlpin was an employee of Rankin County and/or Rankin County Sheriff's Office at the time of the incident. In addition, the district court dismissed Defendants the City of Pearl, Mississippi and Barnes in his official capacity. The Gerharts allege that Barnes "was at all times material hereto an officer employed by the Defendants, the Pearl Police Department and the City of Pearl, Mississippi" and that "[h]is acts of commission or omission are vicariously attributed to the Defendant, the City of Pearl, Mississippi."
Thus, the immunity provided by the Mississippi Tort Claims Act shields Barnes and McAlpin from personal liability. In allowing the Gerharts to proceed with this tort claim against the officers in their individual capacities, the district court erred. Thus, we dismiss the Gerharts' state-law tort claim against the officers in their individual capacities.
IV.
Accordingly, we AFFIRM the district court's judgment denying Barnes and McAlpin summary judgment as to qualified immunity on the Gerharts' constitutional claims, and we REVERSE and render judgment on the Mississippi tort claim.
Barnes requests that we reassign the case to a different district court if the case is remanded. McAlpin does not make this request. The Gerharts contend that Defendants' strategic litigation choices rather than the district court's actions are the main reason for the lawsuit spanning six years. In addition, the Gerharts amended their complaint four times, and their fourth amended complaint was filed in December 2016. "A federal court of appeals has the supervisory authority to reassign a case to a different trial judge on remand." United States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999); see Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997); 28 U.S.C. § 2106. "However, this is an extraordinary power and should rarely be invoked." Winters, 174 F.3d at 487. This case does not demand such an exercise of our authority, and we deny Barnes's request for reassignment. --------