The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 29, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60125
WILLIE B. PAYNE,
Plaintiff-Appellant,
versus
CITY OF OLIVE BRANCH; SCOTT FULWOOD,
Individually and in His official
Capacity as a Police Officer of the
City of Olive Branch; JASON SAVAGE,
Individually and in His official
Capacity as a Police Officer of the
City of Olive Branch, Mississippi;
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
Before GARWOOD, JONES and PRADO, Circuit Judges.
PER CURIAM:*
Willie B. Payne (Payne) sued the City of Olive Branch,
Mississippi (the City) and City police officers Scott Fulwood
(Fulwood) and Jason Savage (Savage) for damages arising from a
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
warrantless search of her home in the City and her arrest for
disorderly conduct in resisting the search. Payne appeals the
district court’s grant of summary judgment in favor of all of the
defendants. We affirm the summary judgment in favor of the City
and Savage, and reverse the summary judgment in favor of Fulwood.
Facts and Proceedings Below
Relevant portions of the various proffered versions of the
facts are given here, starting with the events that are undisputed
by the parties. At about 10 p.m. on June 13, 2000, Fulwood knocked
on Payne’s door, asking for her grandson, Barron Payne (Barron).
A maroon Lexus that Barron sometimes drove was in the driveway, and
a child was at the house.1 Payne told Fulwood that Barron was not
in the house, and Fulwood told Payne to let him in to search for
Barron. Payne replied that Fulwood needed a warrant to search her
home, and attempted to block his entry by closing the door.
Fulwood said he did not need a warrant, entered the house, and
arrested Payne. Payne was handcuffed and left in a squad car while
Fulwood and other officers, including Savage and a canine unit,
unsuccessfully searched her home for Barron. Fulwood took Payne to
the police station at about 10:30 p.m., booked her for disorderly
conduct, and released her just before midnight.
Barron was arrested in July of 2000 and charged with careless
driving and resisting arrest. The charges against both Payne and
1
There is some disagreement in the record as to whether the child was in
the house or in the driveway.
2
Barron were eventually “retired to the file” over the objections of
the defendants.2 Payne filed suit against the officers and the
City, alleging unreasonable search and seizure in violation of the
Fourth and Fourteenth Amendments against the officers, “negligent
training” in violation of the Fourth and Fourteenth Amendments
against the City, state law false arrest, false imprisonment,
intentional infliction of emotional distress and malicious
prosecution claims against the officers, and a state law malicious
prosecution claim against the City.
The excerpts from Fulwood’s deposition in the record, along
with Fulwood’s dispatch log sheet for June 13, 2000, indicate that
Fulwood was in his squad car in the parking lot of a grocery store
in the City at 9:50 p.m., assisting Savage, who had made a traffic
stop. The following sequence of events was testified to by Fulwood
in his deposition. As he sat in the parking lot he saw a maroon
Lexus driven by Barron come down the road at excessive speed,
approximately 55 to 60 miles per hour (mph) in a 30 mph zone. It
was daylight when he saw Barron, and Barron looked directly at him,
making eye contact. Fulwood then drove out of the parking lot to
pursue the Lexus. After losing sight of the Lexus for a few
seconds after it took a fork in the road, he saw the car stopped in
Payne’s driveway, and saw Barron getting a child out of it. He
2
“Retired to the file” under Mississippi law means that prosecution of
a case is suspended, but the “case is subject to recall and prosecution at any
time thereafter at the discretion of the court.” Childers v. Beaver Dam
Plantation, 360 F. Supp. 331, 334 (N.D. Miss. 1973).
3
told Barron to stop, but instead Barron ran into the house, leading
to the search and arrest described above.
The excerpts from Savage’s deposition that were before the
district court do not include any indication of whether Savage also
saw a speeding Lexus pass the grocery store parking lot. The
following events were testified to by Savage. During his traffic
stop at the grocery store, he heard radio traffic indicating that
Fulwood was pursuing a suspect running away on foot at Payne’s
address. After finishing the traffic stop, Savage proceeded to
Payne’s house to assist Fulwood. When he arrived at the house, a
maroon Lexus with a door open was in the driveway, a child was
standing in the driveway, and Fulwood was at the door of the house.
Savage asked Fulwood who they were looking for, and Fulwood told
him they were looking for Barron Payne.
According to the portions of Barron Payne’s deposition that
were before the district court, Barron did not admit to driving the
Lexus on the day of the search. He testified that he did not think
that he drove the Lexus that day or that he visited his grandmother
late in the day, at least to the best of his recollection. Barron
also testified that he had dropped his son off with the boy’s
mother early in the day and did not have him again that day. Mrs.
Payne testified that both Fulwood and Savage appeared at her door
initially, rather than just Fulwood.
In addition to the events occurring the night of the search,
deposition testimony and other evidence before the district court
4
involved whether the City had any policies or customs with respect
to warrantless searches. Fulwood testified that it was “common
knowledge as an officer” that he could pursue into a private home
someone who had committed a misdemeanor in his presence. He
further testified that he did not know whether there were specific
City policies covering the search. City police chief James Harris
testified that he and “probably every officer” on the force would
have entered Payne’s house under the circumstances confronted by
Fulwood. The police chief denied the existence of any city policy
addressing this situation, however. Defense expert Charles
Alexander opined in his report that the officers were “adequately
trained and supervised,” and that the City had “adopted and
implemented acceptable law enforcement policies and procedures.”
The expert drew on his experience as director of training at the
Mississippi Law Enforcement Officers’ Training Academy, where
Fulwood and Savage had each completed ten-week certification
courses. Barron testified to his general belief that the police
had been harassing him in numerous incidents, and Payne testified
to having been told by Barron and her other grandson about police
harassment of them and their friends.
In her pleadings and her response to the defendants’ summary
judgment motions, Payne argued that the officers violated her
clearly established right to be free from warrantless searches of
her home, and that the City was liable for the officers’ actions
because of negligent training of the officers and deliberate
5
indifference to Payne’s rights. In their answer and their motion
for summary judgment, the officers argued that the search of
Payne’s home was not unconstitutional because Fulwood’s pursuit of
Barron was an exigent circumstance justifying the warrantless
search. Warrantless searches, though presumptively in violation of
the Fourth Amendment, are constitutional in the event of sufficient
“exigencies of the situation [making] that course imperative.”
Coolidge v. New Hampshire, 91 S.Ct. 2022, 2032 (1971). The
officers further argued that the arrest was constitutional because
Payne’s refusal to let them enter her house constituted disorderly
conduct under Mississippi law, thereby giving them probable cause
to arrest her. Finally, the officers argued that they are entitled
to qualified immunity whether or not there was a constitutional
violation because they had “‘arguable’ probable cause” for the
search and arrest. The City argued that it was not liable even in
the event of a constitutional violation by the officers because any
such violation was not pursuant to any City policy.
In ruling on the summary judgment motions, the district court
discounted Barron’s testimony and assumed that the officers
believed that they were pursuing Barron when (according to Fulwood)
he fled into Payne’s house. The court held that the officers’
warrantless search of Payne’s home and subsequent arrest of Payne
were not constitutional violations, so that there was no liability
for the officers or the City. Accordingly, the court granted the
6
officers’ and the City’s motions for summary judgment, and denied
Payne’s motion for partial summary judgment. Payne’s state law
claims were dismissed without prejudice to refiling in state court.
Discussion
I. Standard of Review
We review a district court’s granting of summary judgment de
novo, applying the same standards as the district court. Morris v.
Dillard Dep’t Stores, Inc., 277 F.3d 743, 747 (5th Cir. 2001). In
determining whether a jury could reasonably find for the nonmoving
party, the evidence and justifiable inferences therefrom are to be
viewed in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2513 (1986). In
deciding a motion for summary judgment, the court must take into
account the applicable substantive evidentiary burden. Id. at
2512–13. The appropriate evidentiary burdens for the claims
against the officers and those against the City are discussed in
the corresponding sections below.
II. The Officers’ Summary Judgment Motion
Because the officers assert a defense of qualified immunity,
Payne has the burden to show not only a violation of a
constitutional right, but that the right was clearly established,
such that under the specific circumstances no reasonable officer
would have failed to realize that the complained-of actions taken
by Fulwood and Savage violated Payne’s constitutional rights.
7
Estep v. Dallas County, 310 F.3d 353, 360–61 (5th Cir. 2002). The
officers argue that Fulwood’s pursuit of Barron justified their
search of Payne’s home, or at least that there is not clearly
established law to the contrary. The district court held that
“whether an officer can enter a home without a warrant to pursue
a fleeing suspect who committed a jailable misdemeanor in his
presence” is not clearly established, and that the search was
furthermore not a constitutional violation.
With respect to Savage, we agree that the record evidence does
not suffice to show that all reasonable officers in his position
would have realized that his conduct violated Payne’s
constitutional rights. In the case of Fulwood, on the other hand,
we conclude that there is a genuine issue of material fact as to
whether he reasonably believed that he was pursuing a suspect who
had committed a misdemeanor. If Fulwood did not reasonably believe
this, he would not be entitled to qualified immunity with respect
to the search or the arrest, because under Mississippi law it is
not a criminal offense to resist an officer making an unlawful
search of one’s home. Deaton v. State, 102 So. 175, 176 (Miss.
1924); King v. State, 149 So. 2d 482, 483–84 (Miss. 1963).
A. Officer Fulwood
The justification proffered by Fulwood for the warrantless
search of Payne’s home relies critically on Fulwood’s deposition
testimony. In order for Fulwood to have qualified immunity based
8
on an exigent circumstance justifying the search, he must have
reasonably believed that he was pursuing Barron, who had been
speeding in the Lexus, or at least someone speeding in the Lexus.
The evidence before the district court does not include any
testimony from Savage or any other witness corroborating Fulwood’s
testimony that he saw Barron speeding in the Lexus. The presence
of the Lexus at Payne’s house does not speak to the question of
whether anyone had been speeding in it (or whether Fulwood had
observed that). Fulwood’s justification for the search therefore
depends largely on the credibility of his testimony.
The inconsistencies in Fulwood’s testimony coupled with the
fact that Barron did not admit to driving the Lexus that day lead
us to conclude that a reasonable jury might find that Fulwood did
not reasonably believe he was pursuing a speeding Lexus. For
example, Fulwood testified that he saw Barron in broad daylight,
even though it is otherwise undisputed that the events in question
took place just before ten o’clock p.m. In the deposition excerpts
(and other summary judgment evidence) before the district court,
Fulwood makes no attempt to correct or explain his statement that
it was daylight. Fulwood further contends that Barron looked
directly at him and made “eye contact,” as the speeding Lexus
passed the parking lot where Fulwood was stopped in his patrol car.
Given that Fulwood estimated the speed of the Lexus at 55 to 60 mph
while his car was sitting still, Fulwood was in a parking lot
9
rather than next to the Lexus on the road, both people were in cars
rather than either of them being out in the open, and it was nearly
10 p.m., the ability to make eye contact is at least questionable.
Barron’s testimony that he was not driving the Lexus that day
and that he did not go to his grandmother’s house that evening is
equivocal in that he qualified most statements by saying that at
least he did not remember doing the things asked about. This
testimony might not be sufficient to withstand summary judgment
alone,3 but in combination with the inconsistencies in Fulwood’s
testimony it gives rise to a genuine issue of material fact, at
least on the present record.
B. Officer Savage
According to the deposition excerpts that were before the
district court, Savage learned from police radio traffic that
Fulwood was pursuing someone fleeing on foot at Payne’s house.
After arriving at the house, he learned from Fulwood that the
person was Barron Payne. The parts of Savage’s testimony in the
record do not exhibit inconsistencies like those in Fulwood’s
testimony. Furthermore, receiving information that a suspect is
fleeing from a police officer on foot would allow an officer in
Savage’s position to reasonably assume that the suspect had
3
The weakness of the testimony comes from the limited nature of the
statement made, not the witness’s credibility or lack thereof in making it. The
district court’s discounting of the testimony as “self-serving” was inappropriate
because a court is not to make credibility determinations in deciding summary
judgment motions. Anderson, 106 S.Ct. at 2513; Goodson v. City of Corpus Christi,
202 F.3d 730, 739 (5th Cir. 2000).
10
committed an arrestable offense, potentially a jailable misdemeanor
or a felony.4
A warrantless search in pursuit of such a suspect is not a
clearly established constitutional violation. Although numerous
Supreme Court decisions have noted that “searches and seizures
inside a home without a warrant are presumptively unreasonable”
under the Fourth Amendment, e.g., Welsh v. Wisconsin, 104 S.Ct.
2091, 2097 (1984), “exigencies of the situation” making it
imperative to proceed without a warrant constitute exceptions to
the presumption, Coolidge v. New Hampshire, 91 S.Ct. 2022, 2032
(1971). “Hot pursuit” of a suspect is recognized as an exigency
justifying a warrantless search, United States v. Santana, 96 S.Ct.
2406, 2409–10 & n.3 (1976), and Savage could have reasonably
believed, based on the police radio traffic, that the officers were
in hot pursuit of a suspect. The Supreme Court has subsequently
described Santana as involving hot pursuit of a fleeing felon, and
held that a warrantless entry into a suspect’s home to arrest him
for a civil traffic offense was prohibited by the Fourth Amendment.
Welsh, 104 S.Ct. at 2097–2100. An officer hearing about a suspect
fleeing an officer on foot could reasonably believe that a more
serious offense was involved, however, such as a jailable
misdemeanor or a felony. Cf. Johnson v. Deep E. Texas Reg’l
4
In fact, an officer hearing radio traffic about a suspect fleeing on foot
might be relatively unlikely to assume that the underlying offense was a traffic
violation.
11
Narcotics Trafficking Task Force, 379 F.3d 293, 305 (5th Cir.
2004).
Savage is entitled to qualified immunity for the search as
long as “a reasonable officer could have believed . . . [his]
warrantless search to be lawful, in light of clearly established
law and the information the searching officer possessed.” Johnson,
379 F.3d at 301–02 (quoting Anderson v. Creighton, 107 S.Ct. 3034,
3040 (1987)). A reasonable officer in Savage’s position could have
believed the search to be lawful, for the reasons discussed above.
There is nothing in the record to support a contrary conclusion.
Such an officer could therefore also believe that the warrantless
arrest of Payne was lawful, because under Mississippi law failing
to obey the order of a police officer constitutes disorderly
conduct. MISS. CODE ANN. § 97-35-9. As noted by the district court,
the Supreme Court has held that an officer may arrest a person
without a warrant if there is probable cause that the person
committed any offense in the officer’s presence. Atwater v. City
of Lago Vista, 121 S.Ct. 1536, 1557 (2001). Payne did not sustain
her burden of producing summary judgment evidence sufficient to
support a finding that Savage lacked qualified immunity. Savage
was therefore correctly granted summary judgment with respect to
Payne’s arrest and the search of her home.
Because genuine issues of material fact remain with respect to
Fulwood’s assertion of qualified immunity, we reverse the grants of
12
summary judgment to him and remand for further proceedings
consistent with this opinion. The district court dismissed Payne’s
state law claims pursuant to 28 U.S.C. § 1367(c)(3) because it had
dismissed all of Payne’s federal claims. Since we reverse the
dismissal of Payne’s federal claims with respect to Fulwood, we
also reverse the dismissal of Payne’s state law claims against
Fulwood.
III. The City’s Summary Judgment Motion
To establish liability under 42 U.S.C. § 1983 on the part of
the City, Payne must show that any constitutional violation by the
officers was done pursuant to City policy. “Policy” in this
context means either an official policy adopted and promulgated by
a city policymaker, or a “persistent, widespread practice” of
officials or employees which “is so common and well settled as to
constitute a custom that fairly represents municipal policy.”
Johnson, 379 F.3d at 309; Webster v. City of Houston, 735 F.2d 838,
841 (5th Cir. 1984). For a “custom” as described above to
constitute a policy, a city policymaker must have either actual or
constructive knowledge of it, where a policymaker is a lawmaking
officer or “an official to whom the lawmakers have delegated
policy-making authority.” Johnson, 379 F.3d at 309; Webster, 735
F.2d at 841.
No evidence of an official policy regarding warrantless
searches has been presented. In fact, to the extent Payne
13
discusses policy with regard to the search, it is to assert that
the officers acted contrary to city policy (such as by not using
lights and sirens and by persisting in an allegedly unjustified
pursuit). Payne argues that Fulwood’s assertion that his right to
search Payne’s house was “common knowledge as a officer,” the
police chief’s statement that he and any officer would likely have
done the same as Fulwood, and the City’s alleged practice of
leaving decisions on handling situations like that at Payne’s house
to the officers’ discretion show the existence of a custom.
However, given that there is no evidence that a search under any
even arguably similar circumstances had ever happened in the City
or by its officers before, this argument cannot establish the
requirement that a custom involve a persistent, widespread
practice. Payne’s testimony indicates that on one prior occasion
Savage came to her house with Fulwood’s brother (also a police
officer, it appears) looking for Barron. Although there is the
similarity that the officers apparently did not give her a reason
that they were looking for Barron, they did not force their way
into her home on that occasion because she invited them in to look
for Barron. There is simply no evidence of a persistent,
widespread practice of officers insisting on warrantless searches
of homes. Indeed, there is no evidence of any practice of even
arguably unconstitutional searches of residences or businesses.
14
Even if the City’s practice of leaving decisions on whether to
search to an officer’s discretion could constitute a policy, such
a policy would not be facially unconstitutional, and Payne would
therefore have to show that the City acted with deliberate
indifference to the likelihood of constitutional violations.
Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001);
Johnson, 379 F.3d at 309. The inadequate training alleged by Payne
is a type of deliberate indifference claim. Bd. of County Comm’rs
v. Brown, 117 S.Ct. 1382, 1390 (1997). A plaintiff must ordinarily
“demonstrate at least a pattern of similar violations” to show
deliberate indifference. Johnson, 379 F.3d at 309 (internal
quotation omitted). Payne has not established such a pattern,
since there is no evidence of any other searches even arguably like
the one of her home. Nor is there any evidence of any particular
training inadequacy as to these officers.
With regard to warrantless arrests, the City’s brief
acknowledges a police department general order stating that an
officer may arrest a person without a warrant for offenses
including “a breach of peace threatened or attempted” in the
officer’s presence. This order mirrors the language of
Mississippi’s disorderly conduct law, see MISS. CODE ANN. § 97-35-9,
and is not in violation of the Fourth Amendment. Probable cause to
arrest Payne might be lacking if the officers were found not to
have reasonably believed they were conducting a lawful search,
15
since Payne’s resistance would not constitute an offense if the
search was unlawful. But in that event, the officers would not
have been acting pursuant to the policy, because there would have
been no breach of the peace threatened or attempted.
Because Payne has not established that any constitutional
violations by the officers occurred pursuant to City policy within
the meaning of 42 U.S.C. § 1983, the district court’s grant of
summary judgment in favor of the City is affirmed.
Conclusion
Because on this record a genuine issue of material fact exists
with regard to whether Fulwood is entitled to qualified immunity,
the grant of summary judgment in favor of Fulwood is REVERSED, as
is the dismissal of the state law claims against him. The grants
of summary judgment in favor of Savage and the City and the
dismissal of state law claims against them are AFFIRMED.
AFFIRMED in part; REVERSED and REMANDED in part.
16