Joseph Gerhart v. Rankin County, Mississipp ( 2018 )

Case: 17-60287 Document: 00514447936 Page: 1 Date Filed: 04/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 26, 2018
No. 17-60287
Lyle W. Cayce
Clerk
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.
Appeal 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.
PER CURIAM:*
* 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should not be published and is not precedent except under the limited circumstances set forth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.
Case: 17-60287 Document: 00514447936 Page: 2 Date Filed: 04/26/2018
No. 17-60287
The panel’s prior opinion in this case is withdrawn and the following
substituted in its place.
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
order denying summary judgment on qualified-immunity grounds as to
Barnes’s and McAlpin’s unlawful-entry claim; DISMISS for lack of jurisdiction
the interlocutory appeal of McAlpin’s excessive-force claim; 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 by the third individual, Agent Brad McLendon, who
entered the Gerharts’ home. See Gerhart v. McLendon, 714 F. App’x 327 (5th
Cir. 2017). 1 The factual summary in McLendon is based on the statement of
facts that the district court provided in its opinion granting in part and denying
in part McLendon’s motion for summary judgment. The district court did not
set forth any findings of fact in its order allowing the Gerharts to proceed on
some of their claims against Barnes and McAlpin, although it incorporated by
reference the transcripts of a prior telephonic conference call and hearing with
1 In that opinion, this court affirmed the district court’s judgment determining that
McLendon was not entitled to qualified immunity. McLendon, 714 F. App’x at 328–29. As
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.” Id. at 329 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 334 n.6.
2
Case: 17-60287 Document: 00514447936 Page: 3 Date Filed: 04/26/2018
No. 17-60287
the parties. We therefore reiterate here the statement of facts from this court’s
opinion in McLendon:
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. 2
....
2 The Gerhart house did not have any burglar bars.
3
Case: 17-60287 Document: 00514447936 Page: 4 Date Filed: 04/26/2018
No. 17-60287
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.
4
Case: 17-60287 Document: 00514447936 Page: 5 Date Filed: 04/26/2018
No. 17-60287
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 [McLendon’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
5
Case: 17-60287 Document: 00514447936 Page: 6 Date Filed: 04/26/2018
No. 17-60287
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.
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.
McLendon, 714 F. App’x at 329–32 (footnote omitted).
II.
A. Jurisdiction
We have jurisdiction to review a district court’s denial of a claim of
qualified immunity; such a denial, to the extent it turns on an issue of law, is
an immediately appealable “final decision” under 28 U.S.C. § 1291. Mitchell v.
Forsyth, 472 U.S. 511, 526–27, 530 (1985). This is so because qualified
immunity is “an immunity from suit rather than a mere defense to
liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.”
Id. at 526. On interlocutory appeal of the denial of a motion for summary
judgment based on qualified immunity, our jurisdiction “extends to such
appeals only ‘to the extent that the denial of summary judgment turns on an
6
Case: 17-60287 Document: 00514447936 Page: 7 Date Filed: 04/26/2018
No. 17-60287
issue of law.’” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc)
(quoting Mitchell, 472 U.S. at 530). In denying an official’s motion for
summary judgment based on qualified immunity, the district court makes two
distinct determinations, at least implicitly. Id. “First, the district court
decides that a certain course of conduct would, as a matter of law, be objectively
unreasonable in light of clearly established law. Second, the court decides that
a genuine issue of fact exists regarding whether the defendant(s) did, in fact,
engage in such conduct.” Id. On interlocutory appeal, we have jurisdiction to
review only the first type of determination. Id.
Thus, “[i]n deciding an interlocutory appeal of a denial of qualified
immunity, we can review the materiality of any factual disputes, but not their
genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). “A fact
is ‘material’ if it ‘might affect the outcome of the suit under the governing law.’”
Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue
is ‘genuine’ if it is real and substantial, as opposed to merely formal, pretended,
or a sham.” Id. “We review the materiality of fact issues de novo.” Melton v.
Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc), cert. denied, No. 17-1095,
2018 WL 707021 (Apr. 16, 2018). “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)).
B. Standard of Review
“Our standard of review for interlocutory appeals differs from the usual
Federal Rule of Civil Procedure 56 standards for summary judgment.”
Martinez-Aguero v. Gonzalez, 459 F.3d 618, 621 (5th Cir. 2006); see also
Kinney, 367 F.3d at 347. Normally, of course, we review a district court’s denial
7
Case: 17-60287 Document: 00514447936 Page: 8 Date Filed: 04/26/2018
No. 17-60287
of summary judgment de novo. Kinney, 367 F.3d at 347. However, on an
immunity-based interlocutory appeal of a denial of summary judgment, “we do
not apply the standard of Rule 56 but instead consider only whether the district
court erred in assessing the legal significance of the conduct that the district
court deemed sufficiently supported for purposes of summary judgment.” Id.
at 348.
C. Qualified Immunity
To overcome the defense of qualified immunity, plaintiffs 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.”
Melton, 875 F.3d at 261 (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th
Cir. 2011) (en banc)). “Although a case directly on point is not necessary, there
must be adequate authority at a sufficiently high level of specificity to put a
reasonable official on notice that his conduct is definitively unlawful.” Id. at
265 (quoting Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015)).
Thus, “a clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Id. (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).
“Because the plaintiff is the non-moving party, we construe all facts and
inferences in the light most favorable to the plaintiff.” Id. at 261. 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).
III.
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
8
Case: 17-60287 Document: 00514447936 Page: 9 Date Filed: 04/26/2018
No. 17-60287
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, 714 F. App’x 327 (5th Cir. 2017).
“A warrantless search of a home is presumptively unreasonable, absent
probable cause, consent, or exigent circumstances.” McLendon, 714 F. App’x
at 333 (citing United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001)).
Officials do not violate the Fourth Amendment by entering the incorrect
residence when their conduct is “consistent with a reasonable effort to
ascertain and identify the place intended to be searched within the meaning of
the Fourth Amendment.” See Maryland v. Garrison, 480 U.S. 79, 88 (1987)
(considering whether a seizure of contraband violated the Fourth Amendment
when the seizure occurred before the officers realized that they had entered
the wrong third-floor apartment that was also on the premises described in the
warrant). In Garrison, the Court stated that “[i]f the officers had known, or
should have known, that the third floor contained two apartments before they
entered the living quarters on the third floor, and thus had been aware of the
error in the warrant, they would have been obligated to limit their search to
[the correct] apartment.” Id. at 86 (emphasis added). The Court concluded
that “[t]he objective facts available to the officers at the time suggested no
distinction between [the correct] apartment and the third-floor premises.” Id.
at 88 (emphasis added).
In addition to the guidance of Maryland v. Garrison, a robust consensus
of persuasive authority supports the principle from Garrison that officers’
9
Case: 17-60287 Document: 00514447936 Page: 10 Date Filed: 04/26/2018
No. 17-60287
conduct should be “consistent with a reasonable effort to ascertain and identify
the place intended to be searched.” See id. Perhaps most notable is Hunt v.
Tomplait, 301 F. App’x 355 (5th Cir. 2008), which this court relied on in
McLendon as directly on-point. See McLendon, 714 F. App’x at 333.
In Hunt, we affirmed the district court’s determination that officers were
not entitled to qualified immunity from Fourth Amendment claims involving
an unlawful entry. 301 F. App’x at 356. The officers in Hunt attempted to
apprehend a suspect who had evaded arrest by allegedly exchanging gunfire
with Houston police and attempting to run over a uniformed officer with his
vehicle. Id. Using information obtained in part from a cellular tracking device,
the officers obtained a warrant for the suspect’s father’s residence. Id.
However, the officers leading the search did not read the warrant and instead
assumed that the suspect was at a different property, where one of the officers
knew that some of the suspect’s relatives lived. Id. at 357. As a result, the
officers searched the wrong home. Id. at 357–58. We held that the district
court did not err in determining that the officers’ attempts to locate the correct
residence did not “constitute a reasonable effort to ascertain the place to be
searched.” Id. at 361–62.
In Hartsfield v. Lemacks, the Eleventh Circuit considered a factually
similar unlawful entry. 50 F.3d 950 (11th Cir. 1995), as amended (June 14,
1995). In Hartsfield, the officer leading the search had previously accompanied
a confidential informant to the residence listed in the warrant. Id. at 951. The
Eleventh Circuit relied in part on evidence before the district court that showed
that the houses were separated by at least one other residence and that their
appearances were distinguishable. Id. at 952. One witness testified that the
house incorrectly entered had a fence around it and that the house described
in the warrant had “junk cars strewn outside.” Id. Of key importance to the
Eleventh Circuit, it was undisputed that the unlawful entry took place during
10
Case: 17-60287 Document: 00514447936 Page: 11 Date Filed: 04/26/2018
No. 17-60287
daylight hours and that the house numbers were clearly marked. Id.
Accordingly, the Eleventh Circuit reversed the district court’s immunity-based
grant of summary judgment to the officer on the unlawful-entry claim, holding
that given in part “the guidance of the Garrison [C]ourt’s description of
reasonable police efforts, all reasonable police officers should have known that
[the officer’s] acts—searching the wrong residence when he had done nothing
to make sure he was searching the house described in the warrant—violated
the law.” Id. at 955–56 (citing Duncan v. Barnes, 592 F.2d 1336, 1337–38 (5th
Cir. 1979); Wanger v. Bonner, 621 F.2d 675, 681–82 (5th Cir. 1980)). In Hunt,
we stated that “[t]he reasoning in Hartsfield is sound.” 301 F. App’x at 362–
63. 3
In Dawkins v. Graham, the Eighth Circuit affirmed the district court’s
denial of summary judgment to officers based on qualified immunity on an
unlawful-entry claim. 50 F.3d 532, 534 (8th Cir. 1995). The officers in
Dawkins entered a house at “611 Adam” instead of “611 Byrd”; Adam Street
was a block before Byrd Street. Id. at 533. Among other facts the Eighth
Circuit noted, the relevant houses were different colors, and Adam Street and
Byrd Street were clearly marked. Id. at 534. Applying Garrison, the Eighth
Circuit held that the “objective facts available to the officers at the time of the
raid distinguished the premises at 611 Adam from the premises at 611 Byrd.”
Id. at 534–35. Therefore, summary judgment in favor of the officers on
3In distinguishing its facts from those at issue in the Eleventh Circuit’s decision in
Hartsfield, this court in Rogers v. Hooper emphasized both the fact that the Rogers operation
took place at night and the fact that the relevant houses were next door to each other. 271
F. App’x 431, 434–35 (5th Cir. 2008) (affirming grants of summary judgment to officers based
on qualified immunity). The scenario underlying Gerhart is easily distinguishable from the
scenario in Rogers; importantly, the operation at issue in Gerhart took place during the day,
and the relevant homes were not immediately next door to each other.
11
Case: 17-60287 Document: 00514447936 Page: 12 Date Filed: 04/26/2018
No. 17-60287
qualified immunity was inappropriate in part because “the law prohibiting the
officers’ conduct was clearly established at the time of the raid.” Id. at 535.
In McLendon—which involved the third officer’s interlocutory appeal in
the same underlying case at issue here—this court held that, in light of the
relevant caselaw, “an officer must make reasonable, non-feeble efforts to
correctly identify the target of a search—even if those efforts prove
unsuccessful.” 714 F. App’x at 334. On the record before it as viewed on
interlocutory appeal, this court determined that McLendon’s efforts “fell far
short of that standard.” Id. (footnote omitted). This court in McLendon relied
in particular on the fact that the officer apparently did not attend the pre-
operation briefing; denied knowledge of critical details of the plan (including
the identity of the confidential informant and the location and appearance of
the target residence); and “made no affirmative effort to learn those details.”
Id. Thus, this court held that McLendon violated clearly established law on
the factual record before the court. Id. at 335.
In the absence of specific factual findings regarding the district court’s
denial of Barnes’s and McAlpin’s motions for summary judgment, we review
the record in order “to determine what facts the district court, in the light most
favorable to the nonmoving party, likely assumed.” See Kinney, 367 F.3d at
348 (quoting Johnson, 515 U.S. at 319). On the record before us, Barnes and
McAlpin attended the briefing prior to the buy-bust operation, although
McAlpin stated 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
12
Case: 17-60287 Document: 00514447936 Page: 13 Date Filed: 04/26/2018
No. 17-60287
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 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
McLendon were the only ones who followed the confidential informant all the
way to the target residence. However, 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. The district court likely assumed that these
facts were sufficiently supported in the record for summary-judgment
purposes.
In its opinion and order denying McLendon’s summary-judgment motion
based on qualified immunity as to the unlawful-entry claim, the district court
analogized the facts of the case to those in Hartsfield. Rankin County, 2017
WL 1238028, at *11–12. The district court determined that the officers failed
to read the search warrant for themselves. Id. at *12. The district court also
determined that the buy-bust operation occurred during daylight hours; the
Gerhart residence was separated by one house from the target residence; and
the target residence had distinguishing features that the Gerhart residence
lacked, specifically the “dualie [sic] axle” van and the burglar bars. Id. In
addition, the district court noted the investigative report on the entry into the
Gerharts’ residence, which “indicates that inattentiveness on the part of the
officers was the direct cause of the Gerhart incident.” Id. at *8.
13
Case: 17-60287 Document: 00514447936 Page: 14 Date Filed: 04/26/2018
No. 17-60287
We have emphasized that “[w]hat’s reasonable for a particular officer
depends on his role in the search.” McLendon, 714 F. App’x at 335 (quoting
Hunt, 301 F. App’x at 362 n.8). In McLendon, this court stated that
“McLendon’s lack of preparation is all the more unreasonable because he,
Barnes, and McAlpin were the officers entrusted with visually monitoring the
target residence and responding first in the case of an emergency.” Id. at 336.
This court determined in McLendon that the officer’s efforts “fell far short” of
objective reasonableness. Id. at 334. By this standard, Barnes’s and McAlpin’s
conduct is unreasonable, as well. Consistent with the prior opinion in
McLendon, we hold that, on the record before us as viewed on interlocutory
appeal, Barnes’s and McAlpin’s conduct was not “consistent with a reasonable
effort to ascertain and identify the place intended to be searched within the
meaning of the Fourth Amendment.” See Garrison, 480 U.S. at 88. 4
For the reasons explained above, and consistent with this court’s holding
in McLendon, it was clearly established at the time of the alleged unlawful
entry here that “an officer must make reasonable, non-feeble efforts to correctly
identify the target of a search—even if those efforts prove unsuccessful.”
McLendon, 714 F. App’x at 334. On the record before us, based on our limited
standard of review at this interlocutory stage, we conclude that Barnes and
McAlpin are not entitled to summary judgment based on qualified immunity
on the unlawful-entry claim as a matter of law.
4 Arguments about exigent circumstances do not alter this conclusion. As 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.” 714 F. App’x at 336. Barnes’s and McAlpin’s “determination that the danger was
inside the Gerhart residence rather than the target residence was not reasonable” because
on this record the officers failed to take reasonable affirmative steps to identify correctly the
target residence. See id.
14
Case: 17-60287 Document: 00514447936 Page: 15 Date Filed: 04/26/2018
No. 17-60287
On the facts that have been determined to be sufficiently supported in
the record for summary-judgment purposes, viewed in the light most favorable
to the Gerharts, the district court correctly determined that Barnes and
McAlpin were not entitled to summary judgment based on qualified immunity
on the unlawful-entry claim. For the reasons discussed above, we affirm. See
Kinney, 367 F.3d at 340; Juarez v. Aguilar, 666 F.3d 325, 336 (5th Cir. 2011)
(affirming the district court’s order in part and dismissing the appeal in part).
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). “Claims of excessive
15
Case: 17-60287 Document: 00514447936 Page: 16 Date Filed: 04/26/2018
No. 17-60287
force are fact-intensive; whether the force used was ‘clearly excessive’ and
‘clearly unreasonable’ depends on ‘the facts and circumstances of each
particular case.’” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012)
(quoting Graham, 490 U.S. at 396).
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). “[E]ven insignificant injuries may support an
excessive force claim, as long as they result from unreasonably excessive
force . . . .” Sam v. Richard, No. 17-30593, 2018 WL 1751566, at *2 (5th Cir.
Apr. 12, 2018) (holding that the plaintiff’s alleged injuries, which included
minor bleeding, met the “some injury” test of Alexander v. City of Round Rock,
854 F.3d 298 (5th Cir. 2017), and that the officer’s use of force was objectively
unreasonable at the summary-judgment stage).
Here, the parties dispute 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 McAlpin 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.”
However, McAlpin testified that he never hit or kicked Brett Gerhart
during the incident in question. McAlpin contends that he found Brett Gerhart
facedown on the concrete outside of the front door and merely picked Brett up
and took him back inside the house. According to McAlpin, “[t]here is no
16
Case: 17-60287 Document: 00514447936 Page: 17 Date Filed: 04/26/2018
No. 17-60287
evidence that [Brett’s] alleged injuries were caused by McAlpin or [Brett’s] fall
on the front porch, and these alleged injuries are by no means more than de
minimis.”
Therefore, on the factual record as viewed on interlocutory appeal, we
determine that the district court likely considered McAlpin’s alleged repeated
kicking of Brett Gerhart to be a genuinely disputed issue. This dispute is
material because it relates to a reasonableness analysis under Graham
regarding whether Brett posed an “immediate threat to the safety of the
officers or others, and whether he [was] actively resisting arrest or attempting
to evade arrest by flight.” See Graham, 490 U.S. at 396. 5 Our review is limited
to whether the “facts are materially sufficient to establish that defendants
acted in an objectively unreasonable manner.” Wagner, 227 F.3d at 320.
Because this genuine fact issue is material to whether McAlpin violated clearly
established law by using excessive force, we lack jurisdiction over the
interlocutory appeal as to McAlpin’s excessive-force claim. Newman, 703 F.3d
at 764 (“[W]e have no jurisdiction to review a district court’s determination
that there are genuine disputes of fact where we have decided, as a matter of
law, that those factual issues are material.”).
IV.
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. 6 Barnes
5 See also Brown v. Lynch, 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))
(stating 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”).
6 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
17
Case: 17-60287 Document: 00514447936 Page: 18 Date Filed: 04/26/2018
No. 17-60287
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).
“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
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.
18
Case: 17-60287 Document: 00514447936 Page: 19 Date Filed: 04/26/2018
No. 17-60287
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 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
19
Case: 17-60287 Document: 00514447936 Page: 20 Date Filed: 04/26/2018
No. 17-60287
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 reverse that part of the district court’s order
denying summary judgment on the Gerharts’ state-law tort claim against the
officers in their individual capacities, and we render judgment on that claim.
V.
Accordingly, we AFFIRM the district court’s denial of summary
judgment on qualified-immunity grounds as to the unlawful-entry claim;
DISMISS for lack of jurisdiction the interlocutory appeal from the denial of
summary judgment on qualified immunity for the excessive-force claim; and
REVERSE the denial of summary judgment on the Mississippi tort claim and
RENDER judgment on that claim. 7
7 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.
20