     Case: 09-60802     Document: 00511110014          Page: 1    Date Filed: 05/13/2010




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

                                                  FILED
                                                                            May 13, 2010

                                     No. 09-60802                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



DONALD BASKIN, Wrongful death beneficiary of Jerome Baskin, deceased;
BENNIE BASKIN, Wrongful death beneficiary of Jerome Baskin, deceased;
JERMAINE BASKIN, Wrongful death beneficiary of Jerome Baskin,
deceased; JYLON DAVIDSON, By and through his mother and next friend,
Ophelia Davidson, wrongful death beneficiaries of Jerome Baskin, deceased

                                                   Plaintiffs - Appellants
v.

CITY OF HOUSTON MISSISSIPPI; OFFICER LARRY MIMS

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:07-CV-58


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellants, the family of decedent Jerome Baskin (“Baskin”), appeal the
district court’s grant of summary judgment on their various claims against the
City of Houston, Mississippi, and Police Officer Larry Mims (“Mims”).



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                        No. 09-60802

Appellants contend that: (1) the district court erred in failing to conclude that
a Fourteenth Amendment claim 1 for negligent excessive use of force may be
pursued under 42 U.S.C. § 1983; and (2) the district court improperly found all
defendants were entitled to sovereign immunity pursuant to the Mississippi Tort
Claims Act on Appellants’ state law claims. Finding no error, we AFFIRM.
       Baskin was a suspect in an armed robbery that occurred earlier in the
evening of the tragic events in question. Police went to the home of Baskin’s
mother to question him. He ran. Mims drew his weapon, and he and two other
officers gave chase. Upon being cornered, Baskin attempted to escape. During
the ensuing scuffle, Mims accidentally discharged his weapon – shooting and
killing Baskin.2        Appellants brought suit against the City of Houston,
Mississippi, and Mims pursuant to 42 U.S.C. § 1983. Appellants also brought
a state common law claim for negligence. The district court granted summary
judgment on all claims, and this appeal followed.
       We find no error in the district court’s grant of summary judgment. First,
regarding Appellants’ 42 U.S.C. § 1983 claim as to Mims, Appellants have
conceded that they have no evidence that the shooting was anything other than
accidental. Section 1983 does not create a cause of action for negligent violation
of substantive due process rights. See County of Sacramento v. Lewis, 523 U.S.


       1
           Appellants have not raised any argument disputing the district court’s conclusion that
Baskin was never “seized” within the meaning of the Fourth Amendment. As such, any
argument on that issue is waived. Douglas W. ex rel. Jason D.W. v. Houston Indep. Sch. Dist.,
158 F.3d 205, 210-11 n.4 (5th Cir. 1998). Accordingly, like the district court below, we
construe Appellants’ § 1983 claims as alleging violations of substantive due process under the
Fourteenth Amendment. To the extent that a Fourth Amendment claim was raised, any
attempt to allege excessive use of force in the course of a negligent seizure is foreclosed by the
Supreme Court’s decision in Browder v. County of Inyo., 489 U.S. 593, 596-97 (1989) (“It is
clear . . . that a Fourth Amendment seizure does not occur . . . [unless] there is a governmental
termination of freedom of movement through means intentionally applied.”).
       2
        We note that Appellants originally alleged that Mims intentionally shot and killed
Baskin. Appellants subsequently amended their complaint to allege only negligence and, on
appeal, Appellants point to no evidence that Mims shot Baskin intentionally.

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                                       No. 09-60802

833 (1998) (“[L]iability for negligently inflicted harm is categorically beneath the
threshold of constitutional due process.”); McClendon v. City of Columbia, 305
F.3d 314, 326 (5th Cir. 2002) (“Regardless of the theory of liability that a
plaintiff is pursuing, in order to state a viable substantive due process claim the
plaintiff must demonstrate that the state official acted with culpability beyond
mere negligence.”).       Accordingly, the district court did not err in granting
summary judgment on Appellants’ constitutional claims.3
       Second, to the extent the issue has not been waived, Appellants’ argument
that the appellees are not entitled to sovereign immunity is without merit.4 The
Mississippi Tort Claims Act provides sovereign immunity to government entities
and officials for any act or omission causing injury in the course of police activity
where the injured party was harmed while “engaged in criminal activity” so long
as the government agent did not act “in reckless disregard of the [injured
party’s] safety and well-being.” M ISS. C ODE A NN. § 11-46-9 (2010). Baskin’s
flight from the police constituted resisting arrest in violation of M ISS. C ODE A NN.
§ 97-9-73 (2010). Appellants do not contend that Mims acted with reckless




       3
         Appellants protest Mims’s decision to draw his weapon in the first place; however,
they have provided no authority for the proposition that drawing a service weapon while in
pursuit of a suspected armed robber constitutes an excessive use of force. See generally United
States v. Bullock, 71 F.3d 171, 179 (5th Cir. 1995)(“[T]he officers were justified in drawing
their weapons on Bullock. . . . [T]he officers took reasonable steps to protect themselves.”)
Moreover, Appellants’ strictly factual argument is without merit as nothing in the record
supports a finding that Mims “displayed” his weapon, Baskin saw the weapon, or the weapon
was intentionally used as means of apprehending Baskin.
       4
         The only state law tort issues regarding Mims in this appeal flow from Appellants’
suit against him in his official capacity. Appellants have not appealed the district court’s
finding that sovereign immunity applied to Mims in his individual capacity. Accordingly, that
issue has been waived. Akanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997).

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                                      No. 09-60802

disregard.5 Accordingly, sovereign immunity applies to all of appellants’ state
law claims.
AFFIRMED.




       5
         In fact, Appellants do not even dispute that Baskin was resisting arrest. Instead,
they argue the attempted arrest itself was unlawful. Appellants fail to advance any authority
demonstrating the unlawfulness of attempting to arrest a suspect positively identified as the
perpetrator of an armed robbery after he flees from a residence in plain view of officers.

                                             4
