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

                                                                  FILED
                                                                July 23, 2019
                                 No. 18-60081
                                                               Lyle W. Cayce
                                                                    Clerk
ELEANOR KELLER, individually and on behalf of all Heirs-at-Law and/or
wrongful death beneficiaries of Gerald Simpson, Deceased; THE ESTATE OF
GERALD SIMPSON, by and through Glen Simpson, Administrator of Estate,

             Plaintiffs - Appellees

v.

DARRIN FLEMING,

             Defendant - Appellant




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      We review the district court’s denial of an officer’s motion for summary
judgment based on qualified immunity. Plaintiffs’ decedent, Gerald Simpson,
was struck and killed by a motor vehicle as he walked along a Mississippi
highway in darkness; Simpson had been dropped off on the highway at the
county line by Deputy Darrin Fleming of the Attala County Sheriff’s
Department. Plaintiffs, members of Simpson’s family and his estate, sued the
County of Attala and the City of Kosciusko, Mississippi, and law enforcement
officials, alleging state law claims and Fourth and Fourteenth Amendment
deprivations under 42 U.S.C. § 1983. The district court granted summary
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judgment to the City of Kosciusko and its officers but denied summary
judgment to Attala County and Deputy Fleming. See Keller v. Attala County,
No. 1:16-CV-136-SA-DAS, 2018 WL 615681 (N.D. Miss. Jan. 29, 2018). Deputy
Fleming filed this interlocutory appeal, contending he is entitled to summary
judgment based on his claim of qualified immunity. We AFFIRM the district
court’s judgment as to the Fourth Amendment claim, REVERSE as to the
Fourteenth Amendment claim, and RENDER judgment.

                                             I
       On the afternoon of January 26, 2015, Gerald Simpson was walking in
the middle of Highway 12 in Kosciusko, Mississippi, eating from a box of
chicken. 1   Kosciusko police officers responded to a dispatch call reporting
Simpson’s activity.       By the time Kosciusko Officer Steve Allan arrived,
Simpson had walked beyond the Kosciusko city limits and into Attala County.
Officer Allan stopped Simpson and alerted the Attala County Sheriff’s
Department. While waiting for its Sheriff’s deputy to arrive, Officer Allan
questioned Simpson and discovered that Simpson could not speak coherently
but kept pointing westward down the highway.                  Kosciusko Police Officer
Maurice Hawthorne arrived and replaced Officer Allan, who left to respond to
another call.
       When Simpson tried to walk down the highway again, Officer
Hawthorne persuaded him to stop and sit in the backseat of his patrol car.
Simpson sat in the backseat of the vehicle with his feet on the ground and the
door open until Attala County Sheriff’s Deputy Darrin Fleming arrived. Both


       1 As we explain below, our review is based on the facts the district court accepted as
sufficient to deny summary judgment. See Keller, 2018 WL 615681 at *1, *5; Cantrell v. City
of Murphy, 666 F.3d 911, 922 (5th Cir. 2012) (“When considering an appeal from the denial
of qualified immunity . . . our inquiry concerns the purely legal question of whether the
defendants are entitled to qualified immunity on the facts that the district court found
sufficiently supported in the summary judgment record.”).

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officers acknowledged that Simpson’s speech was still unintelligible. At this
point, the officers allegedly decided that Simpson should be taken to his
residence. The district court found a genuine dispute of fact about Deputy
Fleming’s motive in providing a ride to Simpson. Deputy Fleming alleged that
he “merely wished to assist Simpson by providing a courtesy ride home.” By
contrast, Plaintiffs alleged that Deputy Fleming acted pursuant to an Attala
County custom of picking up those viewed as vagrants and dropping them off
in neighboring jurisdictions to rid the county of vagrants. Deputy Fleming put
Simpson in the backseat of his vehicle and asked him where he resided, but
Simpson was unable to articulate where he lived and merely pointed west on
Highway 12, in the direction of Durant, Mississippi. Deputy Fleming drove
Simpson several miles in that direction, but throughout the ride, Deputy
Fleming did not ask for Simpson’s address or identification card, and Simpson
did not identify his residence. Upon reaching the Attala County line sometime
after 5:00 p.m., Deputy Fleming pulled over and opened the back door of his
patrol vehicle. Simpson exited the vehicle and continued walking toward
Durant on County Road 4101, outside of Attala County’s jurisdiction. There
was barely enough daylight to see a person walking, but it was not yet dark.
Later that evening, after dark, a motorist struck and killed Simpson as he was
walking east on the roadway back toward Kosciusko.
      The officers testified that they were aware Simpson’s behavior was
strange and Simpson’s speech was incoherent. The officers were not aware
that Simpson had recently been released from a state hospital after twelve
years of confinement for certain developmental disabilities, including a speech
impediment. On the day he was killed, Simpson had wandered away from his
sister’s home in Attala County, approximately seventeen miles from the
location where Fleming ultimately dropped him.


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       Plaintiffs 2 sued the City of Kosciusko, Officers Allan and Hawthorne,
Attala County, and Deputy Fleming under 42 U.S.C. § 1983, alleging violations
of the Fourth Amendment and the substantive due process clause of the
Fourteenth Amendment. Plaintiffs also brought state law claims. Defendants
moved for summary judgment. The district court granted summary judgment
in favor of the City of Kosciusko and Officers Allan and Hawthorne. 3 However,
the district court denied Attala County’s and Deputy Fleming’s motion in part,
finding that genuine issues of material fact existed as to Plaintiffs’
constitutional claims. Deputy Fleming appeals from the district court’s order
denying him qualified immunity. 4
                                             II
       First, we must address our jurisdiction to hear Deputy Fleming’s
interlocutory appeal.        “[A] district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).              This is so
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. However, our jurisdiction over such
appeals is “significantly limited,” and exists only if the district court’s “denial




       2 Plaintiffs are Simpson’s estate and Eleanor Keller (Simpson’s sister), individually
and on behalf of other members of Simpson’s family.
       3 The district court held that the City officers did not violate Simpson’s Fourth

Amendment rights and that, assuming the officers seized Simpson, they had reasonable
cause to retrieve him from the middle of the highway pursuant to their community caregiver
function. See Keller, 2018 WL 615681, at *8. The district court further held that there was
no Fourteenth Amendment violation because the City officers did not confine Simpson
against his will and therefore no special relationship was created. See id. Plaintiffs’ claims
against the City officers are not the subject of this interlocutory appeal.
       4 Attala County did not file an interlocutory appeal from the district court’s order.



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of summary judgment turns on an issue of law.” Kinney v. Weaver, 367 F.3d
337, 346 (5th Cir. 2004) (en banc) (cleaned up).
       When a district court denies a “motion for summary judgment
predicated upon 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. We have jurisdiction over the first type of determination,
but not the second. Id. at 346–47. In other words, we can review factual
disputes for materiality, but not for genuineness. See Wagner v. Bay City, Tex.,
227 F.3d 316, 320 (5th Cir. 2000). A fact is “material” only if it “might affect
the outcome of the suit under the governing law.” 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.” Bazan ex rel. Bazan v.
Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149
F.2d 335, 337 (5th Cir. 1945)).          “Where factual disputes exist in an
interlocutory appeal asserting qualified immunity, we accept the plaintiff’s
version of the facts as true.” Juarez v. Aguilar, 666 F.3d 325, 331–32 (5th Cir.
2011) (quoting Kinney, 367 F.3d at 348) (cleaned up). In reviewing the denial
of a defendant’s claim of immunity, we “need not consider the correctness of
the plaintiff’s version of the facts, nor even determine whether the plaintiff’s
allegations actually state a claim.” Mitchell, 472 U.S. at 528. Instead, we need




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only determine “whether the legal norms allegedly violated by the defendant
were clearly established at the time of the challenged actions.” Id.
                                       III
      When a defendant invokes the defense of qualified immunity, the burden
is on the plaintiff to demonstrate its inapplicability. See McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002). To overcome qualified immunity,
the plaintiff must show that (1) there was a violation of a constitutional right;
and (2) the right at issue was “clearly established” at the time of the
defendant’s conduct.     See Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(discussing the framework set forth in Saucier v. Katz, 533 U.S. 194 (2001)).
We discuss Plaintiffs’ Fourth and Fourteenth Amendment claims in turn.
                                       A
                                       1
      We first consider Plaintiffs’ claim that Deputy Fleming’s seizure of
Simpson violated Simpson’s Fourth Amendment rights.                The Fourth
Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .” U.S. CONST. amend. IV. “[W]henever a
police officer accosts an individual and restrains his freedom to walk away, he
has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1, 16 (1968). “A person is
‘seized’ only when, by means of physical force or a show of authority, his
freedom of movement is restrained.” United States v. Mendenhall, 446 U.S.
544, 553 (1980).     This occurs “only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave.” Id. at 554. The Fourth Amendment generally prohibits an
officer from seizing and detaining an individual without “probable cause,
defined in terms of facts and circumstances ‘sufficient to warrant a prudent
man in believing that the (suspect) had committed or was committing an

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offense.’” See Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. State
of Ohio, 379 U.S. 89, 91 (1964)).     However, in Terry v. Ohio, the Court
recognized that “a police officer may in appropriate circumstances and in an
appropriate manner approach a person for purposes of investigating possible
criminal behavior even though there is no probable cause to make an arrest.”
392 U.S. at 22. We have also recognized that police engage in a wide variety
of activities unrelated to the investigation and prosecution of crime and that
seizures for these purposes may not be unreasonable. See United States v.
Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (holding that an officer
acted upon reasonable suspicion in detaining a man wearing dark clothing who
was standing in the road and appeared drunk (citing Cady v. Dombrowski, 413
U.S. 433, 441 (1973) (describing the “community caretaking functions” that
police officers serve))).
      In denying Deputy Fleming qualified immunity on Plaintiffs’ Fourth
Amendment claim, the district court determined that there were several
genuine issues of material fact: (1) whether Deputy Fleming merely wished to
give Simpson a courtesy ride home (as Deputy Fleming alleged), or whether
Deputy Fleming acted pursuant to an Attala County custom of picking up
vagrants and dropping them off in neighboring jurisdictions (as Plaintiffs
alleged); (2) whether Deputy Fleming was fulfilling a “community caretaker”
role and, if so, whether he eventually ceased acting in this role during the
encounter; (3) whether Simpson felt as though he was free to leave; and (4)
whether Simpson was capable of giving his consent to be seized in the first
place. See Keller, 2018 WL 615681 at *5–6. In this interlocutory appeal, we
are limited to assessing whether the district court erred in deeming these
factual disputes material and in concluding as a matter of law that Deputy
Fleming was not entitled to qualified immunity. See Kinney, 367 F.3d at 347.


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       Assuming Plaintiffs’ allegations to be true, as we must, see Juarez, 666
F.3d at 331–32, we conclude that a reasonable person in Simpson’s position
would not have felt free to leave. 5 See Mendenhall, 446 U.S. at 554. According
to Plaintiffs’ allegations, Deputy Fleming placed Simpson in his vehicle and
drove several miles down the highway; Simpson did not consent to be
transported by Deputy Fleming; and during the drive, Deputy Fleming did not
ask for Simpson’s address or identification card and did not stop or allow
Simpson to exit the vehicle until they reached the county line. Plaintiffs have
thus raised a genuine issue of material fact as to whether Deputy Fleming
seized and detained Simpson. See id.
       We next examine whether Deputy Fleming’s alleged seizure of Simpson
was reasonable.       When Kosciusko Officer Allan stopped Simpson, he was
walking in the middle of the highway in Kosciusko while eating chicken. The
district court concluded that, “[e]ven if the City officers did ‘seize’ [Simpson], it
was clearly a reasonable seizure, performed pursuant to the community
caregiver function.” See Keller, 2018 WL 615681, at *8. The City officers did
not formally arrest or charge Simpson; instead, they called the County Sheriff’s
office for assistance. Deputy Fleming’s subsequent actions in placing Simpson



       5 Deputy Fleming contends that the district court erred by considering Simpson’s
subjective understanding of the encounter. Under the Fourth Amendment, the inquiry into
whether a seizure has occurred must be objective—that is, whether “a reasonable person
would have believed that he was not free to leave.” See Mendenhall, 446 U.S. at 554. And
although Plaintiffs allege Simpson had intellectual disabilities, the Fourth Amendment’s
“reasonable person” standard does not accommodate such considerations. See Carroll v.
Ellington, 800 F.3d 154, 170–71 (5th Cir. 2015) (applying the “reasonable person” standard
to analyze whether officers seized the decedent, who was mentally ill). Here, the district
court appears to have cited the objective standard in laying out the relevant Fourth
Amendment framework, but then proceeded to find that it “[was] questionable . . . whether
Simpson ever felt as though he was free to leave.” Even if the district court’s subjective
formulation was merely imprecise wording, we now clarify that Deputy Fleming is correct
that only the objective question of whether a reasonable person would have felt free to leave
is relevant to the Fourth Amendment inquiry.

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in his vehicle and transporting him to the county line constituted a separate
“intrusion” that we must also analyze for reasonableness. 6 Deputy Fleming
does not contend that his seizure of Simpson was a Terry stop or that he
reasonably suspected or had probable cause to believe that Simpson was guilty
of criminal activity. Instead, Deputy Fleming avers that he was merely helping
Simpson find his way home. 7
       Construing the facts in Plaintiffs’ favor—that is, that Fleming seized,
detained, and transported Simpson to the next county pursuant to Attala
County’s custom of vagrant dumping—and examining the reasonableness of
Deputy Fleming’s actions in light of the Supreme Court’s jurisprudence on
vagrancy and related stop-and-identify laws, we conclude that Deputy Fleming
violated Simpson’s Fourth Amendment rights.                   In Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972), the Supreme Court invalidated a city
ordinance criminalizing archaic classifications of vagrancy as void for



       6  See Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (analyzing the reasonableness
of a traffic stop based on a violation of the Pennsylvania Motor Vehicle Code separately from
the reasonableness of the “incremental intrusion resulting from” an officer’s order to the
occupant to get out of the car); see also United States v. McCargo, 464 F.3d 192, 197 (2d Cir.
2006) (analyzing an initial Terry stop separately from an officer’s subsequent decision to
transport plaintiff to a crime scene).
        7 Deputy Fleming argues that the district court’s consideration of his motive in giving

Simpson a ride was improper and that Plaintiffs offered no evidence to support the allegation
that he was acting pursuant to a custom of getting rid of vagrants. His arguments are
unavailing for two reasons. First, we do not have jurisdiction in this interlocutory appeal to
consider whether Plaintiffs’ allegations are sufficient. See Mitchell, 472 U.S. at 528 (on
appeal from the denial of qualified immunity, courts “need not consider the correctness of the
plaintiff’s version of the facts, nor even determine whether the plaintiff's allegations actually
state a claim”). Instead, we are confined to assessing the materiality of any fact disputes the
district court determined were genuine. See Wagner, 227 F.3d at 320. Additionally, as
explained below, the district court’s consideration of whether Deputy Fleming transported
Simpson for the purpose of ridding Attala County of vagrants, or pursuant to fulfilling a
community caretaking role (such as giving Simpson a ride home), is material because it bears
on the reasonableness of his actions and could therefore affect the outcome of the suit. See
Anderson, 477 U.S. at 248; Rideau, 969 F.2d at 1574. The district court did not err by
deeming this factual dispute material. See Kinney, 367 F.3d at 347–348.

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vagueness, both for failure to give fair notice of forbidden conduct and because
the ordinance encouraged arbitrary and erratic arrests and convictions. Attala
County’s alleged unwritten anti-vagrancy custom, under which Deputy
Fleming acted, likewise failed to give notice and encouraged arbitrary and
erratic seizures.
      The Supreme Court has also examined the constitutionality of stop-and-
identify statutes, which “permit an officer to ask or require a suspect to disclose
his identity.” See Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt
Cty., 542 U.S. 177, 183 (2004) (noting that these laws “often combine elements
of traditional vagrancy laws with provisions intended to regulate police
behavior in the course of investigatory stops”) (internal citations omitted). In
Brown v. Texas, the Supreme Court held that a conviction for violating a Texas
stop-and-identify statute violated the Fourth Amendment where the initial
stop was not “based on specific, objective facts indicating that society’s
legitimate interests require the seizure of the particular individual, or that the
seizure must be carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers.” See 443 U.S. 47, 51 (1979).
Later, in Hiibel, the Supreme Court upheld a conviction under a Nevada stop-
and-identify statute, reaffirming Brown but distinguishing it on the basis that
the officer had reasonable suspicion to initially stop Hiibel, “satisfying the
Fourth Amendment requirements noted in Brown.” 542 U.S. at 184. The
Court explained that “[o]btaining a suspect’s name in the course of a Terry stop
serve[d] important government interests” that were not outweighed by the
intrusion on the suspect’s Fourth Amendment interests. See id. at 186–88.
      In light of Papachristou, Brown, and Hiibel, we conclude that Deputy
Fleming’s subsequent seizure and detention of Simpson violated Simpson’s
Fourth Amendment rights. Taking Plaintiffs’ facts as true, Deputy Fleming


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placed Simpson in his patrol car and transported him to the Attala County line
to rid the county of vagrants. The seizure was not for Terry stop purposes and
was significantly more intrusive than a brief detention for identification or
investigatory purposes. See Hiibel, 542 U.S. at 183; Brown, 443 U.S. at 51;
Papachristou, 405 U.S. at 170. According to Plaintiffs’ alleged facts, Deputy
Fleming’s actions were based on an unwritten county custom and not “on
objective criteria,” leaving Simpson vulnerable to Deputy Fleming’s unfettered
discretion. See Brown, 443 U.S. at 52. On the material facts the district court
deemed sufficient to deny summary judgment, and viewed in the light most
favorable to Plaintiffs, Deputy Fleming’s seizure, detention, and transporting
of Simpson at the county line for alleged vagrant-ouster purposes violated the
Fourth Amendment. 8
                                               2
       We must now determine whether Simpson’s Fourth Amendment right
was clearly established. The district court held that, “[i]n taking Plaintiffs’
allegations as true, that Defendants wanted to remove Simpson from their



       8  To the extent that Deputy Fleming acted as a “community caretaker,” his initial
seizure of Simpson and his decision to transport him away from where he was walking in the
middle of the highway could arguably have advanced the public interest. See Brown, 443 U.S.
at 51–52. However, his decision to seize, transport, and merely drop Simpson off further
down the rural highway as darkness approached did not increase the public’s or Simpson’s
security. Moreover, Deputy Fleming’s seizure of Simpson severely interfered with Simpson’s
liberty. In Kovacic v. Villareal, we determined that the officers’ actions in giving the drunk
plaintiff a courtesy ride to a 24-hour, lighted gas station at the plaintiff’s request were not
unreasonable. 628 F.3d 209, 212, 214–15 (5th Cir. 2010). Although a Fourteenth
Amendment (and not a Fourth Amendment) case, the facts of Kovacic help illustrate that
Deputy Fleming’s actions, unlike those of the officers in Kovacic, were unreasonable. Here,
Simpson did not ask Deputy Fleming for a ride. Deputy Fleming failed to ask for Simpson’s
address or identification card to properly identify his home address. Moreover, though
Deputy Fleming testified that Attala County officers sometimes took individuals to a hospital
or arranged for pick-ups by officers outside of the jurisdiction, he did not do so with Simpson.
Instead, he abandoned Simpson on the side of the road in a remote area at dusk, did not
ensure that Simpson had access to a phone or a means to secure another way home, and did
not call officials from the next county for assistance.

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jurisdiction as a means to rid themselves of a vagrancy problem, it cannot be
said that Deputy Fleming did not understand that what he was doing violated
the law.” Qualified immunity works “to ensure that before they are subjected
to suit, officers are on notice their conduct is unlawful,” Saucier, 533 U.S. 194,
206 (2001), and protects “all but the plainly incompetent or those who
knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986). “A
Government official’s conduct violates clearly established law when, at the
time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would have understood that what he is
doing violates that right.’”   Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A right may be
clearly established, even in novel factual circumstances, where a defendant’s
conduct clearly and obviously violates the Constitution. See Hope v. Pelzer,
536 U.S. 730, 741 (2002). The “salient question” is not whether there are
previous cases with facts that are “fundamentally similar,” but rather,
“whether the state of the law [at the time of defendants’ conduct] gave [them]
fair warning that [plaintiff’s] alleged treatment was unconstitutional.” Id.
      At the time the incident at issue here occurred, Supreme Court precedent
provided clear notice that “the reasonableness of a seizure under the Fourth
Amendment is determined by balancing its intrusion on the individual’s
Fourth Amendment interests against its promotion of legitimate government
interests.” Hiibel, 542 U.S. at 187–88 (internal quotations omitted); see also
Brown, 443 U.S. at 50–51 (internal quotations omitted). This balance ensures
“that an individual’s reasonable expectation of privacy is not subject to
arbitrary invasions solely at the unfettered discretion of officers in the field.”
Brown, 443 U.S. at 51 (citing Delaware v. Prouse, 440 U.S. 648, 661 (1979)).
Under Plaintiffs’ version of the facts, Deputy Fleming’s seizure, detention, and


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transporting of Simpson to the Attala County line did not serve a legitimate
government interest. Compare Papachristou, 405 U.S. at 171 (criminalizing
vagrancy on “[a] presumption that people who might walk or loaf or loiter or
stroll . . . or who look suspicious to the police are to become future criminals is
too precarious for a rule of law”), with Meehan v. Thompson, 763 F.3d 936, 943
(8th Cir. 2014) (transporting an intoxicated passenger to a detox facility was
reasonable), and United States v. McCargo, 464 F.3d 192, 199 (2d Cir. 2006)
(transporting a suspect a short distance to a crime scene was “in furtherance
of a legitimate law-enforcement purpose” and not unreasonable). On the other
side of the scale, the decision to seize Simpson and dump him in the next
jurisdiction without his consent based on a vagrant-ouster custom severely
intruded on his right to personal security. See Hiibel, 542 U.S. at 187–88
(discussing the balance between the government’s interests and the
individual’s Fourth Amendment interests). With a balance so one-sidedly
contrary to an individual’s Fourth Amendment rights, every reasonable officer
would have understood that seizing Simpson under these circumstances was
arbitrary and unreasonable. See Al-Kidd, 563 U.S. at 741.
      Moreover, precedent from the Supreme Court provided notice when
these events occurred that a law designed to provide officers with “unfettered
discretion” to arrest persons as vagrants merely on suspicion of future
criminality is impermissibly vague. See Papachristou, 405 U.S. at 163, 168
(invalidating a vagrancy law that criminalized, inter alia, “common night
walkers” or “habitual wanderer[s]” and persons “habitually living without
visible means of support”); Kolender v. Lawson, 461 U.S. 352, 361 (1983)
(invalidating a stop-and-identify statute as unconstitutionally vague “because
it encourage[d] arbitrary enforcement by failing to describe with sufficient
particularity what a suspect must do in order to satisfy the statute”). Given


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the Supreme Court’s well-established jurisprudence limiting an officer’s
unfettered discretion to act pursuant to an established vagrancy or vagrancy-
related law, it would have been clear and obvious to every reasonable officer in
Deputy Fleming’s position that arbitrarily seizing Simpson pursuant to an
unwritten custom of ousting vagrants violated Simpson’s Fourth Amendment
rights. See Hope, 536 U.S. at 741. We therefore conclude that, on Plaintiffs’
facts, Deputy Fleming violated Simpson’s clearly established Fourth
Amendment rights.      Accordingly, we affirm the district court’s denial of
summary judgment based on qualified immunity.
                                        B
      The district court next held that Deputy Fleming was not entitled to
summary judgment and qualified immunity on Plaintiffs’ Fourteenth
Amendment claim, finding several genuine issues of fact: (1) whether Deputy
Fleming, by his affirmative act and pursuant to his own will, effectively used
his power to force a “special relationship,” taking away Simpson’s liberty under
terms that provided no realistic means of terminating the State’s custody, and
which deprived Simpson of the ability or opportunity to provide for his own
care and safety; (2) whether Deputy Fleming owed Simpson a duty of care; (3)
whether, in breaching that duty, Deputy Fleming was deliberately indifferent
to Simpson’s plight, and (4) whether Deputy Fleming’s breach actually caused
Simpson’s death.
      The Due Process Clause of the Fourteenth Amendment prohibits states
from “depriv[ing] any person of life, liberty, or property, without due process of
law.” U.S. CONST. amend. XIV, § 1. As a general matter, a State does not have
an affirmative duty to protect an individual from violence by private actors.
See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989).
However, the Supreme Court in DeShaney recognized that, in very limited
circumstances, the State’s actions in taking a person into custody and holding

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him there against his will creates a “special relationship,” “impos[ing] upon
[the State] a corresponding duty to assume some responsibility for his safety
and general well-being.” Id. at 199–200. It is the state-imposed limitation on
an individual’s freedom to act on his own behalf that triggers an affirmative
duty to protect—not knowledge of the individual’s predicament or a State’s
expressions of intent to help him. Id. The Supreme Court has expressly
recognized that a “special relationship” exists between the State and prisoners,
Estelle v. Gamble, 429 U.S. 97, 103–04 (1976), involuntarily committed mental
patients, Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982), and suspected
criminals injured while being apprehended by police, City of Revere v. Mass.
Gen. Hosp., 463 U.S. 239, 244 (1983).
      The district court acknowledged that Deputy Fleming’s relationship with
Simpson did “not neatly fit into” any of these recognized exceptions because
Simpson was not incarcerated or involuntarily committed. However, the court
likened Simpson’s situation to that of an incarcerated person, explaining that,
because “Simpson was unable ‘by reason of the deprivation of his liberty [to]
care for himself,’” it was “only just that the State be required to care for him.”
Even if the district court correctly found genuine issues of fact regarding the
existence of a “special relationship,” Plaintiffs must show that Simpson’s
Fourteenth Amendment right was clearly established at the time of the alleged
violation.   The district court concluded that Simpson’s right was clearly
established by Walton v. Alexander, 44 F.3d 1297, 1299 (5th Cir. 1995) (en
banc). In Walton, this court acknowledged that “a very narrow class of persons
who stand in a ‘special relationship’ with the state enjoys a clearly established
constitutional right to some degree of state protection from known threats of
harm by private actors.” 44 F.3d at 1299. But Walton explains that “this
‘special relationship’ only arises when a person is involuntarily confined or


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                                 No. 18-60081

otherwise restrained against his will pursuant to a governmental order or by
the affirmative exercise of state power.” See id.
      Deputy Fleming argues that the law does not clearly establish that a
special relationship would have existed under the facts of this case. We agree.
Simpson was killed by a third-party motorist later in the evening after Deputy
Fleming dropped him at the county line. In DeShaney, the Supreme Court held
that state officials had no duty to protect a child who was not in state custody
at the time he was injured by his father. See 489 U.S. at 201. The Court
explained: “That the State once took temporary custody of [the child] does not
alter the analysis, for when it returned him to his father’s custody, it placed
him in no worse position than that in which he would have been had it not
acted at all; the State does not become the permanent guarantor of an
individual’s safety by having once offered him shelter.” Id. Some courts have
interpreted this language in Deshaney as creating a second exception to “the
rule against state liability for violence committed by private actors in
situations where the state actor played an affirmative role in creating or
exacerbating a dangerous situation that led to the individual’s injury.” See
Kovacic, 628 F.3d at 214 (discussing Davis v. Brady, 143 F.3d 1021 (6th Cir.
1998) (which held that officers violated a man’s substantive due process rights
by placing him at risk of harm when they abandoned him in an inebriated
condition on an unfamiliar highway against his will)). But the Fifth Circuit
has never recognized this “state-created-danger” exception. See id. (concluding
that the law did not clearly establish state actors could be liable for private
harm to an individual after his release from custody).
      Plaintiffs have not demonstrated a clearly established substantive due
process right on the facts they allege. Accordingly, we reverse the district
court’s denial of summary judgment and render a judgment that Deputy


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                              No. 18-60081

Fleming is entitled to qualified immunity on the Plaintiffs’ Fourteenth
Amendment claim.
                                   ***
     For these reasons, we AFFIRM the district court’s judgment denying
Deputy Fleming qualified immunity from Plaintiffs’ Fourth Amendment claim
and REVERSE and RENDER judgment granting him qualified immunity from
Plaintiffs’ Fourteenth Amendment claim.




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