     Case: 16-60406      Document: 00513884989         Page: 1    Date Filed: 02/22/2017




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

                                      No. 16-60406
                                                                                Fifth Circuit

                                                                              FILED
                                                                       February 22, 2017

RUSTY HOLLOWAY,                                                          Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

MIKE PURVIS, Individually and in his Official Capacity;
JASON MCNELLY, Individually and in his Official Capacity,

              Defendants - Appellants


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:15-CV-86


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellee Rusty Holloway sued defendants-appellants Mike
Purvis and Jason McNelly, deputies in Lamar County, Mississippi, alleging
that they unlawfully seized him and used excessive force in violation of the
Fourth Amendment. The deputies moved for summary judgment based on
qualified immunity, and the district court denied their motion. We REVERSE
IN PART, VACATE IN PART, and REMAND.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                               BACKGROUND
      Holloway is a six-foot-six, former Mississippi State University offensive
lineman who was in a car accident with a deputy near Hattiesburg in Lamar
County, Mississippi. Deputies Purvis and McNelly were among the officers
who responded to the scene of the accident.         Holloway had a .40-caliber
handgun and buck knife (though the exact location of these weapons is
disputed), which he turned over upon the officers’ request. Holloway also
repeatedly entered and exited an ambulance at the scene; he testified in his
deposition that he did so because he did not want to pay for the ambulance
ride. Upon finally stepping out of the ambulance, he told the officers, “Jesus
walked[,] I’ll walk,” and proceeded to walk down the highway toward a hospital
in Hattiesburg.
      In the meantime, Holloway’s sisters had arrived at the scene. One sister
told the responding officers that there was an outstanding mental writ—an
order to take a person alleged to be in need of treatment into custody for a
mental evaluation—for Holloway in Jefferson Davis County, Mississippi.
Mississippi law provides that a relative of a person alleged to be in need of
treatment may swear an affidavit making that allegation before a chancery
court clerk. Miss. Code § 41-21-65(2). Based on that affidavit, the clerk, “upon
the direction of the chancellor of the court, shall issue a writ directed to the
sheriff of the proper county to take into custody the person alleged to be in need
of treatment and to bring the person before the clerk or chancellor[.]” Id. § 41-
21-67(1). Holloway’s sister, Danielle, had sworn such an affidavit in a chancery
court in Jefferson Davis County, describing Holloway as, among other things,
suicidal, aggressive, and depressed. A chancery judge had then issued a “Writ
to Take Custody [of Holloway] for Mental Examination of Retention” directed
to “the Sheriff of Jefferson Davis County.”


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                                  No. 16-60406
      After learning of the mental writ, various officers confirmed the
existence and validity of the writ. The officers first called the Lamar County
dispatcher to confirm that the writ was active. After that call, Sheriff Danny
Rigel of Lamar County called Sheriff Ron Strickland of Jefferson Davis County
to confirm that the writ was active and to offer assistance. Sheriff Strickland
confirmed that the writ was active and accepted Sheriff Rigel’s offer to assist
in taking Holloway into custody. Sheriff Rigel then called Purvis and told him
that he had “verif[ied] that Sheriff Strickland was in possession of a certified
copy of the writ to take Holloway into custody and ha[d] asked for assistance
in bringing Holloway into custody.”
      The officers subsequently followed Holloway to take him into custody.
Holloway testified in his deposition that he was walking along the highway
with his hands on his head and that he stopped and did not turn around when
officers ordered him to stop. He testified that the officers told him to get down,
but he did not comply because he was thinking “how am I going to get down on
the ground if my hands [are] up?” He testified that he stood there for no “more
than 20, 30 seconds” before somebody shot him in the back with a taser, after
which he fell to the ground. He testified that he was tased again as the officers
attempted to handcuff him and that he passed out thinking, “I guess I’m fixing
to come see you God[.]” He also testified that he did not recall being kicked or
hit with a fist or baton. Finally, he testified that the officers told him to stop
resisting, but he said he was only involuntarily moving due to shocks.
      Holloway sued Lamar County, Purvis, and McNelly under 42 U.S.C.
§ 1983, alleging that his seizure was unlawful, that the seizure constituted
false imprisonment, and that the officers used excessive force. After discovery,
Purvis and McNelly moved for summary judgment based on qualified
immunity.    The district court denied qualified immunity as to both the


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                                       No. 16-60406
unreasonable-seizure/false-imprisonment claims 1 and the excessive-force
claim. As to the first, the court found that the deputies “were not authorized
[under Mississippi law] to take custody under the writ [because it was only
addressed to the sheriff of Jefferson Davis County], and even if they were, they
have presented nothing to establish that this writ fulfilled the warrant
requirement of the Fourth Amendment.” The court thus held that the deputies
violated “clearly established law that a warrantless arrest without probable
cause is unconstitutional.” As to the second, the district court held that “a
reasonable officer would have known that tasing [Holloway] was objectively
unreasonable under clearly established law[.]” The “clearly established law”
was this court’s statement in Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.
2012) that tasing constituted excessive force where a person “committed no
crime, posed no threat to anyone’s safety, and did not resist the officers or fail
to comply with a command.” After unsuccessfully requesting that the court
alter or amend its order, Purvis and McNelly appealed.
                                       ANALYSIS
       In this interlocutory appeal, the court is limited to considering 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. Cantrell v. City of Murphy, 666 F.3d 911, 922 (5th Cir. 2012). “In
ruling on this question, we must assume that the plaintiffs’ version of the facts
is true,” and “[o]ur review of the legal significance of the facts is de novo.” Id.
The qualified-immunity inquiry asks: (1) whether a violation of a
constitutional right occurred; and (2) whether that constitutional right was




       1  The district court considered both claims together “[a]s both claims ultimately
depend on whether there existed probable cause to arrest[.]” For the sake of brevity, we refer
to the claims collectively as the unreasonable-seizure claim.
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                                 No. 16-60406
clearly established at the time of the defendant’s alleged misconduct. Pearson
v. Callahan, 555 U.S. 223, 232 (2009). Qualified immunity “provides ample
protection to all but the plainly incompetent or those who knowingly violate
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Purvis and McNelly
contend that they are entitled to qualified immunity with respect to the
unreasonable-seizure and excessive-force claims.
A. Unreasonable Seizure
      The Fourth Amendment protects “[t]he right of the people to be secure
in their persons . . . against unreasonable searches and seizures[.]” U.S. Const.
amend. IV. Holloway claims that his seizure was unreasonable, and the district
court held that it is “clearly established law that a warrantless arrest without
probable cause is unconstitutional.” We disagree that the law, as applied to
these facts, was clearly established. For example, this court held in Cantrell
v. City of Murphy, 666 F.3d 911 (5th Cir. 2012), that officers may
constitutionally seize a person without a warrant when the officers have
probable cause to believe the person, whom they believe to be suicidal, is a
danger to himself or others. Albeit not definitive, Cantrell suggests that the
law was not plainly established that the deputies’ conduct was impermissible.
      Here, the deputies knew facts that they could reasonably believe
established probable cause. One of Holloway’s sisters alerted them that there
was an outstanding mental writ. The deputies called dispatch to confirm that
that information was correct. Their boss, Sheriff Rigel, told them not only that
the writ was valid and active, but also that they were to take Holloway into
custody.   The deputies could thus reasonably infer that the procedural
requirements undergirding the writ—i.e., an affidavit setting forth mental
health problems and a judge’s signature—had been met. Moreover, both the
mental writ statute and the Mississippi Supreme Court state that such writs
are intended to target persons believed to be a danger to themselves or others.
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                                 No. 16-60406
See Bethany v. Stubbs, 393 So. 2d 1351, 1353 (Miss. 1981) (describing the
statutes as “provid[ing] for commitment where the individual is dangerous to
himself or others”); Miss. Code § 41-21-61(e) (describing a person with mental
illness as a person who “poses a substantial likelihood of physical harm to
himself or others”). Thus, the information available to the deputies, their
marching orders, and existing law supported their reasonable belief that they
were acting constitutionally to arrest Holloway.    Because the deputies were
neither “plainly incompetent” nor “knowingly violat[ing] the law,” the deputies
are entitled to qualified immunity on this claim.
B. Excessive Force
      The Fourth Amendment similarly protects individuals from the use of
excessive force. “[T]o state a violation of the Fourth Amendment prohibition
on excessive force, the plaintiff must allege: (1) an injury that (2) resulted
directly and only from the use of force that was excessive in need, and (3) the
use of force [] was objectively unreasonable.” Bush v. Strain, 513 F.3d 492,
500–01 (5th Cir. 2008). The district court and parties focused on the third
element of objective unreasonableness, which “depends on the facts and
circumstances of the particular case,” including “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.” Id. at 501 (quoting Graham v. Connor, 490 U.S. 386,
396 (1989)). The district court denied qualified immunity, concluding it was
clearly established that “[w]here a suspect ‘committed no crime, posed no
threat to anyone’s safety, and did not resist the officers or fail to comply with
a command,’ the Graham factors do not justify the force used against him.”
(quoting Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012)).
      The deputies contend that the district court’s unreasonable seizure
conclusion tainted the court’s analysis of excessive force, and they highlight
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                                 No. 16-60406
Holloway’s “sworn deposition testimony [] that he failed to comply with the
Officers’ commands to get on the ground.” We agree that because the district
court wrongly rejected the deputies’ reasonable reliance on the mental writ, it
miscalculated the basis for their use of force. The deputies’ understanding of
the mental writ and surrounding facts made it reasonable to infer that
Holloway, a very formidable individual, might be a danger to himself or others
if he resisted arrest. Further, given arguable but minor disputes of fact, and
no significant injury, it appears that the deputies may not have used force
excessive to the need when they arrested Holloway.
      The deputies’ prayers for relief, however, did not ask this court to render
judgment on the excessive force claim. Instead, they requested that the court
remand “with instructions for a new analysis as to the excessive force claim.”
Although their counsel belatedly asked the court during oral argument to
render judgment, our precedent states that parties are limited to the relief
requested in their briefs. See Whitehead v. Food Max of Miss., Inc., 163 F.3d
265, 270 (5th Cir. 1998).
      For these reasons, we REVERSE the district court’s judgment on the
unreasonable-seizure claim; and we VACATE and REMAND the excessive
force claim for proceedings consistent with this opinion.




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