                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                        July 8, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk

                              No. 03-60549


     JAMES BRANNON MASON, MELISSA LEE MASON,
     and JUSTIN BOYD,

          Plaintiffs-Appellants,

          v.

     LOWNDES COUNTY SHERIFF’S DEPARTMENT,
     and LOWNDES COUNTY, MISSISSIPPI,

          Defendants-Appellees.

          Appeals from the United States District Court
             for the Northern District of Mississippi
                          1:02-CV-146-SAA

Before DAVIS, BENAVIDES and PRADO, Circuit Judges.

DAVIS, Circuit Judge:*

     Plaintiffs’ residence was subjected to a search based on

information that later turned out to be incorrect.              Plaintiffs

brought suit under 42 U.S.C. § 1983 alleging violation of their

federal constitutional rights, as well as various state law tort

claims.   The district court granted summary judgment in favor of

Lowndes County on all federal claims and in favor of the individual

defendants   based   on   qualified    immunity.   In   this   appeal    the



     *
      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this opinion should not be published and is not precedent except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.

                                      -1-
plaintiffs assert that the district court erred in finding (1) that

the warrant in question was supported by probable cause, (2) that

the warrant was executed in an objectively reasonable manner, and

(3) that the individual defendants were entitled to qualified

immunity.    The plaintiffs further assert that the district court

improperly    allowed    the   defendants    to   introduce     irrelevant

information in the trial of the state law tort claims.          We find no

error, and AFFIRM.

                                     I.

     On March 1, 2002, deputies of the Lowndes County, Mississippi,

Sheriff’s Department attempted to arrest Mac Burke (Burke) on a

felony arrest warrant issued in Alabama.          Narcotics agents Tim

Howell (Howell) and Larry Swearingen (Swearingen) were among the

officers involved in the attempted arrest.        Burke was in his truck

at the time of the attempted arrest, and when he refused to exit

the vehicle one of the deputies smashed the passenger side window

of the truck.    Burke then put his truck in gear and sped away,

almost running over some of the deputies. The deputies fired their

weapons at the truck, striking it at least once.         The truck also

may have suffered some front end damage when Burke ran over a

street sign during his getaway.

     On March 15, 2002, the Narcotics Division of the Lowndes

County   Sheriff’s      Department     received   information     from     a

confidential informant that Burke could be found at an apartment in

Columbus, Mississippi, which is located in Lowndes County.               The

                                     -2-
informant also stated that there was a stolen vehicle and a

methamphetamine lab at that address.      The deputies verified that a

vehicle meeting the description of the one driven by Burke was at

the address given by the informant.      A search warrant was obtained

and executed this same day, and the stolen vehicle and meth lab

were seized.    Burke, however, was not there at the time.           Shawn

Murphy, an individual arrested at the address, said that Burke had

left the apartment about fifteen minutes before the officers

arrived.

      On March 16, 2002, the same confidential informant informed

the officers that Burke was located at another residence in Lowndes

County and that his truck was parked outside that address.             The

deputies drove to the address and observed a truck matching the

description of the one driven by Burke parked in the driveway.         The

officers could not inspect the truck up-close because several

people were standing in front of the residence.       A search warrant

was obtained and executed for the residence, which is the home of

plaintiffs James and Melissa Mason.        In addition to plaintiffs,

present at the residence were the Mason’s two sons and Justin Boyd.

      The officers entry into the home was forceful.              When the

officers entered the home, James Mason attempted to retrieve a

firearm.   He was stopped by the officers, forced to the floor, and

placed in handcuffs. Melissa Mason and Justin Boyd were restrained

at   gunpoint   while   the   officers   searched   the   home.      After

determining that Burke was not at the residence, the officers

                                   -3-
exited the home. After exiting, the officers examined the truck in

the driveway more closely and determined that it was not the same

truck the officers had previously seen Burke driving.

     The plaintiffs filed suit under 42 U.S.C. § 1983 claiming that

the arrest warrant was not supported by probable cause, the search

of the residence was carried out in an unreasonable manner, and

that the officers used excessive force in violation of the Fourth

Amendment.      The plaintiffs further claimed that the search was

unreasonable     under   the   Mississippi   Constitution     and    asserted

various state law tort claims.        Defendants Howell and Swearingen

moved for summary judgment based upon qualified immunity. Defendant

Lowndes County also moved for summary judgment. The district court

granted   the   individual     defendants’   motion   based   on    qualified

immunity. The district court later granted Lowndes County’s motion

for summary judgment on all federal claims.           The state tort law

claims against Lowndes County were allowed to proceed.               After a

trial on the merits, a jury found Lowndes County not liable under

state tort law.      The district court then entered final judgment

dismissing the plaintiffs’ claims.        Plaintiffs filed this appeal.

                                    II.

     We review the district court’s grant of summary judgment de

novo, considering all evidence in a light most favorable to the

non-movant.     Campos v. City of Houston, 113 F.3d 544, 545 (5th Cir.

1997).    Summary judgment will be affirmed where, after independent



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review, there is no genuine issue of material fact and the movant

is entitled to a judgment as a matter of law.           Walker v. Thompson,

214 F.3d 615, 624 (5th Cir. 2000).                Summary judgment may be

affirmed on any basis supported by the record.          Conkling v. Turner,

138 F.3d 577 (5th Cir. 1998).

                                        A.

      On their claim of illegal seizure under the Fourth Amendment,

the plaintiffs first argue that a genuine issue of material fact

exists as to whether the search warrant issued for the plaintiffs’

home was based on probable cause.            Plaintiffs allege that Officer

Howell’s affidavit, on which the magistrate judge based his finding

of   probable    cause,   contained      intentional    or    reckless      false

statements. As support for this claim, the plaintiffs point to the

following paragraph from Howell’s affidavit:

      On Saturday, March 16, 2002, Agent Howell received
      information from the same cooperating indivvidual (sic)
      who stated that Mac Burke was located at 2990 Yorkville
      Rd. East in Lowndes County, MS.         The cooperating
      individual advised that the black chevy truck that was
      used in the aggravated assault on narcotics agents last
      week was also at this residence.      Agents physically
      observed the vehicle parked under the car port of this
      residence. Agents also observed several people standing
      in front of the residence.

R. Vol. 1, p. 20.         Plaintiffs point out that it was Officer

Collins,   not    Officer     Howell,    who    spoke   directly     with    the

confidential informant who then relayed the information to Officer

Howell.    Plaintiffs       further   point    out   that    the   confidential

informant never specifically stated that Burke was at the address

                                      -5-
provided and that the agents did not observe Burke’s truck at the

residence, rather they only saw a truck that looked like Burke’s.

     Affidavits used to support a search warrant are presumed

valid. Franks v. Delaware, 438 U.S. 154, 171 (1978).                  The veracity

of the affidavit may only be attacked upon a showing of deliberate

falsehood or reckless disregard for the truth by the affiant.                    Id.

In the context of a § 1983 case, to survive summary judgment the

plaintiffs must demonstrate that a genuine issue of material fact

exists as    to    whether    the    false    information    contained      in   the

affidavit was provided deliberately or with reckless disregard for

the truth.    Freeman v. County of Bexar, 210 F.3d 550 (5th Cir.

2000).   To meet this burden the plaintiffs must make a “strong

preliminary showing” that the affiant made the misstatement or

omission “with the intent to mislead the magistrate.”                       United

States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995) (quoting

United States v. Clokley, 899 F.2d 297, 301 (4th Cir. 1990).2

     The plaintiffs argue that merely showing the falsity of these

statements is sufficient to survive summary judgment and that it is

the province of the jury to determine whether the statements were

made intentionally or recklessly.             This argument is without merit.

Franks   clearly    puts     the    burden    on   the   challenger    to   make   a

substantial showing of deliberate falsity or reckless disregard for

     2
       Although Tomblin concerned material omissions as opposed
to material misstatements, the standard is the same. United
States v. Martin, 615 F.2d 318 (5th Cir. 1980).

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the    truth.        Franks,    438   U.S.   at   171.      Only    then     does    the

factfinder’s role of determining whether probable cause exists

absent the false information come into play.                      See id.; Hill v.

McIntyre, 884 F.2d 271, 276 (6th Cir. 1989).                     In a criminal case

this   role     is   necessarily      performed    by    the     trial   court      at   a

suppression hearing; however, in a § 1983 case the task belongs to

the jury.       Hill v. McIntyre, 884 F.2d at 276.

       Other than the conclusory allegations contained in their

complaint, the plaintiffs have offered no evidence that the errors

in the affidavit resulted from a deliberate attempt to mislead the

magistrate judge.        Tomblin, 46 F.3d at 1377.             The inaccuracies in

Officer Howell’s         affidavit     appear     to   be   at   most    a   negligent

interpretation by Howell of Collins’s report of his conversation

with the informant.            Unsupported allegations are insufficient to

meet the plaintiffs’ burden on this issue.                     Franks, 438 U.S. at

171.      For these reasons, the district court did not err in

granting summary judgment in favor of the defendants on this issue.

                                         B.

       The plaintiffs next argue that the district court erred in

concluding that no genuine issue of material fact existed as to

whether the search warrant was carried out in violation of the

Fourth Amendment.         The plaintiffs argue that the manner of entry

into the home and the officers’ conduct while inside the home were




                                         -7-
both objectively unreasonable.3

                                  1.

     The plaintiffs first argue that the district court erred in

concluding that the officers’ use of a forceful “no-knock” entry

was justified because of the officers’ previous experience with

Burke and his attempt to run over the officers with his truck.4

The plaintiffs point out that Burke almost ran over the officers

only after Deputy Swearingen broke out the passenger window of the

truck.   The plaintiffs argue that a jury could infer that Burke

drove forward because he was frightened by the breaking of his

window, rather than in an attempt to run over the officers.      The

plaintiffs further argue that in such a case a jury could infer

that the officers’ belief that the “no-knock” entry was necessary

because Burke was dangerous was not reasonable.       The plaintiffs

also contend that the “no-knock” entry was unreasonable because the

officers had no way of knowing whether Burke was inside the home at

the time the warrant was executed.      Finally, the plaintiffs argue

that a jury could find that a “no-knock” entry was unnecessary


     3
       In this appeal, the plaintiffs attempt to argue that the
warrant was carried out in an unreasonable manner because
officers failed to inspect the truck more closely before
executing the warrant. This issue was not raised in the district
court and will not be considered in this appeal. Keenan v.
Tejeda, 290 F.3d 252, 262 (5th Cir. 2002).
     4
       There was conflicting testimony as to whether any
announcement was made. The district court acknowledged this
discrepancy but found it immaterial because a “no-knock” entry
was warranted under the circumstances.

                                  -8-
because the officers had the house surrounded, preventing Burke’s

possible escape.

     Generally, the Fourth Amendment requires that law enforcement

officers knock on the door and announce their presence before

executing a search warrant.           Richards v. Wisconson, 520 U.S. 385,

387 (1997).       An announcement is not required, however, where “the

police    .   .   .   have    a   reasonable     suspicion    that    knocking    and

announcing their presence, under the particular circumstances,

would    be   dangerous      or   futile,   or    that   it   would    inhibit    the

effective investigation of the crime[.]” Id. at 394.                   The showing

of reasonableness necessary to overcome the “knock-and-announce”

requirement “is not high.”            U.S. v. Washington, 340 F.3d 222, 226

(5th Cir. 2003) (quoting Richards, 520 U.S. at 394.).                        In the

instant case, Burke had previously endangered the lives of the

arresting     officers       during   his   getaway.      Even   if    he   was   not

attempting to injure the officers, his action shows a complete

disregard for their safety. Furthermore, Burke was associated with

illegal drugs, and the fact that people associated with drugs often

carry weapons should be considered when deciding the reasonableness

of a no-knock entry.          United States v. Rodea, 102 F.3d 1401, 1408

(5th Cir 1996); United States v. Ramos, 71 F.3d 1150, 1158 n.26

(5th Cir. 1995).       For these reasons, the district court did not err

in concluding that officers were reasonable in their suspicion that

Burke was dangerous and their decision to perform a “no-knock”


                                        -9-
entry was warranted.

                                       2.

       The plaintiffs next argue that the officers used excessive

force in executing the warrant.             The plaintiffs argue that the

officers entered the home with their guns drawn.            Plaintiff James

Mason testified that he was forced to the ground and placed in

handcuffs.      Plaintiff Boyd stated that he was slammed to the floor

and an officer put a knee in his back.            Plaintiffs Melissa Mason

and Boyd testified that they were detained at gunpoint throughout

the search.      The plaintiffs argue that under the circumstances of

this case the officers’ conduct was unreasonable and amounted to

excessive force.

       Claims    of   excessive    force       are    analyzed   under    the

“reasonableness” standard of the Fourth Amendment.                Graham v.

Connor, 490 U.S. 386, 395 (1989).               The “reasonableness” of a

particular use of force must be judged from the perspective of a

reasonable officer at the scene, rather than in hindsight.           Id. at

396.    Actual physical injury is a factor, but not a necessary

element, of an excessive force claim.            Petta v. Rivera, 143 F.3d

895, 901-902 (5th Cir. 1998).               Rather, the proper inquiry is

whether the use of force was “grossly disproportionate to the

need[.]” Id. At 902.

       In the instant case, the officers entered a home with an

unknown    number     of   occupants    and    with   the   expectation    of


                                   -10-
encountering a dangerous suspect who was known to be involved with

drug activity.     Moreover, when the defendants entered the home one

of the plaintiffs attempted to retrieve a firearm.              The record

further reveals that the plaintiffs were detained at gunpoint for

only a short period of time and that the officers immediately

retreated from the home upon learning that Burke was not there.

Finally, the plaintiffs have not alleged any physical injury as a

result of the officers’ actions.           Considering the circumstances

surrounding the execution of this warrant and the lack of physical

injury to the plaintiffs, we conclude that the district court did

not err in finding the actions of the officers were reasonable.

                                     C.

      Because the summary judgment evidence reflects that none of

the     conduct   complained   of   by     the   plaintiffs   violated   any

constitutionally protected right of the plaintiffs, the district

court correctly granted summary judgment to the individual officers

and the county.     See Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir.

1999).

                                    III.

      The plaintiffs argue finally that the district court erred in

allowing the defendants to cross-examine plaintiff James Mason

about his wife’s (plaintiff Melissa Mason) participation in wet T-

shirt contests that took place subsequent to the filing of this

suit.    The plaintiffs claim that this evidence is irrelevant.



                                    -11-
     The defendants argue that this evidence was relevant because

Melissa    Mason   had   alleged   that    she   was   “not   sexy”    and   “not

interested in sex anymore” as a result of the defendants’ actions.

Moreover, the defendants argue that the plaintiffs opened the door

to this line of questioning by asking Melissa Mason about her lack

of sex life since the incident.

     Wet T-shirt contests are sexual in nature, and Melissa Mason’s

participation in such sex-related activities tends to contradict

her testimony that she was no longer sexual.           We therefore conclude

that the district court did not abuse its discretion in allowing

the defendants to cross-examine James Mason about his wife’s

participation in these activities.

                                     IV.

     For the reasons stated above, we affirm the district court’s

grant of summary judgment in favor of the defendants.                 We further

find no abuse of discretion by the district court on the plaintiffs

evidentiary claim.

AFFIRMED




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