IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________
m 01-60699 _______________
BIMALDEEP KAUR AUJLA, INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF CHARANJIT S. AUJLA, AND AS GUARDIAN AND NEXT FRIEND OF KHUSH KANWAR DEEP AUJLA AND NAVKETAN AUJLA,
Plaintiff-Appellant,
VERSUS
HINDS COUNTY, MISSISSIPPI; JOSEPH E. LAUDERDALE, IN HIS OFFICIAL CAPACITY; DOUGLAS ANDERSON, IN HIS OFFICIAL CAPACITY; PEGGY HOBSON, IN HER OFFICIAL CAPACITY; RONNIE CHAPPELL, IN HIS OFFICIAL CAPACITY; GEORGE S. SMITH, IN HIS OFFICIAL CAPACITY; MALCOLM E. MCMILLAN, SHERIFF, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; LEON SEALS, DEPUTIES, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, ALSO KNOWN AS JOHN DOES, PEGGY HOBSON CALHOUN, IN HER OFFICIAL CAPACITY, ANDREW MCKINLEY, RICKY BARNER, AND ROBERT MAHAFFEY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
Defendants-Appellees. _________________________
Appeal from the United States District Court for the Southern District of Mississippi _________________________
February 11, 2003
Before JONES, SMITH, and to minors.1 The officers targeted two stores, SILER,* Circuit Judges, the market, where Aujla worked, and a gas station up the road. Four members of the JERRY E. SMITH, Circuit Judge:** Hinds County Vice and Narcotics Unit partici- pated in the operation: Andrew McKinley, This 42 U.S.C. § 1983 case arises from the Robert Mahaffey, Ricky Barner, and Leon shooting death of Charanjit S. Aujla (“Aujla”) Seals, all deputy sheriffs. at the hands of deputies of Hinds County while he was a clerk at the N.S. Food Market (“the McKinley accompanied a wired minor into market”) in Jackson, Mississippi. Aujla’s the gas station and allowed the minor to pur- widow, Bimaldeep Aujla (“plaintiff”), sued the chase cigarettes from a clerk there. The depu- county, the county supervisors, the head ties did not immediately arrest the clerk; in- Sheriff, and four deputiesSSraising both federal stead, they tagged the evidence and proceeded and state claims. The district court granted to the market. The same procedure was re- summary judgment for all defendants and peated, although Aujla allegedly sold beer and denied plaintiff’s cross-motion for summary cigarettes to the minor. The deputies then judgment on her false arrest claim. Finding no returned to the gas station and arrested the error, we affirm. clerk, and arrested an employee of a food franchise located in the gas station for interfer- I. ing with the arrest of the clerk. The shooting arose from an operation of the Hinds County Sheriffs Department aimed The two arrestees were transported to the at store owners selling tobacco and/or alcohol market, where they remained during the events leading to Aujla’s death. When the deputies entered the store, they were clothed in brown wind breakers, which on the front sported a patch resembling a badge and on the back * were lettered either with “Sheriff’s Office Circuit Judge of the United States Court of Narcotics” or “Sheriff’s Dept.” Appeals for the Sixth Circuit, sitting by designa- tion. The deputies’ combined version of the ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- 1 lished and is not precedent except under the limited Both are illegal in Mississippi. MISS. CODE circumstances set forth in 5TH CIR. R. 47.5.4. ANN. §§ 97-32-5; 67-1-81 (2001).
2 events inside amounts to the following: When matter of law.” FED. R. CIV. P. 56(c). All they entered, they found Aujla at the register inferences from the record must be construed and behind a plexiglass divider that cordoned in the light most favorable to the non-movant. off one end of the store. Barner approached a Matsushita Elec. Indus. Co. v. Zenith Radio door in the plexiglass divider. The officers Corp., 475 U.S. 574, 587-88 (1986); Walker then informed Aujla that they were there to v. Thompson, 214 F.3d 615, 624 (5th Cir. arrest him for the sale of alcohol and tobacco 2000). To avoid summary judgment, there to a minor. Finding the door locked, the dep- must be evidence in the record sufficient to uties asked Aujla to unlock it. sustain a finding in favor of the non-movant. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 Instead, Aujla reached under the counter. (5th Cir. 1994) (en banc). McKinley drew his weapon and ordered Aujla to raise his hands and back away from the IV. counter. Seals then showed Aujla the back of Plaintiff presents two federal claims through his jacket and repeated the reason for the ar- § 1983: false arrest and excessive force. The rest. Barner again tried the door and found it false arrest claim is based on the deputies’ locked. Aujla ducked down, grabbed a gun failure to follow Mississippi law with regard to from under the counter, and pointed it at Bar- making an arrest for a misdemeanor committed ner. Someone yelled “gun,” and McKinley in their presence, but only after a substantial fired at Aujla. Barner also fired his weapon, as gap of time (here sixty to ninety minutes).2 did Aujla. Two shots struck Aujla in the head, killing him. Mississippi law, however, does not provide a basis for § 1983 liability. Section 1983 is a II. guarantor of federal, not state, rights. As we Plaintiff sued under federal and state law explained in Fields v. City of South Houston, and offers theories of recovery of § 1983 Tex., liability for alleged violations of illegal arrest and excessive force and state tort claims for a federal civil rights action will not lie false arrest and intentional infliction of emo- for a warrantless misdemeanor arrest in tional distress (“i.i.e.d.”). The court granted violation of state law. Section 1983 is a summary judgment to all defendants on all federally created cause of action to re- claims and denied plaintiff’s cross-motion for dress civil rights violations. ‘The states summary judgment on the state false arrest are free to impose greater restrictions on claim. arrests, but their citizens do not thereby
III. We review summary judgments using the 2 See Smith v. State, 87 So. 2d 917, 919 (Miss. same standards as did the district court; thus 1956) (“If, however, the officer witnesses the our review is de novo. Walton v. Alexander, commission of an offense and does not arrest the 44 F.3d 1297, 1301 (5th Cir. 1995) (en banc). offender, but departs on other business, or for other Summary judgment is proper where “there is purposes, and afterwards returns, he cannot then no genuine issue as to any material fact and the arrest the offender without a warrant; for then the moving party is entitled to a judgment as a reasons for allowing the arrest to be made without a warrant have disappeared.”).
3 acquire a greater federal right.’ First, plaintiff maintains that the conduct of the deputies in arresting the clerk and cook at 922 F.2d 1183, 1189 (5th Cir. 1991) (quoting the gas station before trying to arrest her hus- Street v. Surdyka, 492 F.2d 368, 371-72 (4th band demonstrate a “raid” mentality to the Cir. 1972)). operations and an overzealousness in carrying them out. She draws particular attention to Regardless of the merit of plaintiff’s claim the arrest of the cook, Quinn, who claims to that the deputies violated Mississippi law, her have done nothing but ask the deputies what § 1983 claim will survive only if the deputies to do with the store when they removed the acted contrary to the Fourth Amendment in ar- clerk for selling cigarettes to the undercover resting her husband. Under the facts as al- minor. leged, Aujla’s rights, as protected by § 1983, were transgressed only if the deputies arrested Second, plaintiff notes her husband’s blank him without probable cause. Price v. Roark, criminal record, his fear of crime (thus the gun 256 F.3d 364, 369 (5th Cir. 2001). When an and plexiglass divider), and the deputies’ use officer observes the commission of a crime, he of unmarked cars and minimally-marked uni- has probable cause to make a warrantless ar- forms. These facts, she avers, shed a different rest. United States v. Rojas, 671 F.2d 159, light on her husband’s act of drawing a gun on 165 (5th Cir. Unit B 1982).3 the deputies. Instead of a man violently pro- testing his arrest for a misdemeanor, plaintiff Plaintiff does not, nor can she, seriously contends these facts reflect a situation in which challenge, on federal grounds, the authority of Aujla was defending his store (and life) against the deputies to arrest her husband for illegally a perceived robbery. selling alcohol and cigarettes to a minor. Ac- cordingly, summary judgment on the federal Excessive force cases arising in the context false arrest claim was proper. of an arrest are analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. The heart of plaintiff’s federal claim is her 386, 394 (1989).4 This means the force, even argument that the officers used excessive force if deadly, is justified only if objectively reason- in attempting to arrest her husband. Her argument rests almost entirely on assumptions 4 about how the events of December 4 tran- The elements of an excessive force claim spiredSSassumptions that differ from the ac- under § 1983 are counts given by the deputies. The highlights of her take on the events of that day follow. (1) an injury [that]
(2) resulted directly and only from the use of force that was clearly excessive to the 3 The Fourth Amendment does not prohibit need; and the excessiveness of which was arrests even for minor misdemeanors. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If (3) objectively unreasonable. an officer has probable cause to believe that an individual has committed even a very minor crimi- Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.), nal offense in his presence, he may, without violat- opinion on rehearing, 186 F.3d 633 (5th Cir. ing the Fourth Amendment, arrest the offender.”). 1999).
4 able fro m the perspective of an officer in the movant should be given credence to the degree same situation that faced the defendants. Id. at it is unimpeached, uncontradicted, and “comes 396. More specifically, “if the suspect threat- from disinterested witnesses.” Reeves v. ens the officer with a weapon . . . deadly force Sanderson Plumbing Prods., Inc., 530 U.S. may be used if necessary to prevent escape, 133, 150 (2000). Also, summary judgment and if, where feasible, some warning has been should not be granted on the basis of “meta- given.” Tennessee v. Garner, 471 U.S. 1, 11- physical doubt.” Matsushita, 475 U.S. at 587. 12 (1985). Because deadly force may be used to stop some escapes, it also may be used to We have interpreted these commands to stifle a t hreat to the life of officers. Stroik v. prohibit summary judgment where “the credi- Ponseti, 35 F.3d 155, 159 (5th Cir. 1994). bility of key witnesses loom[s] . . . large.” This is the case even where the decedent turns Thomas v. Great Atl. & Pac. Tea Co., 233 out to be unarmed but the officer reasonably F.3d 326, 331 (5th Cir. 2000). In the context feared for his own safety.5 of an excessive force fatal shooting, we have found a genuine dispute of material fact where There is no dispute that Aujla discharged a the only other witness to the shooting was gun during the exchange of fire resulting in his dead. Bazan v. Hidalgo County, 246 F.3d 481 death. Thus, the deputies’ use of deadly force (5th Cir. 2001). The significance of Bazan, was justified to protect their safety. Only if however, should not be overstated. Although the deputies somehow created the need to use there was no living person to offer another ac- deadly force would this line of reasoning fail. count of the events immediately preceding the This self-created danger, though, cannot be shooting, the court noted an absence of evi- premised on mere negligence. Fraire v. City dence corroborating the trooper’s version of of Arlington, 957 F.2d 1268, 1276 (5th Cir. events. Id. at 492-93. 1992). Indeed, “no right is guaranteed by federal law that one will be free from circum- This case is different. Critically, plaintiff stances where he will be endangered by the points to nothing in the summary judgment misinterpretation of his acts.” Young v. City of record that casts doubt on the veracity of the Killeen, Tex., 775 F.2d 1349, 1353 (5th Cir. deputies’ version of the events. At most, 1985). plaintiff’s speculations might lead a jury to conclude that the deputies were negligent in There is no positive evidence of the depu- the way they decided to effect the arrest. ties’ recklessness; only plaintiff’s suppositions Doubtless it is true that a vice team should not are offered to create disputes over relevant be required to arrest someone who is sus- facts. The narrow question is whether sum- pected merely of a routine regulatory offense. mary judgment can be defeated simply by tell- The Constitution, though, affords no protec- ing a story different from that offered by the tion against being put in a difficult situation by existing testimony. Evidence that supports the virtue of police negligence.
Accordingly, we affirm summary judgment 5 Reese v. Anderson, 926 F.2d 494 (5th Cir. for the deputies in their individual capacities 1991) (unarmed decedent repeatedly disobeyed on the excessive force claim. Finding no lia- officer’s command to keep hands raised by putting bility on the part of the deputies, we also af- them below officer’s sight line and into car).
5 firm summary judgment for the officers in their criminal activity at the time of injury. official capacities and for the county and its officials. MISS. CODE ANN. § 11-46-9(1),(1)(c) (2001).
V. Plaintiff does not offer a coherent argument Plaintiff also asserts two state law claims that any deputy involved in the fatal shooting against defendants: illegal arrest and i.i.e.d. of her husband was acting outside his official Her claim for illegal arrest stems exclusively duties.7 As discussed above, the actions of the from a single decisionSSSmith v. State, 87 So. officers, even giving credence to all of plain- 2d 917 (Miss. 1956). Smith requires an officer tiff’s speculation, did not act recklessly in making a warrantless arrest for a misdemeanor attempting the arrest. offense to do so “as quickly after the commis- sion of the offense as the circumstances will Finally, when the deputies shot him, Aujla permit.” Id. at 919. The deputies attempting was committing a crimeSSassault of a law to arrest Aujla violated this procedure. The enforcement officer. MISS. CODE ANN. remedy for such a violation, though, is to ex- § 97-3-7 (2001). By pointing a loaded weap- clude the evidence obtained from such an ar- on at Barner and then discharging it, Aujla ob- rest. Id. This violation of Mississippi law cannot serve as a basis for § 1983 liability; nor, 7 under Smith, for monetary liability under state Because the deputies were acting within their law.6 official duties, they are not subject to suit in an individual capacity. Plaintiff also claims a cause of action for in- An employee may be joined in an action tentional infliction of emotional distress against against a governmental entity in a represen- all defendants. Mississippi has enacted a tative capacity if the act or omission com- limited waiver of its sovereign immunity. plained of is one for which the governmental MISS. CODE ANN. § 11-46-3 (2001). Liability entity may be liable, but no employee shall will not lie against be held personally liable for acts or omis- sions occurring within the course and scope A governmental entity and its employees of the employee’s duties. For the purposes acting within the course and scope of of this chapter an employee shall not be their employment . . . (c) arising out of considered as acting within the course and any act or omission of an employee of a scope of his employment and a governmen- governmental entity engaged in the tal entity shall not be liable or be considered performance or execution of police or to have waived immunity for any conduct of fire protection unless the employee act- its employee if the employee's conduct constituted fraud, malice, libel, slander, ed in reckless disregard of the safety and defamation or any criminal offense. well-being of any person not engaged in MISS. CODE ANN. § 11-46-7(2) (2001). See Holmes v. Defer, 722 So. 2d 624 (Miss. 1998) 6 Because we reject any liability under state law (officer who shot suspect in self-defense was acting for any defendant, we also affirm the denial of within his official duties), overruled on other plaintiff’s cross-motion for summary judgment on grounds, Carr v. Town of Shubuta, 733 So. 2d the state false arrest claim. 261 (Miss. 1999).
6 viously was “engaged in criminal activity.” The technical violation of Mississippi arrest procedure does not change this; Aujla’s act of aiming a loaded gun at Barner was an aggra- vated assault regardless of the propriety of arrest.8 All defendants are thus immune from suit under any state law theory of recovery.
AFFIRMED.
8 Watkins v. State, 350 So. 2d 1384 (Miss. 1977) (affirming conviction for aggravated assault of a police officer when defendant aimed a shotgun at officer and pulled the trigger despite lack of probable cause for initial stopSSthe gun was unloaded).
7 EDITH H. JONES, Circuit Judge, dissenting:
With due respect to my colleagues, I would reverse and remand for trial Mrs. Aujla’s § 1983
excessive force claim based on the presence of genuine issues of material fact. I therefore respectfully
dissent only on this critical holding.
This case is unlike any other § 1983 deadly force cases that have come before this court. A
jury might well conclude that in this tragic case of apparent mistaken identity, four overbearing,
heavily-armed and essentially disguised sheriff’s deputies gave Aujla no real opportunity to
understand what was happening when they entered his store. A jury could consequently conclude
that unconstitutionally excessive force was used in the arrest far disproportionate to the “crime” Aujla
committed, and that it was used in such a manner as to provoke a self-defense response from Aujla,
escalating what should have been a ticketed offense into a deadly confrontation. Finally, a reasonable
jury could conclude that no reasonable law enforcement officer would have employed the tactics used
in this case to storm a convenience store in informal raid gear for a minor offense.
The majority’s recitation of the applicable law is essentially correct. I do, however, take issue
with their application of relevant authorities to the facts, and I object to their confining the evidence
to a brief snapshot immediately before Aujla was provoked to shoot.
The basic issues here are whether the deputies used excessive force to arrest Aujla for selling
beer and cigarettes to a minor and whether the deputies are shielded by qualified immunity even if
they did use excessive force.
The majority offer a barebones narrative of the shooting while ignoring significant evidence
and inconsistencies among the deputies’ testimony. Pertinent to the excessive force balancing test
8 are t he facts (not merely “a different story” as the majority characterizes them) that Aujla’s
misdemeanor offense of selling beer and cigarettes to a minor is usually punished by a small fine.
Aujla had no prior criminal record or any record of violent conduct. His store was located in a high
crime area. He had been robbed at gunpoint four times and shot at during one of those crimes.
The majority imply that the deputies’ official status was known by Aujla, but a jury could
easily conclude otherwise. One of the deputies sported a beard, another a baseball cap, and they all
wore jeans and brown windbreakers, some of which may have had insignia on the front that, if visible
at all, were not legible from more than a couple feet away.9 At least one deputy had a pistol holstered
to his leg. During the confrontation, one deputy turned 90 degrees toward Aujla to show him much
larger sheriff’s department lettering on the back of his jacket, but it cannot be determined whether
Aujla saw the embroidery due to the deputy’s position and the fact that a gun had been drawn on
Aujla at that time.
Four deputies descended simultaneously on Aujla’s store to make the arrest. Their accounts
of the ensuing events are not consistent as to who said or did what during the raid, and they are
inconsistent with the accounts of witnesses outside the store. Whether the shooting began in 10-20
seconds or up to a minute after the deputies entered the store is not clear. Whether Aujla heard, from
behind his plexiglass safety window, one or more of the deputies state that they were from the
sheriff’s department is unclear. What provoked Aujla to reach for a pistol is unclear, although Deputy
McKinley acknowledged that he drew a gun on Augla when Augla ran to a counter and reached
9 Photographs of the deputies, taken shortly after the raid, show that seen from the front, from a few feet away, they did not look like law enforcement personnel.
9 under it as if he were trying to pick something up. There is disputed evidence concerning such basic
facts about the circumstances of the arrest.
Here, too, we have a template of the arrest tactics used against Aujla. It consists of the
testimony of the witnesses arrested in a comparable bust only an hour before the storming of the store
where Aujla worked. One witness was the store clerk, a suspect like Aujla for selling beer to a minor,
and the other witness a cook in an adjoining store who came over to help his friend when the SWAT
team arrived at their establishment. The cook was arrested for “interfering” with events that, to him,
did not resemble an ordinary arrest. In my view, what the SWAT team did in an identical raid for an
identical violation on identical premises in an identical part of town on the same morning, immediately
before their raid on Aujla’s store, helps to fill the gap left by the silence of their victim.
In § 1983 deadly force cases, the evidence must be sifted carefully when it derives from a self-
interested source –– the defendant law enforcement officer –– and the victim cannot respond because
he is dead. So this court held in Bazan, as it agreed that genuine, material fact issues were raised by
the credibility of the police officer who was the only witness to his fatal shooting of a drunk driving
suspect. Bazan v. Hidalgo County, 246 F.3d 481, 492-93 (5th Cir. 2001). The majority urges that
Bazan “should not be overstated,” because there was “an absence of evidence corroborating the
trooper’s version of events.” The majority go on to reason, albeit without any corroborating evidence
in this case, that the conflicting testimony of four self-interested witnesses is more trustworthy than
that of one. I am not persuaded.
The majority’s ultimate point is that a citizen has no constitutional right to be free from a
negligently executed arrest. I do not disagree with the general principle, but none of the excessive
10 force cases relied on by the majority is like this one. None involves a strong likelihood of mistaken
identity of police by the victim. None involves a citizen who had no reason to believe he would be
approached for arrest by a band of armed officers in informal raid gear. None involves the execution
of a preconceived arrest plan that called for the deputies to behave as if they were invading a crack
house. Instead, the victims in Fraire10 and Bazan, supra, were pulled over while driving under the
influence of alcohol, and in Young11, the victim was escaping from the scene of a drug deal. The
Supreme Court has explained that the constitutional reasonableness of a seizure depends on balancing
the extent and quality of the intrusion on the individual’s interests against the importance of the
relevant governmental interests. Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85
L.Ed.2d 1, 7 (1985). Reasonableness depends in part on how the seizure is carried out. Id. The
majority appears to agree that seizure of Aujla’s person- and life- began with bizarrely disproportion-
ate arrest tactics.12 A jury should decide whether those tactics misled Aujla into believing he had to
defend himself against lawless attack. There is a fact issue whether the extent and quality of the
deputies’ “intrusion” was constitutionally unreasonable.
Finally, it is also settled law that some conduct may be objectively unreasonable even without
caselaw directly in support. McClendon v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002) (en
banc) (“[S]tate officials can still be on notice that their conduct violates established law, even in novel
factual circumstances.”). A jury could conclude that no reasonable law enforcement officers would
10 Fraire v. City of Arlington, 957 F.2d 1268, 1270 (5th Cir. 1992). 11 Young v. City of Killeen, 775 F.2d 1349, 1351 (5th Cir. 1985). 12 “Doubtless it is true that a vice team should not be required to arrest someone who is suspected merely of a routine regulatory offense.”
11 effectuate an arrest for a routine regulatory offense by storming a place of business in informal garb
while armed and misleading the single suspect into believing that he had to defend himself. If this
version of the facts were accepted by the jury, a § 1983 verdict should be upheld against the deputies.
I respectfully DISSENT.