* Pursuant to 5 TH C IR

. 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should not be published and is not precedent except under the limited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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 29, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60125

WILLIE B. PAYNE,

Plaintiff-Appellant,

versus

CITY OF OLIVE BRANCH; SCOTT FULWOOD,

Individually and in His official

Capacity as a Police Officer of the

City of Olive Branch; JASON SAVAGE,

Individually and in His official

Capacity as a Police Officer of the

City of Olive Branch, Mississippi;

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

Before GARWOOD, JONES and PRADO, Circuit Judges.

PER CURIAM: *

Willie B. Payne (Payne) sued the City of Olive Branch,

Mississippi (the City) and City police officers Scott Fulwood

(Fulwood) and Jason Savage (Savage) for damages arising from a1 There is some disagreement in the record as to whether the child was in

the house or in the driveway.

2 warrantless search of her hom e in the City and her arrest for

disorderly conduct in resisting the search. Payne appeals the

district court’s grant of summary judgment in favor of all of the

defendants. We affirm the summary judgment in favor of the City

and Savage, and reverse the summary judgment in favor of Fulwood.

Facts and Proceedings Below

Relev ant portions of the various proffered versions of the

facts are given here, starting with the events that are undisputed

by the parties. At about 10 p.m. on June 13, 2000, Fulwood knocked

on Payne’s door, asking for her grandson, Barron Payne (Barron).

A maroon Lexus that Barron sometimes drove was in the driveway, and

a child was at the house. 1 Payne told Fulwood that Barron was not

in the house, and Fulwood told Payne to let him in to search for

Barron. Payne replied that Fulwood needed a warrant to search her

home, and attempted to block his entry by closing the door.

Ful wood said he did not need a warrant, entered the house, and

arrested Payne. Payne was handcuffed and left in a squad car while

Fulwood and other officers, including Savage and a ca nine unit,

unsuccessfully searched her home for Barron. Fulwood took Payne to

the police station at about 10:30 p.m., booked her for disorderly

conduct, and released her just before midnight.

Barron was arrested in July of 2000 and charged with careless

driving and resisting arrest. The charges against both Payne and2 “Retired to the file” under Mississippi law means that prosecution of

a case is suspended, but the “case is subject to recall and prosecution at any

time thereafter at the discretion of the court.” C hilders v. Beaver Dam

Plantation , 360 F. Supp. 331, 334 (N.D. Miss. 1973).

3 Barron were eventually “retired to the file” over the objections of

the defendants. 2 Payne filed suit against the officers and the

City, alleging unreasonable search and seizure in violation of the

Fourth and Fourteenth Amendments against the officers, “negligent

training” in violation of the Fourth and Fourteenth Amendments

against the City, state law false arrest, false imprisonment,

intentional infliction of emotional distress and malicious

prosecution claims against the officers, and a state law malicious

prosecution claim against the City.

The excerpts from Fulwood’s deposition in the record, along

with Fulwood’s dispatch log sheet for June 13, 2000, indicate that

Fulwood was in his squad car in the parking lot of a grocery store

in the City at 9:50 p.m., assisting Savage, who had made a traffic

stop. The following sequence of events was testified to by Fulwood

in his depo sition. As he sat in the parking lot he saw a maroon

Lexus driven by Barron come down the road at excessive speed,

approximately 55 to 60 miles per hour (mph) in a 30 mph zone. It

was daylight when he saw Barron, and Barron looked directly at him,

making eye contact. Fulwood then drove out of the parking lot to

pursue the Le xus. After losing sight of the Lexus for a few

seconds after it took a fork in the road, he saw the car stopped in

Payne’s driveway, and saw Barron getting a child out of it. He4

told Barron to stop, but instead Barron ran into the house, leading

to the search and arrest described above.

The excerpts from Savage’s deposition t hat were before the

district court do not include any indication of whether Savage also

saw a speeding Lexus pass the grocery store parking lot. The

following events were testified to by Savage. During his traffic

stop at the grocery store, he heard radio traffic indicating that

Fulwood was pursuing a suspect running away on foot at Payne’s

address. After finishing the traffic stop, Savage proceeded to

Payne’s house to assist Fulwood. When he arrived at the house, a

maroon Lexus with a door open was in the driveway, a child was

standing in the driveway, and Fulwood was at the door of the house.

Savage asked Fulwood who they were looking for, and Fulwood told

him they were looking for Barron Payne.

According to the portions of Barron Payne’s deposition that

were before the district court, Barron did not admit to driving the

Lexus on the day of the search. He testified that he did not think

that he drove the Lexus that day or that he visited his grandmother

late in the day, at least to the best of his recollection. Barron

also testified that he had dro pped his son off with the boy’s

mother early in the day and did not have him again that day. Mrs.

Payne testified that both Fulwood and Savage appeared at her door

initially, rather than just Fulwood.

In addition to the events occurring the night of the search,

deposition testimony and other evidence before the district court5

involved whether the City had any policies or customs with respect

to warrantless searches. Fulwood testified that it was “common

knowledge as an officer” that he could pursue into a private home

someone who had committed a misdemeanor in his presence. He

further testified that he did not know whether there were specific

City policies covering the search. City police chief James Harris

testified that he and “probably every officer” on the force would

have entered Payne’s house under the circumstances confronted by

Fulwood. The police chief denied the existence of any city policy

addressing this situation, however. Defense expert Charles

Alexander opined in his report that the officers were “adequately

trained and supervised,” and that the City had “adopted and

implemented acceptable law enforcement policies and procedures.”

The expert drew on his experience as director of training at the

Mississippi Law Enforcement Officers’ Training Academy, where

Fulwood a nd Savage had each completed ten-week certification

courses. Barron testified to his general belief that the police

had been harassing him in numerous incidents, and Payne testified

to having been told by Barron and her other grandson about police

harassment of them and their friends.

In her pleadings and her response to the defendants’ summary

judgment motions, Payne argued that the officers violated her

clearly established right to be free from warrantless searches of

her h ome, and that the City was liable for the officers’ actions

bec ause of negligent training of the officers and deliberate6

indifference to Payne’s rights. In their answer and their motion

for summary judgment, the officers argued that the search of

Payne’s home was not unconstitutional because Fulwood’s pursuit of

Barron was an exigent circumstance justify i ng the warrantless

search. Warrantless searches, though presumptively in violation of

the Fourth Amendment, are constitutional in the event of sufficient

“exigencies of the situation [makin g] that course imperative.”

Coolidge v. New Hampshire

, 91 S.Ct. 2022, 2032 (1971). The

officers further argued that the arrest was constitutional because

Payne’s refusal to let them enter her house constituted disorderly

conduct under Mississippi law, thereby giving them probable cause

to arrest her. Finally, the officers argued that they are entitled

to qualified immunity wheth er or not there was a constitutional

violation because they had “‘arguable’ probable cause” for the

search and arrest. The City argued that it was not liable even in

the event of a constitutional violation by the officers because any

such violation was not pursuant to any City policy.

In ruling on the summary judgment motions, the district court

discounted Barro n’s testimony and assumed that the officers

believed that they were pursuing Barron when (according to Fulwood)

he fled into Payne’s house. The court held that the officers’

warrantless search of Payne’s home and subsequent arrest of Payne

were not constitutional violations, so that there was no liability

for the officers or the City. Accordingly, the court granted the7

officers’ and the City’s motions for summary judgment, and denied

Payne’s motion for partial summary judgment. Payne’s state law

claims were dismissed without prejudice to refiling in state court.

Discussion

I. Standard of Review

We review a district court’s granting of summary judgment de

novo

, applying the same standards as the district court. Morris v.

Dillard Dep’t Stores, Inc.

, 277 F.3d 743, 747 (5th Cir. 2001). In

determining whether a jury could reasonably find for the nonmoving

party, the evidence and justifiable inferences therefrom are to be

viewed in the light most favorable to the nonmovi ng party.

Anderson v. Liberty Lobby, Inc. , 106 S.Ct. 2505, 2513 (1986). In

deciding a motion for summary judgment, the court must take into

account the applicable substantive evidentiary burden. I d. at

2512–13 . The appropriate evidentiary burdens for the claims

against the officers and those against the City are discussed in

the corresponding sections below.

II. The Officers’ Summary Judgment Motion

Because the officers assert a defense of qualified immunity,

Payne has the burden to show not only a violation of a

constitutional right, but that the right was clearly established,

such that under the specific circumstanc es no reasonable officer

would have failed to realize that the complained-of actions taken

by Fulwood and Savage vi o lated Payne’s constitutional rights.8

Estep v. Dallas County

, 310 F.3d 353, 360–61 (5th Cir. 2002). The

officers argue that Fulwood’s pursuit of Barron justified their

sea rch of Payne’s home, or at least that there is not clearly

established law to the contrary. The district court held that

“whether an officer can enter a home without a warrant to pursue

a fleeing suspec t who committed a jailable misdemeanor in his

presence” is not clearly established, and that the search was

furthermore not a constitutional violation.

With respect to Savage, we agree that the record evidence does

not suffice to show that all reasonable officers in his position

would hav e realized that his conduct violated Payne’s

constitutional rights. In the case of Fulwood, on the other hand,

we conclude that there is a genuine issue of material fact as to

whether he reasonably believed that he was pursuing a suspect who

had committed a misdemeanor. If Fulwood did not reasonably believe

this, he would not be entitled to qualified immunity with respect

to the search or the arrest, because under Mississippi law it is

not a criminal offense to resist an officer making an unlawful

search of one’s home. D eaton v. State

, 102 So. 175, 176 (Miss.

1924); King v. State , 149 So. 2d 482, 483–84 (Miss. 1963).

A. Officer Fulwood

The justification proffered by Fulwood for the wa rrantless

search of Payne’s home relies critically on Fulwood’s deposition

testimony. In order for Fulwood to have qualified immunity based9

on an exigent circumstance justifying the search, he must have

reasonably be lieved that he was pursuing Barron, who had been

speeding in the Lexus, or at least someone speeding in the Lexus.

The evidence before the district court does not include any

testimony from Savage or any other witness corroborating Fulwood’s

testimony that he saw Barron speeding in the Lexus. The presence

of the Lexus at Payne’s house does not speak to the question of

whether anyone had been speeding in it (or whether Fulwood had

observed that). Fulwood’s justification for the search therefore

depends largely on the credibility of his testimony.

The inconsistencies in Fulwood’s testimony coupled wi th the

fact that Barron did not admit to driving the Lexus that day lead

us to conclude that a reasonable jury might find that Fulwood did

not reasonably believe he was pursuing a speeding Lexus. For

example, Fulwood testified that he saw Barron in broad daylight,

even though it is otherwise undisputed that the events in question

took place just before ten o’clock p.m. In the deposition excerpts

(and other summ ary judgment evidence) before the district court,

Fulwood makes no attempt to correct or explain his statement that

it was daylight. Fulwood further contends that Barron looked

directly at him and made “eye contact,” as the speeding Lexus

passed the parking lot where Fulwood was stopped in his patrol car.

Given that Fulwood estimated the speed of the Lexus at 55 to 60 mph

while his car was sitting still, Fulwood was in a parking lot3 The weak ness of the testimony comes from the limited nature of the

statement made, not the witness’s credibility or lack thereof in making it. The

district court’s discounting of the testimony as “self-serving” was inappropriate

because a co urt is not to make credibility determinations in deciding summary

judgment motions. Anderson

, 106 S.Ct. at 2513; Goodson v. City of Corpus Christi

, 202 F.3d 730, 739 (5th Cir. 2000).

10 rather than next to the Lexus on the road, both people were in cars

rather than either of them being out in the open, and it was nearly

10 p.m., the ability to make eye contact is at least questionable.

Barron’s testimony that he was not driving the Lexus that day

and that he did not go to his grandmother’s house that evening is

equivocal in that he qualified most statements by saying that at

least he did not remember doing the things asked about. This

testimony might not be sufficient to withstand summary jud gment

alone, 3 but in combination with the inconsistencies in Fulwood’s

testimony it gives rise to a genuine issue of material fact, at

least on the present record.

B. Officer Savage

According to the deposition excerpts t hat were before the

district court, Savage learned from police radio traffic that

Fulwood was pursuing someone fleeing on foot at Payne’s house.

After arriving at the house, he learned from Fulwood that the

person was Barron Payne. The parts of Savage’s testimony in the

record do not exhibit inconsistencies like those in Fulwood’s

testimony. Furthermore, receiving information that a suspect is

fleeing from a police officer on foot would allow an officer in

Savage’s position to reasonably assume that the suspe ct had4 In fact, an officer hearing radio traffic about a suspect fleeing on foot

might be relatively unlikely to assume that the underlying offense was a traffic

violation.

11 committed an arrestable offense, potentially a jailable misdemeanor

or a felony. 4

A warrantless search in pursuit of such a suspect is not a

clearly established constitutional violation. Although numerous

Supreme C ourt decisions have noted that “searches and seizures

inside a home without a warrant are presumptively unreasonable”

under the Fourth A mendment, e .g., Welsh v. Wisconsin

, 104 S.Ct.

2091, 2097 (1984), “exigencies of the situation” maki ng it

imperative to proceed without a warrant constitute exceptions to

the presumption, Coolidge v . New Hampshire , 91 S.Ct. 2022, 2032

(1971). “Hot pursuit” of a suspect is recognized as an exigency

justifying a warrantless search, United States v. Santana

, 96 S.Ct.

2406, 240 9–10 & n.3 (1976), and Savage could have reasonably

believed, based on the police radio traffic, that the officers were

in hot pursuit of a suspect. The Supreme Court has subsequently

described Santana as involving hot pursuit of a fleeing felon, and

held that a warrantless entry into a suspect’s home to arrest him

for a civil traffic offense was prohibited by the Fourth Amendment.

Welsh

, 104 S.Ct. at 2097–2100. An officer hearing about a suspect

fleeing an officer on foot could reasonably believe that a more

serious offense was involved, however, such as a jailable

misdemeanor or a felony. Cf. Johnson v. Deep E. Texas Reg’l12

Narcotics Trafficking Task Force , 379 F.3d 293, 305 (5th Cir.

2004).

Savage is entitled to qualified immunity for the search as

l ong as “a reasonable officer could have believed

. . . [his]

warrantless search to be lawful, in light of clearl y established

law and the information the searching officer possessed.” Johnson

,

379 F.3d at 301–02 (quoting Anderson v. Creighton

, 107 S.Ct. 3034,

3040 (1987)). A reasonable officer in Savage’s position could have

believed the search to be lawful, for the reasons discussed above.

There is nothing in the record to support a contrary conclusion.

Such an officer could therefore also believe that the warrantless

arrest of Payne was lawful, because under Mississippi law failing

to obey the ord er of a police officer constitutes disorderly

conduct. M I SS

. C ODE A NN

. § 97-35-9. As noted by the district court,

the Supreme Court has held that an offi cer may arrest a person

without a warrant if there is probable cause that the person

committed any offense in the officer’s presence. Atwater v. City

of Lago Vista

, 121 S.Ct. 1536, 1557 (2001). Payne did not sustain

her burden of producing summary judgment evidence sufficient to

s upport a finding that Savage lacked qualified immunity. Savage

was therefore correctly granted summary jud gment with respect to

Payne’s arrest and the search of her home.

Because genuine issues of material fact remain with respect to

Fulwood’s assertion of qualified immunity, we reverse the grants of13

s ummary judgment to him and remand for further proceedings

consistent with this opinion. The district court dismissed Payne’s

state law claims pursuant to 28 U.S.C. § 1367(c)(3) because it had

dismissed all of Payne’s federal claims. Since we reverse the

dismissal of Payne’s federal claims with respect to Ful wood, we

also reverse the dismissal of Payne’s state law claims against

Fulwood.

III. The City’s Summary Judgment Motion

To establish liability under 42 U.S.C. § 1983 on the part of

the City, Payne must show that any constitutional violation by the

officers was done pursuant to City policy. “Policy” in this

context means either an official policy adopted and promulgated by

a city policymaker, or a “persistent, widespread practice” of

officials or employees which “is so common and well settled as to

constitute a custom that fairly represents municipal poli c y.”

Johnson

, 379 F.3d at 309; Webster v. City of Houston

, 735 F.2d 838,

841 (5th Cir. 1984). For a “custom” as described above to

constitute a policy, a city policymaker must have either actual or

c onstructive knowledge of it, where a policymaker is a lawmaking

officer or “an official to whom the lawmakers have delegated

policy-making authority.” Johnson , 379 F.3d at 309; Webster , 735

F.2d at 841.

No evidence of an off icial policy regarding warrantless

searches has been presented. In fact, to the extent Payne14

discusses policy with regard to the search, it is to assert that

the officers acted contrary to city policy ( such as by not using

lights and sirens and by persisting in an allegedly unjustified

pursuit). Payne argues that Fulwood’s assertion that his right to

search Payne’s house was “common knowledge as a officer,” the

police chief’s statement that he and any officer would likely have

done the same as Fulwood, and the City’s alleged practice of

leaving decisions on handling situations like that at Payne’s house

to the officers’ discretion show the existence of a custom.

However, given that there is no evidence that a search under any

even arguably similar circumstances had ever happened in the City

or by its officers before, this argument c annot establish the

requirement that a custom involve a persistent, widespread

practice. Payne’s testimony indicates that on one prior occasion

Savage came to her house with Fulwood’s brother (also a police

officer, it appears) looking for Barron. Although there is the

similarity that the officers apparently did not give her a reason

that they were looking for Barron, they did not force their way

into her home on that occasion because she invited them in to look

for Barron. There is simply no evidence of a persistent,

widespread practice of officers insisting on warrantless searches

of homes. Indeed, there is no evidence of a ny practice of even

arguably unconstitutional searches of residences or businesses.15

Even if the City’s practice of leaving decisions on whether to

search to an officer’s discretion could constitute a policy, such

a policy would not be facially unconstitutional, and Payne would

therefore have to show that t he City acted with deliberate

indifference to the likelihood of constitutional violations.

Piotrowski v. City of Houston , 237 F.3d 567, 579 (5th Cir. 2001);

Johnson

, 379 F.3d at 309. The inadequate training alleged by Payne

is a type of deliberate indifference claim. Bd. of County Comm’rs

v. Brown

, 117 S.Ct. 1382, 1390 (1997). A plaintiff must ordinarily

“demonstrate at least a pattern of similar violations” to show

deliberate indifference. J ohnson

, 379 F.3d at 309 ( internal

quotation omitted). Payne has not established such a pattern,

since there is no evidence of any other searches even arguably like

the one of her home. Nor is there any evidence of any particular

training inadequacy as to these officers.

With regard to warrantless ar rests, the City’s brief

acknowledges a police department general order stating that an

officer may arrest a person without a war rant for offenses

inc luding “a breach of peace threatened or attempted” in the

officer’s presence. This order mirrors the language of

Mississippi’s disorderly conduct law, see M ISS

. C ODE A NN

. § 97-35-9,

and is not in violation of the Fourth Amendment. Probable cause to

arrest Payne might be lacking if the officers were f ound not to

have reasonably bel ieved they were conducting a lawful search,16

since Pay ne’s resistance would not constitute an offense if the

search was unlawful. But in that event, the officers would not

have been acting pursuant to the policy, because there would have

been no breach of the peace threatened or attempted.

Because Payne has not established tha t any constitutional

violations by the officers occurred pursuant to City policy within

the meaning of 42 U.S.C. § 1983, th e district court’s grant of

summary judgment in favor of the City is affirmed.

Conclusion

Because on this record a genuine issue of material fact exists

with regard to whether Fulwood is entitled to qualified immunity,

the grant of summary judgment in favor of Fulwood is REVERSED, as

is the dismissal of the state law claims against him. The grants

of summary judgme nt in favor of Savage and the City and the

dismissal of state law claims against them are AFFIRMED.

AFFIRMED in part; REVERSED and REMANDED in part.