IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60081

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 

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2019

Lyle W. Cayce

Clerk

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2

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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Plaintiffs2 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-andidentify 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 stopand-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 vagrancyrelated 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

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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

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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.

 Case: 18-60081 Document: 00515045032 Page: 17 Date Filed: 07/23/2019