Foust v. McNeill

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 01-60774
_______________

IN THE MATTER OF:

BOBBY RAY FOUST AND CATHY FOUST,

Debtors.

BOBBY RAY FOUST; CATHY FOUST; AND DONALD O. SIMMONS,

Appellants,

VERSUS

DAN C. MCNEILL; LAMAR THIGPEN; AND PEARL RIVER COUNTY,

Appellees.

_________________________

Appeal from the United States District Court
for the Southern District of Mississippi

_________________________
November 12, 2002
Before DAVIS, SMITH, and BENAVIDES, fendants to appear” in the circuit court on
Circuit Judges. April 6, 1998, to respond to the Seals’ com-
plaint. The clerk issued a writ that conformed
JERRY E. SMITH, Circuit Judge: to these requirements.

The sheriff’s office of Pearl River County, On February 18, Gerald Seal delivered cop-
Mississippi, executed a writ of replevin by ies of the pleadings and orders to the sheriff’s
seizing Bobby and Cathy Foust’s convenience office. At the time, Dan McNeill was the sher-
store and permitting a creditor to repossess the iff and employed Lamar Thigpen as a civil
inventory. The writ directed the officers to deputy. Thigpen served all civil process, in-
take only the fixtures, inventory, and equip- cluding writs of replevin, in the south end of
ment; state law required them to hold the per- the county. He had been employed by the
sonal property for two days following seizure. county for over eight years but had not re-
Disregarding both limits, the officers seized the ceived training in the service of civil process.
premises and turned over the inventory im- Thigpen testified that he was not familiar with
mediately. The bankruptcy court held that the specific requirements of the Mississippi re-
these actions did not violate the Bankruptcy plevin statute; he consulted with Seal’s at-
Code, the Fourteenth Amendment’s Due Pro- torney and other members of McNeill’s staff
cess Clause, the Fourth Amendment, or Missis- before serving the writ.
sippi’s replevin statute. The district court af-
firmed. We affirm in part, reverse in part, and Thigpen initially served the writ on Cathy
remand. Foust and her mother, who were working at
the store. Thigpen requested permission to
I. lock the door and seize the premises, but Ca-
On February 17, 1998, Gerald Seal and his thy Foust refused. She and her mother then
wife, Diane Seal, filed an ex parte complaint called Bobby Foust to advise him that Thigpen
for replevin in the circuit court of Pearl River was closing the store, having the locks
County, Mississippi, alleging that Bobby Ray changed, and locking the premises. Thigpen
Foust and his wife, Cathy Foust, had executed and McNeill testified that they commonly
an installment promissory note secured by in- seized premises when they could not find a
ventory and certain furniture, fixtures, and place to store the seized items.
equipment located in a convenience store in
Mississippi. According to the complaint, the Thigpen then allowed Gerald Seal to re-
Fousts had defaulted on the note, and under its move all the inventory and place it in storage
terms, the Seals were entitled to possession of sheds on the property of Seal and his father.
the collateral. The sheriff does not have a warehouse to store
items seized pursuant to writs of replevin.
The circuit judge ordered the clerk to issue
a writ of replevin and directed the sheriff “to On February 19, the Fousts filed a volun-
immediately seize and take into their posses- tary petition for chapter 13 bankruptcy and
sion the property described . . . and to deliver served notice of the filing on McNeill. At
said property to the Plaintiffs unless bonded by seven o’clock that evening, Thigpen met the
the Defendants, and to summon the said De- Fousts at the store and turned over the keys

2
but did not return the inventory he had given II.
to Gerald Seal. Upon notification of the filing, The Fousts agree with the conclusions of
Seal refused to return the inventory. the bankruptcy and district courts that McNeill
and Thigpen qualified as “custodians” under
The Fousts’ bankruptcy complaint alleged 11 U.S.C. § 101(11),1 making the require-
that McNeill, Thigpen, and the county had ments of 11 U.S.C. § 543 applicable. On ap-
violated the Bankruptcy Code by failing to peal, however, the Fousts argue that McNeill
turn over the property promptly and provide and Thigpen failed to comply with § 543’s
an accounting. The Fousts also sued for dam- turnover and accounting requirements. The
ages under 42 U.S.C. § 1983, alleging that the summary judgment, including the bankruptcy
writ of replevin violated their rights under the and district courts’ interpretations of statutes,
Fourth and Fourteenth Amendments. Finally, are reviewed de novo. See Carney v. Internal
the Fousts claimed that McNeill and Thigpen Revenue Serv. (In re Carney), 258 F.3d 415,
had violated the requirements of Mississippi’s 417-18 (5th Cir. 2001) (summary judgment);
replevin statute. Samson v. Apollo Res., Inc., 242 F.3d 629,
633 (5th Cir.) (statutory interpretation), cert.
The bankruptcy court dismissed most of the denied, 534 U.S. 825 (2001).
Fousts’ claims at summary judgment, holding
that McNeill and Thigpen had complied with A.
the Bankruptcy Code by turning over the keys Section 543(b) imposes a straightforward
to the premises as soon as they learned of the turnover obligation: The custodian must “de-
filing. The court held, however, that McNeill liver” to the estate “any property of the debtor
and Thigpen had a duty to provide an account- . . . that is in such custodian’s possession,
ing to the estate. The court ruled that McNeill custody or control on the date that the
and Thigpen had quasi-judicial, absolute im- custodian acquires knowledge of the com-
munity and dismissed the federal, constitu- mencement of the case.” 11 U.S.C. § 543(b)-
tional claims against the individual defendants (1). The Fousts admit that Thigpen retained
in their personal capacities. The court also
found that Mississippi state law immunized
1
McNeill, Thigpen, and the county from liability The subsection defines a custodian as
for executing the judicial order. The bank-
ruptcy court therefore granted defendants’ (A) receiver or trustee of any of the property
motion for summary judgment on all claims of the debtor, appointed in a case or
but the accounting. proceeding not under this title; (B) assignee
under a general assignment for the benefit of
The district court affirmed for substantially the debtor’s creditors; or (C) trustee, re-
ceiver, or agent under applicable law, or un-
the same reasons and dismissed the action.
der a contract, that is appointed or
The court failed, however, explicitly to rule authorized to take charge of property of the
whether the Bankruptcy Code might require debtor for the purpose of enforcing a lien
Thigpen and McNeill to provide an account- against such property, or for the purpose of
ing. general administration of such property for
the benefit of the debtor’s creditors.

11 U.S.C. § 101(11).

3
“possession” and “control” of the keys to the Thigpen lacked possession or control at the
premises only after they filed bankruptcy. time he learned of the filing, therefore, does
Thigpen turned over the keys to the Fousts on not preclude his obligations under the statute.
the same day that they filed for bankruptcy; he We accordingly reverse that portion of the
already had turned over the inventory to the district court’s decision.2
Seals, so it was no longer in his possession or
control. III.
The Fousts cite no authority, and have no The Fousts argue that the district court im-
colorable argument, for the proposition that properly dismissed the federal constitutional
Thigpen or McNeill failed to satisfy his deliv- claims against McNeill and Thigpen in their
ery obligations. Nothing in § 543 indicates a individual capacities. The bankruptcy and dis-
turnover obligation for items no longer in the trict courts found that the judicial writ created
“possession” or “control” of a custodian at the absolute immunity for actions taken in accor-
time he acquires knowledge of a bankruptcy, dance with its requirements and that all of
regardless of whether the prior loss of “posses- Thigpen and McNeill’s actions fell within its
sion” or “control” was proper. We therefore scope. The Fousts argue, to the contrary, that
affirm as to this question. absolute immunity should not extend to ac-
tions taken by Thigpen and McNeill that were
B. not explicitly required by the writ.
Section 543(b)(2) requires the custodian to
“file an accounting of any property of the debt- Absolute immunity can extend to govern-
or . . . that, at any time, came into the posses- ment officials who perform quasi-judicial
sion, custody, or control of such custodian.” functions. Thomas v. City of Dallas, 175 F.3d
11 U.S.C. § 543 (b)(2). The bankruptcy court 358, 362 (5th Cir. 1999). In determining
found a fact question as to whether McNeill whether a person is entitled to quasi-judicial
and Thigpen had violated their duty to provide immunity, courts employ a “functional ap-
an accounting: “[T]he court concludes that as proach” that focuses on “the nature of the
to the requirement of an accounting pursuant function performed, not the identity of the ac-
to Section 543(b)(2), the Movant-Defendants tor who performed it.” Id. (citing Imbler v.
are not entitled judgment as a matter of law Pachtman, 424 U.S. 409, 431 (1976)).
and the motion for summary judgment is
denied to that extent.” The district court’s Law enforcement officers have absolute im-
opinion dismisses the entire cause of action but
fails to address the question.
2
In the appeal to this court, defendants have The Fousts also argue that quasi-judicial im-
munity does not apply to the Bankruptcy Code,
not directly addressed their accounting obliga-
citing Paren v. Noneman (In re Noneman), 158
tions, but instead have only argued, under B.R. 447 (N.D. Ohio Bankr. 1993), and In re
§ 543, that Thigpen lacked possession or con- Sundance Corp. 149 B.R. 641 (E.D. Wash. 1993).
trol of the inventory when he learned of the The defendants, however, have never argued that
bankruptcy filing. Section 543(b)(2)’s terms quasi-judicial immunity eliminates their
encompass all property over which a custodian responsibilities under the Bankruptcy Code, and
previously had possession or control; that neither the district court nor the bankruptcy court
relied on such a theory.

4
munity for enforcing the terms of a court order limits the scope of absolute immunity. Id. at
but only qualified immunity for the manner in 114.4
which they choose to enforce it. In Mays v.
Sudderth, 97 F.3d 107, 109-10, 114 (5th Cir. In Hart v. Obrien, 127 F.3d 424, 440 (5th
1996), the court dismissed an arrestee’s § Cir. 1997), abrogated on other grounds, Kali-
1983 claim against a sheriff for unlawful arrest na v. Fletcher, 522 U.S. 118 (1997), the court
pursuant to an unconstitutional warrant. We enforced the limits suggested in Mays. The
began with the settled proposition that judges magistrate judge in Hart had ordered a sheriff
are protected by absolute immunity, id. at 110, or peace officer to carry out an unlawful
then noted that in 1871, when Congress en- search. Id. The assistant county attorney par-
acted § 1983, “the common law provided ticipated in the search, and the district court
absolute immunity to government officials in afforded him absolute immunity for complying
their execution of facially valid judicial orders with the court order. Id. at 431-33. We
entered by a court of competent jurisdiction,” reversed, however, noting that the search war-
id. at 112. This common law immunity made rant covered only sheriffs and peace officers.
good sense: Enforcement of a court order is Id. at 440. The court applied the limit sug-
closely intertwined with the judicial function, gested in MaysSSthe judicial order must com-
court personnel should not serve as a lighten- pel the officers’ actions.5
ing rod for harassing litigation, and an official
charged with enforcing a facially valid court
4
order has no choice. Id. at 112-13. We there- The court stated that “our ruling does not ad-
fore held that where a sheriff executes a fa- dress the liability of a n officer whose conduct in
cially valid warrant in a constitutionally per- executing a facially valid order exceeds the scope
of that order.” This is consistent with our
missible manner, he should not face liability for
jurisprudence defining the scope of a court clerk’s
the warrant’s unlawfulness. Id. at 113.3
quasi-judicial immunity. E.g., Clay v. Allen, 242
F.3d 679, 682 (5th Cir. 2001) (stating that clerks
We also noted, however, two limitations on receive absolute immunity for “acts they are spe-
the scope of absolute immunity. First, if the cifically required to do under court order or at a
court order is so unlawful that it falls outside judge’s discretion” but only qualified immunity for
the scope of judicial business and the judge “routine duties not explicitly commanded”)
himself would face liability, so will the enforc- (citations omitted); Tarter v. Hury, 646 F.2d 1010,
ing official. Id. at 114. The second limitation, 1013 (5th Cir. Unit A June 1981) (same).
relevant here, is that the scope of the order
5
Cf. Martin v. Bd. of County Comm’rs, 909
F.2d 402, 405 (10th Cir. 1990) (“[A]bsolute im-
munity does not protect defendants from damage
3
Other federal courts have reached the same claims directed not to the conduct prescribed in the
conclusion. E.g., Valdez v. City & County of Den- court order itself but to the manner of its
ver, 878 F.2d 1285, 1289 (10th Cir. 1989) execution.”); Turney v. O’Toole, 898 F.2d 1470,
(“Officials must not be called upon to answer for 1474 (10th Cir. 1990) (“[T]his absolute immunity
the legality of decisions which they are powerless extended only to acts prescribed by Judge Wolk-
to control.”); Henry v. Farmer City State Bank, ing’s order.”); Cortez v. Close, 101 F. Supp.2d
808 F.2d 1228, 1239-40 (7th Cir. 1986) 1013, 1016 (N.D. Ill. 2000) (explaining that scope
(explaining that appeal is the sole avenue for of order limits scope of immunity); Sharp v. Kel-
challenging an unconstitutional court order). sey, 918 F. Supp. 1115, 1121 (W.D. Mich. 1996)

5
 The writ directed Thigpen and McNeill “to sumption in cases of silence. The Fousts also
immediately seize and take into their posses- correctly note that the order does not require
sion the property described in the Complaint . the seizure of the premises. The district court
. . and to deliver said property to the Plaintiffs should not have granted absolute immunity to
unless bonded by the defendants.” The com- Thigpen and McNeill’s seizure of the premises
plaint defined the collateral as “inventory” and and failure to afford the Fousts an opportunity
“certain equipment and fixtures” located in the to reclaim the property promptly.
convenience store. The Fousts argue that
Thigpen and McNeill violated the terms of the IV.
order by (1) immediately turning over the The Fousts further argue that Thigpen’s
property to the Seals and (2) seizing the pre- and McNeill’s actions violated clearly estab-
mises. lished constitutional rights, so they are not en-
titled to qualified immunity. To evaluate the
The Fousts contend that the order did not qualified immunity defense, we first must de-
require the officers to turn the seized property cide “whether plaintiff’s allegations, if true, es-
over to the Seals immediately; they point to a tablish a constitutional violation.” Hope v.
state law that requires the sheriff to hold the Pelzer, 122 S. Ct. 2508, 2513 (2002) (citing
property for two days before turning it over to Saucier v. Katz, 533 U.S. 194, 201 (2001)).
a plaintiff. MISS. CODE ANN. § 11-37-109 Second, if the defendants engaged in “consti-
(Supp. 2001). This interpretation is correct: tutionally impermissibly conduct,” id. at 2515,
The order directs the sheriff immediately to we must decide whether their actions “vio-
seize the property and to turn it over to the late[d] ‘clearly established statutory or consti-
Seals, but it is silent as to how long he should tutional rights of which a reasonable person
wait before turning it over to them. would have known.’” Id. at 2515 (quoting
Harlow v. Fitzgerald, 557 U.S. 800, 818
McNeill might infer that he should turn it (1982)).
over immediately, but state law, not a tabula
rasa reading of the order, should set the pre- A.
The Fousts argue that the state circuit
court’s grant of an ex parte writ of replevin
(holding that immunity extended to act of arrest but violated the Fourteenth Amendment’s Due
not “manner in which they took [plaintiff] to jail”). Process Clause. Because “unlike some legal
rules, [due process] is not a technical concep-
Federal courts are more likely to disagree over tion with a fixed content unrelated to time,
the scope of a judicial order or command than over place, and circumstances,” Connecticut v.
whether that command limits the scope of Doehr, 501 U.S. 1, 19 (1991) (internal quota-
immunity. Compare Martin v. Hendren, 127 F.3d
tion marks and citation omitted), we must re-
720, 721-22 (8th Cir. 1997) (finding that police
officer had absolute immunity when he used ex-
view the cases individually to determine the
cessive force to restrain arrestee in court at the procedures that are constitutionally required.
judge’s direction) with Richman v. Sheahan, 270
F.3d 430, 437-38 (7th Cir. 2001) (holding that In Fuentes v. Shevin, 407 U.S. 67, 79-80
deputies exceeded scope of judge’s order by using (1972), the Court struck down Florida and
excessive force to restrain persons in the Mississippi prejudgment replevin statutes, em-
courtroom), cert. denied, 122 S. Ct. 1439 (2002).

6
phasizing that they did not provide for pre- safeguards; and third, . . . principal at-
deprivation notice and opportunity to be tention to the interest of the party seek-
heard. The Court emphasized that modern ing the prejudgment remedy, with, none-
courts should preserve the hearing required at theless, due regard for any ancillary
common law: interest the government may have in
providing the procedure or foregoing
That the hearing required by due pro- the added burden of providing greater
cess is subject to waiver, and is not fixed protections.
in form does not affect the root require-
ment that an individual be given an op- Doehr, 501 U.S. at 11.
portunity for a hearing before he is de-
prived of any significant property in- In United States v. James Daniel Good
terest, except for extraordinary situa- Real Property, 510 U.S. 43 (1993), the Court
tions where some valid governmental in- held that the Fifth Amendment’s Due Process
terest is at stake that justifies postponing Clause requires notice and an opportunity to
the hearing until after the event. be heard in civil forfeiture proceedings for real
estate. The Court, employing language origi-
Id. at 82. The Court held that the statutes’ re- nally used in Fuentes, stated, “We tolerate
quirements that a plaintiff post a bond, con- some exceptions to the general rule requiring
clusionally allege an entitlement to specific predeprivation notice and hearing, but only in
goods, defend his claim at a prompt post- ‘extraordinary situations where some valid
deprivation hearing, and open himself up to governmental interest is at stake that justifies
damages if in error did not sufficiently protect postponing the hearing until after the event.’”
the defendant’s due process rights. Id. at 83- Id. at 53 (citations and quotations omitted).
85. The Court gave formal effect to this presump-
tion in applying the three-part Matthews test.
In 1991, the Court invalidated a Connecti- Id.
cut statute that permitted a party suing for per-
sonal injuries to seek an ex parte, prejudgment Under the first prong, the Court empha-
attachment of the defendant’s real estate to sized that the defendant has a strong property
guarantee the judgment. Doehr, 501 U.S. at interest in his home and the possessions it con-
5. The Court adopted a formal test for exam- tains. Id. at 53-54. Under the second prong,
ining the provisional remedy, borrowing from the Court remarked that ex parte seizure could
Matthews v. Eldridge, 424 U.S. 319, 343-44 be predicated on a magistrate’s finding of
(1976): probable cause that the property was used or
intended to be used in the co mmission of a
[T]he relevant inquiry requires, . . . first, drug offense. Id. at 502. The United States
consideration of the private interest that did not have an obligation to disprove the
will be affected by the prejudgment mea- owner’s innocence, and the owner had no right
sure; second, an examination of the risk to be heard. Id. at 55. The Court held that a
of erroneous deprivation through the post-seizure procedure would not adequately
procedures under attack and the prob- protect the owner’s property interest, id. at
able value of additional or alternative 55-56, and that the United States had a weak

7
interest in prompt seizure, “because real prop- seizure hearing where “feasible.”7
erty cannot abscond.” Id. at 57.
Thigpen’s actions in seizing the premises do
The Mississippi Supreme Court has consid- not survive constitutional scrutiny under the
ered the constitutionality of the replevin stat- Matthews test. First, the Fousts had a sub-
ute at issue in this case.6 In Underwood v. stantial interest in the continued occupation of
Foremost Fin. Servs. Corp., 563 So. 2d 1387, their commercial premises. Second, the risk of
1389 (Miss. 1990), the debtors sued creditors erroneous deprivation was significant. Al-
for seizing their home under MISS. CODE ANN. though the record does not include the appen-
§ 11-37-101 without a pre-seizure hearing. dices to the Seals’ complaint, the complaint re-
Without dwelling on the issue, the court noted fers generically only to the “certain inventory,”
that the statute “now meets minimum due pro- “certain fixtures,” and “certain equipment.”
cess requirements.” Id. at 1389. The court This resembles the sort of skeletal complaint
held that the circuit judge had erred by failing that the Supreme Court repeatedly has con-
to hold an evidentiary hearing on the debtors’ demned.8 The circuit judge did not articulate
claims, because the debtors at least had plead-
ed a constitutionally suspect seizure. Id. at
7
1391. The Court explained that “the record MISS. CODE ANN. § 11-37-101 (Supp. 2001);
evinces no explanation for the necessity of an MISS. CODE ANN. § 11-37-131 (Supp. 2001). The
immediate seizure. In cases where pre-seizure constitutionality of the amended replevin statute
process is feasible, compliance with MISS. remains an open question in federal and state
CODE ANN. § 11-37-131 (Supp. 1989) is re- courts. As one commentator has explained:
quired.” Id. at 1391. The court interpreted
The Mississippi Supreme Court has stated
the Mississippi statute in light of the federal
that the statute as revised meets due process
constitution, because by its terms, the Missis- requirements. Underwood v. Foremost Fin.
sippi replevin statute does not require a pre- Serv., 563 So. 2d 1387, 1389 (Miss. 1990).
Nevertheless, many Mississippi attorneys
think that the procedure authorized in
section 11-37-101 remains unconstitutional
because it allows seizure of the collateral
without a hearing, and will only seek
6
The statute has a checkered history. In 1989, replevin under section 11- 37-131, which
a Mississippi federal court struck down its requires a hearing prior to the issuance of
predecessor because it required a judge to issue a the writ.
writ of replevin if the party filed a declaration; the
court held that a judge must have the discretion to W. Rodeny Clement, Jr., Enforcing Security
refuse to issue the writ. Wyatt v. Cole, 710 F. Interests in Personal Property in Mississippi, 67
Supp. 180, 182 (S.D. Miss. 1989), aff’d in part MISS. L.J. 43 n.161 (1997).
and rev’d in part on other grounds, 928 F.2d 718
8
(5th Cir. 1991), rev’d on other grounds, 504 U.S. See, e.g., Mitchell v. W.T. Grant, 416 U.S.
158 (1992). The current version of the statute 600 (1974) (upholding Louisiana sequestration
became effective July 1, 1990, and it is this version statute in part because it required plaintiff to plead
that was considered by the Mississippi Supreme specific, sworn facts demonstrating an entitlement
Court. Underwood v. Foremost Fin. Servs. Corp., to specific goods); N. Ga. Finishing, Inc. v. Di-
563 So. 2d 1387, 1389 (Miss. 1990). Chem, Inc., 419 U.S. 601 (1975) (invalidating

8
any standard for making his decision, and the of pre-existing law the unlawfulness
replevin statute does not specify a standard. must be apparent.

Judging by this particular complaint and Anderson v. Creighton, 483 U.S. 635, 640
order, there was a high risk of erroneous de- (1987) (citations omitted).
privation. McNeill’s and Thigpen’s actions, by
locking the Fousts out of their business, fur- In Hope, 122 S. Ct. at 2516, the Court ela-
ther increased the risk that they would deprive borated that “officials can still be on notice
themSSalbeit temporarilySSof unencumbered that their conduct violates established law even
property. in novel factual circumstances.” Previous
cases need not be “fundamentally similar.” Id.
The cost of additional government proce- “The salient question” for a court of appeals is
dures was minimal. The Mississippi Supreme “whether the state of the law [at the time of
Court had held that circuit courts should hold the state action] gave respondents fair warning
hearings where feasible, and the circuit judge that their alleged treatment of [the plaintiff]
in this case did not make a finding that a hear- was unconstitutional.” Id.
ing on notice would be infeasible. On the facts
of this case, locking the Fousts out of their Thigpen and McNeill did not have such
store violated the Due Process Clause. “fair warning.” The constitutionality of Missis-
sippi’s replevin statute remained up in the air,
B. and the Supreme Court precedent demands a
Even if Thigpen’s seizure violated due pro- highly fact-dependent inquiry that a reasonable
cess, he will escape liability if the constitu- could find difficult to predict. Thigpen even
tional right was not “clearly established” in had judicial authorization to seize certain
1998. For a right to be “clearly established” in “fixtures” in the building, and he might have
the context of qualified immunity, concluded the only reasonable way to do so
was by seizing the premises. He had no way
[t]he contours of the right must be suffi- of knowing whether the underlying replevin
ciently clear that a reasonable official statute was unconstitutional, and he reasonably
would understand that what he is doing could rely on it to inform his opinion of
violates that right. This is not to say whether seizing the store was lawful.9
that an official action is protected by
qualified immunity unless the very action Although Thigpen should have known that
in question has previously been held the Mississippi Supreme Court had held that
unlawful, but it is to say that in the light the court should conduct a pre-seizure hearing

9
statute, emphasizing that the supporting affidavits Cf. Wyatt v. Cole, 994 F.2d 1113, 1120 (5th
might contain only conclusional allegations); Cir. 1993) (“We think that private defendants, at
Doehr, 501 U.S. at 14 (finding significant risk of least those invoking ex parte prejudgment statutes,
erroneous depravation under a Connecticut statute should not be held liable under § 1983 absent a
because plaintiff did not need to provide detailed showing of malice and evidence that they either
affidavits or factual support, only a “skeletal know or should have known of the statute’s con-
affidavit.”). stitutional infirmity.”) (emphasis added).

9
“where feasible,” the contours of feasibility Fourth Amendment.12 In Audio Odyssey, the
had not been spelled out. A reasonable deputy court held that a sheriff’s deputy had
or sheriff acting in 1998 would not have unconstitutionally executed a writ of replevin
known that seizing the premises violated Four- by changing the locks on a commercial
teenth Amendment due process rights. business, posting no trespassing signs, and
Thigpen and McNeill enjoy qualified immunity barring the entry of the owner for several
for the violation of the Fousts’ Fourteenth weeks, even though the writ only called for the
Amendment rights. seizure of personal property. Although the
court determined that Iowa’s replevin statute,
C. on its face, satisfied the Fourteenth
The Fousts argue that the seizure of their Amendment, Audio Odyssey, 245 F.3d at 732-
premises violated their Fourth Amendment 33, the court held that the Fourth Amendment
rights. The Fourth and Fourteenth rendered the seizure of the building
Amendment questions interrelate,10 but we presumptively unreasonable, and the writ
must consider them separately, because either, authorizing the seizure of inventory, equip-
standing alone, could provide sufficient ment, and fixtures did not extend to the
grounds for the Fousts to recover.11 building itself, id. at 736. The court noted that
the sheriff had barred others from entering the
Only the Eighth Circuit has squarely building for weeks, far longer than necessary
addressed the constitutional ity of a to inventory and repossess the relevant items.
prejudgment attachment or replevin under the Id. Finally, the court held that the officers did
not deserve qualified immunity, because any
reasonable officer would have known that the
seizure of the premises violated the Fourth
Amendment.
10
In Fuentes, 407 U.S. at 97 n.32, the Court
refused to reach the question of whether the Flori- Thigpen excluded the Fousts from the
da’s and Pennsylvania’s prejudgment replevin stat- premises for hours, instead of weeks as did the
utes violated the Fourth Amendment. “Once a officer in Audio Odyssey. Such a short-term
prior hearing is required, at which the applicant for seizure could have been necessarily incidental
a writ must establish the probable validity of his to taking an inventory of the contents and re-
claim for repossession, the Fourth Amendment possessing the secured property. Like the writ
problem may well be obviated.” Id. In Fuentes,
id. at 78-79, however, the petitioners only
12
challenged the constitutionality of the statutes and See Audio Odyssey, Ltd. v. Brenton First
did not request damages under § 1983. The Court Nat’l Bank, 245 F.3d 721 (8th Cir. 2001). The
did not have to consider multiple bases of recovery. court vacated Audio Odyssey to rehear the case en
banc but reinstated the panel opinion in full. Audio
11
James Daniel Good, 510 U.S. at 50 (holding Odyssey, Ltd. v. Brenton First Nat’l Bank, 286
that because the “seizure of property implicates F.3d 498, 500 (8th Cir. 2002) (en banc) (“The
two explicit textual source[s] of constitutional panel opinion addresses the full array of issues
protection, . . . [t]he proper question is not which presented in this appeal in considerable detail. We
Amendment controls but whether either cannot improve upon that opinion’s discussion . .
Amendment is violated.”) (internal quotation marks . .”), cert. denied, 2002 U.S. App. LEXIS 8038
and citation omitted). (U.S. Oct. 21, 2002).

10
in Audio Odyssey, the writ here authorized the Circuit concluded that the sheriff’s actions
sheriffs to seize “fixtures.” A fixture is a ten- violated “clearly established” law, but the
ant’s personal, removable property that is at- sheriff in that case barred the owners from the
tached to the property. BLACK’S LAW premises for weeks; his exclusion of the
DICTIONARY 652 (7th ed. 1999). Removing owners from the property drove the store out
fixtures could require occupying the premises of business. Audio Odyssey, 245 F.3d at 727-
for several hours, and the sheriff should have 29. Thigpen had a much more reasonable ba-
the incidental power to exclude others to pre- sis for his belief that occupation of the
vent a breach of the peace. premises was constitutional. In light of the
precedent discussed supra part IV.B., it was
The summary judgment evidence, however, not “clearly established” in 1998 that Thig-
does not support interpreting the seizure of the pen’s actions violated the Fourth Amendment.
premises as merely incidental. Thigpen told The dismissal of the § 1983 claims against
Cathy Foust and her mother that he was going Thigpen and McNeill is affirmed.
to have the locksmith change the locks on the
building. He also did not immediately reopen V.
the convenience store after Seal and his co- The Fousts argue that the district court im-
workers had removed the encumbered properly dismissed the claims against the coun-
property. Finally, Thigpen returned the keys ty and McNeill in his official capacity. In §
only after learning that the Fousts had filed for 1983 suits against the county or governmental
bankruptcy. The Fousts at least have created officials in their official capacities, such as
a fact question about whether Thigpen McNeill, the courts apply neither qualified im-
unreasonably deprived them of their property, munity nor state respondeat superior
beyond the scope of the writ. His actions, as doctrines.14 Instead, a plaintiff must
pleaded, violated the Fourth Amendment. demonstrate that a county “policy” was the
“moving force” behind the constitutional
D. violation. Brown v. Bryan County, Okla., 219
We next turn to the question of qualified F.3d 450, 457 (5th Cir. 2000). The Fousts
immunity for Thigpen and McNeill for the argue that McNeill’s practice of locking
Fourth Amendment claim. Until the Eighth owners out of their premises when executing
Circuit’s opinion in Audio Odyssey, neither the writs of replevin, and his failure to train his
Supreme Court nor a federal court of appeals deputies on how to execute such writs,
had held that a seizure under a replevin statute constituted “policies” that were the “moving
violates the Fourth Amendment.13 The Eighth
applicable. Furthermore, Audio Odyssey would be
insufficient to “clearly establish” the right at issue
13
A consensus of authority in other circuits here, because it is insufficiently factually similar
may “clearly establish” a right even absent binding and represents the view of only one other circuit.
precedent by the Supreme Court or the Fifth
14
Circuit. McClendon v. City of Columbia, 2002 In Coon v. Ledbetter, 780 F.2d 1158, 1161-
U.S. App. LEXIS 18318, at 32-33 (5th Cir. 62 (5th Cir. 1986), the court expressly rejected the
Sept. 5, 2002) (en banc). Given that Audio notion that a Mississippi sheriff could face re-
Odyssey was decided after the actions taken in the spondeat superior liability where his deputies
present case, however, McClendon is not violated § 1983.

11
forces” behind constitutional violations. the requisite degree of culpability and must
demonstrate a direct causal link between the
A. municipal action and the deprivation of federal
To establish liability for a policy or practice, rights.” Id. at 404.
a plaintiff must prove that (1) the local
government or official promulgated a policy; Thigpen and McNeill testified that the sher-
(2) the decision displayed “deliberate iff’s office routinely seized a debtor’s entire
indifference” and proved the government’s premises to secure personal property and
culpability; and (3) the policy decision lead to fixtures. Neither the bankruptcy court nor the
the particular injury. Bryan County, 219 F.3d district court mentioned this testimony, and the
at 457. A formal policy is “[a] policy defendants do not address it. If the
statement, ordinance, regulation or decision department repeatedly went beyond the scope
that is officially adopted and promulgated by of the writs to seize real property, its policy
the municipality’s lawmaking officers or by an may have violated the Fourth and Fourteenth
official to whom the lawmakers have delegated Amendments. The department was
policy-making authority.” Bennett v. City of deliberately indifferent to those results, i.e., the
Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en seizure of the real property and exceeding the
banc). An informal but still official policy is scope of the writ, even if unaware of the un-
“[a] persistent, widespread practice of city lawfulness of the actions. The Fousts have
officials or employees, which, although not created a fact question about whether the de-
authorized by officially adopted and partment’s policy of seizing the premises vio-
promulgated policy, is so common and well lated the Fourth and Fourteenth Amendments,
settled as to constitute a custom that fairly so this portion of the district court opinion is
represents municipal policy.” Id. Finally, “a reversed.
final decisionmaker’s adoption of a course of
action ‘tailored to a particular situation and B.
not intended to control decisions in later “The failure to provide proper training may
situations’ may, in some circumstances, give fairly be said to represent a policy for which
rise to municipal liability under § 1983.” the city is responsible, and for which the city
Board of the County Comm’rs v. Brown, 520 may be held liable if it actually causes injury.”
U.S. 397, 406 (quoting Pembaur v. City of Canton v. Harris, 489 U.S. 378, 390
Cincinnati, 475 U.S. 469, 481 (1986)). (1989). To prove that the failure to train rises
to the level of a municipal policy, a plaintiff
The culpability element requires proof that also must satisfy the culpability and causation
the defendants adopted the policy with requirements described above. Brown, 219
“deliberate indifference.” This “is a stringent F.3d at 457. The failure must rise to the level
standard of fault, requiring proof that a of a deliberate or conscious choice among al-
municipal actor disregarded a known or ternatives. Canton, 489 U.S. at 389.
obvious consequence of his action.” Id. at
410. The causation element requires that the When evaluating whether additional
policy be the “moving force” behind the training is constitutionally required, it is
plaintiff’s injury. “That is, a plaintiff must necessary to consider whether the department
show that the municipal action was taken with has faced a history of similar problems.

12
Languirand v. Hayden, 717 F.2d 220, 227-28 immediately turning the Fousts’ property over
(5th Cir. 1983). We also must look to the to the Seals and for temporarily seizing the
officers’ overall training and must consider the store when executing the writ.
need for additional training in that context.
Canton, 489 U.S. at 390-91; Pineda v. City of A.
Houston, 291 F.3d 325, 334 (5th Cir. 2002). In 1993, the Mississippi Tort Claims Act
(“MTCA”), also known as the Mississippi
The Fousts presented little evidence that Governmental Immunity Act, shifted virtually
additional training would have helped. Thig- all tort liabilities from governmental employees
pen admitted ignorance of the requirement that to the state or political subdivision.16 The
the sheriff retain the seized property for two employee may be sued only as an official rep-
days. McNeill provided Thigpen with books resentative of the political subdivision. MISS.
on civil process but did not send him to any CODE ANN. § 11-46-7(2). “[N]o employee
formal classes. shall be held personally liable for acts or omis-
sions occurring within the course and scope of
The Fousts have not met their burden of the employee’s duties.” Id. Only fraud,
proving deliberate indifference. McNeill rea- malice, libel, slander, defamation, and criminal
sonably could have assumed that Thigpen offenses fall outside the “course and scope” of
could learn the necessary details of civil employment and create personal liability, id.,
process from the books. The Fousts have pre- and none of these exceptions has been pleaded
sented no evidence that Thigpen would have here. The MTCA therefore eliminates any
been less likely to violate their ambiguous personal liability that Thigpen or McNeill
Fourth and Fourteenth Amendment rights if he might otherwise face.
had received additional training in state law,
which, after all, does not speak to the in- B.
cidental seizure of a commercial building when The MTCA also sets forth the scope of the
executing a writ of replevin.15 The district and sovereign immunity of the state and its
bankruptcy courts properly dismissed the claim
of failure to train.

VI.
16
The Fousts contend that the district court MISS CODE ANN. § 11-46-7 (Supp. 2001).
incorrectly dismissed the state law claims on Before 1993, government officials possessed “qual-
the basis of Mississippi statutory immunity. ified public official immunity, which insulated
We therefore must consider the liability of them against tort liability for all acts or omissions
Thigpen and McNeill in their personal in the course and scope of governmental
employment, except where they committed in-
capacities and the liability of the county for
tentional torts, substantially exceeded their
discretion and authority, or performed ministerial
acts.” Jim Fraiser, A Review fo the Substantive
15
As discussed supra part IV.A., the Provisions of the Mississippi Governmental
constitutionality of Mississippi’s replevin statute is Immunity Act: Employees’ Individual Liability,
uncertain. It is therefore also uncertain that any Exemptions to Waiver of Immunity, Non-Jury
books or classes on state law could have sufficed to Trial, and Limitations of Liability, 68 MISS. L.J.
protect the Fousts’ constitutional rights. 703, 719 (1999).

13
political subdivisions.17 The legislature If Thigpen’s activities related to “police
codified specific exceptions to the state’s protection,” the Fousts would have to
waiver of sovereign immunity for employees’ demonstrate that he acted with “reckless
acts within the course and scope of their disregard” to a person’s “safety and well-
employment. MISS. CODE ANN. § 11-46-9. being.” MISS. CODE ANN. § 11-46-9(1)(c).
No court has yet addressed whether serving
The defendants assert that three exceptions civil process or seizing goods constitutes
to the waiver of sovereign immunity have rel- “police protection” within the meaning of §
evance here. First, the government remains 11-46-9(1)(c).
protected for claims “arising out of” “the per-
formance or execution of duties or activities “Waiver of a state’s sovereign immunity,
relating to police or fire protection unless the like waiver of any constitutional right, is strict-
employee acted in reckless disregard of the ly construed in favor of the holder of the
safety and well-being of any person not right.” Lelsz v. Kavanagh, 807 F.2d 1243,
engaged in criminal activity at the time of 1253 (5th Cir. 1987). Similarly, the MTCA’s
injury.” MISS. CODE ANN. § 11-46-9(1)(c). exemptions to Mississippi’s waiver should be
Second, the government is immune from any liberally construed in favor of limiting
claim “arising out of a . . . judicial action or liability.19 Mississippi courts have applied the
inaction . . . or administrative action or “police protection” exception to a variety of
inaction of a legislative or judicial nature.” situations20 and have yet to determine that any
MISS. CODE ANN. § 11-46-9(1)(a). Third, the
legislature codified the traditional exception to 19
qualified and sovereign immunity for claims See Ellisville State Sch. v. Merrill, 732 So.
2d 198, 201 (Miss. 1999) (“The Legislature passed
“[b]ased upon the exercise or performance or
into law the MTCA in 1993 to carve out a limited
the failure to exercise or perform a
waiver of immunity for the State and its political
discretionary function or duty on the party of subunits.”); Fraiser, 68 MISS. L.J. at 741
a governmental entity or employee therof . . .” (discussing the decisions of the Mississippi
MISS. CODE ANN. § 11-46-9(1)(d).18 Supreme Court interpreting the MTCA, and
specifically § 11-46-9(1)(c), and concluding that it
appears the court “is construing the Act’s
17
Under the previous regime, the state and its provisions liberally in favor of governmental
subdivisions had sovereign immunity for immunity.”).
governmental functions but not for proprietary
20
acts. Fraiser, 68 MISS. L.J. at 738; McGrath v. See, e.g. McGrath, 794 So. 2d at 985-87
City of Gautier, 794 So. 2d 983, 985-86 (Miss. (deciding that patrolling the streets is police pro-
2001). tection, as is the maintenance of police vehicles);
Foster v. Noel, 715 So. 2d 174, 178-80 (Miss.
18
A fourth exception is also potentially 1998) (holding that arresting and detaining
applicable but was not raised by the parties: The criminals is police protection); Hall v. Miss. Dep’t
statute allows that the government remains immune of Pub. Safety, No. 96-CA-00832-SCT, slip op. at
from suits “[a]rising out of the detention of any 7, 708 So. 2d 564 (Miss. 1998) (table) (opining
goods or merchandise by any law enforcement that administering a sobriety test is police
officer, unless such detention is of a malicious or protection); Smith v. Thompson, 1998 WL 97287,
arbitrary and capricious nature.” MISS. CODE at 2-3 (N.D. Miss. 1998) (stating that aiming a
ANN. § 11-46-9(1)(j). weapon at and negligently detaining a person

14
activity of a police officer or sheriff performed The police protection exception does not
in the scope of his employment falls outside apply if the “employee acted in reckless
the reach of the exception.21 disregard of the safety and well-being of any
person not engaged in criminal activity at the
Under Mississippi law, seizure of property time of injury.” MISS. CODE ANN. § 11-46-
under a writ of replevin may be executed only 9(1)(c). “Reckless disregard,” within the
by “the sheriff, or other lawful officer. . .” meaning of the subsection, “embraces willful
MISS. CODE ANN. § 11-37-109. The statute or wanton conduct which requires knowingly
presumably prefers that service be performed and intentionally doing a thing or wrongful
by sheriffs to protect the creditors’ employees act.” Maye, 758 So. 2d at 394. Even if Thig-
who are seizing the goods and to prevent a pen did ignore the replevin statute, he did not
breach of the peace. This is a mandatory duty exhibit “reckless disregard” for anyone’s “safe-
of sheriffs within the scope of their ty and well-being.”
employment and, consistent with other
interpretations of § 11-46-9(1)(c), falls within The § 11-46-9(1)(c) exception to Mississip-
the scope of “police protection.”22 pi’s waiver of sovereign immunity is applicable
and bars the state law claims against the coun-
ty and against McNeill in his official capacity.23
mistakenly believed to be the real suspect constitute The dismissal of the Fousts’ state law claims is
police protection). One court has held that the affirmed.
hiring and training of police relates to “police
protection,” Moore v. Carroll County, 960 F. For the reasons we have explained, the
Supp. 1084, 1088-92 (N.D. Miss. 1997), but the judgment is AFFIRMED in part, REVERSED
Fousts do not base their state law claims on failure in part, and REMANDED for further
to train.
proceedings in accordance with this opinion.
21
Mississippi courts have found, in some cases,
that acts, though within the scope of police pro-
tection, were not protected under the other re-
quirements of the statute. See, e.g. City of Jackson
v. Perry, 764 So. 2d 373, 377 (Miss. 2000)
(applying the police protection exception to officer
who was speeding while driving to dinner, but
finding liability because his actions were reckless);
Maye v. Pearl River County, 758 So. 2d 391, 392,
395 (Miss. 1999) (stating that transporting
prisoners in a car is within the scope of “official McGrath, 794 So. 2d at 985-87. “[T]he
duty,” but officer was reckless in backing up an maintenance of a police department is a
incline and hitting another car when he knew he governmental function, for which municipalities are
would not be able to see cars behind him). exempt.” Id. at 987. Under this analysis, too,
Thingpen certainly performed a governmental
22
The Mississippi Supreme Court, in function and would fall within the exception.
determining whether actions are related to “police
23
protection,” has returned to the pre-MTCA Having found that the police protection
analysis, which turns on whether the actions are waiver exception applies, we decline to address any
taken in a governmental or proprietary capacity. other waiver exceptions that might be applicable.

15