United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-60539
HOUSTON COLLINS; SHARLET BELTON COLLINS; ROBERT EARL COLLINS;
VELMA JEAN COLLINS; DARRELL CALENDER; LARRY VALLIERE; GREGORY
TOLLIVER; SHERMAN TOLLIVER; DWAYNE KEMP, CHRISTOPHER WONG WON,
DETRON BENDROSS, BERNARD VERGIS, ASHLEY GRUNDY, and EDDIE
YOUNGBLOOD, III, Also Known As 2 Live Crew; TIMOTHY VINCENT
YOUNG; PRISCILLA MORRIS; LUTHER JEFFERSON; LEE ESTER CRUMP;
and LINDA CHRISTMAS,
Plaintiffs-Appellees,
versus
FRANK AINSWORTH; ET AL,
Defendants,
FRANK AINSWORTH; BRUCE KIRBY; CHAD SEALS; TROY DAVIS;
TONY HEMPHILL; JOHN GOZA; HAROLD WINTERS; EDDIE GIVENS;
and WILLIAM BROWN,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Mississippi, Jackson
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendants-Appellants Frank Ainsworth, et al. (“Defendants”),
appeal from the district court’s denial of their summary judgment
“motion for qualified immunity” in a 42 U.S.C. § 1983 action filed
by Plaintiffs-Appellees Houston Collins, et al. (“Plaintiffs”),
relating to roadblocks and vehicle checkpoints on the road leading
to a concert planned to be held in Copiah County, Mississippi, on
June 4, 2000. Defendants argue the district court erred by not
granting them qualified immunity because Plaintiffs have failed to
offer material facts that demonstrated clearly established
constitutional violations and/or objectively unreasonable actions
by Defendants.
We find that the Plaintiffs have not put forth material
evidence of any constitutional violations committed by Deputies
Kirby, Seals, Davis, Hemphill, Goza, Winters, Givens, and Brown.
Therefore, the district court erred by not finding these deputies
entitled to qualified immunity on all claims as a matter of law.
We also find that Plaintiffs have not materially supported any
clearly established Fourteenth Amendment violation committed by
Sheriff Ainsworth as a matter of law. However, we find that,
taking Plaintiffs’ facts regarding Sheriff Ainsworth’s conduct as
true, his actions in connection with the checkpoints were
objectively unreasonable in light of clearly established Fourth
Amendment law, as to all Plaintiffs, and First Amendment law, as to
most Plaintiffs. Therefore, we REVERSE the district court’s denial
of qualified immunity as to all deputy Defendants on all issues and
as to Sheriff Ainsworth on the Fourteenth Amendment issue; we
AFFIRM the court’s denial of qualified immunity as to Sheriff
2
Ainsworth on the Fourth Amendment issue; we AFFIRM in part and
REVERSE in part the court’s denial of qualified immunity as to
Sheriff Ainsworth on the First Amendment issue; and we REMAND for
proceedings consistent with this opinion.
BACKGROUND
Plaintiffs Sharlet Belton Collins and Houston Collins
(together, the “Collins”) produced several concerts in Mississippi
under the name S&H Productions from about 1991 to 2000. Some of
these concerts were staged at Collins Field, a multi-acre tract of
land in rural Copiah County, Mississippi, owned by Plaintiffs
Robert Earl Collins and Velma Jean Collins. On or about May 16,
2000, the Collins made arrangements for the rap group 2 Live Crew
to give a concert (the “Concert”) on Sunday, June 4, 2000, at
Collins Field. Collins Field was to open early in the afternoon;
and the Concert, which included opening disc jockey acts, was to
start at 5:00 or 6:00 p.m. Starting on May 17, 2000, a local radio
station began airing ads for the Concert.
Early during the week prior to June 4, 2000, Copiah County
Deputy William Brown and two other Copiah County deputies not named
as defendants, Andre Davis and Fred Boyd according to Brown, went
to the Collins’ home. They informed Houston that the sheriff of
Copiah County, Frank Ainsworth, did not want the upcoming Concert
to proceed. Brown stated that this request was made because of
calls Ainsworth had received about foul language and issues related
3
to a previous concert held on Mother’s Day. The Collins stated the
request was really solicitation for a bribe and retaliation for
supporting Ainsworth’s political opponent. Ainsworth admitted in
a television interview that deputies from his office had warned
Houston not to have the Concert. Both Sharlet and Houston Collins
stated the message that the Concert was not going to happen was
sent by Ainsworth.
Prior to June 4, 2000, Ainsworth had the county attorney
contact the state attorney general’s office to obtain an opinion
concerning the legality of a driver’s license checkpoint.
Ainsworth claimed that he was concerned that many unlicensed
drivers of all ages would be attending the “rock” Concert, which he
had heard advertised. He also stated he had received excessive
noise, profanity, and trash complaints concerning a previous
concert on Mother’s Day. Ainsworth stated that no checkpoints had
ever been held in connection with county-staged rodeos because he
did not think unlicensed drivers would attend rodeo events. He
also claimed that he instructed the deputies who would conduct the
checks to be courteous and treat people fairly, and to stop each
car approaching the checkpoints, regardless if they planned to
attend the Concert. Deputies were instructed to make arrests for
any criminal violations found in connection with the checkpoints.
Ainsworth stated he was the sole policymaker regarding the
procedures, customs, and practices used to effectuate the
checkpoints.
4
On June 4, 2000, at about 7:00 a.m., a roadblock and vehicle
checkpoint had been set up along Old Port Gibson (“OPG”) Road
leading to Collins Field. There was heavy traffic, and another
roadblock and checkpoint were set up later facing the other
direction on OPG Road. During the course of the day on June 4,
2000, deputies from Copiah County’s Sheriff’s Office stopped
numerous vehicles at these checkpoints, including those driven by
certain Plaintiffs: Houston Collins, Sharlet Collins, Robert
Collins, Velma Collins, Darrell Calender, Larry Valliere, Gregory
Tolliver, Sherman Tolliver, the members of 2 Live Crew, Timothy
Vincent Young, Luther Jefferson, and Lee Esther Crump. Plaintiff
Linda Christmas was a passenger in Crump’s vehicle that was
stopped; Plaintiff Priscilla Morris was a passenger in Jefferson’s
vehicle that was stopped. Deputies confiscated beer in plain view.
Deputies also asked permission to search some of the vehicles; some
searches yielded beer and/or marijuana.
Deputies arrested approximately 70 to 80 people, approximately
two to three for driver’s license infractions, including Larry
Valliere, but many more for the illegal possession of beer. These
arrestees, including Darrell Calender, Larry Valliere, Gregory
Tolliver, Sherman Tolliver, Luther Jefferson, and Priscilla Morris,
were detained overnight at the Copiah County detention center.
Ainsworth had instructed that no one could be released until the
morning – Monday, June 5, 2000. There is evidence that
thunderstorms set in that night and two judges were brought in the
5
next morning for Plaintiffs to make bond. The large number of
detainees exceeded the jail’s capacity, which was approximately 50
people.
The rap group 2 Live Crew did not perform at the Concert.
There is evidence the cancellation may have been due to the
checkpoint incident upsetting them, because of the roadblocks
“scaring off” concertgoers, because Sharlet Collins felt ill, or
because of the weather. It appears some of the opening deejay acts
did perform at the Concert, starting around 1:00 or 2:00 p.m.
Plaintiffs, who are African-American, filed this § 1983 suit
in district court on February 5, 2001. Plaintiffs included the
Concert promoters, Houston and Sharlet Collins; the owners of
Collins Field, Robert and Velma Collins; the members and managers
of 2 Live Crew, Dwayne Kemp, Christopher Wong Won, Detron Bendross,
Bernard Vergis, Ashley Grundy, and Eddie Youngblood, III; vendors
who were going to sell food at the Concert, Gregory Tolliver and
Sherman Tolliver; and certain would-be concertgoers, all other
Plaintiffs. Defendants included Copiah County Sheriff Ainsworth,
and Copiah County Deputies Brown, Kirby, Seals (whose actual last
name is Sills1), Davis, Hemphill, Goza, Winters, and Givens, who
were all sued in their individual and official capacities.
Plaintiffs made various allegations about how Defendants’ actions
at the roadblock and associated checkpoint stops violated their
1
We refer to Deputy Sills throughout as Seals, as indicated in
the cause’s caption.
6
Fourth and First Amendment rights. Those Plaintiffs who were
arrested at the checkpoints and taken to jail alleged that their
Fourteenth Amendment due process rights were violated because they
were not permitted to make bail within 24 hours of being arrested
and were detained in an overcrowded jail.
Defendants filed a motion seeking qualified immunity, arguing
that Plaintiffs had not shown that Defendants had taken any
specific actions that violated Plaintiffs’ constitutional rights.
Plaintiffs did not specifically respond to this motion, other than
submitting a jail log that showed certain Plaintiffs had been
arrested the day of the concert and the Minutes of a 1966 meeting
of the Copiah County Board of Supervisors recording the Board’s
decision to permit the sale and possession of “alcoholic liquors”
in Copiah County.2 Plaintiffs then filed a cross-motion for
summary judgment, including depositions from Ainsworth, Brown,
Givens, Seals, Davis, Sharlet Collins, and Houston Collins.
Plaintiffs then supplemented with a news report videotape exhibit
and answers to interrogatories. Defendants filed a reply that to
the extent Plaintiffs’ filing could be a response to Defendants’
2
Under Mississippi law, counties can elect whether to allow the
legal possession of alcoholic beverages, or light wine and beer.
See Miss. Code Ann. §§ 67-1-1 et seq., 67-3-1 et seq. (2003);
Dantzler v. State, 542 So. 2d 906, 909 (Miss. 1989). In Copiah
County, possession of beer is a chargeable offense, Mayo v. State,
843 So. 2d 739, 740 (Miss. Ct. App. 2003), even though possession
of hard liquor appears to be permitted. Thus, the “alcoholic
liquors” referenced in the Copiah County Board’s minutes appear to
refer to alcoholic beverages as opposed to light wine and beer.
7
motion for qualified immunity, Plaintiffs had not shown Defendants
were not entitled to qualified immunity because Plaintiffs had
offered no evidence of the violation of any constitutional rights.
Without any analysis, the district court denied qualified immunity
to all Defendants. In that order, the district court also denied
Plaintiffs’ cross-motion for summary judgment. Defendants timely
filed the instant interlocutory appeal to challenge the district
court’s denial of qualified immunity.
DISCUSSION
Jurisdiction over and standard of review of summary judgment
motions predicated on qualified immunity.
First, this Court must decide whether Defendants’ motion for
qualified immunity should be considered a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) or a motion for summary
judgment under Federal Rule of Civil Procedure 56. The district
court was presented with documentary evidence relevant to the
qualified immunity issue. Although the court did not state it was
relying on these documents in making its decision, it did reject
Plaintiffs’ cross-motion for summary judgment based on its finding
that there were genuine issues of material fact precluding summary
judgment. Plaintiffs had filed their documentary evidence in
support of this motion, which must have been reviewed by the
district court. Therefore, the denied motion for qualified
immunity is treated as a denial of a motion for summary judgment.
See Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 283 n.7
8
(5th Cir. 1993) (noting that when matters outside the pleadings are
considered, a motion to dismiss should be construed as a motion for
summary judgment).
This Court has interlocutory jurisdiction to determine the
legal question of whether Plaintiffs’ summary judgment facts state
a § 1983 claim under clearly established law. See Nerren v.
Livingston Police Dep’t, 86 F.3d 469, 472 (5th Cir. 1996); see also
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[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.”). When a district court denies an official’s
motion for summary judgment based on qualified immunity, the court
is considered to have made two distinct determinations, even if
only implicitly. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004) (en banc). “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.” Id. “Second,
the court decides that a genuine issue of fact exists regarding
whether the defendant(s) did, in fact, engage in such conduct.”
Id. On interlocutory appeal, we do not have jurisdiction to
challenge the district court’s assessments regarding the
sufficiency of the evidence; instead we review “the purely legal
question whether a given course of conduct would be objectively
9
unreasonable in light of clearly established law.” Id. at 347.
Therefore:
[W]e have jurisdiction only to decide whether the
district court erred in concluding as a matter of law
that officials are not entitled to qualified immunity on
a given set of facts. As one of our cases succinctly
puts it, “we can review the materiality of any factual
disputes, but not their genuineness.”
Id. (quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.
2000)).
Unlike in appeals of most summary judgment rulings where we
would employ de novo review, applying the same Rule 56 standard
used by the district court, in the context of a denial of qualified
immunity we “consider[] only whether the district court erred in
assessing the legal significance of the conduct that the district
court deemed sufficiently supported for purposes of summary
judgment.” Kinney, 367 F.3d at 348. Any factual disputes that
exist in a qualified immunity appeal are resolved in favor of
Plaintiffs’ version of the facts. Id.; Wagner, 227 F.3d at 320
(“Even where, as here, the district court has determined that there
are genuine disputes raised by the evidence, we assume plaintiff’s
version of the facts is true . . . .”). Where, as here, the
district court failed to set forth the specific factual disputes
that precluded granting summary judgment based on qualified
immunity, we “review the record in order ‘to determine what facts
the district court, in the light most favorable to the nonmoving
party, likely assumed.’” Kinney, 367 F.3d at 348 (quoting Johnson
10
v. Jones, 515 U.S. 304, 319 (1995)).
This Court conducts a bifurcated analysis to assess the
defense of qualified immunity. Bazan ex rel. Bazan v. Hidalgo
County, 246 F.3d 481, 490 (5th Cir. 2001). First, Plaintiffs must
allege that Defendants violated their clearly established
constitutional rights. Id. Constitutional law can be clearly
established “despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long
as the prior decisions gave reasonable warning that the conduct
then at issue violated constitutional rights.” Hope v. Peltzer,
536 U.S. 730, 740 (2002) (internal quotations omitted). Second, if
Plaintiffs have alleged such a violation, this Court must consider
whether Defendants’ actions were objectively reasonable under the
circumstances. Bazan, 246 F.3d at 490; see also Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982). That is, this Court must
decide whether reasonably competent officers would have known that
their actions violated law which was clearly established at the
time of the disputed action. Bazan, 246 F.3d at 490. “[L]aw
enforcement officers who reasonably but mistakenly commit a
constitutional violation are entitled to immunity.” Id. at 488
(internal quotations and citation omitted).
Clearly established Fourth Amendment law.
The first claim Plaintiffs make is a Fourth Amendment claim,
that the roadblock and driver’s license checkpoints amounted to an
11
impermissible search and seizure. The Supreme Court has held:
[E]xcept in those situations in which there is at least
articulable and reasonable suspicion that a motorist is
unlicensed or that an automobile is not registered, or
that either the vehicle or an occupant is otherwise
subject to seizure for violation of law, stopping an
automobile and detaining the driver in order to check his
driver’s license and the registration of the automobile
are unreasonable under the Fourth Amendment.
Delaware v. Prouse, 440 U.S. 648, 663 (1979). Prouse invalidated
a discretionary, suspicionless stop for a spot check of a single
motorist’s license and registration; however, the Court indicated
that “[q]uestioning of all oncoming traffic at roadblock-type
stops” to verify driver’s licenses and registrations would be a
lawful means of furthering the vital interest in highway safety.
Id.; see also City of Indianapolis v. Edmond, 531 U.S. 32, 39
(2000) (noting same).3
The Supreme Court in Brown v. Texas, 443 U.S. 47 (1979),
further articulated the balancing test used to determine the
reasonableness of a seizure in the context of a suspicionless stop
of a man who was walking in an alley: “Consideration of the
constitutionality of such seizures involves a weighing of the
gravity of the public concerns served by the seizures, the degree
to which the seizure advances the public interest, and the severity
of the interference with individual liberty.” Id. at 50-51.
3
To that end, in Mississippi roadblocks where all incoming
traffic is stopped for a driver’s license check have been found
permissible under the Fourth Amendment. Miller v. State, 373 So.
2d 1004, 1005 (Miss. 1979).
12
There, the Court, citing Prouse, invalidated a Texas statute making
it a crime to refuse to identify oneself to a peace officer because
“[i]n the absence of any basis for suspecting . . . misconduct, the
balance between the public interest [in crime prevention] and
appellant’s right to personal security and privacy tilts in favor
of freedom from police interference.” Brown, 443 U.S. at 51-53.
This type of balancing test has also been repeatedly utilized
in the context of suspicionless vehicle checkpoint stops. Though
decided before Prouse and Brown, the Supreme Court in United States
v. Martinez-Fuerte, 428 U.S. 543, 555, 566-67 (1976), balanced the
public interest in intercepting illegal aliens against individual
plaintiffs’ Fourth Amendment privacy interests to explicitly permit
brief, suspicionless seizures at fixed Border Patrol checkpoints to
inquire about citizenship. Citing Martinez-Fuerte and the test
outlined in Brown, the Court has also allowed sobriety checkpoints
aimed at removing drunk drivers from the road, finding the balance
to weigh in favor of the public interest in preventing drunk
driving. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444,
450, 455 (1990). In the most recent checkpoint case, Edmond, the
Court found a checkpoint program primarily designed to interdict
illegal narcotics to contravene the Fourth Amendment because unlike
the permissible, tailored public concerns of policing the border in
Martinez-Fuerte or ensuring road safety in Sitz, the drug
checkpoints served the impermissible programmatic purpose of
13
detecting evidence of ordinary criminal wrongdoing. 531 U.S. at
41-42, 48. Edmond reemphasized that “our cases dealing with
intrusions that occur pursuant to a general scheme absent
individualized suspicion have often required an inquiry into
purpose at the programmatic level.” Id. at 46. Edmond also
reemphasized that this inquiry requires examination of available
evidence to determine the programmatic purpose of the checkpoint.
Id.
It is therefore clearly established that this Court is to
examine the available evidence to determine the programmatic
purpose of the checkpoint implicating the Fourth Amendment. Then
we subject such checkpoint to a balancing test to determine whether
it is constitutionally permissible – weighing the public interest,
if any, advanced by the checkpoint against individual Plaintiffs’
protected privacy and liberty interests.
Clearly established First Amendment law.
The second claim Plaintiffs make is a First Amendment prior
restraint claim. Live musical entertainment such as the Concert is
unquestionably speech and expression subject to the guarantees of
the First Amendment. See Ward v. Rock Against Racism, 491 U.S.
781, 790 (1989); McClure v. Ashcroft, 335 F.3d 404, 409 (5th Cir.
2003) (citing Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65
(1981)); see also Southeastern Promotions, Ltd. v. City of West
Palm Beach, 457 F.2d 1016, 1020 (5th Cir. 1972) (noting that
14
presenting the musical “Hair” at a municipal auditorium is
constitutionally protected). Implicit in the right to engage in
First Amendment-protected activities is “a corresponding right to
associate with others in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural ends.”
Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). When
public officials are given the power to deny use of a forum in
advance of actual expression or association, the danger of prior
restraints exists. Southeastern Promotions, Ltd. v. Conrad, 420
U.S. 546, 553 (1975).
Although prior restraints are not unconstitutional per se, any
system of prior restraint is weighted with a strong presumption of
constitutional infirmity. FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 225 (1990); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70
(1963). The Supreme Court has explained:
The presumption against prior restraints is heavier – and
the degree of protection broader – than that against
limits on [obscene] expression imposed by criminal
penalties. Behind the distinction is a theory deeply
etched in our law: a free society prefers to punish the
few who abuse rights of speech after they break the law
than to throttle them and all others beforehand. It is
always difficult to know in advance what an individual
will say, and the line between legitimate and
illegitimate speech is often so finely drawn that the
risks of freewheeling censorship are formidable.
Conrad, 420 U.S. at 558-59. “[A] system of prior restraint avoids
constitutional infirmity only if it takes place under procedural
safeguards designed to obviate the dangers of a censorship system.”
15
Id. at 559 (citation and internal quotation marks omitted)
(describing prompt judicial review). It is thus clearly
established that if public officials abuse their discretionary
power to deny in advance use of a forum for First Amendment-
protected expression without enacting proper safeguards, this
constitutes an impermissible prior restraint.
Clearly established Fourteenth Amendment law.
Finally, Plaintiffs who were arrested as a result of the
checkpoints and detained at Copiah County jail make a due process
claim related to the imposed delay in their making bail and their
confinement in cramped conditions. Under Mississippi law, arrested
persons must be permitted to make bail or bond within 48 hours of
arrest. Quinn v. Estate of Jones, 818 So. 2d 1148, 1152 (Miss.
2002) (citing Uniform Circuit and County Court Rule 6.03: “[E]very
person in custody shall be taken, without unnecessary delay and
within 48 hours of arrest, before a judicial officer or other
person authorized by statute for an initial appearance.”); see also
Evans v. State, 725 So. 2d 613, 643 n.2 (Miss. 1997) (citing same).
Overcrowding of persons in custody is not per se
unconstitutional. See Rhodes v. Chapman, 452 U.S. 337, 347-50
(1981). However, the Fourteenth Amendment prohibits the
“imposition of conditions of confinement on pretrial detainees that
constitute ‘punishment.’” Hamilton v. Lyons, 74 F.3d 99, 103 (5th
Cir. 1996) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). In
16
Hamilton, where a detainee alleged he was denied visitation,
telephone access, recreation, mail, legal materials, sheets, and
showers for a three-day period, this Court found such treatment did
not amount to punishment to give rise to a constitutional claim.
74 F.3d at 106 (citing Bell for proposition that the Constitution
is not concerned with a “de minimis level of imposition” on
pretrial detainees). This Court applies the Bell test to assess
pretrial detainee due process claims:
[I]f a particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount
to “punishment.” [Footnote omitted.] Conversely, if a
restriction or condition is not reasonably related to a
legitimate goal – if it is arbitrary or purposeless – a
court permissibly may infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees.
441 U.S. at 539. “[T]his test is deferential to jail rulemaking;
it is in essence a rational basis test of the validity of jail
rules.” Hare v. City of Corinth, Miss., 74 F.3d 633, 646 (5th Cir.
1996) (describing Bell test). Thus, it is clearly established that
pretrial detainees’ due process rights are violated when they are
subjected to conditions of confinement that constitute punishment
which are not reasonably related to a legitimate governmental
objective.
Whether individual Defendants Kirby, Hemphill, Goza, Winters,
Seals, and Givens are entitled to qualified immunity.
Based on the summary judgment record evidence, Plaintiffs have
17
not shown that Deputies Hemphill, Goza, Winters, Seals, and Givens
had any particular material interaction whatsoever with any
particular Plaintiff.
Deputy Seals stated he was informed the purpose of the
checkpoint was to check the driver’s license of each person who
came through a checkpoint, no matter his destination; Seals checked
fewer than 100 licenses and aided in only one arrest of an older
Caucasian man for possession of beer.
Deputy Givens stated the Copiah County Sheriff’s Department
followed state policy for conducting driver’s license checkpoints.
According to this policy, as outlined in an opinion from the state
attorney general, deputies could not randomly stop cars but had to
follow a uniform pattern. Here, all vehicles were to be stopped
regardless of their destination. Givens stated he was present at
the checkpoint in a supervisory capacity. He checked a few
driver’s licenses but did not arrest anyone.
None of the other deputies’ deposition testimony indicates any
particular interaction by these deputy Defendants with any
particular Plaintiff.
Sharlet Collins stated that she was aware Plaintiff Priscilla
Morris had been arrested in connection with the roadblock but could
not say by which officer. Sharlet stated Plaintiff Eddie
Youngblood, III had been “harassed” at the checkpoint but could not
say by which officers. Sharlet stated she was not arrested but was
asked for identification each time she passed through the
18
roadblock; unnamed officers asked to search her trunk once, but she
could not remember if they did.
Houston Collins stated that officers asked for his driver’s
license several times that he passed through the roadblock, and
also asked him if he had anything illegal in his car and if they
could search it, but he could not remember any officers’ names. At
one point, unknown officers searched his trailer. Houston was not
arrested and said he had not heard of or spoken with many of the
deputy Defendants. He stated that the officers made comments
regarding the checkpoints being “the sheriff’s doing” and that the
officers did not know why they were there. Houston also stated in
the videotape that deputies conducting the checkpoints stopped
every car.
There is no evidence put forth by Plaintiffs as to any of
these deputy Defendants having, using, or abusing their public
official discretion to deny use of a forum for First Amendment-
protected expression as a prior restraint, nor to any specific
mistreatment by these deputy Defendants regarding Plaintiffs’
ability to make bond or crowded jail conditions.
Thus, the evidence does not show that the specific actions of
these deputy Defendants violated any clearly established
constitutional rights of Plaintiffs. Taking Plaintiffs’ evidence
as true, because Deputies Kirby, Hemphill, Goza, Winters, Seals,
and Givens did not take any particular actions with regard to
particular Plaintiffs, the district court erred in assessing the
19
legal significance of the conduct that the court deemed
sufficiently supported for purposes of denying summary judgment
based on qualified immunity. Therefore, these Defendants are
entitled to qualified immunity as a matter of law on all claims.
Whether individual Defendants Davis and Brown are entitled to
qualified immunity.
Based on the summary judgment record evidence, Plaintiffs have
not shown that Deputies Davis and Brown had any material
interaction with any Plaintiff that amounted to the allegation of
any constitutional violation.
Deputy Davis stated that the morning of the checkpoint,
deputies were informed that the purpose of the checkpoint was to
check driver’s licenses, and not to ask additional questions of
drivers who had valid licenses. Davis said he checked hundreds of
licenses and made inquiries of those drivers who had beer in plain
view. Davis did not search any trunks and did not hear of other
officers requesting to do so, although he did unsuccessfully
request to search one vehicle whose occupants were smoking
marijuana. Davis arrested about 50 people that day, and the total
number of arrestees was between 70 and 100. Davis stated these
people could not make bond till the next morning but did not know
whether this was pursuant to Sheriff Ainsworth’s orders. Davis did
not know how many people were already being held at the jail when
the checkpoint arrestees were brought in. Davis arrested Plaintiff
Sherman Tolliver, who was charged with possession of beer and
20
marijuana, and with contributing to the delinquency of a child who
was a passenger in Tolliver’s car. Davis also arrested Plaintiff
Gregory Tolliver for possession of beer but did not recall whether
he was in the same car as Sherman.
Deputy Brown stated that he remembered going to the Collins’
home prior to June 4, 2000. Sheriff Ainsworth had asked Brown to
speak with the Collins and request they not have the Concert due to
complaints from the prior concert. Brown stated Ainsworth did not
tell him why the checkpoint was being set up but did instruct
deputies to be courteous and treat people fairly. Brown stated he
only stopped one Caucasian man, confiscated his beer, and arrested
him.
Both the Collins recounted the visit to their home by Brown
and two other officers. Sharlet indicated the message that the
planned Concert “ain’t going to happen” came from Ainsworth.
Houston stated that Brown said he did not know why Ainsworth did
not want the Concert to occur. Houston stated that an officer
Bauer or Boyer told him that Ainsworth would not let the Concert
occur because Houston had not agreed to share any Concert proceeds
with Ainsworth. Houston stated the three deputies who came to
their house said they were “just delivering a message.” Sharlet
also stated that at some point on June 4 Brown asked her to leave
the checkpoint area, which may or may not have been while she was
videotaping and/or photographing the scene.
There is no evidence put forth by Plaintiffs as to either
21
Davis or Brown having, using, or abusing their public official
discretion to deny use of a forum for First Amendment-protected
expression as a prior restraint, nor to any specific mistreatment
by these deputy Defendants regarding Plaintiffs’ ability to make
bond or crowded jail conditions.
Thus, the evidence does not show that the actions of these
deputy Defendants amounted to a violation of any clearly
established constitutional rights of Plaintiffs. Plaintiffs put
forth no evidence that Davis’s particular arrests of Sherman and
Gregory Tolliver were unlawful or carried out in any violative way;
also, Davis was unaware that the checkpoint might have had any
purpose other than to check driver’s licenses. Plaintiffs put
forth no evidence that Brown stopped any of them at the
checkpoints. While Brown delivered a message from Ainsworth to the
Collins that Ainsworth did not want the Concert to take place, and
directed Sharlet to leave the checkpoint area, such actions by
themselves did not violate Plaintiffs’ constitutional rights.
Taking Plaintiffs’ evidence as true, because Deputies Davis and
Brown took only limited actions with regard to Plaintiffs – no
action that amounted to any violation of Plaintiffs’ constitutional
rights – the district court erred in assessing the legal
significance of the conduct that the court deemed sufficiently
supported for purposes of denying summary judgment based on
qualified immunity. Therefore, these Defendants are entitled to
qualified immunity as a matter of law.
22
Whether individual Defendant Ainsworth is entitled to qualified
immunity.
Based on the summary judgment record evidence, Plaintiffs have
shown that Sheriff Ainsworth had material interactions relating to
the checkpoints which amounted to the allegation of a Fourth
Amendment violation, as to all Plaintiffs, and a First Amendment
violation, as to most Plaintiffs, but not a Fourteenth Amendment
violation.
Sheriff Ainsworth stated that he had heard advertisements
about the (what he classified as a “rock”) Concert and was
concerned that many young and old unlicensed drivers would be
attending. Ainsworth said he based this concern on “[j]ust prior
experience and being a sheriff.” Ainsworth had the county attorney
contact the state attorney general’s office to obtain an opinion
regarding the legality of a driver’s license checkpoint. Ainsworth
stated he instructed the deputies conducting the checkpoints to be
courteous, and to stop each car that approached a checkpoint on OPG
Road. There were two checkpoints due to the high volume of cars
traveling toward Collins Field. Checkpoints had previously been
set up on OPG Road, but they had never been set up for rodeos;
Ainsworth also stated he had never worked a rock concert as a
sheriff before. Ainsworth stated the first people stopped were
Caucasian; and about 70 to 80 people were arrested at the
checkpoints, taken to the jail, and held until the next morning.
Ainsworth had instructed officers that the arrestees were not to be
23
released until the next day. Ainsworth stated that his Sheriff’s
Office had received complaints about a previous Collins Field
concert involving profanity, noise, and trash dumping. Ainsworth
admitted that he had sent a warning through his deputies to the
Collins not to hold the Concert; deposition testimony from Brown
and the Collins confirms this.
Sharlet Collins stated the message that they received from
Brown about canceling the Concert came from Ainsworth, and the
roadblock was retaliation for the Collins’ supporting Ainsworth’s
opponent in the previous election. Ainsworth stated he did not
know who the Collins had supported. Houston Collins also stated
the message was sent by Ainsworth and that Ainsworth did not want
the Concert to take place unless Ainsworth received some payback of
the proceeds.
Both checkpoints were located on OPG Road. Deposition
testimony indicates the location of the checkpoints to be at
opposite sides just outside the entrance gates of Collins Field and
the Concert.
Fourth Amendment violation.
Plaintiffs argue one actual programmatic purpose of the
checkpoints was to detect evidence of ordinary criminal wrongdoing,
which as the Supreme Court stated in Brown, 443 U.S. at 51-53, and
confirmed in Edmond, 531 U.S. at 41-42, 48, is an impermissible
purpose in suspicionless stops. The summary judgment record
24
evidence does not show this to be an actual purpose pursued by
Defendants. The deputies’ testimony shows the purpose declared by
Ainsworth to be checking for unlicensed drivers. The only evidence
as to confiscation of beer and/or marijuana demonstrates that
deputies were told to take, and did take, such items only when
discovered in plain sight or when a search was consented to. Thus,
the purpose of ordinary crime prevention or detection is not
materially supported by the evidence.
Plaintiffs also put forth the argument, which is amply
supported by the record, that another programmatic purpose of the
checkpoint was to stop the Concert from occurring, and that
Ainsworth unconstitutionally enforced driver’s license checkpoint
law to accomplish this goal. Ainsworth maintains he is entitled to
qualified immunity because the checkpoints were constitutionally
proper. The checkpoints were a legitimate exercise of the
government’s power to regulate drivers for safety reasons.
Ainsworth also points to the fact that he sought and relied on an
opinion regarding the legality of driver’s license checkpoints from
the attorney general’s office.
However, taking Plaintiffs’ summary judgment evidence as true,
the record indicates that Sheriff Ainsworth was pursuing the
programmatic purpose of discouraging the Concert from taking place
when he set up and conducted the checkpoints on OPG Road leading to
Collins Field. Though Ainsworth claims the checkpoints were set up
to advance general highway safety, and the checkpoints may have
25
been facially valid pursuant to Mississippi law and under Prouse,
440 U.S. at 663, as reindicated in Edmond, 531 U.S. at 39,
Plaintiffs have put forth material evidence that shows another
programmatic purpose which was advanced by Sheriff Ainsworth.
Whether it be because Ainsworth did not want to receive complaints
about another concert, the Collins had not supported him in the
prior election, or Ainsworth wanted to elicit a bribe, discouraging
the Concert from happening was an impermissible programmatic
purpose.
It is clear that the checkpoints at issue were seizures
implicating the Fourth Amendment. Sitz, 496 U.S. at 450; see also
Martinez-Fuerte, 428 U.S. at 556 (“It is agreed that checkpoint
stops are ‘seizures’ within the meaning of the Fourth Amendment.”).
Under the Brown balancing test we consider the reasonableness of
those seizures. Sitz, 496 U.S. at 450. Although there is no
evidence disputing that promoting highway safety is a legitimate
public concern, Plaintiffs have advanced evidence that the actual
primary purpose of the stops was the impermissible nonpublic
concern of suppressing the Concert. It is true that the evidence
shows a few unlicensed drivers were removed from the highway after
being stopped at the checkpoints. See, e.g., id. at 454-55
(finding the removal of two drunk drivers from 126 persons stopped
at a sobriety checkpoint to be enough to effectively advance the
public interest). However, it is also true that the headline act
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2 Live Crew did not perform at the Concert. Thus, the checkpoints
were also effective at advancing their impermissible programmatic
purpose. Though the intrusion on most individuals stopped at the
checkpoints appears to have been brief and not severe, see id. at
452-53, in light of the improper programmatic goal and effect of
stopping the Concert, we find the Brown balancing test weighs in
favor of the unreasonableness of the checkpoints.
Plaintiffs have thus clearly alleged that Ainsworth’s conduct
in connection with the checkpoints constituted a violation of their
Fourth Amendment rights. Moreover, an objectively reasonable
officer would or should have known that discouraging a First
Amendment-protected musical performance – see, e.g., Ward, 491 U.S.
at 790; Schad, 452 U.S. at 65 – would not constitute a legitimate
public interest such that the Brown balancing test used to
determine the constitutionality of suspicionless checkpoint stops
would weigh in favor of Plaintiffs’ personal Fourth Amendment
interests under clearly established law. We find that, under these
circumstances, no sheriff could reasonably believe his actions
aimed at stopping the Concert were legal and would entitle him to
qualified immunity. Therefore, the district court was correct in
its assessment of the legal significance of Ainsworth’s conduct
that the court deemed sufficiently supported the denial of summary
judgment based on qualified immunity on the Fourth Amendment claim.
First Amendment prior restraint violation.
27
Plaintiffs argue that Ainsworth’s warning that the concert was
not going to occur, coupled with the setup of the checkpoints
themselves, amounted to a prior restraint on the Concert and thus
infringed their rights of free expression and association.
Ainsworth responds that the checkpoints were entirely legitimate
and did not constitute a prior restraint.
For essentially the same reasons we find no error in the
district court’s denial of qualified immunity against Ainsworth on
the Fourth Amendment issue, this Court agrees with Plaintiffs.
Plaintiffs presented evidence that after failing to dissuade the
Concert sponsors from proceeding with their plans for the 2 Live
Crew event, Ainsworth chose to erect an indirect (but fully
effective) bar in the guise of a facially valid pair of driver’s
license checkpoints on either side of OPG Road, flanking the only
entrance to Collins Field. By setting up these checkpoints to stop
the Concert from taking place, Ainsworth abused his discretionary
power to deny in advance the use of Collins Field for First
Amendment-protected musical expression and association. No
procedural safeguards were put in place to prevent censorship of
legitimate speech and music. Therefore, we find Ainsworth’s use of
the driver’s license checkpoints amounted to an impermissible prior
restraint on the Concert.
Most Plaintiffs thus have clearly alleged a constitutional
violation by Ainsworth. As to most Plaintiffs, we find under these
circumstances that no sheriff could reasonably believe his actions
28
aimed at stopping the Concert were legal and would entitle him to
qualified immunity. Therefore, the district court was correct in
its assessment of the legal significance of Ainsworth’s conduct
that the court deemed sufficiently supported the denial of summary
judgment on the First Amendment claim as to most Plaintiffs.
However, we find no evidence in the summary judgment record
indicating that Plaintiffs Darrell Calender, Priscilla Morris, and
Luther Jefferson had any intentions to attend the Concert. Thus,
these Plaintiffs have not clearly alleged a First Amendment
violation. Sheriff Ainsworth is entitled to qualified immunity on
the First Amendment issue as to these Plaintiffs.
Fourteenth Amendment violations.
Finally, Plaintiffs who were arrested and held at Copiah
County’s detention center argue that they were denied their right
to make bail within 24 hours and were incarcerated in unsuitable
conditions. Defendants contend there is no evidence that
Plaintiffs were subjected to unconstitutional conditions amounting
to punishment. The summary judgment record evidence does not
support Plaintiffs’ allegations of due process violations related
to the timing of their bail or the conditions of their confinement.
There is no right to post bail within 24 hours of arrest.
Mississippi law indicates that this limitation is 48 hours. Quinn,
818 So. 2d at 1152; Evans, 725 So. 2d at 643 n.2. There is no
evidence presented by Plaintiffs that their posting bail on Monday
29
morning after being detained on Sunday exceeded the 48-hour limit.
The only evidence indicates two judges were brought to the jail
Monday morning to bond out detained Plaintiffs.
Likewise, while there is evidence that Copiah County jail
exceeded capacity for much of the duration of Plaintiffs’ stay,
there is nothing to indicate that unsanitary or unsuitable
conditions amounting to punishment resulted. Plaintiffs advanced
no summary judgment evidence to back their claims that they were
not granted mattresses and phone calls during their overnight stay.
This Court did not find unconstitutional punishment conditions in
Hamilton, 74 F.3d at 106, where a pretrial detainee was denied
telephone access, recreation, mail, showers, and sheets for a
three-day period; in fact, we affirmed the district court’s
decision to dismiss Hamilton’s § 1983 conditions of confinement
claim. Id. at 107. Similarly, even if we assume as true evidence
Plaintiffs have not put forth, detained Plaintiffs who were not
granted phone calls and mattresses for a period of less than 24
hours were not subjected to impermissible punishment. If we assume
as true evidence Plaintiffs have not put forth, it appears arrested
Plaintiffs were merely exposed to a “de minimis level of
imposition.” Id. at 106.
There is evidence that Ainsworth authorized that Plaintiffs be
held until the morning of June 5, 2000. However, the only reasons
for the cramped conditions advanced by Defendants, which Plaintiffs
30
have not rebutted, relate to the inability to get judges out to the
jail late on Sunday to post bond and the bad weather conditions.
These are legitimate, practical concerns reasonably related to the
overcrowding conditions; they easily meet the deferential, rational
basis Bell test. See Bell, 441 U.S. at 539; Hare, 74 F.3d at 646.
Taking Plaintiffs’ sparse evidence as true, because the
evidence does not show that the actions of Sheriff Ainsworth in
keeping them overnight at the jail subjected Plaintiffs to
conditions of confinement that constitute unconstitutional
punishment of pretrial detainees which were not reasonably related
to a legitimate government objective, the district court erred in
assessing the legal significance of the conduct that the court
deemed sufficiently supported for purposes of denying summary
judgment based on qualified immunity. Therefore, Ainsworth is
entitled to qualified immunity as a matter of law on the Fourteenth
Amendment due process claims.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and arguments, and for the reasons set
forth above, we conclude that Plaintiffs have not materially
alleged any clearly established constitutional violations by deputy
Defendants; they are entitled to qualified immunity as a matter of
law. We also conclude that Plaintiffs have not materially alleged
any clearly established Fourteenth Amendment violation by Defendant
31
Sheriff Ainsworth and he is entitled to qualified immunity as a
matter of law on this issue. However, Plaintiffs have materially
alleged that Ainsworth’s conduct in connection with the checkpoints
violated clearly established Fourth Amendment law, and this Court
finds his actions objectively unreasonable under the circumstances.
Plaintiffs, except Darrell Calender, Priscilla Morris, and Luther
Jefferson, have also materially alleged that Ainsworth’s conduct
violated clearly established First Amendment law, and this Court
finds his actions objectively unreasonable under the circumstances.
Therefore, we REVERSE the district court’s denial of qualified
immunity as to all deputy Defendants; we REVERSE the district
court’s denial of qualified immunity to Sheriff Ainsworth on the
Fourteenth Amendment issue, as to all Plaintiffs, and on the First
Amendment issue, as to Plaintiffs Calender, Morris, and Jefferson;
we AFFIRM the court’s denial of qualified immunity as to Sheriff
Ainsworth on the Fourth Amendment issue, as to all Plaintiffs, and
on the First Amendment issue, as to all Plaintiffs except Calender,
Morris, and Jefferson; and we REMAND for proceedings consistent
with this opinion.
REVERSED in part, AFFIRMED in part, and REMANDED.
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