Aujla v. Hinds County MS, et al

IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60699
_______________
BIMALDEEP KAUR AUJLA,
INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF CHARANJIT S. AUJLA,
AND AS GUARDIAN AND NEXT FRIEND OF
KHUSH KANWAR DEEP AUJLA AND NAVKETAN AUJLA,
Plaintiff-Appellant,
VERSUS
HINDS COUNTY, MISSISSIPPI;
JOSEPH E. LAUDERDALE,
IN HIS OFFICIAL CAPACITY;
DOUGLAS ANDERSON,
IN HIS OFFICIAL CAPACITY;
PEGGY HOBSON,
IN HER OFFICIAL CAPACITY;
RONNIE CHAPPELL,
IN HIS OFFICIAL CAPACITY;
GEORGE S. SMITH,
IN HIS OFFICIAL CAPACITY;
MALCOLM E. MCMILLAN, SHERIFF,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
LEON SEALS, DEPUTIES,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, ALSO KNOWN AS JOHN DOES,
PEGGY HOBSON CALHOUN,
IN HER OFFICIAL CAPACITY,
ANDREW MCKINLEY, RICKY BARNER,
AND ROBERT MAHAFFEY,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
Defendants-Appellees.

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2
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________
February 11, 2003
Before JONES, SMITH, and
SILER,* Circuit Judges,
JERRY E. SMITH, Circuit Judge:**
This 42 U.S.C. § 1983 case arises from the
shooting death of Charanjit S. Aujla (“Aujla”)
at the hands of deputies of Hinds County while
he was a clerk at the N.S. Food Market (“the
market”) in Jackson, Mississippi. Aujla’s
widow, Bimaldeep Aujla (“plaintiff”), sued the
county, the county supervisors, the head
Sheriff, and four deputiesSSraising both federal
and state claims. The district court granted
summary judgment for all defendants and
denied plaintiff’s cross-motion for summary
judgment on her false arrest claim. Finding no
error, we affirm.
I.
The shooting arose from an operation of
the Hinds County Sheriffs Department aimed
at store owners selling tobacco and/or alcohol
to minors.1 The officers targeted two stores,
the market, where Aujla worked, and a gas
station up the road. Four members of the
Hinds County Vice and Narcotics Unit partici-
pated in the operation: Andrew McKinley,
Robert Mahaffey, Ricky Barner, and Leon
Seals, all deputy sheriffs.
McKinley accompanied a wired minor into
the gas station and allowed the minor to pur-
chase cigarettes from a clerk there. The depu-
ties did not immediately arrest the clerk; in-
stead, they tagged the evidence and proceeded
to the market. The same procedure was re-
peated, although Aujla allegedly sold beer and
cigarettes to the minor. The deputies then
returned to the gas station and arrested the
clerk, and arrested an employee of a food
franchise located in the gas station for interfer-
ing with the arrest of the clerk.
The two arrestees were transported to the
market, where they remained during the events
leading to Aujla’s death. When the deputies
entered the store, they were clothed in brown
wind breakers, which on the front sported a
patch resembling a badge and on the back
were lettered either with “Sheriff’s Office
Narcotics” or “Sheriff’s Dept.”
The deputies’ combined version of the
* Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designa-
tion.
** Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Both are illegal in Mississippi. MISS. CODE
ANN. §§ 97-32-5; 67-1-81 (2001).

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3
events inside amounts to the following: When
they entered, they found Aujla at the register
and behind a plexiglass divider that cordoned
off one end of the store. Barner approached a
door in the plexiglass divider. The officers
then informed Aujla that they were there to
arrest him for the sale of alcohol and tobacco
to a minor. Finding the door locked, the dep-
uties asked Aujla to unlock it.
Instead, Aujla reached under the counter.
McKinley drew his weapon and ordered Aujla
to raise his hands and back away from the
counter. Seals then showed Aujla the back of
his jacket and repeated the reason for the ar-
rest. Barner again tried the door and found it
locked. Aujla ducked down, grabbed a gun
from under the counter, and pointed it at Bar-
ner. Someone yelled “gun,” and McKinley
fired at Aujla. Barner also fired his weapon, as
did Aujla. Two shots struck Aujla in the head,
killing him.
II.
Plaintiff sued under federal and state law
and offers theories of recovery of § 1983
liability for alleged violations of illegal arrest
and excessive force and state tort claims for
false arrest and intentional infliction of emo-
tional distress (“i.i.e.d.”). The court granted
summary judgment to all defendants on all
claims and denied plaintiff’s cross-motion for
summary judgment on the state false arrest
claim.
III.
We review summary judgments using the
same standards as did the district court; thus
our review is de novo. Walton v. Alexander,
44 F.3d 1297, 1301 (5th Cir. 1995) (en banc).
Summary judgment is proper where “there is
no genuine issue as to any material fact and the
moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). All
inferences from the record must be construed
in the light most favorable to the non-movant.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); Walker
v. Thompson, 214 F.3d 615, 624 (5th Cir.
2000). To avoid summary judgment, there
must be evidence in the record sufficient to
sustain a finding in favor of the non-movant.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc).
IV.
Plaintiff presents two federal claims through
§ 1983: false arrest and excessive force. The
false arrest claim is based on the deputies’
failure to follow Mississippi law with regard to
making an arrest for a misdemeanor committed
in their presence, but only after a substantial
gap of time (here sixty to ninety minutes).2
Mississippi law, however, does not provide
a basis for § 1983 liability. Section 1983 is a
guarantor of federal, not state, rights. As we
explained in Fields v. City of South Houston,
Tex.,
a federal civil rights action will not lie
for a warrantless misdemeanor arrest in
violation of state law. Section 1983 is a
federally created cause of action to re-
dress civil rights violations. ‘The states
are free to impose greater restrictions on
arrests, but their citizens do not thereby
2 See Smith v. State, 87 So. 2d 917, 919 (Miss.
1956) (“If, however, the officer witnesses the
commission of an offense and does not arrest the
offender, but departs on other business, or for other
purposes, and afterwards returns, he cannot then
arrest the offender without a warrant; for then the
reasons for allowing the arrest to be made without
a warrant have disappeared.”).

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4
acquire a greater federal right.’
922 F.2d 1183, 1189 (5th Cir. 1991) (quoting
Street v. Surdyka, 492 F.2d 368, 371-72 (4th
Cir. 1972)).
Regardless of the merit of plaintiff’s claim
that the deputies violated Mississippi law, her
§ 1983 claim will survive only if the deputies
acted contrary to the Fourth Amendment in ar-
resting her husband. Under the facts as al-
leged, Aujla’s rights, as protected by § 1983,
were transgressed only if the deputies arrested
him without probable cause. Price v. Roark,
256 F.3d 364, 369 (5th Cir. 2001). When an
officer observes the commission of a crime, he
has probable cause to make a warrantless ar-
rest. United States v. Rojas, 671 F.2d 159,
165 (5th Cir. Unit B 1982).3
Plaintiff does not, nor can she, seriously
challenge, on federal grounds, the authority of
the deputies to arrest her husband for illegally
selling alcohol and cigarettes to a minor. Ac-
cordingly, summary judgment on the federal
false arrest claim was proper.
The heart of plaintiff’s federal claim is her
argument that the officers used excessive force
in attempting to arrest her husband. Her
argument rests almost entirely on assumptions
about how the events of December 4 tran-
spiredSSassumptions that differ from the ac-
counts given by the deputies. The highlights
of her take on the events of that day follow.
First, plaintiff maintains that the conduct of
the deputies in arresting the clerk and cook at
the gas station before trying to arrest her hus-
band demonstrate a “raid” mentality to the
operations and an overzealousness in carrying
them out. She draws particular attention to
the arrest of the cook, Quinn, who claims to
have done nothing but ask the deputies what
to do with the store when they removed the
clerk for selling cigarettes to the undercover
minor.
Second, plaintiff notes her husband’s blank
criminal record, his fear of crime (thus the gun
and plexiglass divider), and the deputies’ use
of unmarked cars and minimally-marked uni-
forms. These facts, she avers, shed a different
light on her husband’s act of drawing a gun on
the deputies. Instead of a man violently pro-
testing his arrest for a misdemeanor, plaintiff
contends these facts reflect a situation in which
Aujla was defending his store (and life) against
a perceived robbery.
Excessive force cases arising in the context
of an arrest are analyzed under the Fourth
Amendment. Graham v. Connor, 490 U.S.
386, 394 (1989).4 This means the force, even
if deadly, is justified only if objectively reason-
3 The Fourth Amendment does not prohibit
arrests even for minor misdemeanors. Atwater v.
City of Lago Vista, 532 U.S. 318, 354 (2001) (“If
an officer has probable cause to believe that an
individual has committed even a very minor crimi-
nal offense in his presence, he may, without violat-
ing the Fourth Amendment, arrest the offender.”).
4 The elements of an excessive force claim
under § 1983 are
(1) an injury [that]
(2) resulted directly and only from the use
of force that was clearly excessive to the
need; and the excessiveness of which was
(3) objectively unreasonable.
Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.),
opinion on rehearing, 186 F.3d 633 (5th Cir.
1999).

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5
able fro m the perspective of an officer in the
same situation that faced the defendants. Id. at
396. More specifically, “if the suspect threat-
ens the officer with a weapon . . . deadly force
may be used if necessary to prevent escape,
and if, where feasible, some warning has been
given.” Tennessee v. Garner, 471 U.S. 1, 11-
12 (1985). Because deadly force may be used
to stop some escapes, it also may be used to
stifle a t hreat to the life of officers. Stroik v.
Ponseti, 35 F.3d 155, 159 (5th Cir. 1994).
This is the case even where the decedent turns
out to be unarmed but the officer reasonably
feared for his own safety.5
There is no dispute that Aujla discharged a
gun during the exchange of fire resulting in his
death. Thus, the deputies’ use of deadly force
was justified to protect their safety. Only if
the deputies somehow created the need to use
deadly force would this line of reasoning fail.
This self-created danger, though, cannot be
premised on mere negligence. Fraire v. City
of Arlington, 957 F.2d 1268, 1276 (5th Cir.
1992). Indeed, “no right is guaranteed by
federal law that one will be free from circum-
stances where he will be endangered by the
misinterpretation of his acts.” Young v. City of
Killeen, Tex., 775 F.2d 1349, 1353 (5th Cir.
1985).
There is no positive evidence of the depu-
ties’ recklessness; only plaintiff’s suppositions
are offered to create disputes over relevant
facts. The narrow question is whether sum-
mary judgment can be defeated simply by tell-
ing a story different from that offered by the
existing testimony. Evidence that supports the
movant should be given credence to the degree
it is unimpeached, uncontradicted, and “comes
from disinterested witnesses.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). Also, summary judgment
should not be granted on the basis of “meta-
physical doubt.” Matsushita, 475 U.S. at 587.
We have interpreted these commands to
prohibit summary judgment where “the credi-
bility of key witnesses loom[s] . . . large.”
Thomas v. Great Atl. & Pac. Tea Co., 233
F.3d 326, 331 (5th Cir. 2000). In the context
of an excessive force fatal shooting, we have
found a genuine dispute of material fact where
the only other witness to the shooting was
dead. Bazan v. Hidalgo County, 246 F.3d 481
(5th Cir. 2001). The significance of Bazan,
however, should not be overstated. Although
there was no living person to offer another ac-
count of the events immediately preceding the
shooting, the court noted an absence of evi-
dence corroborating the trooper’s version of
events. Id. at 492-93.
This case is different. Critically, plaintiff
points to nothing in the summary judgment
record that casts doubt on the veracity of the
deputies’ version of the events. At most,
plaintiff’s speculations might lead a jury to
conclude that the deputies were negligent in
the way they decided to effect the arrest.
Doubtless it is true that a vice team should not
be required to arrest someone who is sus-
pected merely of a routine regulatory offense.
The Constitution, though, affords no protec-
tion against being put in a difficult situation by
virtue of police negligence.
Accordingly, we affirm summary judgment
for the deputies in their individual capacities
on the excessive force claim. Finding no lia-
bility on the part of the deputies, we also af-
5 Reese v. Anderson, 926 F.2d 494 (5th Cir.
1991) (unarmed decedent repeatedly disobeyed
officer’s command to keep hands raised by putting
them below officer’s sight line and into car).

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firm summary judgment for the officers in their
official capacities and for the county and its
officials.
V.
Plaintiff also asserts two state law claims
against defendants: illegal arrest and i.i.e.d.
Her claim for illegal arrest stems exclusively
from a single decisionSSSmith v. State, 87 So.
2d 917 (Miss. 1956). Smith requires an officer
making a warrantless arrest for a misdemeanor
offense to do so “as quickly after the commis-
sion of the offense as the circumstances will
permit.” Id. at 919. The deputies attempting
to arrest Aujla violated this procedure. The
remedy for such a violation, though, is to ex-
clude the evidence obtained from such an ar-
rest. Id. This violation of Mississippi law
cannot serve as a basis for § 1983 liability; nor,
under Smith, for monetary liability under state
law.6
Plaintiff also claims a cause of action for in-
tentional infliction of emotional distress against
all defendants. Mississippi has enacted a
limited waiver of its sovereign immunity.
MISS. CODE ANN. § 11-46-3 (2001). Liability
will not lie against
A governmental entity and its employees
acting within the course and scope of
their employment . . . (c) arising out of
any act or omission of an employee of a
governmental entity engaged in the
performance or execution of police or
fire protection unless the employee act-
ed in reckless disregard of the safety and
well-being of any person not engaged in
criminal activity at the time of injury.
MISS. CODE ANN. § 11-46-9(1),(1)(c) (2001).
Plaintiff does not offer a coherent argument
that any deputy involved in the fatal shooting
of her husband was acting outside his official
duties.7 As discussed above, the actions of the
officers, even giving credence to all of plain-
tiff’s speculation, did not act recklessly in
attempting the arrest.
Finally, when the deputies shot him, Aujla
was committing a crimeSSassault of a law
enforcement officer. MISS. CODE ANN.
§ 97-3-7 (2001). By pointing a loaded weap-
on at Barner and then discharging it, Aujla ob-
6 Because we reject any liability under state law
for any defendant, we also affirm the denial of
plaintiff’s cross-motion for summary judgment on
the state false arrest claim.
7 Because the deputies were acting within their
official duties, they are not subject to suit in an
individual capacity.
An employee may be joined in an action
against a governmental entity in a represen-
tative capacity if the act or omission com-
plained of is one for which the governmental
entity may be liable, but no employee shall
be held personally liable for acts or omis-
sions occurring within the course and scope
of the employee’s duties. For the purposes
of this chapter an employee shall not be
considered as acting within the course and
scope of his employment and a governmen-
tal entity shall not be liable or be considered
to have waived immunity for any conduct of
its employee if the employee's conduct
constituted fraud, malice, libel, slander,
defamation or any criminal offense.
MISS. CODE ANN. § 11-46-7(2) (2001). See
Holmes v. Defer, 722 So. 2d 624 (Miss. 1998)
(officer who shot suspect in self-defense was acting
within his official duties), overruled on other
grounds, Carr v. Town of Shubuta, 733 So. 2d
261 (Miss. 1999).

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viously was “engaged in criminal activity.”
The technical violation of Mississippi arrest
procedure does not change this; Aujla’s act of
aiming a loaded gun at Barner was an aggra-
vated assault regardless of the propriety of
arrest.8 All defendants are thus immune from
suit under any state law theory of recovery.
AFFIRMED.
8 Watkins v. State, 350 So. 2d 1384 (Miss.
1977) (affirming conviction for aggravated assault
of a police officer when defendant aimed a shotgun
at officer and pulled the trigger despite lack of
probable cause for initial stopSSthe gun was
unloaded).

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8
EDITH H. JONES, Circuit Judge, dissenting:
With due respect to my colleagues, I would reverse and remand for trial Mrs. Aujla’s § 1983
excessive force claim based on the presence of genuine issues of material fact. I therefore respectfully
dissent only on this critical holding.
This case is unlike any other § 1983 deadly force cases that have come before this court. A
jury might well conclude that in this tragic case of apparent mistaken identity, four overbearing,
heavily-armed and essentially disguised sheriff’s deputies gave Aujla no real opportunity to
understand what was happening when they entered his store. A jury could consequently conclude
that unconstitutionally excessive force was used in the arrest far disproportionate to the “crime” Aujla
committed, and that it was used in such a manner as to provoke a self-defense response from Aujla,
escalating what should have been a ticketed offense into a deadly confrontation. Finally, a reasonable
jury could conclude that no reasonable law enforcement officer would have employed the tactics used
in this case to storm a convenience store in informal raid gear for a minor offense.
The majority’s recitation of the applicable law is essentially correct. I do, however, take issue
with their application of relevant authorities to the facts, and I object to their confining the evidence
to a brief snapshot immediately before Aujla was provoked to shoot.
The basic issues here are whether the deputies used excessive force to arrest Aujla for selling
beer and cigarettes to a minor and whether the deputies are shielded by qualified immunity even if
they did use excessive force.
The majority offer a barebones narrative of the shooting while ignoring significant evidence
and inconsistencies among the deputies’ testimony. Pertinent to the excessive force balancing test

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9Photographs of the deputies, taken shortly after the raid, show that seen from the front, from a few feet
away, they did not look like law enforcement personnel.
9
are t he facts (not merely “a different story” as the majority characterizes them) that Aujla’s
misdemeanor offense of selling beer and cigarettes to a minor is usually punished by a small fine.
Aujla had no prior criminal record or any record of violent conduct. His store was located in a high
crime area. He had been robbed at gunpoint four times and shot at during one of those crimes.
The majority imply that the deputies’ official status was known by Aujla, but a jury could
easily conclude otherwise. One of the deputies sported a beard, another a baseball cap, and they all
wore jeans and brown windbreakers, some of which may have had insignia on the front that, if visible
at all, were not legible from more than a couple feet away.9 At least one deputy had a pistol holstered
to his leg. During the confrontation, one deputy turned 90 degrees toward Aujla to show him much
larger sheriff’s department lettering on the back of his jacket, but it cannot be determined whether
Aujla saw the embroidery due to the deputy’s position and the fact that a gun had been drawn on
Aujla at that time.
Four deputies descended simultaneously on Aujla’s store to make the arrest. Their accounts
of the ensuing events are not consistent as to who said or did what during the raid, and they are
inconsistent with the accounts of witnesses outside the store. Whether the shooting began in 10-20
seconds or up to a minute after the deputies entered the store is not clear. Whether Aujla heard, from
behind his plexiglass safety window, one or more of the deputies state that they were from the
sheriff’s department is unclear. What provoked Aujla to reach for a pistol is unclear, although Deputy
McKinley acknowledged that he drew a gun on Augla when Augla ran to a counter and reached

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10
under it as if he were trying to pick something up. There is disputed evidence concerning such basic
facts about the circumstances of the arrest.
Here, too, we have a template of the arrest tactics used against Aujla. It consists of the
testimony of the witnesses arrested in a comparable bust only an hour before the storming of the store
where Aujla worked. One witness was the store clerk, a suspect like Aujla for selling beer to a minor,
and the other witness a cook in an adjoining store who came over to help his friend when the SWAT
team arrived at their establishment. The cook was arrested for “interfering” with events that, to him,
did not resemble an ordinary arrest. In my view, what the SWAT team did in an identical raid for an
identical violation on identical premises in an identical part of town on the same morning, immediately
before their raid on Aujla’s store, helps to fill the gap left by the silence of their victim.
In § 1983 deadly force cases, the evidence must be sifted carefully when it derives from a self-
interested source –– the defendant law enforcement officer –– and the victim cannot respond because
he is dead. So this court held in Bazan, as it agreed that genuine, material fact issues were raised by
the credibility of the police officer who was the only witness to his fatal shooting of a drunk driving
suspect. Bazan v. Hidalgo County, 246 F.3d 481, 492-93 (5th Cir. 2001). The majority urges that
Bazan “should not be overstated,” because there was “an absence of evidence corroborating the
trooper’s version of events.” The majority go on to reason, albeit without any corroborating evidence
in this case, that the conflicting testimony of four self-interested witnesses is more trustworthy than
that of one. I am not persuaded.
The majority’s ultimate point is that a citizen has no constitutional right to be free from a
negligently executed arrest. I do not disagree with the general principle, but none of the excessive

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10Fraire v. City of Arlington, 957 F.2d 1268, 1270 (5th Cir. 1992).
11Young v. City of Killeen, 775 F.2d 1349, 1351 (5th Cir. 1985).
12 “Doubtless it is true that a vice team should not be required to arrest someone who is suspected merely
of a routine regulatory offense.”
11
force cases relied on by the majority is like this one. None involves a strong likelihood of mistaken
identity of police by the victim. None involves a citizen who had no reason to believe he would be
approached for arrest by a band of armed officers in informal raid gear. None involves the execution
of a preconceived arrest plan that called for the deputies to behave as if they were invading a crack
house. Instead, the victims in Fraire10 and Bazan, supra, were pulled over while driving under the
influence of alcohol, and in Young11, the victim was escaping from the scene of a drug deal. The
Supreme Court has explained that the constitutional reasonableness of a seizure depends on balancing
the extent and quality of the intrusion on the individual’s interests against the importance of the
relevant governmental interests. Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85
L.Ed.2d 1, 7 (1985). Reasonableness depends in part on how the seizure is carried out. Id. The
majority appears to agree that seizure of Aujla’s person- and life- began with bizarrely disproportion-
ate arrest tactics.12 A jury should decide whether those tactics misled Aujla into believing he had to
defend himself against lawless attack. There is a fact issue whether the extent and quality of the
deputies’ “intrusion” was constitutionally unreasonable.
Finally, it is also settled law that some conduct may be objectively unreasonable even without
caselaw directly in support. McClendon v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002) (en
banc) (“[S]tate officials can still be on notice that their conduct violates established law, even in novel
factual circumstances.”). A jury could conclude that no reasonable law enforcement officers would

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12
effectuate an arrest for a routine regulatory offense by storming a place of business in informal garb
while armed and misleading the single suspect into believing that he had to defend himself. If this
version of the facts were accepted by the jury, a § 1983 verdict should be upheld against the deputies.
I respectfully DISSENT.

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