Foust, et al v. Seal, et al

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

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2
Before DAVIS, SMITH, and BENAVIDES,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The sheriff’s office of Pearl River County,
Mississippi, executed a writ of replevin by
seizing Bobby and Cathy Foust’s convenience
store and permitting a creditor to repossess the
inventory. The writ directed the officers to
take only the fixtures, inventory, and equip-
ment; state law required them to hold the per-
sonal property for two days following seizure.
Disregarding both limits, the officers seized the
premises and turned over the inventory im-
mediately. The bankruptcy court held that
these actions did not violate the Bankruptcy
Code, the Fourteenth Amendment’s Due Pro-
cess Clause, the Fourth Amendment, or Missis-
sippi’s replevin statute. The district court af-
firmed. We affirm in part, reverse in part, and
remand.
I.
On February 17, 1998, Gerald Seal and his
wife, Diane Seal, filed an ex parte complaint
for replevin in the circuit court of Pearl River
County, Mississippi, alleging that Bobby Ray
Foust and his wife, Cathy Foust, had executed
an installment promissory note secured by in-
ventory and certain furniture, fixtures, and
equipment located in a convenience store in
Mississippi. According to the complaint, the
Fousts had defaulted on the note, and under its
terms, the Seals were entitled to possession of
the collateral.
The circuit judge ordered the clerk to issue
a writ of replevin and directed the sheriff “to
immediately seize and take into their posses-
sion the property described . . . and to deliver
said property to the Plaintiffs unless bonded by
the Defendants, and to summon the said De-
fendants to appear” in the circuit court on
April 6, 1998, to respond to the Seals’ com-
plaint. The clerk issued a writ that conformed
to these requirements.
On February 18, Gerald Seal delivered cop-
ies of the pleadings and orders to the sheriff’s
office. At the time, Dan McNeill was the sher-
iff and employed Lamar Thigpen as a civil
deputy. Thigpen served all civil process, in-
cluding writs of replevin, in the south end of
the county. He had been employed by the
county for over eight years but had not re-
ceived training in the service of civil process.
Thigpen testified that he was not familiar with
the specific requirements of the Mississippi re-
plevin statute; he consulted with Seal’s at-
torney and other members of McNeill’s staff
before serving the writ.
Thigpen initially served the writ on Cathy
Foust and her mother, who were working at
the store. Thigpen requested permission to
lock the door and seize the premises, but Ca-
thy Foust refused. She and her mother then
called Bobby Foust to advise him that Thigpen
was closing the store, having the locks
changed, and locking the premises. Thigpen
and McNeill testified that they commonly
seized premises when they could not find a
place to store the seized items.
Thigpen then allowed Gerald Seal to re-
move all the inventory and place it in storage
sheds on the property of Seal and his father.
The sheriff does not have a warehouse to store
items seized pursuant to writs of replevin.
On February 19, the Fousts filed a volun-
tary petition for chapter 13 bankruptcy and
served notice of the filing on McNeill. At
seven o’clock that evening, Thigpen met the
Fousts at the store and turned over the keys

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

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

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

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6
The writ directed Thigpen and McNeill “to
immediately seize and take into their posses-
sion the property described in the Complaint .
. . and to deliver said property to the Plaintiffs
unless bonded by the defendants.” The com-
plaint defined the collateral as “inventory” and
“certain equipment and fixtures” located in the
convenience store. The Fousts argue that
Thigpen and McNeill violated the terms of the
order by (1) immediately turning over the
property to the Seals and (2) seizing the pre-
mises.
The Fousts contend that the order did not
require the officers to turn the seized property
over to the Seals immediately; they point to a
state law that requires the sheriff to hold the
property for two days before turning it over to
a plaintiff. MISS. CODE ANN. § 11-37-109
(Supp. 2001). This interpretation is correct:
The order directs the sheriff immediately to
seize the property and to turn it over to the
Seals, but it is silent as to how long he should
wait before turning it over to them.
McNeill might infer that he should turn it
over immediately, but state law, not a tabula
rasa reading of the order, should set the pre-
sumption in cases of silence. The Fousts also
correctly note that the order does not require
the seizure of the premises. The district court
should not have granted absolute immunity to
Thigpen and McNeill’s seizure of the premises
and failure to afford the Fousts an opportunity
to reclaim the property promptly.
IV.
The Fousts further argue that Thigpen’s
and McNeill’s actions violated clearly estab-
lished constitutional rights, so they are not en-
titled to qualified immunity. To evaluate the
qualified immunity defense, we first must de-
cide “whether plaintiff’s allegations, if true, es-
tablish a constitutional violation.” Hope v.
Pelzer, 122 S. Ct. 2508, 2513 (2002) (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Second, if the defendants engaged in “consti-
tutionally impermissibly conduct,” id. at 2515,
we must decide whether their actions “vio-
late[d] ‘clearly established statutory or consti-
tutional rights of which a reasonable person
would have known.’” Id. at 2515 (quoting
Harlow v. Fitzgerald, 557 U.S. 800, 818
(1982)).
A.
The Fousts argue that the state circuit
court’s grant of an ex parte writ of replevin
violated the Fourteenth Amendment’s Due
Process Clause. Because “unlike some legal
rules, [due process] is not a technical concep-
tion with a fixed content unrelated to time,
place, and circumstances,” Connecticut v.
Doehr, 501 U.S. 1, 19 (1991) (internal quota-
tion marks and citation omitted), we must re-
view the cases individually to determine the
procedures that are constitutionally required.
In Fuentes v. Shevin, 407 U.S. 67, 79-80
(1972), the Court struck down Florida and
Mississippi prejudgment replevin statutes, em-
(holding that immunity extended to act of arrest but
not “manner in which they took [plaintiff] to jail”).
Federal courts are more likely to disagree over
the scope of a judicial order or command than over
whether that command limits the scope of
immunity. Compare Martin v. Hendren, 127 F.3d
720, 721-22 (8th Cir. 1997) (finding that police
officer had absolute immunity when he used ex-
cessive force to restrain arrestee in court at the
judge’s direction) with Richman v. Sheahan, 270
F.3d 430, 437-38 (7th Cir. 2001) (holding that
deputies exceeded scope of judge’s order by using
excessive force to restrain persons in the
courtroom), cert. denied, 122 S. Ct. 1439 (2002).

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7
phasizing that they did not provide for pre-
deprivation notice and opportunity to be
heard. The Court emphasized that modern
courts should preserve the hearing required at
common law:
That the hearing required by due pro-
cess is subject to waiver, and is not fixed
in form does not affect the root require-
ment that an individual be given an op-
portunity for a hearing before he is de-
prived of any significant property in-
terest, except for extraordinary situa-
tions where some valid governmental in-
terest is at stake that justifies postponing
the hearing until after the event.
Id. at 82. The Court held that the statutes’ re-
quirements that a plaintiff post a bond, con-
clusionally allege an entitlement to specific
goods, defend his claim at a prompt post-
deprivation hearing, and open himself up to
damages if in error did not sufficiently protect
the defendant’s due process rights. Id. at 83-
85.
In 1991, the Court invalidated a Connecti-
cut statute that permitted a party suing for per-
sonal injuries to seek an ex parte, prejudgment
attachment of the defendant’s real estate to
guarantee the judgment. Doehr, 501 U.S. at
5. The Court adopted a formal test for exam-
ining the provisional remedy, borrowing from
Matthews v. Eldridge, 424 U.S. 319, 343-44
(1976):
[T]he relevant inquiry requires, . . . first,
consideration of the private interest that
will be affected by the prejudgment mea-
sure; second, an examination of the risk
of erroneous deprivation through the
procedures under attack and the prob-
able value of additional or alternative
safeguards; and third, . . . principal at-
tention to the interest of the party seek-
ing the prejudgment remedy, with, none-
theless, due regard for any ancillary
interest the government may have in
providing the procedure or foregoing
the added burden of providing greater
protections.
Doehr, 501 U.S. at 11.
In United States v. James Daniel Good
Real Property, 510 U.S. 43 (1993), the Court
held that the Fifth Amendment’s Due Process
Clause requires notice and an opportunity to
be heard in civil forfeiture proceedings for real
estate. The Court, employing language origi-
nally used in Fuentes, stated, “We tolerate
some exceptions to the general rule requiring
predeprivation notice and hearing, but only in
‘extraordinary situations where some valid
governmental interest is at stake that justifies
postponing the hearing until after the event.’”
Id. at 53 (citations and quotations omitted).
The Court gave formal effect to this presump-
tion in applying the three-part Matthews test.
Id.
Under the first prong, the Court empha-
sized that the defendant has a strong property
interest in his home and the possessions it con-
tains. Id. at 53-54. Under the second prong,
the Court remarked that ex parte seizure could
be predicated on a magistrate’s finding of
probable cause that the property was used or
intended to be used in the commission of a
drug offense. Id. at 502. The United States
did not have an obligation to disprove the
owner’s innocence, and the owner had no right
to be heard. Id. at 55. The Court held that a
post-seizure procedure would not adequately
protect the owner’s property interest, id. at
55-56, and that the United States had a weak

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

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9
any standard for making his decision, and the
replevin statute does not specify a standard.
Judging by this particular complaint and
order, there was a high risk of erroneous de-
privation. McNeill’s and Thigpen’s actions, by
locking the Fousts out of their business, fur-
ther increased the risk that they would deprive
themSSalbeit temporarilySSof unencumbered
property.
The cost of additional government proce-
dures was minimal. The Mississippi Supreme
Court had held that circuit courts should hold
hearings where feasible, and the circuit judge
in this case did not make a finding that a hear-
ing on notice would be infeasible. On the facts
of this case, locking the Fousts out of their
store violated the Due Process Clause.
B.
Even if Thigpen’s seizure violated due pro-
cess, he will escape liability if the constitu-
tional right was not “clearly established” in
1998. For a right to be “clearly established” in
the context of qualified immunity,
[t]he contours of the right must be suffi-
ciently clear that a reasonable official
would understand that what he is doing
violates that right. This is not to say
that an official action is protected by
qualified immunity unless the very action
in question has previously been held
unlawful, but it is to say that in the light
of pre-existing law the unlawfulness
must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640
(1987) (citations omitted).
In Hope, 122 S. Ct. at 2516, the Court ela-
borated that “officials can still be on notice
that their conduct violates established law even
in novel factual circumstances.” Previous
cases need not be “fundamentally similar.” Id.
“The salient question” for a court of appeals is
“whether the state of the law [at the time of
the state action] gave respondents fair warning
that their alleged treatment of [the plaintiff]
was unconstitutional.” Id.
Thigpen and McNeill did not have such
“fair warning.” The constitutionality of Missis-
sippi’s replevin statute remained up in the air,
and the Supreme Court precedent demands a
highly fact-dependent inquiry that a reasonable
could find difficult to predict. Thigpen even
had judicial authorization to seize certain
“fixtures” in the building, and he might have
concluded the only reasonable way to do so
was by seizing the premises. He had no way
of knowing whether the underlying replevin
statute was unconstitutional, and he reasonably
could rely on it to inform his opinion of
whether seizing the store was lawful.9
Although Thigpen should have known that
the Mississippi Supreme Court had held that
the court should conduct a pre-seizure hearing
statute, emphasizing that the supporting affidavits
might contain only conclusional allegations);
Doehr, 501 U.S. at 14 (finding significant risk of
erroneous depravation under a Connecticut statute
because plaintiff did not need to provide detailed
affidavits or factual support, only a “skeletal
affidavit.”).
9 Cf. Wyatt v. Cole, 994 F.2d 1113, 1120 (5th
Cir. 1993) (“We think that private defendants, at
least those invoking ex parte prejudgment statutes,
should not be held liable under § 1983 absent a
showing of malice and evidence that they either
know or should have known of the statute’s con-
stitutional infirmity.”) (emphasis added).

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

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11
in Audio Odyssey, the writ here authorized the
sheriffs to seize “fixtures.” A fixture is a ten-
ant’s personal, removable property that is at-
tached to the property. BLACK’S LAW
DICTIONARY 652 (7th ed. 1999). Removing
fixtures could require occupying the premises
for several hours, and the sheriff should have
the incidental power to exclude others to pre-
vent a breach of the peace.
The summary judgment evidence, however,
does not support interpreting the seizure of the
premises as merely incidental. Thigpen told
Cathy Foust and her mother that he was going
to have the locksmith change the locks on the
building. He also did not immediately reopen
the convenience store after Seal and his co-
workers had removed the encumbered
property. Finally, Thigpen returned the keys
only after learning that the Fousts had filed for
bankruptcy. The Fousts at least have created
a fact question about whether Thigpen
unreasonably deprived them of their property,
beyond the scope of the writ. His actions, as
pleaded, violated the Fourth Amendment.
D.
We next turn to the question of qualified
immunity for Thigpen and McNeill for the
Fourth Amendment claim. Until the Eighth
Circuit’s opinion in Audio Odyssey, neither the
Supreme Court nor a federal court of appeals
had held that a seizure under a replevin statute
violates the Fourth Amendment.13 The Eighth
Circuit concluded that the sheriff’s actions
violated “clearly established” law, but the
sheriff in that case barred the owners from the
premises for weeks; his exclusion of the
owners from the property drove the store out
of business. Audio Odyssey, 245 F.3d at 727-
29. Thigpen had a much more reasonable ba-
sis for his belief that occupation of the
premises was constitutional. In light of the
precedent discussed supra part IV.B., it was
not “clearly established” in 1998 that Thig-
pen’s actions violated the Fourth Amendment.
The dismissal of the § 1983 claims against
Thigpen and McNeill is affirmed.
V.
The Fousts argue that the district court im-
properly dismissed the claims against the coun-
ty and McNeill in his official capacity. In §
1983 suits against the county or governmental
officials in their official capacities, such as
McNeill, the courts apply neither qualified im-
munity nor state respondeat superior
doctrines.14 Instead, a plaintiff must
demonstrate that a county “policy” was the
“moving force” behind the constitutional
violation. Brown v. Bryan County, Okla., 219
F.3d 450, 457 (5th Cir. 2000). The Fousts
argue that McNeill’s practice of locking
owners out of their premises when executing
writs of replevin, and his failure to train his
deputies on how to execute such writs,
constituted “policies” that were the “moving
13 A consensus of authority in other circuits
may “clearly establish” a right even absent binding
precedent by the Supreme Court or the Fifth
Circuit. McClendon v. City of Columbia, 2002
U.S. App. LEXIS 18318, at 32-33 (5th Cir.
Sept. 5, 2002) (en banc). Given that Audio
Odyssey was decided after the actions taken in the
present case, however, McClendon is not
applicable. Furthermore, Audio Odyssey would be
insufficient to “clearly establish” the right at issue
here, because it is insufficiently factually similar
and represents the view of only one other circuit.
14 In Coon v. Ledbetter, 780 F.2d 1158, 1161-
62 (5th Cir. 1986), the court expressly rejected the
notion that a Mississippi sheriff could face re-
spondeat superior liability where his deputies
violated § 1983.

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12
forces” behind constitutional violations.
A.
To establish liability for a policy or practice,
a plaintiff must prove that (1) the local
government or official promulgated a policy;
(2) the decision displayed “deliberate
indifference” and proved the government’s
culpability; and (3) the policy decision lead to
the particular injury. Bryan County, 219 F.3d
at 457. A formal policy is “[a] policy
statement, ordinance, regulation or decision
that is officially adopted and promulgated by
the municipality’s lawmaking officers or by an
official to whom the lawmakers have delegated
policy-making authority.” Bennett v. City of
Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en
banc). An informal but still official policy is
“[a] persistent, widespread practice of city
officials or employees, which, although not
authorized by officially adopted and
promulgated policy, is so common and well
settled as to constitute a custom that fairly
represents municipal policy.” Id. Finally, “a
final decisionmaker’s adoption of a course of
action ‘tailored to a particular situation and
not intended to control decisions in later
situations’ may, in some circumstances, give
rise to municipal liability under § 1983.”
Board of the County Comm’rs v. Brown, 520
U.S. 397, 406 (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 481 (1986)).
The culpability element requires proof that
the defendants adopted the policy with
“deliberate indifference.” This “is a stringent
standard of fault, requiring proof that a
municipal actor disregarded a known or
obvious consequence of his action.” Id. at
410. The causation element requires that the
policy be the “moving force” behind the
plaintiff’s injury. “That is, a plaintiff must
show that the municipal action was taken with
the requisite degree of culpability and must
demonstrate a direct causal link between the
municipal action and the deprivation of federal
rights.” Id. at 404.
Thigpen and McNeill testified that the sher-
iff’s office routinely seized a debtor’s entire
premises to secure personal property and
fixtures. Neither the bankruptcy court nor the
district court mentioned this testimony, and the
defendants do not address it. If the
department repeatedly went beyond the scope
of the writs to seize real property, its policy
may have violated the Fourth and Fourteenth
Amendments. The department was
deliberately indifferent to those results, i.e., the
seizure of the real property and exceeding the
scope of the writ, even if unaware of the un-
lawfulness of the actions. The Fousts have
created a fact question about whether the de-
partment’s policy of seizing the premises vio-
lated the Fourth and Fourteenth Amendments,
so this portion of the district court opinion is
reversed.
B.
“The failure to provide proper training may
fairly be said to represent a policy for which
the city is responsible, and for which the city
may be held liable if it actually causes injury.”
City of Canton v. Harris, 489 U.S. 378, 390
(1989). To prove that the failure to train rises
to the level of a municipal policy, a plaintiff
also must satisfy the culpability and causation
requirements described above. Brown, 219
F.3d at 457. The failure must rise to the level
of a deliberate or conscious choice among al-
ternatives. Canton, 489 U.S. at 389.
When evaluating whether additional
training is constitutionally required, it is
necessary to consider whether the department
has faced a history of similar problems.

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13
Languirand v. Hayden, 717 F.2d 220, 227-28
(5th Cir. 1983). We also must look to the
officers’ overall training and must consider the
need for additional training in that context.
Canton, 489 U.S. at 390-91; Pineda v. City of
Houston, 291 F.3d 325, 334 (5th Cir. 2002).
The Fousts presented little evidence that
additional training would have helped. Thig-
pen admitted ignorance of the requirement that
the sheriff retain the seized property for two
days. McNeill provided Thigpen with books
on civil process but did not send him to any
formal classes.
The Fousts have not met their burden of
proving deliberate indifference. McNeill rea-
sonably could have assumed that Thigpen
could learn the necessary details of civil
process from the books. The Fousts have pre-
sented no evidence that Thigpen would have
been less likely to violate their ambiguous
Fourth and Fourteenth Amendment rights if he
had received additional training in state law,
which, after all, does not speak to the in-
cidental seizure of a commercial building when
executing a writ of replevin.15 The district and
bankruptcy courts properly dismissed the claim
of failure to train.
VI.
The Fousts contend that the district court
incorrectly dismissed the state law claims on
the basis of Mississippi statutory immunity.
We therefore must consider the liability of
Thigpen and McNeill in their personal
capacities and the liability of the county for
immediately turning the Fousts’ property over
to the Seals and for temporarily seizing the
store when executing the writ.
A.
In 1993, the Mississippi Tort Claims Act
(“MTCA”), also known as the Mississippi
Governmental Immunity Act, shifted virtually
all tort liabilities from governmental employees
to the state or political subdivision.16 The
employee may be sued only as an official rep-
resentative of the political subdivision. MISS.
CODE ANN. § 11-46-7(2). “[N]o employee
shall be held personally liable for acts or omis-
sions occurring within the course and scope of
the employee’s duties.” Id. Only fraud,
malice, libel, slander, defamation, and criminal
offenses fall outside the “course and scope” of
employment and create personal liability, id.,
and none of these exceptions has been pleaded
here. The MTCA therefore eliminates any
personal liability that Thigpen or McNeill
might otherwise face.
B.
The MTCA also sets forth the scope of the
sovereign immunity of the state and its
15 As discussed supra part IV.A., the
constitutionality of Mississippi’s replevin statute is
uncertain. It is therefore also uncertain that any
books or classes on state law could have sufficed to
protect the Fousts’ constitutional rights.
16 MISS CODE ANN. § 11-46-7 (Supp. 2001).
Before 1993, government officials possessed “qual-
ified public official immunity, which insulated
them against tort liability for all acts or omissions
in the course and scope of governmental
employment, except where they committed in-
tentional torts, substantially exceeded their
discretion and authority, or performed ministerial
acts.” Jim Fraiser, A Review fo the Substantive
Provisions of the Mississippi Governmental
Immunity Act: Employees’ Individual Liability,
Exemptions to Waiver of Immunity, Non-Jury
Trial, and Limitations of Liability, 68 MISS. L.J.
703, 719 (1999).

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14
political subdivisions.17 The legislature
codified specific exceptions to the state’s
waiver of sovereign immunity for employees’
acts within the course and scope of their
employment. MISS. CODE ANN. § 11-46-9.
The defendants assert that three exceptions
to the waiver of sovereign immunity have rel-
evance here. First, the government remains
protected for claims “arising out of” “the per-
formance or execution of duties or activities
relating to police or fire protection unless the
employee acted 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)(c).
Second, the government is immune from any
claim “arising out of a . . . judicial action or
inaction . . . or administrative action or
inaction of a legislative or judicial nature.”
MISS. CODE ANN. § 11-46-9(1)(a). Third, the
legislature codified the traditional exception to
qualified and sovereign immunity for claims
“[b]ased upon the exercise or performance or
the failure to exercise or perform a
discretionary function or duty on the party of
a governmental entity or employee therof . . .”
MISS. CODE ANN. § 11-46-9(1)(d).18
If Thigpen’s activities related to “police
protection,” the Fousts would have to
demonstrate that he acted with “reckless
disregard” to a person’s “safety and well-
being.” MISS. CODE ANN. § 11-46-9(1)(c).
No court has yet addressed whether serving
civil process or seizing goods constitutes
“police protection” within the meaning of §
11-46-9(1)(c).
“Waiver of a state’s sovereign immunity,
like waiver of any constitutional right, is strict-
ly construed in favor of the holder of the
right.” Lelsz v. Kavanagh, 807 F.2d 1243,
1253 (5th Cir. 1987). Similarly, the MTCA’s
exemptions to Mississippi’s waiver should be
liberally construed in favor of limiting
liability.19 Mississippi courts have applied the
“police protection” exception to a variety of
situations20 and have yet to determine that any
17 Under the previous regime, the state and its
subdivisions had sovereign immunity for
governmental functions but not for proprietary
acts. Fraiser, 68 MISS. L.J. at 738; McGrath v.
City of Gautier, 794 So. 2d 983, 985-86 (Miss.
2001).
18 A fourth exception is also potentially
applicable but was not raised by the parties: The
statute allows that the government remains immune
from suits “[a]rising out of the detention of any
goods or merchandise by any law enforcement
officer, unless such detention is of a malicious or
arbitrary and capricious nature.” MISS. CODE
ANN. § 11-46-9(1)(j).
19 See Ellisville State Sch. v. Merrill, 732 So.
2d 198, 201 (Miss. 1999) (“The Legislature passed
into law the MTCA in 1993 to carve out a limited
waiver of immunity for the State and its political
subunits.”); Fraiser, 68 MISS. L.J. at 741
(discussing the decisions of the Mississippi
Supreme Court interpreting the MTCA, and
specifically § 11-46-9(1)(c), and concluding that it
appears the court “is construing the Act’s
provisions liberally in favor of governmental
immunity.”).
20 See, e.g. McGrath, 794 So. 2d at 985-87
(deciding that patrolling the streets is police pro-
tection, as is the maintenance of police vehicles);
Foster v. Noel, 715 So. 2d 174, 178-80 (Miss.
1998) (holding that arresting and detaining
criminals is police protection); Hall v. Miss. Dep’t
of Pub. Safety, No. 96-CA-00832-SCT, slip op. at
7, 708 So. 2d 564 (Miss. 1998) (table) (opining
that administering a sobriety test is police
protection); Smith v. Thompson, 1998 WL 97287,
at 2-3 (N.D. Miss. 1998) (stating that aiming a
weapon at and negligently detaining a person

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15
activity of a police officer or sheriff performed
in the scope of his employment falls outside
the reach of the exception.21
Under Mississippi law, seizure of property
under a writ of replevin may be executed only
by “the sheriff, or other lawful officer. . .”
MISS. CODE ANN. § 11-37-109. The statute
presumably prefers that service be performed
by sheriffs to protect the creditors’ employees
who are seizing the goods and to prevent a
breach of the peace. This is a mandatory duty
of sheriffs within the scope of their
employment and, consistent with other
interpretations of § 11-46-9(1)(c), falls within
the scope of “police protection.”22
The police protection exception does not
apply if the “employee acted 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)(c). “Reckless disregard,” within the
meaning of the subsection, “embraces willful
or wanton conduct which requires knowingly
and intentionally doing a thing or wrongful
act.” Maye, 758 So. 2d at 394. Even if Thig-
pen did ignore the replevin statute, he did not
exhibit “reckless disregard” for anyone’s “safe-
ty and well-being.”
The § 11-46-9(1)(c) exception to Mississip-
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
The dismissal of the Fousts’ state law claims is
affirmed.
For the reasons we have explained, the
judgment is AFFIRMED in part, REVERSED
in part, and REMANDED for further
proceedings in accordance with this opinion.
mistakenly believed to be the real suspect constitute
police protection). One court has held that the
hiring and training of police relates to “police
protection,” Moore v. Carroll County, 960 F.
Supp. 1084, 1088-92 (N.D. Miss. 1997), but the
Fousts do not base their state law claims on failure
to train.
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
duty,” but officer was reckless in backing up an
incline and hitting another car when he knew he
would not be able to see cars behind him).
22 The Mississippi Supreme Court, in
determining whether actions are related to “police
protection,” has returned to the pre-MTCA
analysis, which turns on whether the actions are
taken in a governmental or proprietary capacity.
McGrath, 794 So. 2d at 985-87. “[T]he
maintenance of a police department is a
governmental function, for which municipalities are
exempt.” Id. at 987. Under this analysis, too,
Thingpen certainly performed a governmental
function and would fall within the exception.
23 Having found that the police protection
waiver exception applies, we decline to address any
other waiver exceptions that might be applicable.

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