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Click here for the full text of this decision FACTS:Sharlet Belton Collins and Houston Collins, through S&H Productions, were concert promoters in Mississippi. In the spring of 2000, they arranged for the rap group 2 Live Crew to give a concert on property family members owned in Copiah County on June 4, preceded by opening deejay acts. The week before the concert was to begin, three Copia County deputies, including William Brown, went to the Collinses’ home to tell them that the county sheriff, Frank Ainsworth, did not want the concert to proceed because of complaints he’d heard about the foul language he’d heard 2 Live Crew use in an earlier concert. Meanwhile, Ainsworth asked the state’s attorney general for an opinion on the propriety of a driver’s license checkpoint near the concert venue. He said he’d never had a checkpoint before, but that he was concerned about unlicensed drivers of all ages attending the show. In his request, Ainsworth said every car would be stopped, and deputies would be instructed to make arrests. Starting at 7 a.m. on the day of the concert, police set up a checkpoint on the road leading to the concert site; another checkpoint on the other side of the road, leading away from the venue was set up later. Police arrested several people throughout the day, seized beer in plain sight and asked to search some vehicles. Between 70 and 80 people were arrested, mostly for illegal possession of beer, and they were taken to a county detention facility, which was only designed to hold 50 people. Ainsworth ordered the detainees to be kept overnight, and, because a bad storm kept two judges from coming in, most detainees were unable to make bond until the next day. 2 Live Crew did not perform at the concert, though the local acts did. There was disagreement if the cancellation was due to people being scared off by the roadblock, because Sharlet Collins felt ill or because of the weather. Less than a year later, a �1983 suit was filed by a wide group of plaintiffs, all African-Americans, including the concert promoters, the concert site owners, the members and managers of 2 Live Crew, vendors who were going to sell food at the concert and certain would-be concertgoers. Named as defendants were Ainsworth, Brown, and seven other deputies. The plaintiffs alleged the defendants violated their First and Fourth Amendment rights through the use of the checkpoints, and their 14th Amendment rights to due process through their detention after arrest. After a series of motions and cross-motions, the district court eventually denied qualified immunity to all defendants. The defendants thus brought an interlocutory appeal to challenge that denial. HOLDING:Affirmed in part; reversed and remanded in part. As a procedural matter, the court first determines that it will review the defendants’ motion for qualified immunity as a motion for summary judgment under Federal Rule of Civil Procedure 56. The court also confirms that it has interlocutory jurisdiction to determine the legal question of whether the plaintiffs’ summary judgment facts state a �1983 claim under clearly established law. The court says it will conduct a bifurcated analysis to assess the defense of qualified immunity. First, the plaintiffs must allege that the defendants violated their clearly established constitutional rights. Second, if the plaintiffs have alleged such a violation, the next step is to consider whether the defendants’ actions were objectively reasonable under the circumstances. The court confirms that the violations alleged, if true, would violate clearly established constitutional rights. If the roadblock and driver’s license checkpoints amounted to an impermissible search and seizure, there would be a violation of the plaintiff’s Fourth Amendment rights. For each plaintiff, the court says it will examine all available evidence to determine “the programmatic purpose” of the checkpoint. Then it will evaluate the checkpoint under a balancing test, weighing the public interest, if any, advanced by the checkpoint against the individual plaintiffs protected privacy and liberty interests. Further, if the police abused their discretionary power to deny in advance the use of a forum — the concert — for expression protected by the First Amendment, the police would have engaged in an impermissible prior restraint. Finally, if the condition of the plaintiffs’ detention amounted to punishment and are not reasonably related to a legitimate governmental objective, they have alleged a 14th Amendment violation, too. The court then moves to examine the actions of each defendant under each possible violation of constitutional rights. First, the court considers the actions of the defendants Kirby, Hemphill, Goza, Winters, Seals and Givens. The court finds that none of these officers had any particular material interaction with any particular plaintiff. Seals checked fewer than 100 licenses and arrested only one person, a white person. Givens was at the checkpoint to supervise, checking a few driver’s license, but arresting no one. At the same time, of the plaintiffs who claimed they were arrested or harassed, none connected their arrest to these or other defendants. “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.” Consequently, these defendants are entitled to qualified immunity as a matter of law on all of their claims. The court next considers the actions of deputies Brown and Davis. Again, there is nothing to connect these defendants’ actions with any particular plaintiff. Davis was actively engaged in the checkpoint, but said he only checked licenses, did not search vehicles, and seized illegal beer only when it was in plain sight. Davis knew the arrestees would not be able to make bond until the next morning, but did not know whether the was pursuant to an order from Ainsworth. Brown remembered going to the Collinses’ home to pass on Ainsworth’s feelings about the concert, but he also remembered that Ainsworth did not tell him about the purpose of the checkpoint. He arrested one man. “There is no evidence put forth by Plaintiffs as to either 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.” Finally, the court considers the actions of Ainsworth. The court concludes that there is evidence Ainsworth violated the plaintiffs’ First and Fourth Amendment rights, but not their 14th Amendment rights. Ainsworth admitted he did not want the concert to proceed. This could have been because of complaints he’d heard about the group to perform, in retaliation for the Collinses’ support of Ainsworth’s opponent in the previous election . The checkpoints, if designed to stop the concert, would have been an unconstitutional prior restraint of the concert. The court disagrees that one of the programmatic purposes of the roadblock was to detect general criminal wrongdoing, which the U.S. Supreme Court has said is an impermissible purpose. But, the court finds that another programmatic purpose of the roadblock — to stop the concert from happening — is unconstitutional. “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 . . . 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.” The court does distinguish, however, between the plaintiffs who were arrested but who did not establish that they even had any intention of attending the concert. Their First and Fourth Amendment rights were not violated. The court finds that Ainsworth is entitled to qualified immunity on the 14th Amendment due process claims. Under Mississippi law, a detainee must be given the opportunity to make bail within 48 hours. The arrestees in this case were released well within that limit. And though the conditions at the jail were cramped overnight, there is no evidence that the conditions were unsanitary, unsuitable or amounted to punishment. Furthermore, the inability to process the plaintiffs, thus leaving them in the overcrowded jail, was because of a storm and an inability to get judges on site. OPINION:: Harold R. DeMoss, Jr., J.; Garwood, Wiener and DeMoss, JJ.

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