O'MALLEY v. CITY OF FLINTNo. 09-2037.
652 F.3d 662 (2011)
Sean O'MALLEY, Plaintiff-Appellee,
CITY OF FLINT, Defendant,
Gary Hagler, Acting Police Chief, Defendant-Appellant.
CITY OF FLINT, Defendant,
Gary Hagler, Acting Police Chief, Defendant-Appellant.
United States Court of Appeals, Sixth Circuit.
Argued: December 10, 2010.
Decided and Filed: July 26, 2011.
ARGUED: Daniel A. Klemptner, Johnson, Rosati, LaBarge, Aseltyne & Field, P.C., Farmington Hills, Michigan, for Appellant. Christopher J. McGrath, Novi, Michigan, for Appellee. ON BRIEF: Daniel A. Klemptner, Johnson, Rosati, LaBarge, Aseltyne & Field, P.C., Farmington Hills, Michigan, for Appellant. Kenneth M. Scott, Flint, Michigan, for Appellee.
Before: GILMAN and GRIFFIN, Circuit Judges; COLLIER, Chief District Judge.
GRIFFIN, J., delivered the opinion of the court, in which COLLIER, Chief D.J., joined. GILMAN, J. (pp. 672-78), delivered a separate opinion concurring in part and dissenting in part.
GRIFFIN, Circuit Judge.
Defendant Police Chief Gary Hagler appeals an order of the district court denying his motion for summary judgment based upon qualified immunity regarding plaintiff Sean O'Malley's 42 U.S.C. § 1983 claims of unlawful search and seizure and excessive force. We reverse and remand for entry of a judgment in favor of defendant Hagler.
The events giving rise to this case began when defendant Gary Hagler, then Acting Chief of Police for the City of Flint, Michigan, was driving an unmarked police vehicle and noticed a blue Chevrolet Tahoe that looked like a Michigan State Police vehicle. The Tahoe had several features regularly found on Michigan State Police vehicles, which included a large, whip-like antenna mounted on the roof; an emergency vehicle push-bar; "Call 911" decals on its rear quarter panels; red emergency lights in the rear window; a tinted rear window; and the number "47" stenciled in white on the rear tailgate.
Eventually, the Tahoe was driven into a residential driveway and parked. After its driver, plaintiff O'Malley, exited the Tahoe and began walking toward the back of the house, Hagler parked his police vehicle in the driveway behind the Tahoe.
O'Malley told Hagler that he was a security guard, had a carrying-concealed-weapon permit, and owned a handgun that was on the front passenger seat of the Tahoe underneath a t-shirt. Thereafter, Hagler asked O'Malley to keep his hands in view
Less than two minutes after the handcuffing, additional police officers arrived who assumed custody of O'Malley. Officer Connie Johnson, with the assistance of another police officer, placed O'Malley in the back of her police vehicle, where O'Malley stayed while the officers searched the Tahoe, confirmed its lawful ownership, verified O'Malley's concealed-carry permit, and checked his criminal record with the Law Enforcement Information Network (LEIN). During their search of the Tahoe, the police recovered a loaded .45 caliber, semi-automatic handgun in the location specified by O'Malley. In addition, the LEIN check indicated that a warrant had been issued for O'Malley's arrest by the City of Warren. In view of the arrest warrant, Hagler instructed Johnson to transport O'Malley to the Flint Police Department for pick up by the Warren Police Department. Hagler then left the scene. About two hours later, the Warren Police Department advised Hagler that it had mistaken O'Malley for another individual and that there were no outstanding warrants for O'Malley's arrest. In response, Hagler called Johnson, who was still at the scene, and ordered her to release O'Malley and return his property. O'Malley had been in custody for approximately two hours before his release. O'Malley alleges that at some point during his custody he asked Officer Johnson to loosen his handcuffs, but she refused to do so. Hagler was unaware of the request.
O'Malley filed suit in the Genesee County Circuit Court against the City of Flint and Chief Hagler, alleging violations of various statutory and constitutional rights. O'Malley v. City of Flint, No. 08-11595, 2009 WL 2008480, at *2 (E.D.Mich. July 10, 2009). On defendants' motion, the case was removed to federal district court. Id. After remanding the state-law claims, the district court retained jurisdiction over O'Malley's 42 U.S.C. § 1983 claims alleging violations of his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Id. The defendants thereafter filed motions for summary judgment. The district court granted the City's motion in its entirety
We have interlocutory jurisdiction over the district court's denial of Hagler's motion for summary judgment on grounds of qualified immunity "to the extent that [the appeal] raises a question of law." Risbridger v. Connelly,
"We review the denial of summary judgment on grounds of qualified immunity de novo because application of this doctrine is a question of law." McCloud v. Testa,
With regard to the second step, [t]he contours of the right must be sufficiently 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, 483 U.S. at 640, 107 S.Ct. 3034 (citations omitted); see Walton v. City of Southfield,
On appeal, we analyze the claims of qualified immunity in light of the following sequential events: (1) Hagler's parking of his vehicle and initial questioning of O'Malley; (2) Hagler's handcuffing and detention of O'Malley and search of his vehicle; and (3) Hagler's failure to respond to O'Malley's complaint that the handcuffs were too tight.
The first question is whether Hagler is entitled to qualified immunity with respect to his initial encounter with O'Malley and inquiry. Plaintiff claims that Hagler unreasonably seized him when Hagler parked his police vehicle behind O'Malley's Tahoe. He also alleges that Hagler unlawfully asked him questions. We disagree and hold that Hagler is entitled to qualified immunity for the initial encounter and inquiry.
The Fourth Amendment does not apply to consensual encounters with the police. Rather, the "safeguards of the Fourth Amendment, with respect to police/citizen contact, vest only after a citizen has been seized." Smoak v. Hall,
See and Gross dealt with the conduct of a police officer who parked his patrol car in front of (or behind) cars in the parking lots of public-housing complexes in Cleveland, Ohio, and approached passengers who were seated inside the vehicles. In See, the officer was "on patrol in a public-housing parking lot when he noticed a car that was backed into a parking space in a dimly lit area farther from the building than other vacant spots" and he "pulled his patrol car in front of [defendant] See's car and parked so that See could not move his vehicle." Gross, 624 F.3d at 316 (citing See, 574 F.3d at 311-12). In Gross, the officer similarly "parked his police vehicle directly behind" a car parked in "the parking lot of [a] housing complex" and "turned on his vehicle spotlights" before approaching the car and asking questions of a man sitting in the car's passenger seat. Id. at 313. In each case, we held that the officer's conduct was a seizure because "the blocking of [the] car to determine
The present case is factually different. Most importantly, O'Malley was out of his vehicle and walking toward the house at the time Hagler parked his vehicle behind the Tahoe. Thus, O'Malley not only reasonably thought he was free to leave his vehicle at the time of the alleged seizure, but in fact had left it and was walking away. Also, parking behind a vehicle in a driveway does not inherently send a message of seizure because it is how driveways are routinely used.
Next, Hagler's approach and accompanying statement to O'Malley that he was a police officer and wanted to talk to him was clearly a consensual encounter. See Bennett v. City of Eastpointe,
The fact that O'Malley stopped walking to respond to Hagler's inquiry also does not, by itself, transform this encounter into a seizure for purposes of the Fourth Amendment. See Wayne R. LaFave, 4 Search & Seizure § 9.4 (4th ed. 2004) (explaining that police may rely on the moral and instinctive pressures of citizens to cooperate and that a confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse) (citations omitted); cf. generally United States v. Thomas,
Alternatively, we hold that had Hagler temporarily seized O'Malley, such a brief investigatory stop was constitutional pursuant to Terry v. Ohio,
Here, Hagler had reasonable suspicion to briefly detain O'Malley and inquire about the Tahoe because it appeared to be a Michigan State Police vehicle that could facilitate the impersonation of a police officer. Although O'Malley argues that Hagler had no direct evidence that he was "not only assum[ing] to be [a peace officer] but [also] act [ing] as such...." in violation of Michigan Compiled Laws § 750.215 (emphasis added), "reasonable suspicion" does not require conclusive evidence. The fact that O'Malley was driving what appeared to be a Michigan State Police vehicle was itself highly "unusual conduct," which led Hagler to draw the reasonable and objective inference that O'Malley may have been impersonating a police officer in violation of state law. Terry, 392 U.S. at 30, 88 S.Ct. 1868. It is not dispositive that O'Malley was not in fact breaking the law. Moreover, contrary to the dissent's contention, an officer would have more justification for believing an individual is impersonating a police officer when the apparent-police vehicle is not registered in the police fleet, as compared to when it is. Pursuant to Terry v. Ohio, a brief investigatory stop is justified when the specific facts give rise to "reasonable suspicion" that "criminal activity may be afoot." Id. The circumstances of the present case satisfy the Terry standard.
For the dual reasons set forth above, we hold that Chief Hagler is entitled to qualified immunity for his initial encounter and inquiry with O'Malley.
The next issue is whether Hagler is entitled to qualified immunity for the handcuffing and detention of O'Malley and subsequent search of his vehicle. We conclude that he is.
It is not disputed that O'Malley told Hagler that he had a gun in his vehicle, was angry, raised his voice, turned his back and lifted his shirt, and called Hagler's inquiry "bulls--t." Thus, notwithstanding O'Malley's alleged compliance and truthful answers to Hagler's questions, Hagler was faced with a threatening situation. Before him was an obviously agitated individual in possession of a firearm whom he reasonably suspected of impersonating a police officer. Chief Hagler was in a one-on-one situation with this unknown, angry individual outside the safe confines of a police station or police cruiser.
Moreover, pursuant to Terry, O'Malley's detention was justified for investigatory purposes for the brief time necessary to verify O'Malley's lawful ownership of the vehicle and confirm the validity of O'Malley's concealed-carry permit. While at some point during the two-hour stop O'Malley's detention ripened into an arrest, cf. Florida v. Royer,
Finally, we address whether Hagler is entitled to qualified immunity on O'Malley's claim of excessive force regarding his handcuffing. "The Fourth Amendment prohibits unduly tight or excessively forceful handcuffing during the course of a seizure." Morrison v. Bd. of Trs. of Green Twp.,
In the present case, we hold that it would not have been clear to a reasonable officer in Hagler's position that his failure to immediately loosen O'Malley's handcuffs was a constitutional violation. While O'Malley claims that he told Officer Hagler that his handcuffs were too tight, O'Malley did not ask Hagler to loosen the handcuffs. Furthermore, O'Malley did not have an obvious physical injury and was handcuffed for only about two minutes before Officer Johnson arrived and escorted him to her vehicle. At that point, Hagler had no more contact with O'Malley.
For these reasons, we reverse, in part, the order of the district court and remand for the entry of judgment in favor of defendant Hagler.
RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in part.
The majority has concluded that Officer Hagler is entitled to qualified immunity on all of O'Malley's claims. I agree with the majority that Officer Hagler is entitled to qualified immunity on O'Malley's claim of excessive force. And I also agree that Officer Hagler is entitled to qualified immunity with regard to his initial interaction with O'Malley, but for different reasons than those set forth by the majority. But I disagree with the majority's ruling that Officer Hagler is entitled to qualified immunity as a matter of law for detaining and handcuffing O'Malley. I therefore respectfully dissent on that issue.
A. Officer Hagler's initial interaction with O'Malley
The majority concludes that Officer Hagler is entitled to qualified immunity with regard to his initial interaction with O'Malley on the basis that the interaction was a consensual encounter not subject to the protections of the Fourth Amendment. It also concludes that even if Officer Hagler's actions were deemed to constitute a seizure, the seizure would have been a justified investigatory stop.
As set forth below, I would hold that O'Malley was in fact seized when Officer Hagler pulled his police vehicle into the driveway behind O'Malley's Chevrolet Tahoe, and that this seizure was not supported by a reasonable suspicion of criminal wrongdoing that would justify an investigatory stop. Nevertheless, I agree that Officer Hagler is entitled to qualified immunity regarding this interaction because the law was not clearly established that Officer Hagler's actions constituted a seizure at the time the events in this case took place.
1. Unreasonable seizure
The Fourth Amendment guarantees that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." "These safeguards of the Fourth Amendment, with respect to police/citizen contact, vest only after a citizen has been seized." Smoak v. Hall,
"To justify a brief, investigatory stop under Terry v. Ohio, an officer must point to specific, articulable facts that give rise to a reasonable suspicion that the suspect was engaged in criminal activity." United States v. Gross, No. 08-4051 (6th Cir. June 15, 2011), amending
A court examines the totality of the circumstances when determining whether reasonable suspicion existed to justify a Terry stop. Smoak, 460 F.3d at 779. The reasonableness of a stop is determined by two factors: "(1) whether there was a proper basis for the stop ...; and (2) whether the degree of intrusion into the suspect's personal security was reasonably related in scope to the situation at hand...." Id. (internal quotation marks omitted). "[T]he greater the degree of intrusion during a stop, the more solid must be the officer's suspicion that the stopped individual is guilty of wrongdoing." Id.
In United States v. See,
In the present case, Officer Hagler pulled his vehicle into the driveway directly behind O'Malley's Tahoe, preventing O'Malley from exiting the driveway in his vehicle. The record does not clearly reflect whether O'Malley was already out of his vehicle when Officer Hagler pulled into the driveway. But whether O'Malley was still inside the Tahoe or had just exited the Tahoe when Officer Hagler pulled into the driveway makes no legal difference. In either case, O'Malley would have been unable to drive away from the house in his vehicle. Just like the defendants in See and Gross, who were unable to move their vehicles once the patrol cars had blocked them in, a reasonable person in O'Malley's position would not have felt free to leave while his Tahoe was blocked in the driveway.
The majority disagrees, concluding that O'Malley not only reasonably thought he was free to leave his vehicle at the time of the alleged seizure, but in fact had left it and was walking away. Also,
(Maj. Op. at 669) The majority assumes as a fact that O'Malley was outside of his Tahoe when Officer Hagler pulled into the driveway to support its conclusion and distinguish this case from See and Gross. But the record does not definitively reflect whether O'Malley was already outside of his Tahoe before Officer Hagler pulled into the driveway. Moreover, I believe that the proper inquiry is not whether O'Malley felt free to leave his Tahoe, but rather whether he felt free to leave the scene generally. This court held that the defendants had been seized in both See and Gross because they were unable to move their vehicles, not because they were physically unable to open their car doors and walk out. Once Officer Hagler pulled in behind the Tahoe and started questioning O'Malley, a reasonable person in O'Malley's position would no longer have felt free to leave. He was therefore seized for purposes of the Fourth Amendment.
The majority also states in a footnote that O'Malley has failed to provide any evidence about the "width of the driveway." (Maj. Op. at 669 n. 4) True enough, O'Malley did not testify at his deposition about the driveway's width. But he did say that Officer Hagler's car was parked about 8 to 10 feet behind his Tahoe, which he elsewhere characterized as "right behind my vehicle." This provides sufficient evidence to conclude that O'Malley's Tahoe was blocked in by Officer Hagler's vehicle and that O'Malley was not free to leave the scene in his Tahoe. See Bletz v. Gribble,
The majority cites United States v. Thomas,
The majority seizes upon this language as support for its statement that "`driveway[s]' provide `ready access to visitors' and are therefore open to consensual encounters between citizens and police." (Maj. Op. at 669) But this conclusion does not flow from this court's analysis in Thomas. There, the court was discussing why the encounter on the rear deck was consensual (i.e., because the rear deck was near a driveway) and was not analyzing an actual encounter in a driveway, much less a situation of one car blocking another. I therefore question the majority's reliance on Thomas to support its conclusion that O'Malley's interaction with Officer Hagler, which occurred in a driveway, was consensual.
Because I would hold that Officer Hagler seized O'Malley, the next step is to determine whether that seizure was based
Section 750.215 provides that an "individual who is not a peace officer ... shall not do any of the following: [(1)] [p]erform the duties of a peace officer ...; [(2)] [r]epresent to another person that he or she is a peace officer ... for any unlawful purpose; [and (3)] [r]epresent to another person that he or she is a peace officer ... with the intent to compel the person to do or refrain from doing any act against his or her will." To violate this provision, a person must do more than falsely assume to be a peace officer. Rather, a person must "not only assume to be [a peace officer] but act as such, or... falsely take it upon himself or herself to act or officiate in any office or place of authority." 3 Gillespie Mich.Crim. L. & Proc.2d § 78:1; see also People v. Cronin, 80 Mich. 646, 45 N.W. 479, 480 (1890) (interpreting a prior but similar Michigan impersonation statute, holding that "[t]he section does not attempt to punish any person for falsely assuming to be any of the officers named in the section, but for assuming and taking upon himself ... to act or officiate in any office or place of authority").
Officer Hagler observed O'Malley driving the Tahoe. At no point while he was following O'Malley did Officer Hagler see O'Malley engage in any act that would constitute a violation of § 750.215. He also called the Michigan State Police desk officer to ask whether the Michigan State Police had a vehicle in its fleet that matched his description of the Tahoe. The desk officer responded that the Michigan State Police did not own such a vehicle. Nor did Officer Hagler observe O'Malley commit any traffic violations. So at no time prior to pulling into the driveway behind O'Malley did Officer Hagler have reasonable suspicion to believe the Tahoe's driver was violating the law.
I therefore conclude that Officer Hagler's decision to pull in behind the Tahoe was not a justifiable Terry stop. See Gross, 624 F.3d at 315 (concluding that the officer did not have reasonable suspicion to conduct a Terry stop by using his police vehicle to block the suspect's car in a parking lot where, "at the time [he] parked his police car behind the vehicle in which [Gross] was sitting, [the officer] had already observed that the vehicle was legally parked and, based on the check of an electronic database, knew that there were no outstanding warrants or issues related to the owner of the car").
The majority disagrees. It concludes that "[t]he fact that O'Malley was driving what appeared to be a Michigan State Police vehicle was itself highly `unusual conduct,' which led Hagler to draw the reasonable and objective inference that O'Malley may have been impersonating a police officer in violation of state law." (Maj. Op. at 670) Although O'Malley's vehicle may have been unusual because it had some of the markings of a Michigan State Police vehicle, Officer Hagler did not witness O'Malley take any actions that would have constituted a violation of § 750.215 or any other laws. Further, any reasonable suspicion that Officer Hagler might have had that O'Malley was impermissibly driving a Michigan State Police vehicle was dispelled after he called the Michigan State Police desk officer, who informed Officer Hagler that the Michigan
In addition, I believe that the majority's analysis would allow a law-enforcement officer to pull over any vehicle similar to O'Malley's based solely on the characteristics of the vehicle alone, without evidence that the driver has violated any Michigan law. This would be an unfortunate result for all those persons who lawfully own and lawfully drive retired Michigan State Police vehicles, particularly in a case like this one where the officer actually knew that the Tahoe was not a Michigan State Police vehicle. I believe that this is precisely why § 750.215 requires more than a showing that a suspect has assumed the identify of a peace officer, but rather that the suspect must have acted as such as well.
2. Clearly established right
Because I conclude that Officer Hagler's action in pulling into the driveway behind the Tahoe violated O'Malley's constitutional right to be free from unreasonable seizures, I must next determine whether this right was clearly established in the context of this case. Clearly established rights exist where "[t]he contours of the right [are] ... sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton,
That a Terry stop must be based on an officer's reasonable suspicion of criminal activity has long been clearly established. Terry v. Ohio,
When the events in question took place in 2006, however, Officer Hagler was not on notice that his initial interaction with O'Malley was an investigatory Terry stop rather than a consensual encounter. This court's decision in United States v. See,
Although the facts in See and Gross are not identical to the case before us, I believe that they are sufficiently similar to provide notice to Officer Hagler, and to other law-enforcement officers, that they cannot rely on qualified immunity as a defense under the circumstances presented
B. Officer Hagler's detention and handcuffing of O'Malley
This leads me to the question of whether Officer Hagler is entitled to qualified immunity as a matter of law for his decision to detain and handcuff O'Malley. Unlike the majority, I believe that genuine issues of material fact remain regarding this issue. "In this circuit, it is well established that, for appellate jurisdiction to lie over an interlocutory appeal, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case." Sheets v. Mullins,
Although Officer Hagler's brief states in a footnote that the underlying facts are undisputed, his recitation of the facts regarding the detention and handcuffing of O'Malley differs in material ways from the facts as alleged by O'Malley. Officer Hagler contends that O'Malley immediately exited the Tahoe and quickly proceeded toward the back door of the residence in question. He also asserts that once O'Malley turned around, he "greeted Officer Hagler with inexplicably aggressive behavior before identifying a firearm nearby." Officer Hagler further claims that he made several attempts to "de-escalate" the situation, but that O'Malley refused to cooperate. In light of the facts as he presents them, Officer Hagler argues that he acted reasonably when he decided to handcuff O'Malley.
In contrast, O'Malley alleges that he truthfully answered all of Officer Hagler's questions and complied with his requests, but was nonetheless placed in handcuffs when he walked over to Officer Hagler. O'Malley also denies that he threatened Officer Hagler in any way, although he acknowledged in his deposition that he was mad at the way he was being treated and had raised his voice to Officer Hagler. The majority cites the fact that O'Malley "turned his back and lifted his shirt" as support for its conclusion that Officer Hagler permissibly handcuffed and detained O'Malley. (Maj. Op. at 670) But O'Malley testified at his deposition that he "turned around to let him know I didn't have anything on me," which hardly supports Officer Hagler's actions.
Given that a genuine dispute remains regarding exactly how the encounter between Officer Hagler and O'Malley unfolded, a reasonable jury could find either (1) that a reasonable officer would have handcuffed O'Malley because the circumstances warranted that precaution, or (2) that Officer Hagler acted unreasonably given that O'Malley did not pose a threat under the circumstances. See Dorsey v. Barber,
And because Officer Hagler "challenges the quantity and quality of [O'Malley's] evidence ... [,] the narrow boundaries of [this court's] jurisdiction prevent us from proceeding any further." See Berryman, 150 F.3d at 564. This portion of Officer Hagler's appeal "boils down to credibility determinations [that this court] cannot make." See id. I therefore conclude that a jury, and not this court, should determine whether Officer Hagler's actions were reasonable under the circumstances, or whether they constituted a violation of O'Malley's Fourth Amendment rights. For this reason, I respectfully dissent on this issue.
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