Anthоny BOONE, Plaintiff-Appellant, v. Phillip SPURGESS a/k/a Philip Spurgus et al., Defendants-Appellees.
No. 03-3841
United States Court of Appeals, Sixth Circuit
Argued: Aug. 11, 2004. Decided and Filed: Oct. 4, 2004.
385 F.3d 923
Lisa T. Meeks (argued and briefed), Newman & Meeks Co., Cincinnati, OH, for Appellant.
John T. McLandrich (argued and briefed), Mazanec, Raskin & Ryder Co., Cleveland, OH, Gordon Bradley Hummel (briefed), Columbus City Attorney‘s Office, Columbus, OH, for Appellees.
Before: SILER, MOORE, and COLE, Circuit Judges.
MOORE, Circuit Judge.
Plaintiff-Appellant Anthony Boone (“Boone“) appeals from the district court‘s grant of summary judgment on his Fourth and Fourteenth Amendment claims against Defendants-Appellees Philip Spurgus1 (“Spurgus“), Scott Moyer (“Moyer“) and Jerome Darfus (“Darfus“).2 Boone was involved in a minor traffic accident with Spurgus, an off-duty police officer; responding to the scene, Moyer and Darfus placed Boone in the back of their squad car and then found a gun оn the floor of Boone‘s vehicle. Boone was then arrested and taken to the county jail, where he either refused or was not given medical care. He filed suit against Spurgus, Moyer, and Darfus, alleging violations of his Fourth and Fourteenth Amendment rights. The district court granted summary judgment on the merits for defendants on Boone‘s three claims: unlawful search of Boone‘s car; preferential treatment for Spurgus in violation of equal protection; and unlawful denial of medical attention. While the two latter claims fail, a material issue of fact remains as to whether the search of Boone‘s car was unlawful. The decision below is therefore REVERSED with respect to the Fourth Amendment search claim and AFFIRMED in all other respects.
I. BACKGROUND
As thе non-moving party, it is Boone‘s version of the facts we must follow. On
Boone stated unequivocally that he did not move his car after the accident; instead, he describes being picked up off the ground by the first officer arriving from the Lancaster Police Department, then handcuffed behind his back against the car, and then placed in the backseat of the police cruiser. Boone also testified that Spurgus identified himself as an off-duty Columbus police officer “[w]hen the police very first arrived on the scene.” J.A. at 130-31. While in the back of the police car, Boone saw Spurgus talking to Lancaster Police officers Darfus and Moyer, and then Boone saw his car being searched by Darfus and Moyer. At some point, Boone‘s car had been moved off the street into a driveway, but Boone stated that he “can say with absolute certainty that [he] didn‘t move [his] car.” J.A at 126. After the discovery of the .45-semi-automatic weapon and the subsequent full search of Boone‘s car, which additionally revealed a .32-revolver in a storage compartment in the driver‘s door, Moyer came up to the side of the cruiser and said to Boone, “You sure know how to pick them.” J.A. at 140. Boone had stolen the .45 from his former employer; both guns were fully loaded at the time of the accident. Boone complained to the officers that “it was just an accident, and [Spurgus] had no right to beat thе s* * * out of me the way he did.” J.A. at 141. Boone also asked for medical attention. When Boone asked why Spurgus was not being arrested, Moyer said that Boone would “have to look into that after [he] . . . went to jail or something like that.” J.A. at 142.
Boone was taken to the county lockup, where he was placed in a cell, and where he claims he did not receive medical attention. As part of Boone‘s response to the defendants’ motions for summary judgment, he submitted an affidavit from Margaret Evans, a resident of Cherry Street, who saw the altercation but not the initial accident from her window. She saw “a large man walking to the car behind his blue truck,” presumably Spurgus, who “threw his fist in the window and hit the little guy,” presumably Boone, “as soon as he got near the window.” J.A. at 118.
Boone was charged with two counts of carrying a concealed weapon and one count of felony theft. He pleaded guilty to the theft charge, and the other charges were dismissed; he was sentenced to six months in prison.
The key differences between Boone‘s account and that of the other parties is that: 1) Spurgus claims that Boone moved his own car subsequent to the time Boone claims that he ensured his gun was out of sight; 2) Moyer claims that he put Boone in the backseat of the police car because Boоne was yelling during Moyer‘s attempts to interview Spurgus, that he didn‘t pat Boone down, and that he didn‘t place Boone in handcuffs initially; and 3) Moyer, Darfus, and Spurgus all claim that Boone‘s weapon was in plain view on the floor of his car, thus giving the police license to search his vehicle.
Boone filed an action in the United States District Court for the Southern District of Ohio on September 12, 2001, against Spurgus, Moyer, and Darfus. All three defendants, Moyer and Darfus together and Spurgus separately, moved for summary judgment. They moved for summary judgment both on the merits and on the basis of qualified immunity; the motions for summary judgment on the merits were granted.
II. ANALYSIS
A. Standard of Review
This court reviews the grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party. Shamaeizadeh v. Cunigan, 338 F.3d 535, 543-44 (6th Cir. 2003).
B. Fourth Amendment Claim: Illegal Search3
Boone argues that the search of his automobile resulting in the discovery of the .45 was in violation of the
The plain-view exception would apply if, as Moyer and Spurgus testified, Darfus could see from the passenger window the .45 peeking out from beneath the driver‘s seat. The other elements of the exception are satisfied: Darfus was lawfully positioned outside of Boone‘s car, and the incriminating character of the gun was immediately apparent because under Ohio law at the time of the offense, it was illegal to transport a loaded firearm in a car “in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle,” or an unloaded firearm that was not “[i]n a closed package, box or case,” “a compartment that can be reached only by leaving the vehicle,” “[i]n plain sight and secured in a rack or holder made for the purpose,” or “[i]n plain sight with the action open or the weapon stripped.”
The first factor raises a question of material fact, however: Boone testified that after the accident, the gun was still under the driver‘s seat, and that he never moved his car from its post-accident position; Moyer testified that when he showed
The applicability of the Michigan v. Long exception—an extension of the rule announced in Terry v. Ohio, 392 U.S. 1 (1968), that an officer with reasonable suspicion to detain a suspect can conduct a brief pat-down search to guarantee that the suspect is unarmed, to permit a search of a suspect‘s vehicle—is also not determinable without resolving disputed issues of fact. In Long, the Court held
that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry, 392 U.S., at 21. “[The] issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id., at 27.
Long, 463 U.S. at 1049-50 (footnote omitted). The Court also indicated that an officer could search a vehicle even if she was preparing to terminate the detention of the suspect, as it was possible that the suspect would return to his car and then use the weapon. Id. at 1051-52 (Search is permissible even when suspect is already under control of officers, in part because “if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.“). Therefore, if Moyer and Darfus had lawfully detained Boone, and they had grounds for reasonable suspicion that Boone had weapons in his car, they could have conducted a search of the interior of his automobile, regardless of the plain-view rule. It seems likely that Moyer reasonably detained Boone in the first instance, and Boone does not challenge on appeal his initial detention as a Fourth Amendment matter. Both Boone and Spurgus were in a physical altercation and had to be separated, and Moyer chose to detain Boone in order to accomplish that goal. Moyer had reasonable suspicion at that point that Boone was guilty of some degree of assault. Spurgus claims that prior to Moyer‘s arrival, Boone had threatened to shoot Spurgus, and that once Moyer arrived, Spurgus told Moyer that Boone “has a gun in his car,” and that Boone had threatened to shoot Spurgus. J.A. at 25. Moyer recounted that Spurgus told him that Boone had made threats, “advising [Spurgus] to get back in his truck or he would cap him,” J.A. at 50, and that Moyer told Boone that he had probable cause to search Boone‘s car on that basis. Moyer
C. Fourteenth Amendment Claim: Equal Protection
Boone pleaded an equal protection violation arising out of the incident; he alleges that Moyer and Darfus conspired with Spurgus to conceal Spurgus‘s role as the aggressor in the fight between Boone and Spurgus, and to search illegally Boone‘s car in order to find incriminating evidence to discredit Boone. The district court below and the parties on appeal both rely heavily on Fisher v. City of Cincinnati, 753 F.Supp. 681 (S.D. Ohio 1990), which dealt with a similar factual situation—the plaintiff Fisher was involved in a traffic accident with an off-duty police officer, and Fisher alleged that officers of the Cincinnati police department had conspired to conceal the off-duty officer‘s intoxication and fault in the accident. The bulk of the Fisher opinion, however, concerns not the equal protection claim Fisher made, which the Fisher district court held survived the Rule 12(b)(6) motion made by defendants because defendants had not bоthered to contest it, but instead Fisher‘s
On appeal, Boone takes issue with the district court‘s conclusion that he had not offered adequate evidence to demonstrate the presence of a conspiracy, and with the imposition of “a symmetry requirement.”
Reading Boone‘s somewhat opaque complaint generously to state a claim for denial of meaningful access to the courts, we conclude that the claim clearly fails. In order to state such a claim, the plaintiff must “present evidence that the [d]efendants’ actions actually rendered a state court remedy ineffective.” Swekel v. City of River Rouge, 119 F.3d 1259, 1260 (6th Cir. 1997). “[I]f a party engages in actions that effectively cover-up evidence and this action renders a plaintiff‘s state court remedy ineffective, they have violated his right of access to the courts.” Id. at 1262. In Swekel, the plaintiff‘s husband had been fatally struck by two cars, one оf which was alleged to have been driven by a high-ranking police officer or his son. Swekel claimed that the initial officer who filed a report mentioning two cars was taken off the case; that the daily log sheet allegedly containing the record of two cars disappeared; that the police failed to perform forensic tests on the deceased‘s clothing; and that the police department told the responding officer not to attend the preliminary hearing, ignored anonymous tips pointing to the alleged second driver, and failed to disclose those anonymous tips even after the plaintiff communicated to the police department that she suspected the man in question. Id. at 1260-61. The district court dismissed her case sua sponte because she had failed to demonstrate that she could not succeed in a state court suit against the second driver. This court affirmed.6
In this case, Boone complains that Moyer and Darfus conspired with Spurgus to defeat Boone‘s assault claim against Spurgus. But Boone cannot show an effective denial of access to the courts: he knows the identity of his assailant, and Moyer and Darfus did not conceal any evidence or otherwise retard his efforts to accumulate proof of his claim. Moyer testified that Spurgus had told him that Boone had threatened to “cap” Spurgus, and from this Boone concludes that Moyer and Spurgus conspired to invent the threat against Sрurgus. While this testimony is equally probative of Spurgus inventing the story on his own and relating it to Moyer, even under the most generous reading of the facts, Boone had not demonstrated
Moving on to Boone‘s equal protection claim, while Boone seems to challenge the failure of Moyer and Darfus to arrest Spurgus for assault, the district сourt was correct in requiring Boone to demonstrate that he and Spurgus were “similarly situated“—because Boone was not arrested for assault, that Spurgus was not arrested either cannot form the basis of an equal protection claim. However, when Moyer came on the scene, in Boone‘s versions of events, immediately upon Spurgus identifying himself as an off-duty police officer, Moyer handcuffed Boone and placed him in the back of the cruiser—thus treating him differently than Spurgus, possibly on the basis of Spurgus‘s status as an off-duty police officer. Boone‘s theory, then, that some equal protection claim might lie, does not necessarily fail because he was not arrested for assault; he was differently treated than Spurgus in a constitutionally cognizable way (i.e., Boone‘s seizure).
In order to make out an equal protection claim on the basis of selective enforcement, a plaintiff must demonstrate that someone similarly situated but for the illegitimate classification used by the government actor was treated differently. See Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997). The Sixth Circuit has indicated that a claim for selective enforcement, while not limited to the traditional “suspect classes,” see id. at 874, must nonetheless rest on membership in a class and a government actor‘s animus against that class. See Futernick v. Sumpter Township, 78 F.3d 1051, 1057 n. 8, 1059 (6th Cir. 1996) (neither “[m]ere arbitrariness” nor “personal animosity” is forbidden as a basis for selective enforcement under the Equal Protection Clause). This precedent, however, is completely undercut by the cryptically brief decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), in which the Supreme Court held that allegations that a municipality‘s demands for a larger easement than usual before connecting plaintiff to the municipal water supply were “sufficient to state a claim for relief under traditional equal protection analysis.” Id. at 565. Under Futernick, a plaintiff must demonstrate that a government actor had a bad reason for enforcing the law against her and not against a similarly situated party; under Olech, a plaintiff can also demonstrate that an actor had no reason at all—that the action had no rational basis. Presumably, the traditional rationale for disallowing selective enforcement claims—that policе resources are limited, and that only a fraction of those guilty of criminal activity can be prosecuted—must survive Olech as a rational basis for police behavior; in order to make an equal protection selective enforcement claim, Boone must therefore demonstrate either that Moyer distinguished between Boone and Spurgus based on some bad reason, proving intent, see Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533-34 (6th Cir. 2002), or that Moyer had no rational reason to distinguish between Boone and Spurgus—a demonstration he is likely unable to make, as the need to isolate one combatant in a fistfight is rational, as is the need to, say, seize one combatant at a time. Moyer‘s actions were not completely arbitrary so as to make out an Olech class-of-one claim.
As to whether Boone can demonstrate that Moyer chose to seize him before restraining Spurgus for a bad reason, the question is closer. Given Boone‘s sequence of events, there is a colorable argument that he has demonstrated that Moyer may have made that choice because Spurgus identified himself as an off-duty police officer. Even if Boone has made out that factual case, however, the question remains whether that classification—between off-duty police and civilians—is a “bad reason” to distinguish between two combatants. It in fact seems like a not wholly irrational classification between two men in a fistfight in the short time period where Moyer was allegedly treating Boone diffеrently—a time period which necessarily stopped when the gun was discovered. If Boone had been arrested for assault and Moyer not, we would see the case differently; had the detention of Boone and not Moyer stretched out beyond the discovery of the gun, we would see the case differently; but under the facts as recounted by Boone, we conclude that summary judgment on this claim was appropriate. We emphasize that our holding is confined to these factual circumstances; police officers do not have carte blanche to favor their off-duty colleagues.
D. Medical Attention
Boone alleges that he was denied medical care by Moyer at the scene of the accident and later, аt the county detention center. Because Boone did not bring suit against his jailers, only Moyer‘s potential liability for the time he had custody of Boone is at issue in this case. Boone describes this as an
The evidence of the extent of Boone‘s injuries is scant; Boone testified that he had “cuts on the inside of [his] mouth,” dizziness, disorientation, and impaired vision for two days; additionally, defendants submitted a “Medical Summary” from the Fairfield County Sheriff‘s Office, which indicated that Boone had a bump on the right side of his forehead, and abrasions on his head, neck, shoulder, and arms, although Boone “den[ies] he was ever seen by any medical person while [he] was in the county jail.” J.A. at 41, 97. Boone also submitted to the defendants below, but inexplicably did not enter into evidence, Ohio State University Medical Center records, from a month after the incident, which Boone described in response to the defendants’ discovery request as diagnosing him with neck and back strain and facial numbness and referring him to neurology. The Sheriff‘s Office medical summary also indicates that Boone received medical care at 16:25, or 4:25 p.m. on September 17, 19997—at least six hours after the accident and ensuing fight are alleged to have happened.8 If Boone had submitted evidence that 1) he had suffered some injury serious enough to warrant prompt medical care in his fight with Spurgus; 2) that an officer in Moyer‘s position should have known the extent of those injuries and approximately how long it would take for Boone to receive medical attention at the jail; and 3) that it was objectively unreasonable to make someone with the injuries Boone had suffered wait that long to receive treatment, he would likely have made out a constitutional claim under the
Because a material issue of fact remains as to whether the firearm would have been visible from outside the car, we REVERSE that portion of the district court‘s decision granting summary judgment to Moyer and Darfus on Boone‘s Fourth Amendment illegal search claim. In all other respects, the district court‘s judgment is AFFIRMED.
SILER, Circuit Judge, concurring in part and dissenting in part.
I concur in all aspects of the majority‘s opinion except on the alleged illegal search of Boone‘s automobile. I also concur in the majority‘s analysis of the applicability of Michigan v. Long, 463 U.S. 1032, 1049-50 (1983). However, I take exception with the majority‘s conclusion that there is an issue of fact on whether Darfus or Moyer could have seen the handgun in plain view when looking through the window of Boone‘s vehicle. As the majority contends, Boone made sure that the pistol was still hidden at the time that he got out of his car. If the officers had looked through the window of the car while it was still located where Boone had left it in the street, there would have been an issue of fact as to whether an officer could have seen the pistol poking out from under the seat.
However, someone moved the car from the time that Boone got out of it in the street and the time Officers Moyer and Darfus looked through the car window and saw the firearm. There is a question concerning who moved the vehicle, but the рarties at oral argument said that it was not material. Therefore, disregarding who moved the car, we must determine whether there is a dispute of the fact that Moyer and Darfus said that they could see the handgun poking out from under the seat when they looked through the car window after the car had been moved. Both of them said that they saw the pistol, and Boone can only say that when he left the vehicle in the street, the weapon was concealed, so no one could have seen it then. Like the district court, I would find that Boone failed to show there was a genuine issue of material fact “such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Therefore, I would uphold the district court‘s finding that there was no illegal search of the vehicle, because the firearm was observed in plain view by the officers. See Texas v. Brown, 460 U.S. 730, 740 (1983).