DONALD BENNETT, et al., Plaintiffs-Appellants, v. CITY OF EASTPOINTE, et al., Defendants-Appellees.
No. 03-2204
United States Court of Appeals for the Sixth Circuit
Argued: April 19, 2005. Decided and Filed: June 8, 2005.
Before: MARTIN, COOK, and LAY, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 05a0247p.06. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 00-70036—John Corbett O’Meara, District Judge.
COUNSEL
OPINION
BOYCE F. MARTIN, JR., Circuit Judge. In the present
Approximately five months
I.
Eastpointe, formerly East Detroit, is a suburb adjacent to Detroit. The 2000 census figures indicate that Eastpointe is 92.1 percent white and 4.7 percent African-American. Detroit was found to be 12.3 percent white and 81.6 percent African-American. Eight Mile Road, made famous by the popular movie 8 Mile divides the
II.
The plaintiffs proceed under theories of individual, supervisory, and municipal liability under
A.
“When a district court grants summary judgment sua sponte, its decision is subject to two separate standards of review. The substance of the district court’s decision is reviewed de novo under the normal standards for summary judgment. The district court’s procedural decision to enter summary judgment sua sponte, however, is reviewed for abuse of discretion.” Shelby County Health Care Corp. v. S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir. 2000) (internal citations omitted). If we find no abuse of discretion in the district court’s procedural decision, we review the decision substantively. If we find a procedural abuse of discretion, we reverse and remand to provide the district court the opportunity to review all of the evidence before making a substantive decision. See id.
A district court does not abuse its discretion in sua sponte granting summary judgment so long as “the losing party was on notice that it had to come forward with all of its evidence [and had a] reasonable opportunity to respond to all the issues to be considered by the court.” Id. (internal quotation marks and citations omitted). As noted above, the police officer-defendants’ motions for summary judgment and all but one of their replies to the plaintiffs’ motions for summary judgment focused exclusively on the Fourth Amendment,
We conclude that the district court abused its discretion in sua sponte granting summary judgment to the police officer-defendants on the Fourteenth Amendment claims. True, some of the defendants’ briefs below, responding to the plaintiffs’ motions for summary judgment, mentioned the Fourteenth Amendment. But nothing gave the plaintiffs any notice that they would be forced to defend against a nonexistent motion by the defendants for summary judgment on the Fourteenth Amendment claims. The officers could have moved for summary judgment on this issue in their own motion for summary judgment — but they did not. Thus, the plaintiffs were understandably “surprised by the proceedings” when the district court granted the officers summary judgment anyway. We therefore conclude that it was error for the district court to sua sponte grant summary judgment on the issue.
B.
With regard to the claims properly briefed below, this Court reviews a decision to grant summary judgment on the substantive claims de novo. Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001). Summary judgment is only appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The plaintiffs bring their claims for violations of their Fourth and Fourteenth Amendment rights pursuant to
1. Supervisory Liability Under § 1983
The plaintiffs seek to hold Chiefs DeWeese and Danbert liable based on their role in supervising the officers who allegedly committed constitutional violations. For a claimant to succeed on a claim of supervisory liability under
In King, this Court held with respect to one of the incidents there that “[w]ith the possible exception of DeWeese’s memorandum, plaintiffs’ evidence does not sufficiently show selective enforcement based on race. However, [even if the Memorandum were discriminatory] the plaintiffs cannot establish that Officer Childs was ever aware of the instructions given by DeWeese to the officers on his afternoon shift or that Officer Childs was aware of the Memorandum.” King, 86 Fed. Appx. at 802. Thus, the Court declined to decide whether the DeWeese Memorandum was discriminatory, but held that even assuming the DeWeese Memorandum was discriminatory, “there is no evidence of a causal connection between those instructions and the investigatory stop conducted by Officer Childs on August 4, 1996.” Id. at 803 (emphasis added).
Therefore, the King panel did not foreclose a finding of supervisory liability if the plaintiffs could provide sufficient evidence of the “causal connection” between DeWeese’s instructions later memorialized in his Memorandum, and the activities of his officers — especially those who worked on the afternoon shift where he issued his instructions. We discuss, where appropriate, whether the plaintiffs’ claims are sufficient to defeat a motion for summary judgment on supervisory liability within our discussion of each individual incident.
2. Municipal Liability Under § 1983
A municipality, like a supervisor, may not be held liable under
Here, the plaintiffs rely on the DeWeese Memorandum as the policy that wrought the constitutional violations upon them. For the plaintiffs to prevail, therefore, they must demonstrate that DeWeese had policymaking authority. The plaintiffs have failed, however, to account for the fact that at the time of the instructions, now-Chief of Police DeWeese was simply a lieutenant, and not a policy-making official. See King, 86 Fed. Appx. at 804 (“DeWeese was not Chief of Police during the time these earlier bike stops occurred, so his action or inaction could not result in ratification of a policy behind those incidents.”). The plaintiffs argue that when DeWeese became Chief of Police, he did not rescind his earlier instructions, and therefore the Memorandum became city policy. We decline to adopt such a broad reading of the Memorandum without any evidence to support the assertion. The Memorandum, though arguably discriminatory, was only memorializing prior and limited instructions, made to four or five officers under his command on an afternoon shift. There is no evidence whatsoever, that after becoming Chief of Police, DeWeese renewed these instructions or that they motivated the conduct of the officers, who were not on the afternoon shift, years later. In sum, we hold that the DeWeese Memorandum did not constitute official city policy and therefore affirm the district court’s grant of summary judgment in favor of the City of Eastpointe.
3. Qualified Immunity Defense
“A government official who performs discretionary functions is entitled to qualified immunity from civil suits for damages arising out of the performance of his official duties unless his alleged conduct violated clearly established constitutional rights of which a reasonable person would have known.” Christophel v. Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995). In Feathers v. Aey, this Court wrote:
Qualified immunity involves a three-step inquiry. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.”
319 F.3d 843, 848 (6th Cir. 2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc)). The claimant must prove all three requirements or the officials are entitled to qualified immunity. We address qualified immunity in the context of each of the individual claims.
III.
A. Incident # 1, August 6, 1995
Incident # 1 occurred on August 6, 1995, and involved plaintiff Weaver, his friend, non-plaintiff Clark, and defendant-Officers Edward Lulko and Eric Keiser. Incident # 1 consisted of two separate encounters.
Moments later, the officers received a citizen’s call reporting “two suspicious African-American males riding bicycles and pulling a third bike.” Responding to the call, the officers stopped Weaver and Clark a second time. This time, both of the officers exited the car and made Weaver and Clark put their hands on the car’s hood while patting them down. The officers then ordered Weaver and Clark to sit on the curb, flipped over the bikes to read the serial numbers, and explained that a lot of people were coming across Eight Mile Road to steal bikes. The officers radioed the serial numbers into the LIEN system, a system wherein bike serial numbers are recorded and reports of stolen bikes are kept. The officers were told that nobody had reported the bikes stolen, and the boys were released.
1. § 1983 Racial Discrimination Claim
Plaintiff Weaver asserts that the investigation by defendant Officers Lulko and Keiser violated his Fourteenth Amendment right to be free from discrimination on the basis of race. He asserts that the stop and investigation into his presence in Eastpointe was the result of an unconstitutional Eastpointe policy to stop all black youths riding bicycles in the Eastpointe. Just as in King, for evidence of the alleged discriminatory policy, Weaver points to the Memorandum written by Chief DeWeese to the City Manager, which includes the statement of his instructions to the officers under his command to “investigate any black youths riding through our subdivisions.” Weaver also points to the other similar incidents described herein, as well as the incidents in King, allegedly demonstrating unconstitutional action taken pursuant to the DeWeese Memorandum. Furthermore, Weaver points to the allegedly racially loaded statement made by the officers that a lot of people were coming across Eight Mile to steal bikes in Eastpointe.
We have already determined above that the district court’s grant of summary judgment in favor of the City of Eastpointe on the Fourteenth Amendment claims was appropriate. We have also held that the district court erred procedurally in granting summary judgment to the defendants on the Fourteenth Amendment claims against the officers. We now discuss whether supervisory liability might attach to this incident rendering Chief DeWeese liable.
2. § 1983 Fourth Amendment Search and Seizure Claim
Weaver also alleges that the officers’ investigation was an unreasonable search and seizure in violation of the Fourth Amendment. The parties dispute whether the first encounter was a “stop” within the ambit of the Fourth Amendment. A purely consensual encounter between a police officer and a citizen does not implicate the Fourth Amendment. It is only when an officer restrains an individual’s liberty “by means of physical force or show of authority” that Fourth Amendment protections attach. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A person’s liberty is restrained if a reasonable person in the circumstances would not believe that she were free to leave and ignore the officer’s requests. See e.g., United States v. Mendenhall, 446 U.S. 544, 554 (1980).
The district court correctly concluded that the first encounter between the officers and the plaintiff was not a “stop” under the Fourth Amendment. Both parties describe what amounts to a consensual encounter where the police approached two individuals and asked them some questions. There is no indication in the record that the officers did anything to restrain the freedom of movement of the plaintiff. The defendants do not dispute that the second encounter was a stop within the Fourth Amendment. What the parties dispute, however, is whether there was reasonable suspicion for the stop and whether the subsequent investigatory methods used were reasonable under the circumstances.
Here, towing the third bike was a violation of Michigan State Law, see
Nonetheless, this Court must still inquire as to whether the subsequent detention and intrusion was reasonably related to the scope of the stop. Terry v. Ohio, 392 U.S. 1, 17-19 (1968); United States v. Hardnett, 804 F.2d 353, 356 (6th Cir. 1986) (asking “whether the degree of intrusion into the suspect’s personal security was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials’ conduct given their suspicions and the surrounding
Q. Was there suspicion for your [second] encounter [with Weaver] at 17:25?
A. Was there suspicion?
Q. Were they suspicious at 17:25?
A. No. I wouldn’t – no. The only reason we spoke to them [the second time] was because of the radio run. It was suspicious to a citizen, but once we pulled it, it was the same guys. And the story they told us [during the first stop] sort of coincided with what was going on [just before the second stop].
J.A. at 607 (emphasis added). Nonetheless, the officers stopped Weaver and his friend, required them to dismount from their bikes, required them to place their hands on the front of patrol car, conducted pat-down searches of them, ordered them to sit on the curb, and called in the serial numbers on the bikes to determine if they were stolen.
Because of the observed violation of Michigan law, the officers were justified in stopping the plaintiff.1 See Whren v. United States, 517 U.S. 806, 810 (1996) (holding that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred” regardless of any subjective motivations). Nonetheless, we hold that the facts as alleged by the plaintiffs constitute a Fourth Amendment violation based on the officers’ conduct after the initial stop, and therefore reverse and remand the claim to the district court.
A concern for officer safety permits a variety of police responses in differing circumstances, including ordering a driver and passenger out of a car during a traffic stop, see Pennsylvania v. Mimms, 434 U.S. 106 (1977) (driver) and Maryland v. Wilson, 519 U.S. 408 (1997) (passenger), and conducting pat-down searches “upon reasonable suspicion that they may be armed and dangerous.” Knowles v. Iowa, 525 U.S. 113, 118 (1998) (emphasis added) (citing Terry, 392 U.S. 1). A lawful stop does not necessarily carry with it the authority to conduct a pat-down search. Terry, 392 U.S. at 27 (“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual . . .”). To justify a pat-down search, the officers must articulate specific facts that would warrant “a reasonably prudent man in the circumstances . . . . in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.
The
To the extent that plaintiffs might be alleging that Chiefs DeWeese and Danbert as well as the City of Eastpointe may be held liable for Officers Lulko’s and Keiser’s searches and seizures during the investigatory stop of August 6, 1995, summary judgment was proper. The plaintiffs have introduced no evidence that Chiefs DeWeese or Danbert encouraged any Fourth Amendment-related misconduct on the part of Lulko and Keiser, see Bellamy, 729 F.2d at 421, nor is there any evidence of an unconstitutional city policy pursuant to which Lulko and Keiser acted, see Monell, 436 U.S. at 694.
Defendant police officers assert that they are entitled to qualified immunity with respect to these claims. Officers Lulko’s and Keiser’s search of Weaver, viewing the facts in the light most favorable to Weaver, however, does not warrant qualified immunity, as it would constitute a search that is unreasonable under the Fourth Amendment and would be an objectively unreasonable search by a police officer that would not entitle the officer to qualified immunity. See Terry, 392 U.S. at 27.
B. Incident # 3, August 28, 1995
Incident # 3 occurred on August 28, 1995, and involved plaintiffs Mitchell, Johnson, Simpson, and Posey, and defendant-Officers Murdock, Deal, and Magrita. The plaintiffs were riding bikes through the neighborhoods near their homes and, as they crossed Eight Mile Road into Eastpointe, Officer Murdock stopped them.
The evidence indicates that the Eastpointe police received an anonymous tip that four black males were riding two bicycles, a violation of
1. § 1983 Racial Discrimination Claim
For the reasons stated in part II A., supra, we reverse the district court’s grant of summary judgment in favor of the defendant-officers.
2. § 1983 Fourth Amendment Search and Seizure Claim
i. Frisk of the Plaintiffs
The plaintiffs’ claim under the Fourth Amendment in this incident is similar to their claim in Incident # 1. Here, the facts indicate that the officers received a call regarding four bicycle riders riding double, looking into garages, and acting suspicious. The officers observed the youths riding double, a violation of state law, and therefore lawfully stopped the plaintiffs. See
The plaintiffs further allege, however, that the even if there was a proper basis for the initial stop, as we have held there was, the detention, frisk, and confiscation of the bikes was unreasonably intrusive and not reasonably related to the scope of the initial detention and therefore a violation of the Fourth Amendment. We agree that the frisk and seizure of the bikes was unreasonable, but the length of the detention was not, and therefore reverse the district court’s grant of summary judgment in favor of the officers and remand for further proceedings consistent with this holding.
The facts, as alleged by the plaintiffs, make out a recoverable Fourth Amendment claim. During this stop, the officers conducted pat-down searches of the plaintiffs, and again, their only justification is a conclusory reference to “officer safety.” The officers have not, however, alleged any facts that would create a reasonable suspicion that the plaintiffs were armed and dangerous. Therefore, the pat-down searches violated the Fourth Amendment. Terry, 392 U.S. at 27. The mere fact that an officer has the authority to arrest an individual does not, and never has, automatically permitted the officer to conduct a pat-down search should he choose not to effectuate the arrest. Knowles, 525 U.S. at 117-19. For an officer to conduct a search incident to arrest, there must be an actual arrest. Otherwise, unless the officer points to specific facts that demonstrate reasonable suspicion that the individual is armed and dangerous, the Fourth Amendment tolerates no frisk. Id.
ii. Seizure of the bikes
This incident also involves the seizure of the plaintiffs’ bikes. One of the bikes appears to have been plaintiff Mitchell’s birthday present from his father and the other bike appears to have been pieced together from spare parts by plaintiff Simpson. The officers allege that each of the youths disclaimed ownership of the bikes, but viewing the facts in the light most favorable to the plaintiffs, we cannot agree with the officers.
After stopping the plaintiffs, and because of their alleged suspicions, the officers called in the bike’s serial numbers into the LIEN system and found that they had not been reported stolen. Nonetheless, the officers claim that conflicting explanations, coupled with the officers’s knowledge of recent bike thefts from that area, provided “reasonable suspicion and probable cause” to seize the bikes.
This Court is limited to determining whether the facts, when viewed in the light most favorable to the plaintiffs, make out a recoverable Fourth Amendment claim — here they do, and therefore summary judgment was inappropriate. The facts, viewed in the light most favorable to the plaintiffs, would support a finding that the officers did not have probable cause to believe the bikes were stolen and therefore did not have probable cause to seize the bikes. After running the serial numbers through the LIEN system and learning that the bikes were not reported stolen, the officers would have to proffer some facts to demonstrate that they had probable cause to seize the bikes — facts sufficient to warrant a person of reasonable caution in the belief that a crime is being or has been committed. See, e.g., Carroll v. United States, 267 U.S. 132, 161-62 (1925). The plaintiffs’ deposition testimony indicates that one of the bikes was Mitchell’s birthday present and the other was pieced together from spare parts. A check of the LIEN system did nothing to cast doubt on the youths’ story, and provided no indication that the bikes were stolen. The officers’ “hunch” that the stories were inconsistent or that the bikes looked too new, does not rise to the level of probable cause sufficient to effectuate a permanent seizure of personal property.
This does not end the inquiry. In general, seizures of property require probable cause. United States v. Place, 462 U.S. 696, 701 (1983). As with brief detentions of the person, i.e., Terry stops, however, the Supreme Court “has recognized that some brief detentions of personal effects may be permitted based upon reasonable suspicion falling short of probable cause, provided that such detentions are ‘minimally intrusive.’” Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 543-44 (6th Cir. 2002) (emphasis added) (quoting Place, 462 U.S. at 706). This Court has explained that “‘seizures of personal effects when based on anything less than probable cause’ are permitted only to the extent that they satisfy the standards for reasonableness applicable to ‘Terry-type investigative detentions.’” Farm Labor, 308 F.3d at 544 (quoting United States v. Saperstein, 723 F.2d 1221, 1231 (6th Cir. 1983)).
This Terry-like inquiry for determining whether a seizure based upon less than probable cause is constitutional involves two steps. “First, the Court must determine whether the detaining officer has a reasonable and articulable suspicion that the property he wishes to seize is connected with criminal activity,” id. (quoting Sanders, 719 F.2d at 887), and “[s]econd, the scope of the seizure must be reasonable, both in duration and in intrusiveness,” id. (citing Place, 462 U.S. at 709). As for the second prong, this Court has stated that to determine whether “there is reasonable suspicion, the Court must then ascertain whether the detention is reasonable, that is, (1) was it sufficiently limited in time, and (2) were the investigative means used the least intrusive means reasonably available.” Sanders, 719 F.2d at 887 (internal quotation marks omitted).
We therefore engage in the Farm Labor analysis to determine whether the seizure, based on reasonable suspicion alone, was constitutional. Assuming the officers had reasonable suspicion to believe the bikes were stolen, even in light of the clean LIEN check, the inquiry also requires determining whether the seizure was sufficiently limited in time and whether the investigative means were the least intrusive. Id. In Place, the Supreme Court held that a ninety-minute detention of the defendant’s luggage was unreasonable in duration. Place, 462 U.S. at 709. The Court noted that in determining whether a Fourth Amendment violation has occurred, it is necessary to balance the government interest in the temporary seizure against the individual’s interest in avoiding the intrusion. Id. at 703. In Place, the governmental interest was in preventing the transportation of narcotics and the ninety-minute detention was to arrange for a dog sniff of the luggage. Id. The Court found that the government’s interest was substantial, but despite the substantial government interest, the detention for ninety minutes was unreasonable without probable cause. Id. at 709. The Court noted that the constitutional violation was complete based on the unreasonable detention, but further exacerbated by the agent’s failure to tell the defendant where they were taking the luggage, how long they would keep it, and how it would be returned to him. Id. at 710.
Furthermore, in Farm Labor, this Court found the seizure of the motorists’ green cards for four days to be unreasonable and therefore unconstitutional. Farm Labor, 308 F.3d 544-48. The district court found and this Court agreed that only one day or less was needed for the officer to contact and receive verification from the INS as to the card’s authenticity. Id. at 546-47. In looking to the permissible time limitation for a seizure based on less than probable cause, the Supreme Court has not adopted a per se time limitation, but rather has “emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.” United States v. Sharpe, 470 U.S. 675, 685 (1985).
We see little, if any, investigative need for confiscating the bikes in this case. The defendants assert no investigative rationale for the seizure, though the district court stated that the bikes were confiscated “to do a more thorough investigation when [the officers] returned to the station.” There is no indication, however, that the officers ever investigated further. Having already run the LIEN check and asserting no additional investigative rationale, it appears to us that the officers seized the bikes for no justifiable purpose. This is made even clearer by the fact that the officers told the youths that they could come claim the bikes at any time, presumably immediately, as long as they brought their parents along or provided some other proof of ownership. The fact that the officers were willing to immediately turn over the bikes to a parent or to the youths upon proof of ownership demonstrates no urgent or specific law-enforcement interest in seizing the bikes.
If the officers had taken the bikes, immediately gone to the station, and engaged in a more comprehensive investigation into the ownership of the bikes, and then, finding no indicia of criminal wrongdoing, returned the bikes to the youths, there might not be any constitutional violation. In United States v. Sharpe, the Supreme Court emphasized, as it had explained in Place, that “in assessing the effect of the length of the detention, we take into account whether the police diligently pursued their investigation.” 470 U.S. at 685 (quoting Place, 462 U.S. at 709). Thus, it is “appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant” or his property. Sharpe, 470 U.S. at 686. Moreover, “the brevity of the invasion of the individual’s Fourth Amendment interests” is key in determining whether a seizure can be justified on reasonable suspicion. Sharpe, 470 U.S. at 685 (citations omitted and emphasis added). The brevity or length of the detention is a flexible concept and needs to be evaluated in light of the law enforcement needs “as well as the time reasonably needed to effectuate those purposes.” Id. Here, the officers have provided no explanation of the law-enforcement needs, nor any indication of the time necessary to confiscate bikes to conduct a more detailed investigation.
Furthermore, the fact that the officers may have given the youths property claim tags does not cure the constitutional violation. In Place, the Court held that the ninety-minute detention was unreasonable and therefore unconstitutional, but that the violation itself was “exacerbated” by the failure of the officers “to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion.” Place, 462 U.S. at 710. While the possible presence of property tags here may have prevented such exacerbation, the officers still made no provision for returning the bikes “if the investigation dispelled the suspicion.” Id. The officers essentially reversed the onus under the Fourth Amendment and placed the burden on the youths to demonstrate that the bikes were not stolen, whereas the burden, under the Fourth Amendment, is on law enforcement to justify its intrusions. It is not up to individuals to demonstrate the absence of criminal activity; rather, it is up to law enforcement, if they have appropriate suspicions, to investigate and confirm or dispel those suspicions. Permanently keeping the bikes and selling them at auction based on meager reasonable suspicion here violates the Fourth Amendment. We therefore reverse and remand this claim against defendant-officers Murdock, Deal, and Magrita for further proceedings.
For the same reasons as in Incident # 1, we affirm the district court’s grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
Officers Murdock’s, Deal’s, and Magrita’s searches of plaintiffs Mitchell, Johnson, Simpson, and Posey, and the seizure of the bikes, at least as the plaintiffs allege it took place, do not warrant qualified immunity, as it would constitute a search and seizure that is unreasonable under the Fourth Amendment and would be an objectively unreasonable search and seizure by a police officer that would not entitle the officer to qualified immunity. See Terry, 392 U.S. at 27; Place, 462 U.S. at 709; Farm Labor, 308 F.3d 544-48.
C. Incident # 5, April 18, 1996
Incident # 5 occurred on April 18, 1996, involved plaintiff Wilson and his two friends, non-plaintiffs Johnson and Traylor,
Officer Lulko asserts that he observed three bike riders riding between parked vehicles, jumping the curb in front of businesses, and allegedly interfering with traffic in violation of state law. Because this allegedly observed activity raised safety and theft concerns, Lulko stopped the youths. According to Lulko, he never left his vehicle, which contradicts Wilson’s claim that Lulko patted him down. Lulko states the encounter lasted five minutes during which he explained the safety concerns and provided the youths with directions.
1. § 1983 Racial Discrimination Claim
For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary judgment in favor of the defendant-officers.
2. § 1983 Fourth Amendment Search and Seizure Claim
Viewing the facts in the light most favorable to the plaintiffs, we hold that a genuine issue of material fact exists on this claim and reverse the district court’s grant of summary judgment. Wilson claims that they were riding lawfully down the sidewalk when they were abruptly stopped by Officer Lulko. Officer Lulko claims to have observed the youths riding between parked cars and jumping curbs, and therefore violating state law prohibiting interference with traffic. Officer Lulko’s version provides him with a lawful reason to stop and question the youths. Wilson’s version of events does not provide Officer Lulko with any cause to stop the youths.
At the outset, whether Officer Lulko effectuated a stop within the ambit of the Fourth Amendment is disputed. Wilson claims that Officer Lulko pulled his car in front of them, blocked their path, got out, and searched them. Officer Lulko claims to have stayed in his car, merely advised the youths not to interfere with traffic, and provided them with directions. This dispute of fact is similar to the dispute in King over the February 28, 1997 incident. In that incident, the police officer pulled over the plaintiffs’ vehicle alleging that they were not wearing their seatbelts, had air fresheners hanging more than four inches from the top of the windshield, and had a cracked windshield. King, 86 Fed. Appx. at 810. The defendants in King simply asserted that traffic violations occurred and therefore the stop was justified. The Court held that “[w]hat plaintiffs are contesting, however, is whether these traffic violations did in fact occur . . . . Defendant’s reliance on contested issues of fact demonstrates that summary judgment was not appropriate . . .” Id. There, as here, a “genuine issue of fact [exists] as to whether the ensuing investigatory stop was based on reasonable suspicion.” Id.
If Officer Lulko had blocked the plaintiff’s path by a show of authority and the plaintiff submitted to that show of authority, a seizure within the Fourth Amendment did occur. California v. Hodari D., 499 U.S. 621, 626 (1991). Moreover, if Officer Lulko frisked Wilson, a search and seizure occurred. The district court found that
In sum, there are genuine issues of material fact in dispute as to both whether Officer Lulko had reasonable suspicion to stop the plaintiffs and whether Officer Lulko frisked Wilson. When viewing the facts in the light most favorable to Wilson, it is clear that summary judgment for the defendants was inappropriate.
For the same reasons as in Incidents # 1 and # 3, we affirm the district court’s grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
Officer Lulko asserts that he is entitled to qualified immunity for the Fourth Amendment claim. The encounter, and search, however, at least as Wilson alleges it took place, does not warrant qualified immunity, as it would constitute both a seizure, and then a search, that were unreasonable under the Fourth Amendment, and would be an objectively unreasonable search and seizure by a police officer not entitling that officer to qualified immunity. See Terry, 392 U.S. at 27.
D. Incident # 6, June 24, 1996
Incident # 6 occurred on June 24, 1996, and involved plaintiff Sanders and defendant-Officer Childs. Sanders states that he was on his way home from a day at Metro Beach dressed in swim trunks and a t-shirt. He had been riding his bike, which was purchased at a garage sale and salvaged through spare parts, but got tired and decided to walk. Officer Childs approached Sanders from behind and turned on the car’s siren. Childs got out of the car and instructed Sanders to “come here.” Sanders submitted to the officer’s demand, and the officer told Sanders to put the bike down and stand against a gate whereupon he conducted a pat-down search. The officer then interrogated Sanders, asked whether the bike was his, whether it was stolen, where he got it, where he was coming from, where he was going, and what he was doing “over there” in Eastpointe. After twenty minutes, the officer allowed Sanders to leave.
Officer Childs adds only that Sanders appeared “much too large” for the bicycle and he stopped Sanders to investigate whether the bicycle was stolen, and whether Sanders was in violation of curfew, or needed assistance.
1. § 1983 Racial Discrimination Claim
For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary judgment in favor of the defendant-officers on this issue. Substantively, however, we note that Officer Childs was in the police academy during the time in which DeWeese issued his instructions to the afternoon shift and never worked on DeWeese’s afternoon shift. Thus, when afforded the proper opportunity to defend against the officers’ motion for summary judgment, should they file one, the plaintiffs will have to submit sufficient evidence to overcome this fact in order to survive the summary judgment stage on this claim.
2. § 1983 Fourth Amendment Search and Seizure Claim
Sanders claims both that Officer Childs did not have reasonable suspicion to stop
First, a stop did occur at the outset when Officer Childs turned on his patrol car lights in a show of authority and required Sanders to submit and stand up against a nearby gate. See Hodari D., 499 U.S. 626. By no means is it clear that Officer Childs had reasonable suspicion to justify the stop. Therefore, a genuine issue of material fact remains as to the reasonableness of the stop. While officers can surely and appropriately take into account the fact that an area is a high crime area, that alone, does not justify effectuating a seizure. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (finding reasonable suspicion to exist when an individual engaged in unprovoked flight from officers patrolling a high crime area). The only particularized suspicion of any wrongdoing here is the officer’s belief that Sanders was “much too large” for his bike, and this subjective belief is an issue of fact that may depend upon a credibility determination within the province of the jury.
The defendants cite Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809 (6th Cir. 1999), for the proposition that an officer’s perception based on visual observations, even if later determined to be inaccurate, provides reasonable suspicion. The defendants read Houston too broadly. In that case, one of the officers
observed and was assaulted in an uprising at Chuck’s [bar], heard a sound that resembled gunfire, heard a voice exclaim, ‘He’s been shot,’ observed a victim bleeding profusely from the head, noticed a passenger enter a car next to the victim, watched the same car speeding away from the bar’s parking lot, and identified the vehicle as best he could under hurried and otherwise difficult circumstances. These ‘specific and articulable facts,’ along with rational inferences therefrom, linked the crime at Chuck’s to the vehicle that Deputy Schutte identified,
though the officers ended up stopping the wrong car. Id. at 813. While as a general matter, police officers may rely on their own and other officers’ reasonable perceptions, those perceptions, the inferences drawn therefrom, and their ensuing actions in response to those perceptions must ultimately be reasonable. To say that Officer Childs’s belief that Sanders was too large for his bike equates to the officers’ reasonable perceptions in Houston is not automatic, and at the very least, generates a genuine issue of material fact as to whether reasonable suspicion existed for the stop.
Second, even if there were reasonable suspicion for the stop, Sanders argues that a genuine issue of material fact exists as to the reasonableness of the intrusion during the investigatory stop. Here, yet again, another officer with absolutely no articulated suspicion conducted a pat-down search — and in this case, Officer Childs required Sanders to stand against a gate while he was frisked. To reiterate, “‘[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ he may conduct a limited protective search for concealed
For the same reasons as in Incidents # 1, # 3, and # 5, we affirm the district court’s grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe, to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
Officer Childs asserts that he is entitled to qualified immunity for the Fourth Amendment claim, but the seizure and search, at least as Sanders alleges they took place, do not warrant qualified immunity, as they would constitute both a search and seizure that were unreasonable under the Fourth Amendment, and would be an objectively unreasonable search and seizure by a police officer not entitling that officer to qualified immunity. See Terry, 392 U.S. at 27.
E. Incident # 8, April 29, 1997
Incident # 8 occurred on April 29, 1997, and involved plaintiff-brothers James and Jermaine Shaffer, non-plaintiffs McCree and Loker, and defendant-Officer Lulko. The youths rode to Arbor Drugs to buy a carton of milk for the Shaffers’ mother and were on their way back to the Shaffers’ house, riding down Brock Street in Eastpointe, a few blocks from the Detroit border, when Officer Lulko turned his car in front of the youths and blocked their paths. Officer Lulko exited the car and ordered the boys to get off their bikes and put their hands on the car. Three of them submitted, while James Shaffer did not stop and instead dismounted his bike and walked two blocks toward Eight Mile Road. As he was about to cross back into Detroit, another Eastpointe officer pulled his patrol car in front of James, threw him against the car, handcuffed him, and forcibly detained him in the patrol car. During this time, Lulko ordered the youths to place their hands on the hood of the police car and conducted pat-down searches of the other three youths and told them they should have receipts for their bikes when they come over “Eight Mile” into Eastpointe. Eventually, the boys were released, but as they walked back toward Eight Mile Road, the officers followed behind in the police car until they crossed back into Detroit.
Officer Lulko claims to have encountered four bicyclists riding double, which is in contrast to the youths’ claims that they were all riding their own bikes, and would conflict with the fact that James got off of his own bike and continued toward Eight Mile disregarding Lulko’s order to stop. The defendants also note that James admits to riding “four abreast” through side streets, which would be a violation of state-law.
1. § 1983 Racial Discrimination Claim
For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary judgment in favor of the defendant-officers. Moreover, in this instance, summary judgment was particularly inappropriate because of the alleged racial tones to the officers’s conduct — specifically, Officer Lulko’s statement that the youths should have receipts for their bike
In King, a stop on April 4, 1996, was found to be justified by reasonable suspicion of truancy and/or suspicion that criminal activity might be afoot, but this Court held that a genuine issue of material fact existed as to whether the officer’s use of the allegedly racially derogatory term “boy,” though a “close” question, “raises an issue of fact as to whether Officer Childs actions . . . following the stop were based on race.” King, 86 Fed. Appx. at 803.
In this case, the district court found that the use of the phrase “Eight Mile” and reference thereto, was “racially loaded” as Eight Mile is known by all to be a racial dividing line between Detroit, which is predominately African-American, and Eastpointe, which is predominately white. Viewing the facts and inferences in the light most favorable to the plaintiffs, the statement that the plaintiffs should have receipts for their bikes when coming across Eight Mile, and the fact they were followed, for no discernible purpose, back across Eight Mile, made summary judgment for the defendants particularly inappropriate in this incident.
2. § 1983 Fourth Amendment Search and Seizure Claim
While it may be disputed whether the youths were riding double or whether they were riding four abreast down the street, either version amounts to a violation of state law, see
For the same reasons as in Incidents # 1, # 3, # 5, and # 6, we affirm the district court’s grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
Officer Lulko asserts that he is entitled to qualified immunity for the Fourth Amendment claim, but the search, at least as Jermaine Shaffer alleges it took place, does not warrant qualified immunity, as it would constitute a search that was unreasonable under the Fourth Amendment, and would be an objectively unreasonable search by a police officer not entitling
F. Incident # 10, June 27, 1998
Incident # 10 occurred on June 27, 1998, and involved plaintiff Bush and his two friends, non-plaintiffs Thrasher and Ware, and defendant-Officer Magrita. All three youths allege that they were riding on separate bikes home from the Eastland Mall. While riding one block north of Eight Mile Road into Eastpointe, the youths were pulled over by Officer Magrita, who pulled behind them and flashed his overhead lights. The defendants allege that two of the youths were riding double. Magrita states that he observed the youths riding bikes behind closed businesses. After driving by and making eye contact with the youths, he continued on his way. Five minutes later he returned to see the youths still riding in the same place.
Bush alleged that Magrita asked whether the youths knew “anything about people coming across Eight Mile and stealing bikes on this side of Eight Mile.” Bush also alleged that Magrita made a joke about a “monkey” and ordered the youths to get off their bikes and walk “back across Eight Mile,” and waited to observe that they do so.
1. § 1983 Racial Discrimination Claim
For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary judgment in favor of the defendant-officers.
2. § 1983 Fourth Amendment Claim
It is not disputed that Bush and his friends were riding bikes and hanging out in an alley behind closed businesses. In essence, the facts are agreed upon, but the parties dispute whether a stop occurred at all. Both sides agree that the officer approached in his car and activated his flashing lights, but disagree as to whether this led to a Fourth Amendment encounter. Both sides support their position with Galas v. McKee, 801 F.2d 200 (6th Cir.1986), where we held that a high-speed traffic chase was not itself a seizure, because the pursued driver refused to stop, i.e., the driver did not submit to the officers’ show of authority. The City argues that if a high-speed chase with sirens and lights does not qualify as a “stop,” neither does mere usage of lights without a chase. Pursuant to this logic, however, no traffic stop would be a true “stop,” absent some unusual show of force. Key in Galas is that the suspect failed to stop, despite a show of authority and therefore his liberty was not restrained. This rationale comports with California v. Hodari D., 499 U.S. 621, 626 (1991), which held that a Fourth Amendment seizure occurs when there is (1) a show of authority, and (2) submission to a show of authority. In Galas and in Hodari D., there was a show of authority, but because the suspect fled, no submission to that show of authority. Here, however, Officer Magrita activated his siren — a show of authority3 — and Bush and his friends stopped riding their bikes and gave attention — submission to Magrita’s show of authority. Thus, the Fourth Amendment applies to this encounter. While we conclude that a stop did occur, we also conclude that Magrita had reasonable suspicion for the stop, based on his observations of the youths’ loitering in an
Unlike all of the other incidents in this case, Bush does not allege that he was frisked. He claims, however, that the officer ordered him to walk his bicycle out of Eastpointe back to Detroit, and then “escorted” him there. His deposition testimony indicates that the officer watched him cross Eight Mile to ensure that he complied, but that he was not physically escorted into Detroit. Fourth Amendment jurisprudence suggests a person is seized not only when a reasonable person would not feel free to leave an encounter with police, but also when a reasonable person would not feel free to remain somewhere, by virtue of some official action. See Florida v. Bostick, 501 U.S. 429, 439 (1991) (whether seizure occurred depends upon whether a reasonable person would believe he was “not free to decline the officers’ requests or otherwise terminate the encounter”); Evans v. Ball, 168 F.3d 856, 861 (5th Cir. 1999) (collecting cases holding that pre-trial restriction on interstate travel is a seizure); Kernats v. O’Sullivan, 35 F.3d 1171, 1177-78 (7th Cir. 1994) (denial of freedom to remain in a place can be a seizure); Beverlin v. Grimm, 1995 U.S. Dist. LEXIS 11145, *8 n.1 (N.D. Ill. Aug. 4, 1995) (“[W]e think the Terry rationale is applicable to unlawful interference with freedom of movement, whether it be exerted by preventing a person from leaving or forcing her to leave.”). We conclude that Bush’s allegations, viewed in the light most favorable to him, establish an unreasonable seizure in violation of the Fourth Amendment by virtue of his being ordered back across Eight Mile.
For the same reasons as in Incidents # 1, # 3, # 5, # 6, and # 8, we affirm the district court’s grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
Officer Magrita asserts that he is entitled to qualified immunity for the Fourth Amendment claim, but the seizure, at least as Bush alleges it took place, does not warrant qualified immunity, as it would constitute a seizure that was unreasonable under the Fourth Amendment, and would be an objectively unreasonable seizure by a police officer not entitling that officer to qualified immunity. See Terry, 392 U.S. at 27.
G. Incident # 11, August 3, 1998
Incident # 11 occurred on August 3, 1998, and involved plaintiffs Phillips and McQueen, their friends, non-plaintiffs Riser, Elliot, and Graham, and defendant-Officers Diegel and Borowsky. The youths claim that they were riding bicycles to an Eastpointe bicycle shop with the intention of purchasing new bikes with money from McQueen’s and Phillips’s mothers. They rode on four bicycles with one of the bikes occupied by two of the youths. After leaving the bike shop without purchasing any new bikes, the youths stopped and bought candy at an Amoco gas station convenience store. The officers state that off-duty police officer Patrick O’Connor observed the youths riding double and casing the front of a store. While near the store, one of the youths riding double approached some unattended bikes while the others hid behind a brick wall. When a car pulled into the lot, the youths changed their plans and walked away. O’Connor, who is not a party to the suit, believed the youths were “casing” the front of the store with the intent to abscond with unattended bicycles. O’Connor called the police department with his observations
Of the youths, Graham is white, and the others are African-American. The plaintiffs allege that the defendants searched, temporarily handcuffed, and temporarily detained in the patrol cars only the African-American youths. Graham was neither searched, handcuffed, or detained in the cruiser.
While in the back of the police car, Phillips claims to have thrown a gun wrapper out the window. In response, one of the officers allegedly called Phillips a “nigger” and told him to “get your black ass out of that car and pick that piece of paper up, because you’re not at home.” The youths were detained for twenty-five minutes, issued two citations, released, and told that they had “five minutes to get [y]our black ass[es] back across Eight Mile,” and the officers followed them in their police cruisers to the city limits.
1. § 1983 Racial Discrimination Claim
For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary judgment in favor of the defendant-officers. Moreover, summary judgment was particularly inappropriate in this instance. There is very clearly a genuine issue of material fact, as in Incident # 8, as to whether the stop was more burdensome or intrusive than it otherwise would have been because of race.
The officers do not dispute much of the allegations. They note that one of the citations was issued to Graham, the white youth, for possession of tobacco by a minor. Viewing the facts in the light most favorable to the plaintiffs, nonetheless, there is a genuine issue of material fact as to whether the officers’ actions during the stop were based on race. In King, this Court found the use of the term “boy,” sufficient to create a genuine issue of material fact as to whether the officer’s actions “following the stop were based on race,” 86 Fed. Appx. at 803, and in our view, the allegations in this incident are much more egregious.
2. § 1983 Fourth Amendment Search and Seizure Claim
The initial stop, we believe, was justified based on the officers’ reasonable suspicion. The question remains, however, whether the frisk, handcuffs, and detention in the police cruiser were reasonable under the Fourth Amendment. As described in the previous incidents, the officers conducted pat-down searches of the youths they detained. In each instance, the asserted justification was “officer safety.” The defendants, however, have not pointed to one single fact which supports a concern for officer safety. The officers do not even attempt to assert that they had any belief, let alone a reasonable one, that the youths were armed and dangerous. Even if a Terry stop is justified at the outset, a frisk may take place only if the officer has a reasonable belief that the suspect may be armed and dangerous. Terry, 392 U.S. at 27. A reasonable belief that the suspect has contraband is not sufficient. United States v. Sibron, 392 U.S. 41, 63-65 (1968). A frisk is permissible if there is probable cause for the arrest, an
We next determine whether the plaintiffs’ Fourth Amendment rights were violated when they were handcuffed and detained in the back of the police car during the Terry stop.4 A Terry stop cannot be excessively intrusive and must be reasonably related in scope and duration to the purposes of the investigation. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). “When establishing that a detention, which was not supported by probable cause, was reasonable, the government must demonstrate that the detention and investigative methods used were reasonable under the circumstances.” United States v. Jacob, 377 F.3d 573, 578 (6th Cir. 2004) (internal quotation marks and citations omitted). The “scope of the intrusion permitted” in the course of a Terry stop “will vary . . . with the particular facts and circumstances of each case,” but in all cases the “detention must be temporary and last no longer than is necessary” and “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500 (1983)
“The use of handcuffs is the use of force, and such force must be objectively reasonable under the circumstances.” Muehler v. Mena, 125 S. Ct. 1465, 1472 (2005) (Kennedy, J., concurring) (citing Graham v. Connor, 490 U.S. 386 (1989)). Consequently, this Court has held that “[d]uring a Terry stop, officers may draw their weapons or use handcuffs ‘so long as circumstances warrant that precaution.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 309 (6th Cir. 2005) (quoting Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir.1999)). To justify a pat-down search during a Terry stop the Fourth Amendment requires a reasonable belief that the suspect is armed and dangerous; likewise, for the use of handcuffs during a Terry stop, the Fourth Amendment requires some reasonable belief that the suspect is armed and dangerous or that the restraints are necessary for some other legitimate purpose, evaluated on the facts of each case. In Radvansky, this Court found that officers did not exceed the permissible bounds of a Terry stop when handcuffing a suspect after responding to a call that a burglary was in progress,
With this principle applied to the facts of this incident, we easily conclude that handcuffing the youths violated their Fourth Amendment rights. We previously concluded that the pat-down searches of the youths violated their Fourth Amendment rights because the officers had no reasonable belief that the youths were armed and dangerous. In any event, the officers did conduct pat-down searches, and uncovered no weapons or anything else to warrant further concern for their safety. That makes it truly remarkable (not in a good way) that the officers then handcuffed the youths. In addition to the fact that the officers had no reasonable belief that the youths were armed and dangerous, they have alleged no facts that would indicate that the youths attempted to flee or do anything else that would warrant this use of force. In sum, we see no circumstances here warranting the handcuffs as a precaution for officer safety or otherwise and therefore conclude that the use of handcuffs during this Terry stop violated the plaintiffs’ Fourth Amendment rights.
We next consider whether the detention of the youths in the back of the police car violated their Fourth Amendment rights. We first note that no circuit has concluded that detention in the back of a police car automatically turns a Terry stop into an arrest — that is, while it is one of the factors to consider in determining whether an arrest has occurred, detention in the back of a police car is not per se an arrest. See e.g., United States v. Bradshaw, 102 F.3d 204, 211 (6th Cir. 1996); United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988); United States v. Rodriguez, 831 F.2d 162, 166 (7th Cir. 1987); United States v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir. 1985); United States v. Manbeck, 744 F.2d 360, 377-78 (4th Cir. 1984). That being said, determining that detention in the back of a police car is not an arrest does not resolve the question of whether the detention in the back of the police car was reasonably necessary based on the circumstances of the Terry stop. See generally Florida v. Royer, 460 U.S. at 500; Jacob, 377 F.3d at 578.
In the traffic stop context, courts have found some detentions in the back of police cars to be reasonable. In Parr, where the Ninth Circuit held that detention in the back of a police car is not per se an arrest, the court did not disapprove of the detention where in the process of pulling over the motorist, the officer observed the driver and passenger “bend towards the floorboard and ‘make furtive movements,’” Parr, 843 F.2d at 1229, though the court did find that a warrantless search of the car based on those facts was not supported by probable cause. Likewise in Thompson, when the driver failed to produce identification, the court approved of a temporary detention in the back of the police car while the officer attempted to verify the suspect’s identity. Thompson, 597 F.2d at 190. The Seventh Circuit’s decision in Rodriguez also involved an attempt to establish a suspect’s identity. Rodriguez, 831 F.2d at 166. The Fourth Circuit in Manbeck permitted detention in the back of a police car when the officers demonstrated that there was “no feasible alternative” and the defendant was neither “frisked or handcuffed.” Manbeck, 744 F.2d at 377-78.
This Court confronted the issue of a detention in the back of a police car during a traffic stop in Bradshaw, 102 F.3d 204. After pulling over Bradshaw’s vehicle for having an altered drive-out tag, Bradshaw got out of his car and approached the officer. Id. at 206. The officer testified that Bradshaw was acting “‘nervous and jittery’ and had actually begun to sweat.” Id. At this point, the officer asked Bradshaw to sit in the back of the police car while he conducted an investigation of the altered drive-out tag, as well as Bradshaw’s identification and vehicle certification. Id. On appeal, this Court noted that Bradshaw was detained in the police car “for 2 reasons: (1) Officer Kula was performing radio checks on him and issuing him a citation and (2) [Bradshaw’s] ‘nervous’ and ‘jittery’ demeanor raised safety concerns for Officer Kula,” and therefore concluded that the detention was not unreasonable under the circumstances. Id. at 212.
In a footnote, the Court asserted that “reasonable suspicion [need not] be present ‘up front’ for an officer to detain a motorist in his squad car while conduct a records search that is related to the traffic violation for which the motorist was stopped.” Id. at 212 n. 18. The Court also concluded that the “initial detention of [Bradshaw] in the police car clearly did not exceed the scope of the traffic stop. Officer Kula could lawfully detain [Bradshaw] until he finished performing the radio checks and issuing the citation.” Id. at 212. We read this language not to grant police officers carte blanche authority to throw any motorist pulled over for a traffic violation into the back of a squad car while they check the motorist’s license and registration, but rather to stand only for the conclusion that the facts and circumstances in that case — the altered drive-out tag combined with Bradshaw exiting his car and approaching the officer in a nervous and jittery manner — “demonstrate[d] that the detention and investigative methods used were reasonable under the circumstances.” Jacob, 377 F.3d at 578.5 Reading Bradshaw to create a bright line rule authorizing detention in the back of a police car for every traffic stop would run contrary to the body of this Court’s and the Supreme Court’s Fourth Amendment jurisprudence that the “scope of the intrusion permitted” in the course of a Terry stop “will vary . . . with the particular facts and circumstances of each case.” Royer, 460 U.S. at 500; see also Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (“The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”) (internal quotation marks and citations omitted).
Moreover, were Bradshaw to allow officers to detain ordinary motorists in the back of a police car, it would create an ill-conceived spectrum of what is and is not permitted during a routine traffic stop — an officer would be able to order the driver out of the car and detain him in the back of the police car, but could still not frisk him.6 See Mimms, 434 U.S. at 110 (holding that ordering a driver out of his or her car during a routine traffic stop is not inconsistent with the Fourth Amendment, and noting that Pennsylvania did not go so far as to argue that frisking a driver during a routine traffic stop would always be consistent with the Fourth Amendment). Finally, underlying Mimms and its progeny, is a concern for officer safety in the context of a traffic stop; that is, the concern that a driver, sitting in his car can make unobserved movements leading to an assault of the officer. Id. at 109-11. This concern, the Supreme Court has held, justifies allowing an officer to require a motorist to stand alongside his car instead of remaining seated inside of it — thus, a face-to-face confrontation diminishes the concern for an assault of the officer. Id. In this context — that is, the ordinary traffic stop — we see no additional justification that would warrant extending Mimms to permit officers to detain all motorists, or any individual in the course of a Terry stop, in the back of a police car, without circumstances that warrant the additional intrusion. While standing alongside one’s car during a traffic stop is only a minor inconvenience and “not a serious intrusion on the sanctity of the person,” id. at 111 (quotation marks omitted), we think that detention in the back of a police car involves the same, if not more “serious intrusion on the sanctity of the person, which may inflict great indignity, and arouse strong resentment, and it is not to
Turning to this case, we see no facts that warrant detention in the back of a police car. First, here the officers were not dealing with a nervous and jittery motorist who could step on the gas at any second and flee at high speeds, but rather the officers were approaching children on bicycles. Whatever can be said regarding officer safety during a traffic stop is less persuasive, we think, when an officer confronts a child riding on a bicycle. The youths made no movements consistent with flight and the officers do not assert that this was a concern. The youths answered the officers questions. There was no allegation that the youths failed to identify themselves. There was no indication the youths were armed and dangerous. Moreover, by the time the officers made the decision to detain the youths in the back of the police cars, they had already searched and handcuffed them. We fail to see how any concern for officer safety could have remained at this juncture.7
In this incident, of course, the officers did eventually issue citations to two of the youths — one for riding double, and one for underage possession of tobacco. On the facts of this case and for the reasons described above, nonetheless, we think that detention in the back of a police car solely for the purpose of writing the citations was also unreasonable. We write further only to note that the issuing of two citations is a weak justification for the detention of the four youths (in addition to the obvious problem with detaining only the African-American youths). This incident involved five youths riding on four bikes and therefore only one of the bikes was occupied by multiple youths. Thus, only one of the youths could have been cited for a violation the ordinance prohibiting riding double. Upon the unconstitutional searches, the officers discovered tobacco on one of the African-American youths, but it was immediately clarified that he was only holding it for Graham, the white youth. The officers detained in the back of the police cars, however, only the African-American youths, though they issued the citation to Graham. The detention in the back of the police cars of the African-American youths for the purpose of issuing the citation to Graham is, therefore, a preposterous justification. Furthermore, the detention of all four African-American youths when only one of them could be cited for riding double renders the justification likewise unpersuasive. We therefore reverse the district court’s grant of summary judgment in favor of the defendants on the frisks, handcuffing, and detention in the back of the police car, and remand for further proceedings.
For the same reasons as in Incidents # 1, # 3, # 5, # 6, # 8, and # 10, we affirm the district court’s grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
The officers here assert that they are entitled to qualified immunity on the plaintiffs’ Fourth Amendment claims, but the search, handcuffing, and detention in the back of the police car, at least as the plaintiffs allege it took place, does not warrant qualified immunity, as it would be unreasonable under the Fourth Amendment, and would be an objectively unreasonable Fourth Amendment violation by a
*
*
*
It goes without saying that we both recognize the risks and appreciate the sacrifices that law enforcement officers make on a daily basis. We are compelled to comment here, however, that we are both frustrated and concerned with what appears to be consistent disregard for basic Fourth Amendment principles by the Eastpointe Police Department and its officers, and an apparent misunderstanding by counsel as to the legal requirements for Terry stops. Counsel may shout “officer safety” until blue-in-the-face, but the Fourth Amendment does not tolerate, nor has the Supreme Court or this Court ever condoned, pat-down searches without some specific and articulable facts to warrant a reasonable officer in the belief that the person detained was armed and dangerous. The Supreme Court has, in interpreting the Fourth Amendment, struck a balance between the justifiable concern for officer safety when confronting an individual and the substantial individual interest in being free from unreasonable intrusion. The Framers’ concerns and clear intent to protect individuals from arbitrary government intrusion was enshrined in the Fourth Amendment to prevent situations such as those alleged here — officers, having no reason to fear for their safety, may not require citizens, whom they have not arrested, to stand up against gates or place their hands on police cars, and submit to searches. This has long been the law.
IV.
For the reasons given above, we AFFIRM the district court in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion. In particular, we REVERSE and REMAND for further proceedings all claims against the officers, including Chief DeWeese, based on the Equal Protection Clause because the district court erred procedurally in sua sponte granting summary judgment. Furthermore, we REVERSE and REMAND for further proceedings the following additional claims: Incident # 1: The Fourth Amendment claim for the allegedly excessive pat-down searches by Officers Lulko and Keiser; Incident # 3: The Fourth Amendment claim for the allegedly excessive pat-down searches by Officers Murdock, Deal, and Magrita, and the allegedly unconstitutional seizure of the bikes by the same officers; Incident # 5: The Fourth Amendment claim for the allegedly unconstitutional stop and unconstitutional pat-down searches by Officer Lulko; Incident # 6: The Fourth Amendment claim for the allegedly unconstitutional stop and unconstitutional pat-down search by Officer Childs; Incident # 8: The Fourth Amendment claim for the allegedly unconstitutional stop and pat-down searches by Officer Lulko with regard to Jermaine Shaffer; Incident # 10: The Fourth Amendment claim for the allegedly unconstitutional seizure of Bush; Incident # 11: The Fourth Amendment claims for the allegedly unconstitutional pat-down searches, handcuffing, and placement in the back of the police cruiser. On all other claims and with respect to all other defendants, we AFFIRM the district court’s grant of summary judgment.
BOYCE F. MARTIN, JR.
UNITED STATES CIRCUIT JUDGE