Lead Opinion
ROGERS, J., delivered the opinion of the court in which, GILMAN, J., joined and SUTTON, J., joined in part.
SUTTON, J. (pp. 677-87), delivered a separate opinion concurring in part and in the judgment.
OPINION
Plaintiff Candido Romo was sitting in the driver’s seat of a parked car, intoxicated, when he was approached by defendant Officer Jeff Largen. Largen arrested Romo for operating a vehicle while intoxicated, assertedly based on Largen’s observation of Romo’s having driven the car minutes earlier. Romo contends that he had not been driving. Romo filed a § 1983 suit claiming that Largen violated his constitutional rights and committed several intentional torts. The district court denied Largen’s qualified-immunity motion for summary judgment, finding among other things that a jury could disbelieve Largen’s claim that he had previously seen a very similar car being driven in violation of traffic laws. Without such prior observation, Largen lacked probable cause to arrest Romo. Because this is an interlocutory appeal, we are bound by the district court’s finding that a genuine dispute of material fact existed as to whether Largen had observed such activity, in the absence of objectively incontrovertible evidence that he had. We therefore affirm the district court’s denial of qualified immunity on Romo’s § 1983 claim. The district court also properly permitted some of Largen’s state-law claims to proceed.
Approximately forty-five minutes later, Romo awoke to a tapping on his window. Because Romo’s car had power windows and he did not have the keys, he opened the door to see Officer Jeff Largen standing outside. Largen asked Romo what he was doing, and Romo responded that he was “waiting this out.” Over the next ten minutes, Largen asked Romo about his night, how he was doing, and whether and how much he had been drinking. Finally, Largen asked “do you know why I pulled you over?” Romo responded by stating that the officer did not pull him over because he was not driving. Largen asked Romo if he had passed a semi tanker by the railroad tracks, and Romo responded that he had “been here for a while.” Romo also told Largen that his brother had taken his keys some time before. At this point, Largen activated his microphone and offered to “start this conversation over” because “the more you lie to me, the more you’re likely to go to jail.” Largen then continued to accuse Romo of passing a semi tanker at a railroad crossing and Romo repeatedly answered “I don’t know what you’re talking about.”
After this line of questioning proved unfruitful, Largen asked Romo to step out of the truck and administered sobriety tests. Romo responded by stating again that he was not driving, saying “my keys aren’t even in the trunk.”
ROMO: ... Why’d you pull me over?
OFFICER: For about the fifth time, because you passed that semi when you were in the crossing area.
ROMO: I wasn’t driving.
OFFICER: Okay. That’s your story, sir. You can keep that story. My story’s gonna be something different though, okay?
ROMO: I was sitting back there just relaxing.
After putting Romo in his car, Largen asked if Romo wanted his wallet or his phone from the truck, and Romo declined. Largen then stated: “Okay. Do you have — you don’t have the keys on you. Are they in the vehicle?” Romo responded: “Umm, yeah. I’ve been sitting there for a while.”
As Largen explained why he was arresting Romo, Romo continued to protest his innocence. Largen responded by telling Romo to “[sjave it for the Judge.” Romo promised to do so and asked Largen, who
Largen filed a police report that described the incident. In the police report, Largen claimed to have seen in his rear-view mirror “a tan Dodge Ram pass a semi tanker in the railroad crossing no passing zone.” He stated that he “turned on the truck and then pulled behind it” and that the “truck had pulled into the parking lot behind Big T and stopped.” The police report noted that Romo had denied driving and had stated “I wasn’t driving my kids aren’t even in the car.” In the police report, Largen claimed that he “placed [his] hand on the hood of the truck and it was warm” although since it was “less than 35 degrees ... the hood would have been cold [had Romo not recently driven the truck.]” Largen would later clarify that he did not follow the Dodge Ram into the Big T parking lot. Instead, he “pulled a U-turn and lost sight of it for a second, couple seconds, whatever.” He then did another U-turn, to face the direction the Dodge was going, but it was nowhere in sight. At that point, he decided that it likely headed west down a different street, and turned down that street. It was only at that point that he saw Romo’s vehicle.
Romo filed suit under 42 U.S.C. § 1983 and Michigan law. His complaint included federal claims of false arrest and malicious prosecution. The complaint also stated, without elaboration, that Largen “violated [Romo]’s right to equal protection.” Romo also claimed that Largen committed the intentional torts of false arrest, false imprisonment, and malicious prosecution. Largen claimed qualified and governmental immunity and moved for summary judgment.
The district court determined that there were “at least three basic narratives possible from what’s going on here.” The first is that Largen fabricated the background story.
That he never really did see a truck pass a semi on the right over the railroad track no matter what color it was. That he simply happened upon this truck in a parking lot, seen somebody sleeping in there, and then the rest unfolds into the arrest, and that he made up the whole story.
In that case, the district court noted that “a reasonable fact-finder could conclude no reasonable officer, mistaken or otherwise, could conclude there’s probable cause on that. And that’s, I think, on a record like this, enough to send the case to the jury.” The district court later noted that “a jury conceivably could discount” Largen’s story.
The second possible narrative is that Largen’s story, including the warm hood, is entirely correct. In that case, the district court noted that probable cause may have existed. However “that’s not a story [the court] can accept for purposes of evaluating a defense motion for summary judgment.”
The court, like the parties, spent the most time on the third possible narrative. In that version of the story, Largen “ma[d]e up the part about the warm hood and the warm engine, but then he really did see a Dodge truck pull alongside the semi on the railroad tracks, saw it in his rear-view mirror, ... [but] didn’t have continuous contact, [and] the colors [of the trucks] were different.” Id. “[E]ven if that’s the scenario,” the court determined, “summary judgment would be inappropriate.”
Largen now appeals. He argues that he is entitled to qualified immunity for his “reasonable but mistaken belief that Romo was driving the pickup truck [he] observed commit a traffic violation.” He also argues that the state-law claims should have been dismissed because he acted in good faith, that the federal malicious-prosecution claim should have been dismissed because the charges against Romo were dismissed, and that the equal-protection claim, which was not discussed below, should be dismissed.
While the parties argue extensively about the third scenario, the district court’s treatment of the first scenario is sufficient for affirmance. In adjudicating this appeal, we are required by the limitations on interlocutory appeals of qualified immunity denials to accept the district court’s finding that a genuine dispute of material fact existed as to whether Largen fabricated the whole or a part of his story about seeing a Dodge Ram pickup pass a semi tanker, and we refuse to consider Largen’s factual disputations to the contrary.
Relying on Scott v. Harris,
Thus, to accept the reading of Johnson advocated by the concurrence, we would have to read Scott to have foreshadowed the overruling of Johnson's, explicit holding.
We next consider Largen’s appeal of the denial of governmental immunity on Romo’s state-law claims. Viewing the facts in the light most favorable to Romo, Largen did not have probable cause to arrest Romo for operating while intoxicated and a jury could find that Largen acted with malice. The district court properly denied governmental immunity to Largen. Largen did not have any evidence that Romo was operating the truck. Largen found Romo intoxicated and sleeping in his truck. Since people rarely sit in their vehicles without driving them, Largen could reasonably suspect that Romo either had driven or was planning to drive while intoxicated. However, Romo’s responses to Largen’s questioning should have dispelled those suspicions. Romo explained that he was sleeping off a night of drinking, that he had not been driving, and that he could not drive because he did not have the keys. Although Largen claims that he heard Romo say that his kids, rather than his keys, were in the truck, he later states “you don’t have the keys on you,” suggesting that he had heard Romo say he did not have the keys at some point during the conversation. Romo also stated in his deposition that he told Largen that his brother had taken his keys before Largen even turned on the microphone. Romo had a reasonable explanation and Largen had no inculpatory evidence.
Drunk driving is a serious danger to the public, and police are properly suspicious of anyone sitting in his car drunk. However, they need more than presence in the driver’s seat of a vehicle for probable cause. For example, in Nettles-Nickerson v. Free, the plaintiff had started her car, her brake lights had turned on, and she sat in it while it was running.
To be entitled to governmental immunity under Michigan law, a lower-level government official accused of an intentional tort must show that:
(a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice, and
(c) the acts were discretionary, as opposed to ministerial.
On the other hand, Largen is entitled to summary judgment on Romo’s federal malicious-prosecution and equal protection claims because Romo has stated that he is no longer pursuing these claims. See Romo Br. at 38-39.
The district court’s denial of qualified immunity with respect to Romo’s federal malicious-prosecution claim is reversed. The judgment of the district court is otherwise affirmed.
Notes
. Although the written transcript of the encounter uses the word ‘‘trunk/’ the last word of the sentence is unclear on the tape and Romo more likely said "my keys aren't even, in the truck,” as Romo’s vehicle was a pickup truck and did not have a trunk.
. This limitation is not prudential, optional, or discretionary. It derives from the limited nature of our interlocutory appellate jurisdiction under 28 U.S.C. § 1291 as interpreted in Cohen v. Beneficial Industrial Loan Corp.,
. This court may reverse, notwithstanding Johnson v. Jones, "where the trial court’s determination that a fact is subject to reasonable dispute is blatantly and demonstrably false.” Moldowan v. City of Warren,
. We do not mean to suggest that the concurrence is advocating that we disregard Johnson in anticipation of its being overruled.
. The Fourth Circuit in 1955, for instance, extended the Supreme Court’s rejection of the constitutional separate-but-equal doctrine to public transportation cases — notwithstanding Plessy v. Ferguson,
Concurrence Opinion
concurring in part and concurring in the judgment.
One aspect of this case is easy: deciding whether Romo’s false-arrest claim should go to a jury. Once we give Romo’s testimony all of the inferences to which it is entitled at summary judgment, it is clear that a reasonable jury could grant him relief on this claim. Another aspect of this case is not: deciding how to apply Johnson v. Jones,
In Johnson, Houston Jones filed an excessive force claim against five policemen who allegedly beat him. Three of the officers moved for summary judgment. Their argument? “We didn’t do it,” an argument supported by the three officers’ affidavits but in tension with Jones’s evidence-supported arguments. In a quintessential application of Civil Rule 56, the district court held that the jury should resolve this material fact dispute. The officers filed an appeal, insisting once more that they didn’t do it. “When asked at oral argument if they could lose the factual dispute and still prevail, defendants’ lawyer answered no.” Jones v. Johnson,
The Supreme Court followed the Seventh Circuit’s approach and elaborated on it. In the normal course, the Court explained, a denial of summary judgment is not final, and appellate courts must wait for a district court to issue a final order before reviewing the case.
In a unanimous decision, Johnson tried to resolve that tension. A defendant may immediately appeal a denial of qualified immunity “to the extent that it turns on an issue of law,” such as whether the defendant violated a clearly established constitutional right. Id. at 313,
Keeping in mind that courts do not read judicial opinions like statutes, I submit that there are two ways to read Johnson. One applies it only to prototypical “he said, she said” fact disputes, in which the defendants (usually government employees) refuse to accept the truth of what the plaintiffs (usually individual claimants) say happened. When the appeal boils down to dueling accounts of what happened and when the defendants insist on acknowledging on appeal only their accounts, the underlying basis for an interlocutory appeal disappears.
The other applies the decision not just to whether the defendant officers accept the plaintiffs evidence-supported version of what happened but also to whether the defendants accept the district court’s reading of the inferences from those facts: here, whether Officer Largen lied about seeing a Dodge Ram on the road. Under that view (and the majority’s view), when a district court determines that there is a “genuine issue of fact” for trial by drawing an inference in favor of the plaintiff, the appellate court may not second-guess that inference, indeed lacks jurisdiction to do so. I favor the former reading.
First, my proposed reading respects Scott v. Harris,
The details of Harris’s driving were not in dispute; the video laid those to rest. What mattered were the inferences those details could support: Was Harris driving safely? Those inferences, Scott illustrates, remain subject to interlocutory review. A contrary reading of Johnson — that in no event does an appellate court have jurisdiction to say a district court drew the wrong inferences — cannot co-exist with Scott. This reading of Scott also respects Behrens v. Pelletier,
Second, the only way to avoid this reading of the holdings of Johnson and Scott is to create distinctions that are not driven by meaningful differences or that would be difficult to implement in practice. One might for example limit Scott to videos (and audio recordings), reasoning that appellate courts need not defer to the eyes (or ears) of district courts when the relevant evidence comes in the form of a video or audio of the encounter as opposed to dueling eyewitness accounts of the encounter disclosed in depositions. But one need not be an expert in the senses to appreciate that the capacity of appellate judges to identify untenable inferences in a district court’s assessment of a video and an audio depiction of an event may apply just as often to their capacity to see untenable inferences in a district court’s assessment of a deposition transcript. In both cases, the district and appellate court judges are looking at the same thing.
Or one could say, as today’s majority does, that Scott trumps Johnson only when the district court’s assessment of the inferences to draw is “blatantly contradicted by the record.” Scott,
Third, much may be lost with a broad interpretation of Johnson, as it implicates a jurisdictional inquiry that raises the stakes and complexities of the debate. Johnson says that a defendant who loses a qualified immunity motion “may not appeal a district court’s summary judgment order,” and that the court of appeals lacks “jurisdiction” over such an appeal, “insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”
That is a tall order if courts embrace a broad interpretation of Johnson. It is difficult to think of qualified immunity appeals that do not involve inference drawing by the district courts, whether implied or explicit. And there are few days of oral argument in the life of an appellate judge that do not involve at least one qualified immunity interlocutory appeal. This case is a good example of the task that awaits us. Neither party mentioned Johnson in its briefs. All that appears in the plaintiffs brief on this score is this stand-alone sentence: “In fact, given that the court ruled that these credibility disputes created a factual issue regarding what actually happened that must be determined by a jury, which directly affects the evidence allegedly supporting probable cause, this should not even be an issue that is subject to an appeal. Gregory v. City of Louisville, 744 [sic] F.3d 725 (6th Cir.2006).” App’ee Br. at 30. If we followed the normal rules for identifying error, we would say that the plaintiff forfeited any Johnson argument. The argument is not identified (or embedded) in the issues presented on appeal, it is undeveloped, and it leaves the reader guessing what the appellee means to argue. See Johns v. Holder, 678 F.3d
Fourth, a broad interpretation of Johnson not only requires us to police subject matter jurisdiction in a great many cases, but it also requires us to do so by reviewing the record in new and unusual ways. At first glance, the reader might think that separating authority to review law-based appeals from authority to review fact-based appeals is easy. It is not. Yes, a qualified-immunity appeal based solely on what the Constitution means or whether an interpretation of it was clearly established at a given point in time raises purely legal issues. But the classic summary judgment question — could a reasonable jury rule for the plaintiff on this record as construed in his favor? — also raises a “legal” question, even though it is intertwined with the facts, which is why appellate courts traditionally give fresh review to district court decisions in this area. Milligan v. United States,
The majority’s approach creates two unpalatable options when it comes to reviewing summary judgment decisions. The first is to comb the record to figure out the inferences that the district court likely drew, then to defer to those assumed inferences. Johnson,
Fifth, efforts to work around these problems will create problems of their own. Courts for example might construe Johnson as giving appellate judges the option of dismissing appeals for lack of jurisdiction. Consistent with this approach, one court has called the Johnson inquiry a “prudential” one, M.M.R.-Z. v. Puerto Rico,
Johnson itself acknowledged another way around these knotty issues, though it is not one the Court seemed to endorse. It “assum[edj, for the sake of argument, that it may sometimes be appropriate to exercise ‘pendent appellate jurisdiction’ over” a district court’s genuine-issue-of-material-fact decision.
But in our circuit and, best I can tell, in most circuits, the test for pendent appellate jurisdiction — whether the two issues are “inextricably intertwined,” Chambers v. Ohio Dep’t of Human Servs.,
Why, moreover, should the officer willing to concede the truth of the plaintiffs evidence-supported version of the facts not get interlocutory review over the district court’s genuine-issue-of-fact determination (itself a legal question), but the officer who challenges that and the district court’s understanding of the meaning of the Constitution gets interlocutory review? If the difference turns on efficiency, that is an unusual explanation for a court-made jurisdictional rule and at all events not necessarily true. The capacity of district courts and appellate courts to identify triable issues of material fact based on the review of paper records strikes me as about equal — and as being done by both just as frequently. And while interlocutory review delays a potential trial, the appeal will potentially avoid unnecessary constitutional rulings, see Pearson v. Callahan,
Sixth, a broad reading of Johnson is in tension with related principles of qualified immunity, jurisdiction and judicial administration. The courts are reluctant to make appealability decisions in this area turn on the novelties of individual cases as opposed to principles that cut across groups of traditional appeals. “Making appealability depend upon ... faetor[s] particular to the case at hand[] would violate the principle ... that appealability determinations are made for classes of decisions not individual orders in specific cases.” Behrens,
Pearson v. Callahan suggests another way of looking at this problem. That case overruled Saucier v. Katz,
The majority’s reading of Johnson also creates tension with Ashcroft v. Iqbal,
Seventh, a broad reading of Johnson creates other oddities with respect to mixed questions of law and fact and questions of intent, which frequently come up in qualified immunity appeals. Some issues, such as the presence (or absence) of exigent circumstances or the exculpatory (or not) nature of evidence, go to a jury. Ewolski v. City of Brunswick,
A broad reading of Johnson requires appellate courts to separate (unreviewable) factual inferences from (reviewable) legal conclusions. This assignment calls to mind the ill-starred distinction nineteenth century pleading rules drew between ultimate facts (which plaintiffs could, indeed had to, plead) and conclusions of law (which they could not). See Charles E. Clark, The Complaint in Code Pleading, 35 Yale L.J. 259, 259-60 (1926). An example illustrates the perplexities that await. Suppose that a district court faced with an exigent circumstances case concludes that the plaintiffs behavior did not manifest a risk of “imminent destruction of evidence.” Brigham City v. Stuart,
Eighth, all of these distinctions and complexities increase the odds that appellate jurisdiction will turn on the quality of the lawyer a party happens to hire. It is the rare qualified-immunity appeal that does not implicate the meaning of the Constitution, and it is the rare capable attorney who thus cannot frame an appeal that invokes that core appellate jurisdiction. What happens as a result is that lawyers schooled in Johnson know how to avoid its shoals (by raising a colorable legal question, which is not a high bar, see Steel Co.,
On a related score, it is not unusual for lawyers to pay tribute to Johnson, suggesting they are willing to accept the plaintiff’s version of the facts or the district court’s inferences from those facts but nonetheless shading the recitation of those facts in their client’s favor, whether at the briefing stage or at oral argument. See Estate of Carter v. City of Detroit,
The option of pendent appellate jurisdiction and the ease with which most lawyers can avoid Johnson jurisdictional problems might suggest that I should not be troubled by the majority’s reading of it. That
Nor does it seem helpful that, nearly twenty years after Johnson, every circuit in the country has some decisions that adopt my reading of it and some that adopt the majority’s. Start with our circuit. Some support the majority’s view. See Morrison v. Bd. of Trs. of Green Twp.,
The Seventh Circuit, affirmed in Johnson, seems to adopt a narrow interpretation of Johnson. See Anderson v. Cornejo,
That would be a powerful point in my favor if not for the reality that there are also decisions in every other circuit, save for the D.C. and Federal Circuits, that suggest the opposite. See Diaz v. Martinez,
Ninth, today’s case confirms many of these complications and potential sources of disagreement. Broad or narrow reading of Johnson? My view: narrow. The majority’s view: broad. Is the issue forfeitable? All three of us seem to agree it is not. Does Johnson apply to state-law claims? My view: if there is no interlocutory jurisdiction over the federal claims, there is none over the state law claims.
A narrow reading of Johnson eliminates all of these sources of disagreement, and I would prefer to adopt it here.