CENTER FOR BIO-ETHICAL REFORM, INC., et al., Plaintiffs-Appellants, v. CITY OF SPRINGBORO, A Municipal Entity; Jeffrey Kruithoff; Tim Parker; Clearcreek Township, A Municipal Entity; Peter Herdt; Jeff Piper; Brian Hubbard; Eric Kuhlman; Nick Clark; Randy Peagler; Lisa Walsh; Steven Morris; Michael Burke; Tim Shaw, Defendants-Appellees.
No. 06-3284.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 5, 2006. Decided and Filed: Feb. 20, 2007.
477 F.3d 807
Dr. Tobias‘s actions simply do not reveal that he acted with a perverse disregard of a known risk or with consciousness that his conduct would, in all probability, result in injury. Therefore, he should have been granted summary judgment on the grounds of statutory immunity.
Before MOORE and CLAY, Circuit Judges; BELL, Chief District Judge.*
* The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan, sitting by designation.
OPINION
CLAY, Circuit Judge.
Plaintiffs, Center for Bio-Ethical Reform, Inc., Mark Harrington, Quentin Patch, and Dale Henkel, appeal from the district court‘s grant of summary judgment to Defendants on their claims under
BACKGROUND
Plaintiff Center for Bio-Ethical Reform, Inc. (“CBR“) is a pro-life public policy and advocacy group incorporated as a nonprofit
On June 10, 2002, Plaintiffs were driving these box trucks on the streets and highways of the greater Dayton, Ohio area. That day, Harrington and Patch each drove one of the box trucks, while Henkel followed in the escort vehicle.2 Harrington and Patch each wore protective body armor. In addition to the body armor, the drivers sometimes wore helmets and, on that day, Patch wore such a helmet. The escort vehicle was a black Crown Victoria equipped with a video camera mounted on the dashboard and a cage behind the driver‘s seat. The vehicle had a shotgun rack, radio communication equipment, amber lights in the back, and antennae on the roof and trunk. All three vehicles contained mace, which Plaintiffs stored in a
That day, Plaintiffs began driving the trucks across several counties near Dayton, Ohio before 10:00 a.m. Around 4:00 p.m., they decided to park the vehicles for the night.3 On the day in question, CBR had permission to park the trucks at the Hinkle farm on Pennyroyal Road. Ron Bowling (“Bowling“), a CBR supporter, met Plaintiffs at the Hinkle farm to identify the location for them. When Plaintiffs arrived at the farm, they encountered a long driveway on the crest of a hill which Harrington described as going “up and down into kind of a gully,” and grew concerned about navigating the trucks down the driveway. (J.A. at 286) Harrington and Patch pulled the box trucks to the side of the road, remaining stopped there for two to three minutes, while Henkel drove the escort car down the driveway to evaluate the situation. After Henkel had assessed the situation, Harrington drove down the driveway and Patch began to follow him in the second truck. Midway down the driveway, Harrington realized that the truck would not clear the tree branches and stopped. At that point, Patch radioed Harrington to inform him that a police officer had stopped him for questioning.
Officer Nick Clark (“Clark“) reported turning down Pennyroyal Road that day and observing a six- to ten-vehicle backup near the intersection at Deer Trail Road. He watched as Henkel maneuvered the escort vehicle around the trucks to pull into the Hinkle driveway, crossing a double yellow line at the top of a hill to do so. Subsequently, Clark reported that several vehicles in the line behind the trucks began to drive around them atop the hill as well. After observing these events, Clark pulled behind the truck driven by Patch and put his lights on, thereby blocking Patch into the driveway. As Clark approached the driver‘s side of the truck, he saw Patch wearing a helmet and body armor, and radioing that the police had stopped him.
Clark asked Patch if the trucks were lost or needed assistance, and several times asked whether he was carrying cargo in the truck. Patch responded in the negative to both questions, describing the trucks as “billboard trucks.” (J.A. at 260) Patch testified that he told Clark “We‘re campaigning against abortion. The signs are about anti-abortion information.” (J.A. at 421) Clark acknowledged realizing at some point that the pictures were expressing a message about abortion. Clark also indicated he did not ask Patch whether he had weapons, nor did he ascertain Patch‘s purpose for being at that particular location. On the basis of this brief encounter, Clark described Patch‘s behavior as “extremely nervous,” explaining:
He was looking around a lot. He was on the radio stating he was being approached by a police officer. He watched me the entire time in his side view mirror that I approached the truck. . . . That‘s not every day that I stop someone and they get on the radio and say they‘re being approached by the police, no. That‘s not typical behavior of a normal traffic stop.
Clark then contacted Lieutenant Barton to determine whether Plaintiffs were participating in some sort of government exercise. Barton responded in the negative. At Barton‘s direction, Clark next contacted Detective Tim Parker (“Parker“), speaking briefly to the department dispatcher before reaching Parker. Clark described the encounter to Parker, telling him that he witnessed the escort vehicle—which he described as resembling an “unmarked police car or a law enforcement vehicle“—pass the truck crossing the double yellow line, and that the truck‘s driver wore body armor and a helmet. (J.A. at 263) Clark also told Parker about the pictures on the sides of the trucks. Within five to ten minutes, Parker met Clark at the location of his police cruiser, on Deer Trail Road. Another officer, Lisa Walsh (“Walsh“), arrived on the scene shortly before Parker, having responded to a broadcast of the Springboro Police dispatcher. The dispatcher apparently misunderstood Clark‘s initial call and had erroneously announced that Plaintiffs had assault weapons, not merely that they wore assault gear. Upon learning of the mix up, Clark radioed dispatch and told them he had not observed assault weapons.
Next, Detective Parker contacted Steven Morris (“Morris“), Supervisory Special Agent of the Federal Bureau of Investigation (“FBI“) Dayton Office. Parker described Clark‘s encounter with Plaintiffs and mentioned the pictures on the trucks. Purportedly concerned about domestic terrorism targeting abortion doctors and clinics, Morris told Parker he would “grab a couple of guys and . . . come by and . . . find out who these people were or what they were doing.” (J.A. at 356) Morris apparently called the Dayton office and, in response to his request, Agents Robert Buzzard, James Howley, Tim Shaw, and Tymothy Burkey proceeded to the scene.4 According to Parker‘s account, the FBI requested that Parker prevent Plaintiffs from leaving.5
As the foregoing events unfolded, several other law enforcement officers arrived on the scene, including Detective Eric Kuhlman (“Kuhlman“), Sergeant Jeff Piper (“Piper“), and Officer Brian Hubbard (“Hubbard“). Parker testified that these officers responded to a dispatch made at his prompting to other local jurisdictions that described a stop of someone in SWAT gear, eliciting information about possible SWAT training exercises. Parker further deduced that the officers proceeded to the scene without specific direction.
In the meantime, Plaintiffs had identified a secondary location to park the trucks for the night (a local church‘s parking lot) and had completed covering the pictures on the sides of the trucks with tarps. More skilled at handling the trucks, Harrington backed the first truck out for Patch, they switched drivers, and Patch began heading toward the church. Two police cars followed Patch. Harrington then returned to the second truck, backed it out of the drive, and drove in the same direction as Patch. Henkel subsequently returned to the escort car and,
About twenty minutes after the police blocked him in, Henkel approached the vehicle to retrieve some of his belongings and was ordered to stay away from it. From that point on, the officers directed one of their number to “watch over” Henkel for the duration of the encounter. (J.A. at 319) During that time, Henkel had no idea what was going on. At approximately 7:00 p.m., the officers asked Henkel for permission to search the escort car. The first time, Henkel responded it was not his car and thus he could not give permission to search it. They asked a second time with greater force, and Henkel again responded he could not grant permission, directing them to Plaintiff Harrington. A third time the officers asked even “more forcefully” to search, and Henkel said something to the effect of “I have nothing to hide. The bag is the only thing in there that‘s mine. Do what you want.” (J.A. at 320)
The officers proceeded to search the escort vehicle. Therein, they found a Kevlar helmet and vests, Henkel‘s bag, and, in the trunk, various “maintenance stuff” described by Henkel to include tarps, a plastic gas container, Windex, paper towels, and battery cables. (J.A. at 321) Sometime around 7:45 or 8:00 p.m., a man identifying himself as an FBI agent approached Henkel and asked for his name, address, telephone number, and driver‘s license, and informed him that they were “going to kick [him] loose in about twenty minutes.” (J.A. at 319) An estimated ten to fifteen minutes later, the officers began to leave Hinkle‘s driveway and Henkel departed the scene to find Harrington and Patch. At no time did the officers tell Henkel why he was not free to leave.
Down the road from the Hinkle farm, other officers followed Harrington and Patch who, upon seeing the officers’ lights, pulled off Pennyroyal Road into the subdivision on Queensgate Road. Approximately six or seven law enforcement vehicles were present at that point, surrounding the trucks so they essentially could not move. Officer Randy Peagler (“Peagler“) approached the first truck (driven by Patch), unsnapping his holster as he neared the passenger side of the vehicle. Looking first into the passenger side window to check for weapons, Peagler then walked around to the driver‘s side. Patch reports that, in fact, Officer Walsh approached the driver‘s side window of the truck and asked him to step out. When Patch had exited the truck, Walsh “started questioning about what was on board and what [they] were doing and straight forward things, could she look at [Patch‘s] driver‘s license, who are [they], what are [they] doing. . . .” (J.A. at 424) This initial interview lasted ten minutes. Patch indicated that later, one FBI agent also questioned him and inspected his driver‘s license.
While the other officers approached Patch in the first truck, Clark approached the second truck (driven by Harrington). Harrington reported observing a male police officer walking on the curb opposite the parked vehicle with his hand over his holster. This officer eventually walked up to the driver‘s side door and asked Harrington to exit the truck, which he did. The officer then asked Harrington for his driver‘s license and, taking it with him, walked away from Harrington.
Harrington reported waiting for three hours. During this time, he repeatedly asked Walsh why they could not leave, and Walsh responded that she was “checking on it” and “need[ed] to hear from a super-
During the stop, Harrington orally consented to a search of the trucks. By Harrington‘s account, he felt compelled to do so given the “show of force.”6 (J.A. at 292) Accordingly, he “permitted them to look through the cab and wherever they wanted” because he felt they had “nothing to hide.” (Id.) The officers further requested to search Harrington‘s overnight bag. Harrington asked, “Do I really need to do that?” to which the officer responded, saying something to the effect of, “Well, you gave us entrance into the truck cab. You‘ve given us permission to search the truck cab.” (J.A. at 294) Believing that consent to search the truck somehow implied permission to search the overnight bag, Harrington reluctantly consented.
Peagler recalled that the officers had completed the investigation of the two trucks at the Queensgate location within twenty-five minutes, and that they had not uncovered any criminal activity. Nevertheless, at Parker‘s direction about thirty minutes into the investigation, the officers had Plaintiffs raise the tarps covering the sides of the trucks and they proceeded to photograph the pictures. Still later, the officers had the Plaintiffs roll up the tarps a second time to examine the pictures and take additional photographs. The officers completed the search before the FBI agents arrived on the scene.
After approximately two hours, the FBI arrived at the scene and FBI agent Tim Shaw (“Shaw“) approached Harrington, asking him for his driver‘s license. Harrington asked Shaw why they were being held and alleges that Shaw responded, “Don‘t talk to me unless I speak to you.” (J.A. at 290-91, 484) Harrington asked again, and Shaw apparently replied, “We believe you‘re involved in some criminal activity.” (J.A. at 291) Harrington reached for his cell phone to call his attorney and, upon seeing this, the agent “ushered [him] to the back side of the truck away from all the people.” (Id.) As the agent did this, Harrington handed Patch a camera because he felt threatened. Observing this, one of the FBI agents purportedly grabbed the camera from Patch.
After Harrington finished calling his attorney, the FBI agent held him at the back of the truck for a period of five to ten minutes. During this time, one of the plain-clothed officers had a conversation with Harrington “about the[] pictures and how [CBR] should do this a different way, how [CBR] should get [its] message out a different way.” (J.A. at 294) Harrington characterized it as “almost a debate on abortion with the guy” and recalls the agent said, “You need to find a different method. . . . Children see those, what about children seeing those, don‘t you think children shouldn‘t see those. . . .” (Id.) One of the agents further questioned Harrington about CBR, the purpose of the
Agent Shaw, on the other hand, reports that after Harrington spoke to his attorney, Harrington “provided documentation as to ownership of the vehicles, showed [him] the Kevlar helmets and vests, allowed [him] to make sure there were no weapons in the truck.” (J.A. at 484) Additionally, Agent Shaw described the FBI‘s concerns and its motivation in establishing a presence on the scene:
The fact that people are driving around in panel trucks similar to the size that was used in the Oklahoma City bombing, this occurred shortly after 9/11. We have a number of domestic terrorist individuals and groups in the area. So the concern is, is why do you have helmets and Kevlar vest, why do you have a police vehicle or police-looking vehicle, what is the purpose of this that was what our concern is. . . . [I]t was a public safety concern. . . . [W]hen you have a police vehicle, basically a vehicle that . . . was drop dead for what a cop car would be, you have panel trucks driving around with individuals inside with vests and helmets, that is a concern.
(J.A. at 490) Agent Shaw further indicated that once Harrington “settled down” and conveyed the group‘s purpose in a calm and “cordial” fashion, “any concern [he] had was dispelled” and Plaintiffs “were let go.” (J.A. at 491)
At the very earliest, Harrington and Patch were not free to leave the scene until 7:30 p.m., but by Harrington‘s estimation the stop lasted three hours. When they finally could leave, the law enforcement officers escorted them to the church parking lot. Plaintiffs aver that, as a result of this incident, they will no longer conduct their Campaign in or around Springboro or Clearcreek Township.
Subsequent to the June 10, 2002 incident, Chief Peter Herdt (“Herdt“) of the Clearcreek Township police directed Piper to draft a “simple memo,” and not to open a case file, describing the incident without referencing the names of officers present. (J.A. at 333) Herdt reportedly did so because he perceived the stop as an FBI investigation. However, Herdt also admits to anticipating a lawsuit and credits the “simple memo” for enabling him to “truthfully respond[] to [Harrington that the station] had no case file on him or his group or there was no names and no investigation.” (J.A. at 339)
Plaintiffs filed this civil rights action against Defendants in February 2003, alleging violations of their First, Fourth and Fourteenth Amendment rights, as well as conspiracy to violate civil rights. Plaintiffs sought injunctive and declaratory relief, nominal, compensatory, and punitive damages, and attorneys’ fees. The parties on both sides separately filed motions for summary judgment following discovery. On January 3, 2006, the district court entered an order granting summary judgment to Defendants on all counts. That same day, the district court entered final judgment in favor of Defendants, disposing of all the parties’ claims and terminating the case. Plaintiffs timely appealed to this Court.
DISCUSSION
I. MUNICIPAL LIABILITY AND OFFICIAL IMMUNITY
A. Municipalities. (Defendants City of Springboro and Clearcreek Township)
At the outset, we affirm the district court‘s grant of summary judgment to Defendants City of Springboro and Clearcreek Township in its entirety. Applying City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), the district court found the
The Supreme Court has long held that municipal governments may only be sued under
Here, the only policy Plaintiffs identify is “an ‘unwritten rule’ [of the Springboro Police] that if the FBI is called, the officer relinquish the scene over to them.” (Pl.‘s Br. at 48) Plaintiff has not shown that the City of Springboro actually knew this unwritten rule would lead to unconstitutionally long detentions. Moreover, in the case at bar, the time frame grew longer because the FBI agents were traveling to the scene at rush hour, making the consequences less than obvious to the municipality which purportedly established the rule. At most, the municipality negligently adopted a policy that posed a risk to the Fourth Amendment rights of its citizens in certain circumstances. It cannot be said that Springboro acted with “deliberate indifference” to the constitutional rights of its citizens in adopting the rule. Further, Plaintiffs do not allege that any policy or custom of the Clearcreek Township police was unconstitutionally applied. Such generalized assertions amount to nothing more than an attempt to hold the municipality liable under respondeat superior, a move unsupported by clearly established precedent of the Supreme Court. Accordingly, we uphold the district court‘s grant of summary judgment to Defendants Clearcreek Township and City of Springboro in its entirety.7
B. Federal Officers (Defendants Morris, Burke, and Shaw)—Official Capacity Claims
Neither will we disturb the district court‘s summary judgment grant to the federal officers on the official capacity
II. QUALIFIED IMMUNITY & FIRST AMENDMENT RETALIATION
A. Standard of Review
This Court reviews a district court‘s grant of summary judgment de novo. Cotter v. Ajilon Services, Inc., 287 F.3d 593, 597 (6th Cir. 2002). Summary judgment is proper where “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.”
To support a grant of summary judgment, the moving party “may . . . discharge[] [its initial burden] by ‘showing’ . . . that there is an absence of evidence to support the nonmoving party‘s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has done this, “[t]he mere existence of a scintilla of evidence in support of the plaintiff‘s position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Liberty Lobby, Inc., 477 U.S. at 252. Further, we review a lower court‘s determination of defendants’ entitlement to qualified immunity de novo. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005); Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir. 2000).
B. Plaintiffs’ First Amendment Rights
Plaintiffs argue, in their brief on appeal, that the district court erred in granting summary judgment on their First Amendment claim because, in their view, Defendants stopped and detained them in retaliation for the message expressed on the sides of the trucks and have consequently chilled their free expression. Analyzing Plaintiffs’ claim as one of retaliation for
as a matter of law that, when stopped for a traffic violation, and found to be in possession of police equipment, radio equipment, body armor and kevlar helmets, a three hour detention would not chill a person of ordinary firmness from continuing in this particular activity, participation in the public debate on one of the most contentious issues in society today.
(J.A. at 190-91) The court further concluded that the officers were protected by qualified immunity since their conduct did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (J.A. at 191)
Long-settled Supreme Court precedent acknowledges protection for “government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For
1. Plaintiffs’ Right Against Retaliation
As a threshold matter, we must determine whether, when “[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer‘s conduct violated a constitutional right.” Saucier, 533 U.S. at 201. We evaluate claims that state actors retaliated against a claimant in response to his exercise of free speech under the framework generally set forth in Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Under Mount Healthy and its progeny, a plaintiff must show that (1) he was participating in a constitutionally protected activity; (2) defendant‘s action injured plaintiff in a way “likely [to] chill a person of ordinary firmness from” further participation in that activity; and (3) in part, plaintiff‘s constitutionally protected activity motivated defendant‘s adverse action. Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (internal citations omitted); see also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Once a plaintiff raises an inference that the defendant‘s conduct was motivated in part by plaintiff‘s protected activity, the burden shifts and defendant “can demonstrate that it would have taken the same action in the absence of the protected activity.” Arnett v. Myers, 281 F.3d 552, 560-61 (6th Cir. 2002) (citing Thaddeus-X, 175 F.3d at 399). The inquiry of “whether activity is ‘protected’ or an action is ‘adverse‘” is context-specific. Thaddeus-X, 175 F.3d at 388.
The First Amendment generally protects Plaintiffs’ right to display signs communicating their views on abortion, and “[t]he fact that the messages
We next consider whether the adverse action “would chill or silence a ‘person of ordinary firmness’ from future First Amendment activities.” Thaddeus-X, 175 F.3d at 397 (citation omitted) (noting the “standard is amenable to all retaliation claims“). Here, Plaintiffs need not show they were actually deterred from exercising their right to free speech, but rather must show the actions were “capable of deterring a person of ordinary firmness from exercising his or her right[s].” Id. at 398. A chilling effect sufficient under this prong is not born of de minimis threats or “inconsequential actions,” but neither does the requisite showing permit “solely egregious retaliatory acts . . . to proceed past summary judgment.” Id.
Deprivation of one‘s liberty of movement can hardly be classed “inconsequential;” indeed, the Founders endeavored scrupulously to protect this liberty in the Constitution. See
Finally, we evaluate the motivation for Defendants’ actions. Plaintiffs argue that their speech motivated Defendants to stop and detain them. Specifically, Plaintiffs aver that Defendants knew their trucks were used to send an anti-abortion message prior to the challenged stop, that Defendants’ post-incident reports label them as “anti-abortionists,” that Agent Morris profiled them as domestic terrorists on the basis of their cause, that Defendants took photographs of the sides of Plaintiffs’ trucks, and that Defendants made various comments purportedly criticizing Plaintiffs’ method of expressing their message. (Pl.‘s Br. at 41)
Summary judgment is not appropriate where genuine issues of material fact exist,
Plaintiffs’ allegations, if proven at trial, could be taken by a reasonable jury to support their claim that Defendants were motivated to detain them in part because of their constitutionally protected speech. Patch testified that, when initially approached, he informed Officer Clark that the trucks were “billboard trucks” and that Plaintiffs were “campaigning against abortion. The signs are about anti-abortion information.” (J.A. at 260, 421) The record reflects that Clark told Detective Parker about the pictures on the sides of the trucks when he contacted him to describe the encounter. When Detective Parker subsequently contacted FBI Agent Morris, Parker too mentioned the pictures on the trucks. Later, after stopping Plaintiffs and searching the trucks, the officers had Plaintiffs raise the tarps covering the pictures on the trucks and took photographs on two separate occasions. Plaintiffs aver that the first time the officers took photographs at the direction of Detective Parker.
Additionally, Harrington testified that one plain-clothed officer had a discussion with him about the pictures on the sides of the trucks, stating “You need to find a different method. . . . Children see those, what about children seeing those, don‘t you think children shouldn‘t see those. . . .” (J.A. at 294) Harrington further indicated that one of the FBI agents questioned him about CBR and the purpose of the trucks. Thus, as the en banc court stated in Thaddeus-X, Plaintiffs here “have put forward a number of specific, nonconclusory allegations and identified affirmative evidence that could support a jury verdict at trial.” Thaddeus-X, 175 F.3d at 399-400; see also Arnett, 281 F.3d at 560-61 (“Circumstantial evidence . . . may support this inference.“).
Summary judgment may nevertheless be proper if “the defendant can show that he would have taken the same action in the absence of the protected activity.” Thaddeus-X, 175 F.3d at 399. In the case at hand, Defendants bear the burden of proving that both the investigative stop and the rather lengthy detention would have taken place absent Plaintiffs’ constitutionally protected activity. Rather than “pro-fil[ing] [Plaintiffs] on account of their opposition to abortion,” (Pl.‘s Br. at 41), Defendants stopped Plaintiffs because they were dressed in body armor and Kevlar helmets, driving large box trucks in the company of what looked to be a mock law enforcement vehicle. Observing any other individuals in similar dress and vehicles, Defendants would undoubtedly have “tak-
2. Plaintiffs’ Rights Were Clearly Established
Qualified immunity does not protect those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986) (“Given malice and the lack of probable cause, the complainant enjoyed no immunity.“); see also Butz, 438 U.S. at 506. Accordingly, the law must “put the officer on notice” of the bounds of lawful conduct, and if it fails to do so, the court may properly grant summary judgment on qualified immunity grounds. Saucier, 533 U.S. at 202; see also Harlow, 457 U.S. at 818 (“If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments.“). “The contours of the right” at issue “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right,” Anderson v. Creighton, 483 U.S. 635, 639 (1987), and these contours must be established by “binding precedent from the Supreme Court, the Sixth Circuit, or the district court itself, or case law from other circuits which is directly on point,” Barrett, 130 F.3d at 264 (internal citations omitted); cf. also Hall v. Shipley, 932 F.2d 1147, 1152 (6th Cir. 1991). Relevant precedent need not involve the “very action in question;” rather, “in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640. In reviewing the district court‘s grant of qualified immunity, we must determine whether a reasonable officer could have believed Plaintiffs’ stop and subsequent detention to be constitutional, given the state of clearly established law and the Defendants’ motivation in so detaining them.
Here, preexisting law confronts a factually similar circumstance, making clear that the Mount Healthy inquiry applies to police action to seize a plaintiff‘s person. In Dietrich v. Burrows, 167 F.3d 1007, 1013 (6th Cir. 1999), we considered whether a group of police officers were entitled to qualified immunity when they executed an arrest absent probable cause allegedly in retaliation for the plaintiffs’ prior speech. There, we stated unequivocally, “Supreme Court decisions rendered long before the actions at issue in th[at] case recognize that government actions may not retaliate against an individual for the exercise of protected First Amendment freedoms.” Id. (citing Mount Healthy, 429 U.S. at 283-84). The “contours of the right” to be free from retaliation were thus abundantly clear on the day Defendants stopped and detained Plaintiffs.
Moreover, a reasonable officer, when faced with the circumstances of this case, would have known that detaining Plaintiffs because of their speech would violate their clearly established First Amendment rights. This, of course, presents very squarely a factual question inappropriate for resolution on summary judgment—that of Defendants’ motivation in detaining Plaintiffs. See Bloch, 156 F.3d at 682 (“[C]ourts that have considered qualified immunity in the context of a retaliation claim have focused on the retal-
III. QUALIFIED IMMUNITY & PLAINTIFFS’ FOURTH AMENDMENT CLAIMS
A. Standard of Review
This Court reviews district court grants of summary judgment and qualified immunity de novo, as set forth in Section II.A., supra. Voluntariness of consent to search constitutes a question of fact, which this Court reviews for clear error. United States v. Worley, 193 F.3d 380, 384 (6th Cir. 1999). The district court‘s decision is clearly erroneous where “although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id.
B. Plaintiffs’ Fourth Amendment Rights
1. Plaintiffs’ Constitutional Rights Were Violated
Again, we begin by determining whether “the facts alleged show the officer‘s conduct violated a constitutional right,” and we view the facts in the light most favorable to Plaintiffs. Saucier, 533 U.S. at 201. Plaintiffs argue that the officers violated their Fourth Amendment rights both in unduly detaining them and in subjecting them to multiple searches over the course of their detention. In evaluating these claims, the district court surmised that
[t]he investigating officers’ suspicions were understandably aroused. A three-hour detention in these circumstances, circumstances that additionally include knowledge that a doctor lived in the vicinity of the traffic stop, was not excessive in light of the scope.
(J.A. at 193) Additionally, the district court concluded the officers had qualified immunity “even if the detention was excessive,” relying for support on a comparison to the Supreme Court‘s 2005 decision in Muehler v. Mena, 544 U.S. 93 (2005). We disagree, and hold that Plaintiffs’ Fourth Amendment rights were violated.
The Fourth Amendment provides [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
a. Seizure
We find the district court erroneously concluded the “detention was reasonable because it lasted only so long as it took the appropriate investigating agency, the F.B.I., to arrive on the scene and conduct a 20-25 minute investigation.” (J.A. at 119) Viewing the evidence in the light most favorable to Plaintiffs, the otherwise unobjectionable Terry stop ripened into an unconstitutional seizure in light of the undue and unjustifiable length of the stop.
The Fourth Amendment unquestionably prevents unreasonable seizures of persons. Where an “officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968); see also Mendenhall, 446 U.S. at 553; United States v. Butler, 223 F.3d 368, 374 (6th Cir. 2000). In effect,
a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure . . . would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled.
Mendenhall, 446 U.S. at 554. Such seizures—known as Terry stops—do not violate the Fourth Amendment where the officer “possesses a reasonable and articulable suspicion that a person has been involved in criminal activity” and, in such situations, the officer can briefly detain the person “to investigate the suspicious circumstances.” United States v. Heath, 259 F.3d 522, 528 (6th Cir. 2001) (citing United States v. Hurst, 223 F.3d 751, 756-57 (6th Cir. 2000)); see also Adams v. Williams, 407 U.S. 143, 146 (1972). A showing insufficient to constitute probable cause can nevertheless justify a Terry stop “[b]ecause of the limited nature of the intrusion.” United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975) (emphasis added).
Under Terry, courts examine “whether the officer‘s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20; see also United States v. Hardnett, 804 F.2d 353, 356-57 (6th Cir. 1986); United States v. Winfrey, 915 F.2d 212, 216 (6th Cir. 1990); United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993). Courts evaluate the reasonableness of such seizures in light of the “balance between the public interest and the individual‘s right to personal security free from arbitrary interference by law officers.” Brignoni-Ponce, 422 U.S. at 878; see also United States v. Place, 462 U.S. 696, 703 (1983).
Defendants “seized” Plaintiffs within the meaning of the Fourth Amend-
This initial seizure was proper in light of the Defendants’ reasonable and articulable suspicion that criminal activity was afoot. Such a seizure is permissible where officers assess all the objective facts and circumstances, and that assessment “raise[s] a suspicion that the particular individual being stopped is engaged in wrongdoing.” United States v. Cortez, 449 U.S. 411, 418 (1981). Here, Defendant Clark observed Plaintiffs driving box-style trucks while dressed in body armor and Kevlar helmets, accompanied by a vehicle modeled to look like a law enforcement car. This occurred in a post-9/11 and post-Oklahoma City bombing context, at a time when law enforcement officers were in a heightened state of alert to fight would-be terrorists. When Clark initially made contact with Patch, he overheard Patch on the two-way radio telling Harrington the police were approaching him and observed him behaving in an “extremely nervous” manner. (J.A. at 421) Thus, specific and articulable facts gave rise to reasonable suspicion to stop Plaintiffs.
While reasonable suspicion justifies the initial stop in this case, this detention ultimately ripened into an “ar-rest” absent probable cause. An otherwise permissible investigative detention that “last[s] . . . longer than is necessary to effectuate the purpose of the stop” can constitute an unreasonable seizure. See Florida v. Royer, 460 U.S. 491, 500 (1983); see also Heath, 259 F.3d at 529-30 (citing United States v. Avery, 137 F.3d 343, 349 (6th Cir. 1997)) (noting an “officer‘s investigative detention can mature into an arrest or seizure if it occurs over an unreasonable period of time or under unreasonable circumstances“). In some cases, “[t]he length of the detention . . . alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.” Place, 462 U.S. at 709. In evaluating an investigative detention, courts consider not only the length of the stop, but also “whether the police diligently pursue their investigation,” whether they “could have minimized the intrusion on respondent‘s Fourth Amendment interests,” Place, 462 U.S. at 709, and whether delay can be properly attributable to the suspect‘s evasive actions. United States v. Sharpe, 470 U.S. 675, 687 (1985).
We evaluate the reasonableness of the length of Plaintiffs’ detention in view of the totality of the circumstances. Mendenhall, 446 U.S. at 554; Heath, 259 F.3d at 529. Under the totality of the circumstances, it appears that the detention here did not “reasonably relate[] in scope to the circumstances which justified the interference in the first place.” See Terry, 392 U.S. at 20. At the outset, the officers acted to investigate suspicions born of men driving box trucks, wearing SWAT gear, and accompanied by a car built to look like a law
However, the lengthy detention of Plaintiffs far exceeded the limited purpose of the stop.12 Defendants Springboro and its Officers concede that it took fifteen to twenty minutes to search the escort vehicle and check Henkel‘s identification and registration at the Pennyroyal location. They further concede that it took approximately twenty minutes at the Queensgate location to question Plaintiffs Harrington and Patch, to search the trucks, and to determine “no warrants were out on the[] men.” (Def. Springboro‘s Br. at 23) Viewing the evidence in the light most favorable to Plaintiffs, the detention lasted two and one-half hours after the local officers completed their investigation.
Defendants present at both the Pennyroyal and Queensgate locations held Plaintiffs substantially longer than necessary to “dispel their suspicions” that Plaintiffs were engaged in terrorist activity or plotting. See Royer, 460 U.S. at 502. Defendants Springboro and its Officers attribute much of the delay to waiting for the FBI to arrive at the scene so it could investigate as well, since “the F.B.I. ‘has the bigger picture.‘” (Def. Springboro‘s Br. at 24) However, Defendants’ “continued detention” of Plaintiffs over a period of three hours—two and one-half of which were beyond the time necessary for local law enforcement to investigate and alleviate suspicions, when viewing the evidence in the light most favorable to Plaintiffs—operated to “ripen[] the investigatory stop into an arrest.” See Butler, 223 F.3d at 375.
Further, we consider the governmental interest advanced by the stop against “the nature and extent of the intrusion upon the individual‘s Fourth Amendment rights.” See Place, 462 U.S. at 705. The public undoubtedly has a compelling interest in detecting would-be terrorists. See Terry, 392 U.S. at 22 (government interests in “effective crime prevention and detection” sufficient); Mendenhall, 446 U.S. at 561 (detection of those trafficking “deadly drugs” a compelling interest). However, this interest was served when local law enforcement determined Plaintiffs did not pose a threat. The extent of the intrusion on Plaintiffs rights here was great. Plaintiffs were “subjected . . . to the public indignity of being personally detained,” see Place, 462 U.S. at 709, inasmuch as Defendants pulled them over in a residential subdivision and on the side of an apparently busy street, effectively held them for three hours, and did so in front of neighbors and onlookers who had stopped to assess the situation.13 Plaintiffs were decidedly not free to leave dur-
In United States v. Davis, 430 F.3d 345 (6th Cir. 2005), a decision closely on point, we admonished that absent probable cause, officers may not detain citizens once their suspicions, however reasonable initially, have been dispelled in order to conduct a second search of the same nature. Id. at 356.14 There, officers stopped the defendant for speeding, but on the belief that he was transporting illegal drugs, detained the defendant until other officers arrived at the scene with a drug-sniffing dog. Id. at 349-50. Approximately thirty minutes later, the drug-sniffing dog arrived and it failed to alert. Id. at 350. Meanwhile, an agent of the federal Drug Enforcement Administration (“DEA“) had arrived on the scene. Id. That agent then contacted a neighboring locality to request a drug-sniffing dog, although “it is unclear whether [the agent] was aware of the fact that a drug-sniffing dog had already been used to search [the] vehicle.” Id. The second dog arrived on the scene approximately one and one-half hours into the stop and positively alerted. Id.
In Davis, this Court found that the officers lawfully stopped the defendant initially, but that once the first drug-dog failed to alert, “the officers’ suspicions . . . were dispelled.” Id. at 356. At that point, “[t]he use of the second dog and the continued detention of [the defendant‘s] vehicle served no investigatory purpose,” and violated the Fourth Amendment. Id. Pertinently, the Davis court stated
To allow police to delay further a suspect for the purpose of obtaining another drug-sniffing dog, whether intentionally or as the result of miscommunication, where the first dog failed to alert positively gives law enforcement power that only comes with probable cause. The Fourth Amendment allows police to detain a suspect on reasonable suspicion only for as long as it takes for the police to test the validity of their suspicions.
Id. at 357 (emphasis added).
Like the first and second drug-sniffing dogs in Davis, local law enforcement and the FBI conducted the same investigation and search of Plaintiffs. Although the record does not clearly indicate whether the detention occurred at the direction of the FBI or of local law enforcement, or merely arose from confusion and miscommunication, it makes little difference. To delay Plaintiffs for the purpose of enabling the FBI to arrive at the scene to conduct effectively the same investigation when the initial investigation conducted by local law enforcement had dispelled their suspicions similarly “served no investigatory purpose.” See Davis, 430 F.3d at 356. The investigation conducted by local law enforcement allowed “the police to test the validity of their suspicions,” and in the end, did not reveal a basis for probable cause. See id. at 357. Thus, we find that Defendants violated Plaintiffs’ Fourth Amendment rights by subjecting them to an unreasonable seizure of their persons.
b. Search
Plaintiffs further argue that Defendants violated their Fourth Amendment rights in searching the trucks, escort vehicle, and
We evaluate the validity of consent under the totality of the circumstances. Butler, 223 F.3d at 375; see also Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). “Consent must be proved by clear and positive testimony and must be unequivocal, specific, and intelligently given, uncontaminated by any duress and coercion.” Butler, 223 F.3d at 375 (citing United States v. Williams, 754 F.2d 672, 674-75 (6th Cir. 1985)). Relevant factors in this analysis include the suspect‘s “youth, lack of education or low intelligence, the lack of any warnings regarding the accused‘s constitutional rights, as well as evidence of duress or coercion, such as, deprivation of food or sleep and prolonged detention or questioning.” United States v. Jones, 846 F.2d 358, 360 (6th Cir. 1988) (internal quotations and citations omitted). Voluntariness of consent to search constitutes a question of fact, Schneckloth, 412 U.S. at 227, and this Court reviews the district court‘s factual findings for clear error. Worley, 193 F.3d at 384. The district court‘s determination is clearly erroneous where “although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id.
In this case, the evidence on the record does not support a “definite and firm conviction” that the district court clearly erred. Plaintiffs’ detention lasted approximately three hours—a circumstance likely to coerce them into consenting. However, the initial consent to search occurred within the first twenty-five minutes of the stop, before the detention reached coercive lengths. Plaintiffs were not interrogated during the stop; they were merely questioned and asked to produce identification. At no point were they placed under physical arrest, handcuffed, or commanded to lay on the ground. Additionally, Plaintiffs were well-educated, mature individuals. Thus, under the totality of the circumstances, we cannot say the district court clearly erred in finding valid consent to search.
2. Plaintiffs’ Rights Were Clearly Established
We hold that the district court erred in finding the federal and state officers, sued in their individual capacity, were protected by qualified immunity. To decide whether qualified immunity is proper, we again consider whether Defendants violated a “clearly established” constitutional right. Saucier, 533 U.S. at 207. In so doing, “[t]he relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. The contours of the right must be sufficiently clear. Id.; Procunier v. Navarette, 434 U.S. 555, 564 (1978). Yet, sufficient clarity does not require previous adjudication of the very question at hand, as “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). Rather, “in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640.
Here, the “contours” of Plaintiffs’ Fourth Amendment rights were “sufficiently clear that a reasonable official would understand” that detaining Plain-
IV. PLAINTIFFS’ CLAIM OF CONSPIRACY TO VIOLATE CIVIL RIGHTS
This Court reviews district court grants of summary judgment de novo, as set forth in Section II.A., supra.
Plaintiffs claim that “Defendants jointly agreed and acted in concert with one another to exercise their authority to deprive Plaintiffs of their constitutional rights.” (Pl.‘s Br. at 45) The district court concluded there was no evidence that Defendants had somehow entered into an agreement to deprive Plaintiffs of their rights. We hold that the district court properly disposed of Plaintiffs’ claims of
Plaintiffs here do not allege that Defendants acted with discriminatory animus based on a constitutionally protected classification. See Dunn v. Tennessee, 697 F.2d 121, 124 (6th Cir. 1982). Additionally, Plaintiffs’ complaint does not set forth specific allegations supporting their conspiracy claim, but rather vaguely asserts that Defendants “conspired.” (J.A. at 87-89) Consequently, we affirm the district court‘s grant of summary judgment on Plaintiffs’
CONCLUSION
For the foregoing reasons, we AFFIRM the summary judgment grants to Defendant City of Springboro and Defendant Clearcreek Township, to Defendant Burke, as sued in both an official and individual capacity, and to Defendants Morris and Shaw, as sued in their official capacities; we AFFIRM the district court‘s grant of summary judgment on Plaintiffs’