344 F.3d 631 | 6th Cir. | 2003
Before: MOORE and GILM AN, Circuit Judges;
In the summer of 1996, the Defendant/Appellee City of ROSEN, District Judge. [*] Circleville, Ohio commenced an undercover law enforcement investigation in response to concerns of increased illegal drug trafficking activities within the City. Because of insufficient resources and a concern that the City’s traditional police force
Based on this referral, Chief Kinney met with Skeeter, the purchase, and returned about a half an hour later. A short reviewed his credentials, conducted a background check, and time later, Cherrington’s friend, Scott Smallwood, arrived at then decided to hire him. her house and began smoking crack in the kitchen. Skeeter
then arrived at Cherrington’s home, accompanied by another Skeeter was sworn in as a police officer on September 3, law enforcement agent. Upon witnessing Smallwood 1996, and began his undercover investigation under the direct smoking crack and learning that Cherrington had made the supervision of Investigator Kevin Clark. Skeeter spoke with requested cocaine purchase, Skeeter placed both Cherrington Clark on a regular basis, and submitted periodic reports on the and Smallwood under arrest. This arrest apparently occurred progress of his investigation. Skeeter also met from time to
at around 2:30 a.m. on Saturday, August 30, 1997. time with Chief Kinney. Throughout his investigation, Skeeter was not told to target any particular individuals, but Cherrington was told to pack a bag, and Skeeter then drove rather was directed to go out into the Circleville community, her and her two-year-old daughter, Plaintiff/Appellant Daija befriend people, and determine who to target for further King, to a Travel Lodge motel at the outskirts of Circleville. investigation. Through these efforts, Skeeter came into At around 3:15 a.m., Cherrington signed a form indicating contact with Plaintiff/Appellant Mary Cherrington. The two that she had been advised of her Miranda rights by Inspector became friends, periodically smoking marijuana or snorting Clark, and that she had agreed to waive these rights and cocaine together. [1]
voluntarily speak to the police. Cherrington remained at the motel with her daughter for the next 24 hours, during which
After nearly a year of this investigation, Chief Kinney, time she cooperated with the authorities by arranging a drug Investigator Clark, Skeeter, and the county prosecutor decided purchase. Cherrington testified at her deposition that she to conclude the matter by arresting selected individuals and requested permission to contact someone to pick up Daija, but seeking their cooperation in additional drug purchases. Chief that this request was refused, leading her to surreptitiously Kinney further determined, in consultation with the county call a friend to come and get her daughter. Before this friend prosecutor, that these individuals should be taken to a motel could arrive, however, Cherrington and Daija were taken from rather than the Circleville police department or the county the motel and placed in a police car. jail, in order to avoid tipping off potential targets of this “buy- bust” operation. Skeeter chose Cherrington as one of the On Sunday, August 31, 1997 at 3:37 a.m., about 24 hours individuals to arrest, believing that she might be willing to after her arrest, Cherrington was taken to the Circleville cooperate with the authorities. police department for processing and placed in a cell. Her
daughter Daija was released to a friend. Over 48 hours later, at around 8:30 a.m. on Tuesday, September 2, 1997, [2] Mary Cherrington. (District Court Op. at 6, J.A. at 715.)
determination that Plaintiffs failed to identify a basis for Upon assessing Defendants’ conduct under the standards of municipal liability against the Defendant City of Circleville. qualified immunity, we reach the same conclusion. We affirm the first of these rulings, but reverse and remand on the remaining two points.
The Supreme Court has instructed that a qualified immunity inquiry generally entails two discrete analytical II. ANALYSIS steps. As a threshold matter, we must ask whether the record, A. The Standards Governing This Appeal viewed most favorably to the plaintiff, establishes that “the officer’s conduct violated a constitutional right.” Saucier v. This case is on appeal from the District Court’s grant of Katz , 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); see summary judgment to Defendants. Accordingly, we review also Burchett v. Kiefer , 310 F.3d 937, 942 (6th Cir. 2002). “If this District Court ruling de novo . See Holloway v. Brush , no constitutional right would have been violated were the 220 F.3d 767, 772 (6th Cir. 2000). Likewise, to the extent allegations established, there is no necessity for further that this appeal challenges the District Court’s decision to inquiries concerning qualified immunity.” Saucier , 533 U.S.
at 201, 121 S. Ct. at 2156. “On the other hand, if a violation could be made out on a favorable view of the parties’
him there against his will, the Constitution imposes upon Yet, not all seizures are tantamount to arrests sustainable it a corresponding duty to assume some responsibility for only upon probable cause. See Michigan v. Summers , 452 his safety and well-being. The rationale for this principle U.S. 692, 696-97, 101 S. Ct. 2587, 2590-91 (1981); is simple enough: when the State by the affirmative Dunaway , 442 U.S. at 208-10, 99 S. Ct. at 2254-55. In cases exercise of its power so restrains an individual’s liberty
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 9 10 Cherrington, et al. v. Skeeter, et al. No. 01-3637 of suspected child abuse or neglect, for example, the courts 2593 (footnote omitted); see also Terry , 392 U.S. at 19, 88 have held that a caseworker may remove a child from her S. Ct. at 1878-79 (describing the “central inquiry under the home upon a reasonable belief that the child is in imminent Fourth Amendment” as “the reasonableness in all the danger of harm. See , e.g. , Doe v. Texas Dep’t of Protective & circumstances of the particular governmental invasion of a Regulatory Services , 299 F.3d 395, 407 (5th Cir. 2002); citizen’s personal security”). Brokaw v. Mercer County , 235 F.3d 1000, 1010-11 (7th Cir. At least one other court has employed this same 2000). As another example, the police have the limited “reasonableness” inquiry under facts similar to those authority to briefly detain those on the scene, even wholly presented here. In Matheny v. Boatright , 970 F. Supp. 1039, innocent bystanders, as they execute a search or arrest 1041 (S.D. Ga. 1997), the defendant police officers brought warrant. See Summers , 452 U.S. at 705, 101 S. Ct. at 2595; the plaintiff children along as their mother, Angela Matheny, Burchett , 310 F.3d at 942-43; see also United States v. Enslin , was arrested on drug charges, taken to a detention facility, 327 F.3d 788, 797 n.32 (9th Cir. 2003) (finding that Summers
interrogated, and booked. Matheny alleged that she had applies in the context of arrest as well as search warrants). sought permission to contact her children’s aunt and Unfortunately, the present case does not fit neatly within grandmother to come and take care of the children, but that any of these recognized analytical frameworks. Plainly, Daija she was not allowed to make such arrangements until nearly King was not held on suspicion of any criminal activity. Nor, an hour after she arrived at the detention facility. The Court in contrast to the child abuse and neglect cases, did analyzed these circumstances under Fourth Amendment Defendants seize Daija out of a belief that she faced an standards, as well as on other grounds, and found that the imminent danger of harm in her home. Neither can it be said defendant officers had acted reasonably: that Daija was detained in order to “facilitate[] the orderly Matheny does not contend that Defendants had any completion of” Mary Cherrington’s arrest and “minimize[] physical contact with the children. Nor does she claim the risk of harm to officers and others” as they carried out this
that the children suffered any physical injury inflicted by arrest. Burchett , 310 F.3d at 943. Rather, Daija King was Defendants. Matheny also does not claim that taken along with her mother because the arresting officers Defendants directed any harsh or abusive language at the deemed it inappropriate to leave the two-year-old child alone children. In light of the circumstances surrounding at home, and because they either failed to identify or declined Matheny’s arrest, namely that her three minor children to pursue other options for ensuring Daija’s safety and well- were present without any other adult present to care for being following her mother’s arrest.
them, Defendants’ actions were reasonable. The facts Lacking any direct guidance on the legal inquiry that might suggest that rather than putting the children at risk, govern such a situation, the District Court assessed Defendants undertook to care for the children until Defendants’ conduct under a general standard of suitable arrangements could be made for their care. reasonableness. ( See District Court Op. at 5-6, J.A. at 715- 16.) This approach comports with the Supreme Court’s general instruction that, in cases involving seizures short of a traditional arrest, the courts should be guided by “the ultimate standard of reasonableness embodied in the Fourth Amendment.” Summers , 452 U.S. at 699-700, 101 S. Ct. at No. 01-3637 Cherrington, et al. v. Skeeter, et al. 11 12 Cherrington, et al. v. Skeeter, et al. No. 01-3637 Matheny , 970 F. Supp. at 1046. [4]
preserving the secrecy of their ongoing undercover operation. On the other hand, Mary Cherrington testified that the
We agree with the District Courts here and in Matheny that Defendant officers used Daija as a tool to secure her Fourth Amendment claims of the sort asserted by Daija King cooperation. This testimony, if believed and found to rest upon more than Cherrington’s own speculation, [5] would tend in this case are most appropriately measured against a general standard of reasonableness. Upon performing this inquiry,
to cast doubt on the reasonableness of Daija’s detention. moreover, we are inclined to agree with the District Court that the conduct of the individual Defendants was reasonable, although we are somewhat hesitant to reach this conclusion as explained: 55 (7th Cir. 1985); White v. Rochford , 592 F.2d 381, 383-86
(7th Cir. 1979); Matheny , 970 F. Supp. at 1043-45. Upon For a right to be clearly established, [t]he contours of the reviewing these cases, we conclude that the allegations and right must be sufficiently clear that a reasonable official
evidence in this case are insufficient to establish either a would understand that what he is doing violates that substantive due process violation or a violation of a clearly right. Although it need not be the case that the very established constitutional right. action in question has been previously held unlawful, . . . in the light of pre-existing law, the unlawfulness must be In Walton , for example, plaintiff Barbara Walton was apparent. driving a car in which her fifteen-year-old daughter and two-
year-old granddaughter were passengers. The defendant Burchett , 310 F.3d at 942 (internal quotations and citations police officers stopped and approached the car to investigate omitted). why the two-year-old was not riding in a proper child-
restraint seat. Upon determining that Walton was driving As is evident from our foregoing discussion, the pre- with a suspended license, the officers placed her under arrest. existing law is silent on the lawfulness of keeping a young When she asked that the children be placed in protective child with her mother while the latter is placed under arrest custody, the officers responded that they could not do so, but and held in custody at a location other than a traditional suggested that the children could call someone to pick them detention facility. If the Defendant officers had scoured the up. The officers then waited while the children entered a case law at the time (or even to this day), they could not have nearby office building to make a phone call, but did not located a decision indicating that Daija King’s Fourth remain on the scene to confirm that they had secured a ride Amendment rights might be violated if she were taken with home. In fact, nearly six hours passed before someone finally her mother to a hotel for about a 24-hour period while Mary arrived to pick up the children. Cherrington cooperated with the authorities by attempting to arrange drug purchases. Rather, the most closely analogous We held that the defendant officers were entitled to case, Matheny , leads to the opposite conclusion. Under these
qualified immunity on the children’s substantive due process circumstances, the individual Defendants are entitled to claims. We began by noting that the Sixth Circuit had not yet qualified immunity, because the law did not (and still does addressed the issue of passenger abandonment by state or not) “clearly proscribe[]” the actions they took. Mitchell v. local law enforcement officials, but that other Circuits had Forsyth , 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985). done so, reaching somewhat different conclusions. In
addition, while cases such as White , supra , had recognized a No. 01-3637 Cherrington, et al. v. Skeeter, et al. 15 16 Cherrington, et al. v. Skeeter, et al. No. 01-3637 due process protection against police abandonment of mother as she was placed under arrest, and being held in a passengers upon arresting the driver of a vehicle, we found hotel room for a 24-hour period, surrounded by police that White was distinguishable as involving abandonment “in officers, as her mother cooperated with the authorities by a more dangerous situation.” Walton , 995 F.2d at 1338-39. [6]
attempting a drug purchase — was not ideal. Yet, given the Accordingly, despite “an exercise of very poor judgment on early-morning hour of Mary Cherrington’s arrest, it is not the part of the defendant police officers,” we held that “the clear that there were any available and preferable alternatives ‘contours of the [due process] right,’ if there is such a right, to the course chosen by Defendants. Further, there is no were not sufficiently clear so that a reasonable officer would evidence that Daija suffered any harm during this period of have known that leaving the children in the parking lot detention; at worst, Mary Cherrington’s deposition testimony violated that right.” Walton , 995 F.2d at 1333, 1339. indicates that she and her daughter were fed only once during
their 24-hour stay at the hotel. The most that can be said, Because Walton did not decide whether such a substantive perhaps, is that the Defendant officers might have been better due process right exists, it did not reach the issue of the advised to attempt to arrange for Daija to be picked up by a standard by which to judge alleged violations of such a right. relative or friend, and that they might have sacrificed a degree We addressed this question in Davis , supra , however, holding of Daija’s comfort and emotional well-being in an effort to that “where the plaintiff suffered injury as a result of being preserve the secrecy of their still-ongoing undercover placed in the state’s custody, it has consistently and operation. This, in our view, is not tantamount to gross uncontroversially been the rule that a constitutional claim negligence or a reckless disregard for Daija’s safety. arises when the injury occurred as a result of the state’s deliberate indifference to the risk of such an injury.” Davis , In any event, as with our Fourth Amendment analysis, we 143 F.3d at 1026; see also Bukowski v. City of Akron , 326 conclude that the individual Defendants are entitled to F.3d 702, 710 (6th Cir. 2003) (applying a deliberate qualified immunity on the “clearly established” prong of our indifference standard to a substantive due process claim). substantive due process inquiry. Again, we note the utter Similarly, the other above-cited child abandonment cases absence of any case finding a substantive due process consider whether the conduct of the defendant police officers violation based upon a police officer’s decision to retain amounted to “gross negligence” or a “reckless disregard” for custody over a child while her parent or custodian is placed the safety of the children. See Moore , 754 F.2d at 1355; under arrest. To the contrary, the case law suggests that the White , 592 F.2d at 385. Defendant officers would more likely have run afoul of
substantive due process concerns if they had left Daija King Under this standard, we do not believe that the record in at home or otherwise placed her in a situation which failed to this case can be viewed as establishing a violation of Daija adequately ensure her safety and well-being. Because the pre- King’s substantive due process rights. Admittedly, the
existing law would not have alerted the individual Defendants situation into which she was placed — being taken with her that their conduct might violate Daija King’s substantive due process rights, they are entitled to qualified immunity. More generally, in light of our similar conclusion under a Fourth [6] Amendment analysis, we affirm the District Court’s dismissal In particular, the children in Wh ite were abandoned by the side of of Daija King’s § 1983 claims against the individual the road in cold weather. “Under exposure of the cold, the children finally realized that they had no alternative but to leave the car, cross eight Defendants on the ground of qualified immunity. lanes of traffic and wander on the freeway at night in searc h of a telephone.” Wh ite , 592 F.2d at 382. No. 01-3637 Cherrington, et al. v. Skeeter, et al. 17 18 Cherrington, et al. v. Skeeter, et al. No. 01-3637 C. Under the Present Record, the Individual Defendants Riverside v. McLaughlin , 500 U.S. 44, 111 S. Ct. 1661
Are Not Entitled to Qualified Immunity on Mary (1991), provides the basis for her present Fourth Amendment Cherrington’s Claim that She Was Denied a Prompt claim. The Court previously had recognized in Gerstein v. Judicial Determination of Probable Cause. Pugh , 420 U.S. 103, 114, 95 S. Ct. 854 (1975), that “the
Fourth Amendment requires a judicial determination of Of the various § 1983 claims asserted by Mary Cherrington probable cause as a prerequisite to extended restraint of in the court below, the only one she is pursuing on appeal, liberty following arrest.” In County of Riverside , the Court against the individual Defendants at least, [7] is her claim that
considered just how soon such a determination must be made, she was not provided with a sufficiently prompt judicial and concluded that “judicial determinations of probable cause determination of probable cause following her warrantless within 48 hours of arrest will, as a general matter, comply arrest. In the lower court, and again on appeal, Plaintiff with the promptness requirement of Gerstein. ” County of Cherrington has cited Ohio Rule of Criminal Procedure Riverside , 500 U.S. at 56, 111 S. Ct. at 1670. While a delay 4(E)(2) as the source of this claimed right to a prompt
of over 48 hours is not per se unlawful, the Government bears probable cause hearing. [8] The District Court rejected this the burden in such cases to “demonstrate the existence of a claim, reasoning that a violation of a state rule of criminal bona fide emergency or other extraordinary circumstance” procedure cannot sustain a federal § 1983 claim. Be that as that led to the delayed probable cause determination. County it may, and fully acknowledging Plaintiffs’ rather inarticulate of Riverside , 500 U.S. at 57, 111 S. Ct. at 1670. presentation on this point, we readily conclude that Mary Cherrington has stated a viable Fourth Amendment claim as In this case, Mary Cherrington was arrested without a a result of the delay in affording her a probable cause hearing. warrant in the early morning hours of Saturday, August 30, We further find that the present record fails to establish as a 1997, but she was not brought before a magistrate for a matter of law that the individual Defendants are entitled to probable cause determination until about 8:30 a.m. on qualified immunity on this claim. Tuesday, September 2, 1997. This delay of over 72 hours
significantly exceeded the general 48-hour rule announced in Though Plaintiff Cherrington has mentioned this ruling County of Riverside . Absent some “bona fide emergency or only in passing, the Supreme Court’s decision in County of other extraordinary circumstance,” then, this delay violated Cherrington’s Fourth Amendment right to a prompt judicial determination of probable cause. [7] Plaintiffs’ claims against the Defendant City of Circleville are
Neither of Defendants’ two proposed “extraordinary addressed below. circumstances” take this case outside the usual 48-hour rule. [8] First, Defendants note that their undercover investigation At the time of Cherringto n’s arrest, this Ohio rule p rovid ed in relevant part: continued after Cherrington’s arrest, and that she agreed to cooperate in this ongoing operation by attempting to arrange W here a person is arrested without a warrant the arresting a drug purchase. Defendants reason that this undercover officer shall . . . bring the arrested p erson without unnecessary effort would have been jeopardized if Cherrington had been delay before a court having jurisdiction of the offense, and shall brought before a magistrate. Yet, this undercover operation file or cause to be filed a complaint describing the offense for which the person was arrested. surely had concluded by Sunday, August 31, 1997 at 3:37
a.m., when Cherrington was taken from the Travel Lodge Ohio Crim. R. 4(E)(2) (199 7). No. 01-3637 Cherrington, et al. v. Skeeter, et al. 19 20 Cherrington, et al. v. Skeeter, et al. No. 01-3637 motel and placed in jail. Even so, Cherrington was made to determination of probable cause within 48 hours of her arrest. wait more than 48 hours from this point before a magistrate Her claim also survives scrutiny under the second, “clearly found probable cause to arrest her. Cherrington’s established” prong of the qualified immunity inquiry, because participation in the ongoing investigation, then, did not County of Riverside itself, a decision which predated prevent Defendants from complying with County of Cherrington’s arrest by several years, would have alerted a Riverside ’s 48-hour rule. [9]
reasonable official to (i) the existence of Cherrington’s Fourth Amendment right to a judicial determination of probable
Next, Defendants point to the intervening weekend and cause within 48 hours, and (ii) the unavailability of any Labor Day holiday between Mary Cherrington’s arrest and “intervening weekend or holiday” exception to this 48-hour the magistrate’s probable cause determination. County of rule. Under the present record, therefore, the individual Riverside itself, however, expressly cautions that intervening Defendants are not entitled to qualified immunity on Plaintiff weekends and holidays do not qualify as “extraordinary Cherrington’s Fourth Amendment claim of an excessive delay circumstances” that permit relief from the 48-hour
in the magistrate’s determination of probable cause for her requirement. See County of Riverside , 500 U.S. at 57-58, 111 arrest. S. Ct. at 1670-71. Accordingly, this Court recently held that a municipality’s “part-time court” scheme, under which Nonetheless, we hasten to add that the liability of the “court was never held on weekends or holidays,” would “very individual Defendants is not a foregone conclusion upon likely run afoul of the forty-eight hour time limit established remand. Because the District Court determined at the in Riverside” in cases of warrantless arrests on Friday threshold that there had been no constitutional violation, it evenings or Saturday mornings. Alkire v. Irving , 330 F.3d had no occasion to consider whether the two individual 802, 815 (6th Cir. 2003). Defendants actually named in the complaint, Andre Skeeter
and Chief Kinney, could be held liable for such a violation. In sum, the undisputed record establishes a violation of City Likewise, the parties have not addressed this issue in their of Riverside ’s 48-hour rule, and Defendants have failed to briefs on appeal, and the record does not disclose all of the identify any emergency or other extraordinary circumstance pertinent details of the specific roles played by Defendants that might take this case outside of the general rule. It Skeeter and Kinney in Mary Cherrington’s detention and follows that Plaintiff Cherrington can withstand the first eventual appearance before a magistrate. Consequently, we prong of the qualified immunity inquiry by virtue of the are limited to offering only a few general observations that violation of her Fourth Amendment right to a judicial the District Court might wish to consider in any subsequent
proceedings. It is axiomatic, of course, that § 1983 prohibits actions [9] W e recognize that an individual’s agreement to cooperate with the “under color of state law” which deprive an individual of a
authorities might well be a relevant factor in determining whether a right secured by the U.S. Constitution or a federal statute. delayed probable cause determination violates the Fourth Am endment. See , e.g. , Cassady v. Tackett , 938 F.2d 693, 695 (6th Cir. Under the facts of this case, however, we need not decide whether the 1991). “Thus, before a defendant may be held liable under period of Mary Cherrington’s cooperation should be charged against or section 1983, that defendant must first possess power by exempted from the 48-hour lim it, or whether her voluntary participation in an ongoing undercover operation constituted an “extraordinary virtue of state law, then misuse that power in a way that circumstance” which would permit a more lengthy delay in securing a
violates federal constitutional rights.” Christian v. Belcher , judicial determination of probable cause. No. 01-3637 Cherrington, et al. v. Skeeter, et al. 21 22 Cherrington, et al. v. Skeeter, et al. No. 01-3637 888 F.2d 410, 414 (6th Cir. 1989). In the present context, this City of Pontiac , 41 F.3d 1061, 1066 (6th Cir. 1994) means that we must look to state law to determine who is (addressing the proximate cause element of a § 1983 claim). responsible for ensuring that a judicial determination of This matter must be determined upon remand to the District probable cause is made within 48 hours after an arrest. Court.
Under Ohio law, where an arrest is made without a warrant, D. Under the Present Record, the Defendant City Is Not it generally falls to the “arresting officer” to “bring the Entitled to Summary Judgment on Plaintiff arrested person without unnecessary delay before a court Cherrington’s County of Riverside Claim. having jurisdiction of the offense.” Ohio Crim. R. 4(E)(2). As their final issue on appeal, Plaintiffs challenge the In this case, the record establishes that Defendant Skeeter was District Court’s award of summary judgment to the Defendant one of the arresting officers, and there is some evidence of City of Circleville on their § 1983 claims. Although this Defendant Kinney’s involvement in the decisions to arrest sweeping challenge largely fails to withstand scrutiny, we Mary Cherrington and initially take her to a motel rather than find that this grant of summary judgment must be reversed in the Circleville police station. The record is almost entirely one limited respect — namely, as it relates to Plaintiff silent, however, as to the roles played by these Defendants or
Cherrington’s claim of undue delay in the judicial other law enforcement officials in the roughly two-and-a-half- determination of probable cause to arrest her. With this lone day period that Cherrington remained in jail without being exception, we affirm the District Court’s rulings as to the brought before a magistrate.
Defendant City. Under this record, it is possible that either or both of the A municipality cannot be held vicariously liable under named Defendants had a duty under Ohio law to see that § 1983 for the acts of its employees or agents. See Monell v. Cherrington was promptly brought before a magistrate for a Department of Soc. Servs. of City of New York , 436 U.S. 658, determination of probable cause to arrest her, and that either 694, 98 S. Ct. 2018, 2037-38 (1978); Gregory v. Shelby or both failed to take the necessary steps to discharge this County , 220 F.3d 433, 441 (6th Cir. 2000). Rather, municipal obligation. It is equally possible, however, that one or both
liability attaches only where a constitutional violation results of these Defendants took some steps to ensure that there was from the “execution of a government’s policy or custom.” a prompt judicial determination of probable cause, but that, Gregory , 220 F.3d at 441. Beyond having to identify through no fault of their own, this did not occur. In other “conduct properly attributable to the municipality” itself, a words, we lack the information necessary to resolve the issue plaintiff of causation — namely, whether the delay in Mary Cherrington’s probable cause determination was attributable
must also demonstrate that, through its deliberate to the actions (or inaction) of one or both of the named conduct, the municipality was the “moving force” behind Defendants. See , e.g. , Luck v. Rovenstine , 168 F.3d 323, 327 the injury alleged. That is, a plaintiff must show that the (7th Cir. 1999) (addressing this question of causation in the municipal action was taken with the requisite degree of specific context of a claimed violation of County of culpability and must demonstrate a direct causal link Riverside ’s 48-hour rule); Hallstrom v. City of Garden City , between the municipal action and the deprivation of 991 F.2d 1473, 1478-79, 1481-82 (9th Cir. 1993) (same); federal rights. Strepka v. Miller , No. 00-1294, 2001 WL 1475058, at *3 (10th Cir. Nov. 21, 2001) (same). See generally Gazette v. No. 01-3637 Cherrington, et al. v. Skeeter, et al. 23 24 Cherrington, et al. v. Skeeter, et al. No. 01-3637 Board of County Comm’rs of Bryan County v. Brown , 520 City’s potential liability to the two alleged violations U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997); see also City of expressly raised on appeal — namely, the allegedly unlawful Canton v. Harris , 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 detention of Daija King incident to her mother’s arrest, and (1989) (“[O]ur first inquiry in any case alleging municipal the violation of Mary Cherrington’s right to a prompt judicial liability under § 1983 is the question whether there is a direct determination of probable cause. causal link between a municipal policy or custom and the As to Daija King’s constitutional claims, we readily alleged constitutional deprivation.”).
conclude that the evidence is insufficient as a matter of law to On appeal, Plaintiffs contend that the requisite municipal forge the requisite causal connection between her allegedly policy or custom can be found in the Defendant City’s alleged unlawful detention and any inadequacy in the training of the failure to properly train its officers, and particularly Defendant City’s police officers. To be actionable, a Defendant Skeeter. The Supreme Court has held that “the municipality’s training must be inadequate to the tasks that its inadequacy of police training may serve as the basis for officers must perform, this inadequacy must be the product of § 1983 liability,” but “only where the failure to train amounts deliberate indifference, and this inadequacy must have been to deliberate indifference to the rights of persons with whom closely related to or have actually caused the plaintiff’s the police come into contact.” City of Canton , 489 U.S. at injury. See Russo v. City of Cincinnati , 953 F.2d 1036, 1046 388, 109 S. Ct. at 1204 (footnote omitted). “Only where a (6th Cir. 1992). We have read City of Canton as recognizing municipality’s failure to train its employees in a relevant at least two situations in which inadequate training could be respect evidences a ‘deliberate indifference’ to the rights of its found to be the result of deliberate indifference. “One is inhabitants can such a shortcoming be properly thought of as failure to provide adequate training in light of foreseeable a city ‘policy or custom’ that is actionable under § 1983.” consequences that could result from the lack of instruction,” 489 U.S. at 389, 109 S. Ct. at 1205. as would be the case, for example, if a municipality failed to
instruct its officers in the use of deadly force. Brown v. In an effort to establish their “failure to train” theory, Shaner , 172 F.3d 927, 931 (6th Cir. 1999). “A second type Plaintiffs cite evidence tending to indicate that Defendant of situation justifying a conclusion of deliberate indifference Skeeter received little or no instruction or guidance regarding is where the city fails to act in response to repeated Circleville police department policies and procedures. Be that complaints of constitutional violations by its officers.” as it may, however, Plaintiffs notably fail to specify exactly Brown , 172 F.3d at 931. which constitutional injuries might have resulted from this lack of training, nor have they pointed to evidence in the The detention of Daija King incident to her mother’s arrest record that might tend to establish a direct causal link does not remotely fit into either of these established between Skeeter’s allegedly deficient training and a particular categories of actionable failures to train. Given the dearth of constitutional injury suffered by either Daija King or Mary case law addressing the issue, it cannot be said that police Cherrington. We decline Plaintiffs’ invitation to engage in a officers routinely confront the question of what to do with generalized, open-ended inquiry whether a lack of proper children upon arresting their parent or guardian. Thus, the training could have been the “moving force” behind some Defendant City cannot be deemed deliberately indifferent to constitutional violation that might be gleaned from the record before us. Rather, absent any specific guidance from Plaintiffs on this point, we limit our consideration of the No. 01-3637 Cherrington, et al. v. Skeeter, et al. 25 26 Cherrington, et al. v. Skeeter, et al. No. 01-3637 an obvious need for officer training in this area. [10] Likewise,
those who come in contact with the Circleville police. Russo , Plaintiffs have failed to identify any similar incidents or prior 953 F.2d at 1046 (internal quotations and citations omitted). complaints that might have alerted the Defendant City to the Nonetheless, this still leaves the question whether this need to cover this topic in its officer training. Absent some
inadequate training was “closely related to” or “actually form of notice that its officers might confront such a situation, caused” a violation of Mary Cherrington’s Fourth the Defendant City cannot be held liable under a “failure to Amendment right to a prompt judicial determination of train” theory for any alleged deprivation of Daija King’s probable cause. Russo , 953 F.2d at 1046 (internal quotation constitutional rights. See Sargi v. Kent City Bd. of Educ. , 70 marks and citations omitted). As noted earlier, we are F.3d 907, 912 (6th Cir. 1995) (citing lack of notice as a basis severely handicapped in our effort to determine the root cause for rejecting a claim of inadequate training).
of this violation or the principal players involved, because the Matters are somewhat different with regard to Mary record is nearly silent as to what occurred or who was present Cherrington’s claim of an unduly delayed judicial during Cherrington’s detention at the Circleville police determination of probable cause for her arrest. It surely is station. For all we can tell, then, Defendant Skeeter was fully foreseeable that the Defendant City’s police officers will aware of the need for a prompt probable cause determination, occasionally make warrantless arrests, and thus will require yet was assured by other officers at the station that they would instruction on the need to ensure that individuals arrested discharge this duty. Alternatively, given Defendants’ appeal without a warrant are brought before a magistrate within 48 to the intervening weekend and Labor Day holiday between hours for a probable cause determination. Moreover, Cherrington’s arrest and her appearance before a magistrate, Plaintiffs have pointed to Defendant Skeeter’s testimony that it is possible that the Defendant City failed to provide the he generally did not receive any instruction regarding any necessary resources to ensure that individuals arrested without Circleville police department policies or procedures. ( See a warrant in the early part of a weekend need not wait until Skeeter Dep. at 49-50, J.A. at 114-15.) Under this record, a the following Monday (or Tuesday) for a probable cause trier of fact could conclude that the Defendant City’s training hearing. In this event, the City’s liability would rest directly of Skeeter was “inadequate to the tasks that officers must upon an unconstitutional policy rather than inadequate perform,” and that this inadequacy reflected the City’s training — even the most extensive training program could “deliberate indifference” to the Fourth Amendment rights of not overcome the brute fact that a magistrate was not
available on weekends and holidays. [11] In light of this evidentiary gap on a material issue, we cannot say as a matter of law that the Defendant City is not [10] liable for the deprivation of Plaintiff Cherrington’s Fourth Indeed, in the event that a municipality found it appropriate to offer training on this subject, it would be difficult to glean any general rule Amendment right to a prompt judicial determination of from the existing precedents — it might be better to place the child with a social service agency in one case, with a relative in another, or to keep the child with her parent in still another. Even in the specific case now before us, we have hesitated to conclude that one course of action would [11] have been co nstitutionally prefera ble to the othe rs. Give n the limited Our discussion on this subject is not meant to exhaust all of the utility of such nebulous “training,” a municipality could hardly be said to possible factual scenarios that m ight have led to the delayed p robable be deliberately indifferent to the needs of its citizens if it chose to forgo cause determinatio n in this case. W e merely mean to emphasize that the this instruction. record tells us nothing about what actually occurred. No. 01-3637 Cherrington, et al. v. Skeeter, et al. 27 probable cause. Just as we have remanded the matter of the individual Defendants’ liability under this theory, we invite the parties to address the City’s liability on remand to the District Court. Admittedly, to this point, Plaintiffs have done very little to meet their burden of establishing a factual basis for holding any of the Defendants liable for this Fourth Amendment violation. Yet, because the first round of District Court proceedings focused largely on the wrong issue — namely, the legal significance of Ohio Rule of Criminal Procedure 4(E)(2) to Plaintiff Cherrington’s federal constitutional claim, rather than the Supreme Court’s ruling in County of Riverside — we believe it appropriate to afford Plaintiffs a limited opportunity to develop a factual record supporting the imposition of liability on one or more of the Defendants, whether individual or municipal, for violating County of Riverside ’s 48-hour rule. At the same time, Defendants can attempt to identify an “extraordinary circumstance” that might exempt them from the operation of this rule.
III.
CONCLUSION For the reasons set forth above, we REVERSE the rulings of the court below on Plaintiff Mary Cherrington’s Fourth Amendment claim of undue delay in the judicial determination of probable cause for her arrest, AFFIRM as to the remaining issues raised on appeal, and REMAND for further proceedings consistent with this decision.
NOTES
[*] could not conduct an anonymous undercover operation amidst The Honorable Gerald E. Rosen, United States District Judge for the Circleville’s small population, the City sought outside Eastern District of Michigan, sitting by designation. 1 No. 01-3637 Cherrington, et al. v. Skeeter, et al. 3 4 Cherrington, et al. v. Skeeter, et al. No. 01-3637 assistance in its investigation. Specifically, Accordingly, on the evening of Friday, August 29, 1997, Defendant/Appellee Police Chief Jon Kinney contacted a Skeeter arranged for a mutual acquaintance, Leslie Jones, to private security firm, which in turn referred Chief Kinney to go to Cherrington’s residence and ask her to purchase $100 Defendant/Appellee Andre Skeeter, a private investigator. worth of cocaine. Cherrington agreed, left her home to make
[1]
[2] Skeeter testified at his deposition that he did not actually ingest The local courts were closed on Monday, September 1, 1997 for the these drugs, but merely pretended to do so. Labor D ay holid ay. No. 01-3637 Cherrington, et al. v. Skeeter, et al. 5 6 Cherrington, et al. v. Skeeter, et al. No. 01-3637 Cherrington was arraigned on drug trafficking charges. She confer qualified immunity upon the individual Defendants, subsequently pled guilty to two counts of trafficking in we review this question of law de novo . See Gardenhire v. cocaine. Schubert , 205 F.3d 303, 310 (6th Cir. 2000). Based on these incidents, Plaintiffs/Appellants Mary B. The Individual Defendants Are Protected by Cherrington and Daija King brought this § 1983 suit on Qualified Immunity Against the § 1983 Claims May 13, 1999, alleging that Defendants/Appellees Skeeter, Asserted by Daija King. Kinney, and the City of Circleville violated their rights under Among the grounds advanced in Defendants’ summary the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
[3] By Opinion and Order dated judgment motion in the court below, the individual Defendants, Andre Skeeter and Chief Kinney, argued that May 11, 2001, the District Court granted Defendants’ motion they were shielded from liability under 42 U.S.C. § 1983 by for summary judgment, denied Plaintiffs’ motion for the doctrine of qualified immunity. In addressing the § 1983 summary judgment, and ordered that Plaintiffs’ claims be claims asserted by Plaintiff Daija King, the District Court did dismissed. Through their present appeal, Plaintiffs challenge not explicitly conduct a qualified immunity analysis, but only certain aspects of the lower court’s decision: (i) the instead found more generally that the individual Defendants dismissal of Daija King’s claims; (ii) the grant of qualified did not act “objectively unreasonabl[y] under the immunity to the individual Defendants on Mary circumstances” in electing to keep mother and daughter Cherrington’s Fourth Amendment claim of an unlawfully together during the arrest and initial detention of Plaintiff prolonged detention without arraignment; and (iii) the
[3] submissions, the next, sequential step is to ask whether the It is not clear whether Plaintiffs also meant to assert state-law claims right was clearly established.” 533 U.S. at 201, 121 S. Ct. at in their complaint. In any event, upon determining that Plaintiffs’ federal 2156; see also Burchett , 310 F.3d at 942. claims were su bjec t to dismissal, the District Court declined to exercise its supp lemental jurisd iction over any remaining state-law claims, and Plaintiffs do no t challenge this asp ect of the lower court’s ruling. No. 01-3637 Cherrington, et al. v. Skeeter, et al. 7 8 Cherrington, et al. v. Skeeter, et al. No. 01-3637 To this point, the parties have made little effort to identify that it renders him unable to care for himself, and at the the constitutional rights of Daija King that might have been same time fails to provide for his basic human needs — implicated by Defendants’ conduct. Indeed, the record on e.g., food, clothing, shelter, medical care, and reasonable appeal fails to indicate that the parties even addressed Daija safety — it transgresses the substantive limits on state King’s claims in their submissions to the District Court. action set by the Eighth Amendment and the Due Process Plaintiffs’ appellate brief offers only slightly more guidance, Clause. The affirmative duty to protect arises not from summarily asserting that Daija was “falsely arrested and the State’s knowledge of the individual’s predicament or illegally detained.” (Plaintiffs/Appellants Br. at 12.) This from its expression of intent to help him, but from the suggests that Daija’s § 1983 claims rest upon the Fourth limitation which it has imposed on his freedom to act on Amendment prohibition against unreasonable seizures. And, his own behalf. In the substantive due process analysis, to be sure, the Supreme Court has recognized that “whenever it is the State’s affirmative act of restraining the a police officer accosts an individual and restrains his individual’s freedom to act on his own behalf — through freedom to walk away, he has ‘seized’ that person.” Terry v. incarceration, institutionalization, or other similar Ohio , 392 U.S. 1, 16, 88 S. Ct. 1868, 1877 (1968); see also restraint of personal liberty — which is the “deprivation Burchett , 310 F.3d at 942. Under this definition, Daija King of liberty” triggering the protections of the Due Process was “seized” when Defendants insisted that she remain with Clause . . . . her mother as the latter was arrested and detained in a motel DeShaney , 489 U.S. at 199-200, 109 S. Ct. at 1005-06 room. Daija was not free to remain at home or to walk away (citations and footnote omitted). These principles seemingly from the motel — to the contrary, the record suggests that are implicated here, where Defendants restrained Daija’s Defendants actively opposed any effort to release Daija from freedom to act on her own behalf or to secure the assistance their custody into the care of a third party. of a substitute caregiver in providing for her basic needs. Yet, other cases tend to place a different constitutional In the end, however, the outcome is the same whether we gloss upon Daija King’s claims in this case. In Davis v. analyze Daija King’s allegations under Fourth Amendment or Brady , 143 F.3d 1021, 1024-26 (6th Cir. 1998), for example, substantive due process standards. Under the Fourth we held that a Fourteenth Amendment substantive due Amendment, Daija’s seizure must not have been process violation can occur when the State takes an individual “unreasonable,” with the proper measure of unreasonableness into its custody and then fails to adequately ensure her safety depending upon the type of seizure. Thus, if Daija was and well-being. In so ruling, we relied in part on the decision arrested, as Plaintiffs argue, Defendants’ action must have in DeShaney v. Winnebago County Dep’t of Social Services , been supported by probable cause. See Dunaway v. New 489 U.S. 189, 109 S. Ct. 998 (1989), in which the Supreme York , 442 U.S. 200, 207-08, 99 S. Ct. 2248, 2253-54 (1979). Court explained: No one seriously contends that Defendants had probable [W]hen the State takes a person into custody and holds cause to arrest Daija.
[5] a matter of law. On one hand, Daija was just two years old at Although P laintiffs contend in their brief on appeal that Defendant the time, and the officers obviously had to make some sort of Skeeter confirmed this questionable m otive at his deposition, this is not an accurate characterization of the record. Skeeter testified that arrangement for her care as they placed her mother under Cherrington was “allo wed . . . to keep Daija” immediately following her arrest; the child plainly could not have been left alone and arrest while she decided whether to cooperate with the authorities, and unsupervised at home. The options, then, were either to keep that “[a]ll I was doing” at that point was “transporting [Cherrington and Daija with her mother or to arrange for Daija to be placed Daija] to the people who were making the decisions” regarding with a relative, family friend, or a state social service agency Cherrington’s possible cooperation. (Skeeter Dep. at 90, J.A. at 154.) He further testified that, prior to the night of Cherrington’s arrest, he had — and, given the late hour of Mary Cherrington’s arrest, the spoken to Chief Kinney regarding what to do with Daija, and that he had latter might well have proved difficult. So long as Mary expressed a concern during that conversation that it might “jeopardize[] Cherrington remained in a hotel room rather than a detention the whole investigation, not just getting the cover blown b ut officer sa fety facility, and generally remained available to care for Daija’s as well,” if Daija were taken to a social services agency or placed in the needs, we cannot say that one course of action was manifestly care of a friend or relative. ( Id. at 90-91, J.A. at 154-55.) Skeeter preferable to the other. In addition, Defendants note that their reasoned that such an outside party “would have to know or want to know what was going on,” and that “Circ leville is a close community” in which chosen course served the law enforcement objective of news of the underco ver investigation would quickly spread. ( Id. at 91, J.A. at 1 55.) Indeed, even C herrington’s own testimony on this po int is less than
[4] To similar effect, the District Court cited the decision in Caplan v. definitive. She testified that while she was still in her apartment Roseman , 667 F. Supp. 549 (N.D. Ohio 1987), in which a divorced father imme diately following her arrest, Skeeter threatened that she would “lose complained that his and his son’s constitutional rights were violated when my child . . . [and] lose my home” if she did not cooperate with the the defendant police officers prevented him from taking his child on an authorities. (Cherrington Dep. at 73, J.A. at 269.) Cherrington further out-of-state vacation. T he office rs had been told that this out-of-state trip stated that Skeeter repeated this threat after they arrived at the hotel. ( Id. would violate a court-ordered visitation schedule, and the legal d ocuments at 94, J.A. at 29 0.) She then testified that she agreed to coop erate beca use produced by the father failed to persuade them otherwise. In holding that “[t]hey had my child, and I didn’t want to lose her.” ( Id. at 106, J.A. at the defendant officers were entitled to qualified im munity, the Court 302 .) Thus, while Cherrington might well have drawn a connection in her reasoned that “police officers in domestic relations situations must make own mind betwe en D aija’s presence at the hotel and her decision to spontaneous decisions based on incomplete, and sometimes inaccurate, coo perate with the authorities, nothing she was told expressly forged this information,” and found that “[a]ll § 198 3 req uires in these matters is for link, and the individual Defendants did not acknowledge this motive at police officers to act reasonably and to do the best job possible under their depositions. Rathe r, from all that appears in the record , and fro m all difficult circumstances.” Caplan , 667 F. Supp. at 554. Caplan ’s analysis, that Cherrington states she was to ld at the time, Skeeter might have however, does not rest upon grounds of Fourth Amendme nt employed the very same threats even if Daija had not been kept with her reasonab leness, but rather upon the “objective reasonableness” standard mother, but instead had b een p laced with an agency or taken to the home incorporated within the qualified immunity doctrine. of a friend or relative. No. 01-3637 Cherrington, et al. v. Skeeter, et al. 13 14 Cherrington, et al. v. Skeeter, et al. No. 01-3637 Yet, it ultimately is unnecessary for us to decide whether We reach precisely the same conclusion upon evaluating the individual Defendants did or did not heed the Fourth Daija King’s claims under substantive due process standards. Amendment command of reasonableness in their conduct Here, we have somewhat more case law to guide us; several toward Daija King, because they are entitled to qualified cases, including at least one in this Circuit, have considered immunity in any event. As noted, the second prong of the the substantive due process implications of a police officer’s qualified immunity inquiry turns upon whether the defendant decision about what to do with children whose parent or has violated “clearly established constitutional rights of which custodian has been placed under arrest. See , e.g. , Walton v. a reasonable person would have known.” Burchett , 310 F. 3d City of Southfield , 995 F.2d 1331, 1336-39 (6th Cir. 1993); at 942 (internal quotations and citations omitted). We have Moore v. Marketplace Restaurant, Inc. , 754 F.2d 1336, 1354-
