Francine Solomon v. Auburn Hills Police Department, a Municipal Corporation, Officer David Miller

Bohai, here Apache Unlike SOLOMON, Francine Plaintiff- with an adminis- presented

this court is Appellee, Dis- below. by the court trative closure use of this frequently make trict courts pending cases from their to remove device active else- temporarily are which DEPART-

suits AUBURN HILLS POLICE (such panel) an arbitration MENT, municipal corporation, as before where a (such bankruptcy stayed Defendant, as where or an administrative The effect of pending). simple stay, Miller, Defendant-

closure is no different David of active Appellant. it affects the count except that ie., docket; court’s pending on the eases No. 03-1707. are not administratively closed cases Lehman v. Revolu- counted as active. See Appeals, Court of United States LLC, tion Portfolio Sixth Circuit. (“This used in various districts method is 13, 2004. Argued: Aug. nation in order to shelve throughout cases.”) dormant, In con- but pending, and Filed: Nov. Decided closed, trast, stayed, but not cases on active. This case still exists counted as may district court and be

the docket of the parties or oh upon request reopened That situation is court’s own motion. stay, not a equivalent functional dismissal, appealable and is thus not thus the FAA. This court

order under jurisdiction appeal over this not have does the merits of Mire’s and does not reach other issues.

III. CONCLUSION reasons, appeal this foregoing For the jurisdiction. lack of DISMISSED for order. presents appealable case no DISMISSED. Cox, Kelly, Hodg- Daniel J.

ARGUED: MI, Giarmarco, Troy, for Defen- man & Goldman, H. L. dant. Barbara Sheldon Southfield, MI, Assoc., for Plain- &Miller Morris, Cox, tiff. BRIEF: G. Gus ON Giarmarco, MI, Troy, Ap- Hodgman & Goldman, L. Barbara H. Sheldon pellant. Southfield, MI, Assoc., Appel- Miller & lee. MARTIN, KEITH,

Before: ROGERS, Judges. Circuit KEITH, J., of the opinion delivered J., court, MARTIN, joined. in which 175-76), ROGERS, delivered a J. (pp. dissenting opinion. separate

OPINION

KEITH, Judge. Circuit appeals Officer David Defendant denying his mo- court’s order the district summary judgment qual- based on titled to qualified immunity tion for and conse- immunity. quently For the reasons set forth summary ified denied his motion for below, judgment judgment. follow, AFFIRM the we For the reasons that we district court. find the district court was correct decision; its Officer Miller was not entitled and, therefore, qualify immunity he was I. BACKGROUND summary not entitled to judgment. A. Procedural This lawsuit arises out of the arrest of B. Factual (“Solomon”). Plaintiff Francine Solomon Saturday, On March arrested, After she was Solomon filed a took her six children and several of their complaint against the Auburn Hills Police friends to see a at movie the Star Theatre (“AHPD”) Department and Officer David (“Theatre”) Crossing Great Lakes (“Officer Miller”) alleging Miller violations Hills, Michigan. Auburn chil- Because the § 42of U.S.C. as well as law state ranged in age eighteen, dren from three to battery gross claims for assault and and planned accompany youn- Solomon to negligence. Solomon then filed a motion ger children to a G-rated movie and Solo- to amend her complaint, and both defen- eighteen-year-old mon’s girl- son and his summary dants judgment argu- moved for friend planned accompany to the older alia, ing, inter that Officer Miller was children to an R-rated movie. Solomon qualified immunity. entitled to explained this to the ticket seller when she May grant-

On the district court purchased the tickets for the two movies. ed the AHPD’s motion summary judg- attempted When her adult son to enter the ment because alleged Solomon had not R-rated movie theater with the other chil- dren, policy, procedure, that a or custom of the the usher informed him that City of Auburn Hills was the cause of the children would not be allowed into the alleged Moreover, deprivation. parent. the dis- theater without a Solomon then trict court ruled Solomon should be approached explained the usher and allowed to amend her complaint clarify to she was the mother of several of the chil- suing that she was Officer Miller dren and that permission had to inbe capacity. movie, individual The district court de- the R-rated but she would be summary nied Officer Miller’s watching motion youn- G-rated movie with her judgment finding after ger he was not children. The usher referred Solomon entitled to as to the to customer relations. Fourth jury Amendment claims because a explained then her situation to question existed as to whether his conduct manager, the Theatre responded who objectively

was reasonable under the cir- policy required Theatre a parent guard- or cumstances. The district court also left ian to accompany minor children into an standing the state claims Officer R-rated movie. Solomon left customer re- battery Miller for assault and gross and lations and younger walked with her chil- negligence. dren toward the movie showing theater timely Officer Miller appeal filed an with G-rated movie. Before she reached the entrance, this court as to the im- issue of theater employ- another Theatre munity. opinion today Our addresses ee informed Solomon' that the older chil- whether the district court it erred when dren could not see the R-rated movie with- determined that Officer Miller was not en- out her accompanying though them. Even Raskin, young walking toward Officer want to take her did not movie, her, went an R-rated up grabbed to see Miller came behind her children movie theater as instruct- the R-rated arm, attempted leg sweep and her. Sol- management. by Theatre ed fall; but did not when she tripped omon balance, arms regained her she folded her R-rated was seated After Solomon In response across her chest. to Officer theater, security guards the Theatre movie action, “Why yelled, that she Miller’s informed Solomon entered and pur- she had not you anything.” to leave because I did not do doing this[?] had movie. particular tickets for that chased point, grabbed At this to leave because she Solomon refused grabbed arm Raskin left and Officer manager’s instructions. following the up arm. The officers threw Solomon right thereafter, Shortly AHPD officers against a wall and knocked her face into were between Raskin —both of whom attempt not display case. Solomon did and at least five-feet- pounds 230 and 250 pull away gave from them and the Officers The officers eight-inches tall1 —arrived. Raskin no directives to Solomon. Officer theater, sitting found Solomon entered right then handcuffed Solomon’s arm be- children, in- young three with her pushed up hind her back. Officer Miller in- to leave. Solomon structed Solomon body officers that she had with his entire police against formed the Solomon explain to purchased attempted tickets and arm weight, shoving against her back situation, but the officers insisted leg and his in between hers. Solomon was refused, After Officer she leave. Solomon the wall and could not pinned against under arrest Miller told her she was move; right already her arm was hand- trespassing. grabbed Officer Miller for straight along left arm was cuffed and her Solomon, leave, and her arm to make her uttering any instruction side. Without in front pushing against her foot the seat Solomon, forcibly Miller bent to her, away from the officer. Offi- backed her left arm her and “hear[d] behind then informed her that she was cer Miller and her left arm popping [went] sound assaulting police offi- under arrest for limp.” (Deposition J.A. at 148 of Officer point, At that Raskin asked cer.2 Miller). police officers speak to with Solomon lobby agreed. Solo- subsequently in the and Solomon was taken to Pon- followed mon’s children and their friends Osteopathic Hospital, tiac where she out of the R-rated movie theater. fracture of diagnosed with a comminuted elbow; bruis- her left she also had several hallway, entered the When Solomon being thrown the wall. es from girlfriend, handed her toddler to her son’s hospitalized days for six Solomon was explained to her children that and Solomon fracture and un- surgical treatment of the talk the officers. In going she was with at a later date. operation a second derwent motioned for Sol- lobby, Officer Raskin physical extensive him. She also underwent omon to walk toward As Solomon why she was 2. Solomon asked Officer Miller deposition, Officer Miller testified 1. In his officer, assaulting and and being that he was between five-feet-ten-inches arrested for weighed be- five-feet-eleven-inches tall replied had kicked an officer. J.A. he that she pounds. at 128. In tween 230 and 235 J.A. kicking either offi- at 77-78. Solomon denies complaint, that she was Solomon stated cer. weighed tall and 120 five-feet-five-inches pounds. J.A. at 6. 172 complica- and endures continual

therapy S.Ct. 150 L.Ed.2d 272 (2001). First, a tions. court must consider facts, whether the viewed in most light charged with was later resist- plaintiff, to the offi- favorable “show the arrest, officer, police assault on a ing cer’s conduct violated a constitutional bargain, trespass. part plea As Solo- right.” Id. at If S.Ct. 2151. pleaded guilty to and at- trespass mon yes, the court answer is must then decide resisting arrest. tempted right “whether clearly estab- relevant, Id. “The in- dispositive lished.” II. DISCUSSION quiry determining right whether a is A. Standard of Review clearly established is whether it would be clear to a reasonable con- officer that his summary judg While a denial of duct was unlawful in the situation he usually interlocutory considered an ment Id. at confronted.” appealable, and not when the denial order because the is not moving party us, occurs In the case before the district court qualified immunity, may we entitled re the correct denying reached decision in Coy, Phelps view decision. summary judgment, but its Cir.2002). All F.3d are rationale intertwined the standard de- light to the viewed most favorable termining qualified immunity and the stan- plaintiff questions and the granting summary judgment. dard for relevant “strictly legal.” “As a purely Id. at 299. court completely The district failed to eval- determination, court’s legal the district de prong uate the second test. Saucier subject nial of to de concluding Instead of whether or not Offi- Cohen, novo review.” Thomas v. cer acted objectively un- reasonable (6th Cir.2002). 563, 568 the extent circumstances, “[T]o der the the district court that there disagreement about the facts merely jury found that a question on exists ... we must in comes, review the evidence the however, This issue. as no ], light Plaintiff[ most favorable to the tak As surprise. recognized by concurring the ing Champi Saucier, all inferences in [her] favor.” Justices in two-part test Inc., Nashville, on v. Outlook large potential “holds to confuse.” Sauci- (6th Cir.2004). 893, er, (Gins- 900 210, at 533 U.S. 121 S.Ct. 2151 Stevens, JJ.,

burg, Breyer, concurring). Analysis B. we Because are to review district novo, court’s de decision the district court’s qualified im Through the use of require confusion standard does not munity, the law offi “government shields Set forth proper reversal. below is the performing discretionary cials functions analysis determining qualified whether ... liability long civil as as damages immunity should in summary judg- result their actions could have been reasonably case, ment for a defendant —in this Officer thought consistent rights with the are Miller. alleged to have violated.” Anderson v. 638, 635, Creighton, 483 107 U.S. S.Ct. Right 1. Violation of Constitutional 3034, (1987). 97 L.Ed.2d 523 United Supreme States Court has constructed a As in instructed the Court Saucier, two-part test to an offi determine whether this court must “concentrate at qualified cer-defendant granted should be on the outset definition of the constitu Katz, immunity. whether, See right Saucier v. 533 U.S. tional and [then] determine

173 and, fact, following Offi- flight risk viola- a constitutional alleged, on the ” Miller, Then, Saucier, Raskin’s order. Officer cer 533 U.S. found.... could be . tion Raskin, into shoved her Here, along with Officer 207, 121 S.Ct. 2151. at though Even Ras- display a case. claim that Officer forth a brought right arm handcuffed kin had Solomon’s her, arrested when he force used excessive actively was not though and even of her rise to a violation thereby giving arrest, resisting pushed Officer Miller unreason- protection constitutional body, weight against Solomon’s entire Amend- the Fourth under able seizures leg hand into her back and his shoving his per- recognized This court has ment. grabbed then legs. to be free from “right son’s constitutional arm and twisted it behind her Solomon’s during force arrest....” excessive that he fractured it with such force 405, Bauman, Appx. 72 Fed. Minchella v. circumstances places. Under the several 21957034, Aug.13, at *3 Cir. 2003 WL to the light most favorable “[t]aken 2003) Connor, 490 v. U.S. (citing Graham injury,” 533 party asserting 1865, 393-94, L.Ed.2d 104 109 S.Ct. Miller’s at U.S. (1989)); Phelps, 286 F.3d see also have violat- overly aggressive actions could allegations that when (indicating right to Fourth Amendment ed Solomon’s course of “during force occur during an from excessive force be free ... person, parties’ the arrest of free arrest. by the governed rights and liabilities stan- Amendment’s reasonableness Fourth Right 2. Constitutional dard”). includes a claim based This also Clearly Established handcuffing. force used on excessive Southfield, 995 F.2d 1331 City v. Walton of a potential violation Once (6th Cir.1993); Kiefer, Burchett v. see also right has been es plaintiffs constitutional (6th Cir.2002) (recogniz- F.3d tablished, decide whether we next ‘excessively to be free from ing “right In so decid clearly established. right clearly estab- handcuffing’ is a forceful it be ask “whether would ing, we must immunity pur- right lished officer that his con to a reasonable clear Saluga, 2002 WL poses”); Turek in the situation con unlawful duct was 2002) 31119691, Sept.24, *2 at Cir. (quoting F.3d at 299 Phelps, fronted.” 1342). Walton, 2151) 995 F.2d at (citing Saucier, at 121 S.Ct. 533 U.S. omitted).

(internal ‘rea quotations “[T]he right has force After the constitutional in an excessive inquiry sonableness’ defined, wheth inquire question we still must the objective been one: case is ‘objective right to be free of Solomon’s the officers’ actions er violation whether Solo the facts and light force could be found. of ly from excessive reasonable’ them, confronting without out of the movie theater mon walked circumstances moti underlying intent or by the officers. to their hallway regard as instructed the Graham, at Miller at 490 U.S. hallway, vation.” Once added).3 Discerning by (emphasis ground onto the S.Ct. 1865 tempted to knock her a careful balanc- “requires was not a reasonableness legs though even kicking clearly indicates brief, at law argued that lant's Br. 18. The 3. In his the suffered a rela- deter- it is true Plaintiff "[w]hile the officer's intent is irrelevant fracture, tively evidence this severe there is no actions. mining reasonableness of his the Appel- by injury was intended the officer.” ... individual’s Fourth ing against of the Amend- by Solomon Officer Miller un- lawful. against countervailing interests’ the ment at

governmental interests stake.” Id. at First, being Solomon was arrested for (citations 396, 109 S.Ct. 1865 and internal Therefore, trespassing. reasonable- “[t]he omitted). quotations must We remember ness of the Officer[’s] actions must be the consider reasonableness the offi- weighed against backdrop.” this Id. The id., scene, cer at and keep the mind that crime issue here was a minor offense split-second officers must often make judg- certainly and not a severe crime that justify would the by ments because are involved in “cir- amount of force used Officer Miller. tense, uncertain, cumstances that are and rapidly id. at evolving,” 109 S.Ct. Moreover, posed Solomon no immediate 1865. “It is sometimes difficult for an safety threat to the of the officers or oth- officer to legal determine how the relevant children, ers. by She was surrounded doctrine, force, here apply excessive will to including toddlers. Solomon bore no the factual situation the officer weapon, confronts.” and she made no threats verbal 533 U.S. at officers. We must also consid- officer, therefore, er the If an size and stature of parties makes mistake as in- Here, volved. each of the to how much officers stood at required, force he will still least five-feet-eight-inches tall be long entitled to so as weighed between 230 and 250 pounds. By Thus, that mistake was reasonable. Id. contrast, stark Solomon stood five-feet- find Officer Miller shielded from his ac- tall weighed five-inches approximately tions and therefore entitled to pounds. facts, Under these immunity, we must find that Officer Mil- posed no immediate threat to the officers’ ler’s use of force under circumstances safety. objectively reasonable. Finally, it is undisputed that Solomon attempt did not objective In to flee. determining cooper- rea ated with by the officers leaving the sonableness of an officer accused of movie using theater and force, accompanying them out into we will consider several lobby. complied She also with the pay particular factors. We “should atten request of Officer Raskin who motioned severity issue, tion to ‘the of the crime at for her to walk toward In taking him. suspect poses whether the an immediate facts as alleges, she did not resist safety threat to the officers or oth arrest. After she exited the movie the- ers, actively and whether he is resisting ater, she was never told that she was attempting arrest or to evade arrest under arrest. The mere fact that she Burchett, (cita flight.’” 310 F.3d at 944 crossed her arms after Officer Miller tried omitted). tions quotations and internal In to leg sweep her pre- does not create a addition, we have also found that “the defi sumption actively of resisting arrest that nition of partially reasonable force is de justify would Officer Miller’s actions. pendent on suspect.” the demeanor of the Minchella, (offi 21957034, 2003 WL at *3 Qualified immunity will often cers asserting large plaintiff who re operate protect “to officers from the some force). fused required to be arrested more ‘hazy times border between excessive and ” In applying these considerations to the acceptable force.’ 533 U.S. at hand, facts at it would 206, be clear to a reason 121 S.Ct. 2151 (citing Priester v. Rivi able Beach, officer that the amount of force used era 208 F.3d 926-27 Cir. ROGERS, Judge, 2000)). dissenting. be entitled to Circuit An officer should objective immunity if made he qualified worst, objec- Miller At made an Officer the amount of mistake as to reasonable ly tively mistake as the amount reasonable to under the circum necessary was force that necessary force to handcuff Ms. Solo- of faced. Greene with which he was stances mon. Miller is therefore Because Officer (6th Cir.2002). Barber, immunity, respectful- entitled to I 310 F.3d v. ly dissent. here, however, present not do The hazy ig The dissent those cases.

one of § claim crux of Ms. Solomon’s 1983 were not faced that the officers here nores handcuffing in her is resulted situation a tense uncertain where with arm. It well that the broken established safety safety and the suspect feared their a incident to a law- handcuffing of fact, ful arrest constitutional. held ex- cooperat In We bystanders. of in plicitly Neague Cynkar, v. by leaving the movie with officers ed (6th Cir.2001) that “when there is no point It was at that Officer theater. injury, allegation the handcuff- physical of unnecessary, un began to act with Miller ing of an incident to a lawful individual force. He justifiable, unreasonable arrest is as a of law to insufficient matter attempted sweep to her when she leg first under the state claim of excessive force instructed, toward walking, as was Palshook Fourth Amendment.” See also her Officer Miller then shoved Raskin. Jarrett, F.Supp.2d case, display putting entire (N.D.Ohio 2000) (“Insofar [plaintiffs] as amount of her weight nearly twice the — entirely claim on the fact that he was rests Finally, her. without weight against own — in holding a bench cell] handcuffed [to act, yanked directing to he ... there cause of action for exces- is no force that it arm behind with such it may sive It true that was [be] force. actions, total, in Officer Miller’s fractured. all, [plaintiff] ... to cuff unnecessary in Solomon were excessive and resulted placing an individual but context and a suffering bruising fractured arrest, under use of handcuffs alone cannot viewing In the facts favor of arm. force”). Here, Ms. amount to excessive Solomon, no we conclude that reasonable guilty one count pleaded find the circumstances officer would count of trespassing misdemeanor and one surrounding the arrest of Solomon re and ob- attempted resisting misdemeanor force the extreme use of that was quired officer; was structing her arrest police is no exception. here. Officer Miller used provision of the lawful no and violated conduct un Because Officer Miller’s The decision to handcuff Constitution. circumstances, he under the is not lawful Solomon, most perhaps not the Ms. while through qualified escape liability able circumstances, advisable under course immunity. not, and did certainly constitutional more, to excessive force.

without amount Therefore, a claim of if Ms. Solomon has III. CONCLUSION force, must be it found amount of used force reasons, foregoing For the her. to handcuff attempting by quali- his actions is not shielded from immunity states, and the district court’s deni- im- fied majority “[qualified As the summary judgment motion is offi- munity operate protect al of his will often ‘to hazy border be- cers the sometimes AFFIRMED. ” acceptable tween excessive and force.’ situation the officer confronts. An offi- Katz, Op. (quoting at 174 Saucier cer might correctly perceive all of the U.S. 150 L.Ed.2d relevant facts but have a mistaken un- (2001)). Here, Officer Miller had the derstanding particular as to whether a right to handcuff Ms. Solomon incident to amount legal of force is in those circum- a lawful arrest and was entitled to use a If stances. the officer’s mistake as to reasonable amount of force to do so. This what requires reasonable, the law is case is indeed one of those that fall in the however, the officer is entitled to the hazy border between excessive and accept- immunity defense. able force. It is uncontested Saucier, 533 U.S. at 121 S.Ct. 2151 Miller was faced with Ms. Solomon’s un- (citations omitted).

willingness to submit to his constitutional decision to handcuff her. Ms. Solomon In the objective instant case the pulled togeth- admitted her arms are that an heavy officer with a build was er as the officers seized her to avoid the legally trying to person handcuff a attempt officers’ to handcuff her. There is slighter physically build who was trying no evidence that Officer Miller was at- not to be handcuffed. precise The amount tempting by to subdue Ms. Solomon break- of force accomplish needed to this without ing her arm. surprised injury the circumstances of this case is injury immediately Ms. Solomon’s so obviously a difficult determination that summoned medical attention. fact injury mere occurred does not amount to evidence of unreasonable force. Supreme The prescribed Court At worst it was a reasonable mistake for proper analysis in force/qualified excessive which immunity is appropriate. immunity cases as follows: Supreme As the repeated Court in Sauci- “police Because officers are often forced er, every push shove, “not or if may even it split-second to make judgments cir-—in later unnecessary seem peace of a tense, uncertain, cumstances that are chambers, judge’s violates the Fourth rapidly evolving' the amount —about Amendment.” 533 U.S. at 121 S.Ct. necessary force that is in a particular situation,” the reasonableness of the offi- cer’s appropriate belief as to the level of qualified immunity Because required judged force should be from that on- in this case under I respectfully perspective. scene We set out a test dissent. cautioned vision “20/20 of hindsight” in favor of deference to the

judgment of reasonable officers on the

scene.... inquiry, on the hand,

other has a further dimension. The concern immunity inquiry to acknowledge that reasonable mistakes

can be made legal as to the constraints particular

on police conduct. It is some- times difficult for an officer to determine doctrine,

how the legal relevant here force, apply will to the factual

Case Details

Case Name: Francine Solomon v. Auburn Hills Police Department, a Municipal Corporation, Officer David Miller

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 10, 2004

Citation: 389 F.3d 167

Docket Number: 03-1707

Court Abbreviation: 6th Cir.