*1 MARVIN, Plaintiff-Appellee, Frank L. TAYLOR, Helvey, Don Matt
CITY OF Jeffrey Shewchuk,
Minard, and
Defendants-Appellants.
No. 06-2008. Appeals, Court of
United States
Sixth Circuit. July 2007.
Submitted:
Decided and Filed: Dec.
OPINION ACKERMAN, A. HAROLD District Judge. Frank alleges
Plaintiff L. Marvin *3 City Taylor, three officers of the of Michigan' Helvey, Don Offi- —Commander Minard, Jeffrey cer Matthew and Officer Shewchuk—used excessive force when ar- 11, resting July him on 2004. The District summary Court denied the Defendants’ motion, judgment qualified which asserted § immunity to Marvin’s 42 1983 U.S.C. governmental immunity claim and to Mar- pendent battery vin’s state law assault and following claims. For the reasons we RE- the District VERSE Court’s denial of qualified immunity governmental and im- munity grounds on the the Defen- dants’ actions were reasonable and therefore did not violate Marvin’s Fourth Amendment free from be unreasonable seizures.
I. JURISDICTION appeal This from the arises District 26, 2006, Opinion Court’s June and Order granting part denying part De summary judgment. fendants’ motion for The District Court’s Order dismissed Dise, Jr., BRIEF: ON John H. Gina U. Count of Complaint, which claimed Puzzuoli, Associates, Southfield, Dise & liability on part City Taylor of the of Michigan, Appellants. Evelyn for But- G. for discipline failure to train and its offi ler, Plymouth, Michigan, Appellee. for dismissed, cers. The Order further Plaintiff,
stipulation Counts and 4 Before: BATCHELDER and regarding denial of access to reasonable DAUGHTREY, Judges; Circuit medical care process. and denial of due ACKERMAN, Judge.* District result, City Taylor As a was dis party.
missed from the case as a
The
ACKERMAN, D.J.,
summary
delivered the
Order
judgment
denied
court,
opinion
remaining
in which
Defendants on their defense of
BATCHELDER, J., joined.
qualified immunity. Accordingly, the Dis
DAUGHTREY,
253),
(p.
1,
trict
claiming
J.
delivered
Court declared that Count
separate dissenting opinion.
a violation of Plaintiffs Fourth Amend-
*
Ackerman,
Jersey, sitting by designation.
The Honorable Harold A.
Senior
New
Judge
United States District
for
District
Jones,
304,
v.
U.S.
see also Johnson
free from unreasonable
right to be
ment
319-20,
2151,
132 L.Ed.2d
115 S.Ct.
state law
seizure,
pendent
and Count
(1995). Particularly
regard
with
battery, were
claim for assault
Defendants,
immunity, the Sixth Circuit has
qualified
remaining.
only Counts
a denial of sum-
Minard,
Jeffrey
explained
“[w]hile
Helvey, Matthew
Don
usually
mary judgment
considered
de-
Shewchuk,
the District Court’s
appeal
appealable,
and not
interlocutory order
immunity. Plaintiff has
qualified
nial of
moving
because the
summary when the denial occurs
grant
cross-appealed
immunity,
party is not entitled
City.
as to the
judgment
that decision.” Solomon
may
we
review
with this
Frank Marvin filed
Plaintiff
Dep’t,
Police
389 F.3d
Auburn Hills
appeal
to dismiss
a motion
*4
Cir.2004)
(6th
(citing Phelps,
F.3d
jurisdiction. Mar-
subject matter
lack of
298). Thus,
implicit
Marvin’s
ar-
while
lacks
Appeals
of
that the Court
argues
vin
that this Court cannot
gument is correct
interlocutory ap-
to hear this
jurisdiction
interlocutory appeal
solely
based
review an
the facts
“argue
Defendants
because
peal
the record demonstrates
upon whether
of
they give rise to a defense
whether
fact, he nevertheless mis-
genuine issues of
arguing
immunity” instead of
qualified
jurisdictional ques-
interprets the correct
(PL’s
1.)
In
Br.
“strictly legal issues.”
tion.
of
such,
ignores
part
arguing
legal
...
issues are discrete
“Where
offi-
stating that “[t]hese
brief
Defendants’
may
we
exercise
disputes,
from the factual
view of
the most favorable
cers concede
legal issues
jurisdiction to resolve the
our
for
Plaintiff in the record
facts for
Indeed,
only.”
accident, family having just returned from church. 1. Scene of the arrest Helvey Commander and Marvin exited After Officer Minard informed Marvin respective their vehicles and Commander arrest, that he was under Officer Minard Helvey immediately observed that Marvin told place Marvin to his arms behind his was intoxicated. Marvin admitted as back placed so handcuffs could be scene, only much at the to learn weeks Marvin, years his wrists. who was 78 old Helvey later that was a commander with time, at the asserts that he told Officer department. Commander Hel- physically Minard that he was unable to *5 vey police, then called the and the two men place his arms behind his back because it officer, until waited on the street the first Therefore, painful was to do so. instead of Minard, Matthew Defendant Officer ar- command, obeying the officer’s Marvin at rived the scene. Officer Minard asked placed his hands out in front and told if drinking Marvin he had been and he Officer Minard to cuff him in Alleg- front. answered the affirmative. Officer Mi- edly, Officer Minard then told Marvin: they nard told Marvin that were going to your “Put you put behind or we’ll arm[s] roadway move the off cars into a near- (J.A. you 288, them behind you.” for at by gas Helvey station. Commander then 122:2-3.) Marvin Dep. repeated Marvin drove Marvin’s car because Marvin was the officer that put he could not his arms intoxicated, Helvey’s too while Commander him, behind at which point Officer Minard Helvey family’s wife drove the car. Offi- arm, “grabbed my my kicked leg, knocked deposition cer Minard stated at his that car, me down in police the back of the patrol Marvin rode Officer Minard’s car off, hat, my glasses my knocked snapped gas apparently station. Marvin will- my back, arm my behind and slapped the ingly got into the car without inci- (Id., cuffs on me. Then I was mad.” being dent and without handcuffed. 122:4-8.) Dep. Marvin thereafter, repeatedly Marvin Shortly Defendant Officer Jef- asserts that this conduct frey resulted a bro- Shewchuk also arrived at the scene. ken or fractured arm. A perform Officer Minard asked Marvin to review of the tests, report from sobriety emergen- three field each of Marvin’s visit to the which cy days Marvin failed. room several One of the tests was a later reveals that he preliminary (“PBT”), actually diagnosed breath test which was with a “proximal yielded 1.72, reading a number above humerous avulsion of head of bicep [sic] (J.A. legal Thereafter, 339, limit. Officer Minard tendon.”1 Emergency at Room long joint. "The humerus is the bone in the arm shoulder The third scenario is what joint typically attaches to the shoulder at one end is referred to as a fracture of the proximal and the elbow at the other. It can be httpj/www. frac- humerus." See portion, portion dynomed.comlencyclopedia/encyclopedia/ tured in the lower the mid portion, upper and the where connects to shoulder/Fracture-ofJheProximalJrlumerus. by the video itself. “When contradicted family his doctor went to Marvin Report.) stories, parties visit tell two different emergency opposing room days after his eleven blatantly that “Marvin’s is contradicted confirmed one of which his doctor acutely ruptured.” record, jury reasonable tendon was so that no right biceps (Marvin emergency room it, adopt Br. at a court should not could believe Lortab, and there purposes Vicodin for prescribed that version of the facts required sur- that Marvin suggestion is no summary judg- ruling on a motion a cast. gery or where Accordingly, Id. at 1776. ment.” of the facts cannot be Marvin’s version deposition his testified at Marvin upon what the video countenanced based touched only physically officer who shows, video adopt will as this Court Minard. was Officer during the arrest him rather than Marvin’s version. More 123:2-24.) fact (Id. 288, Dep. Com- Marvin the events specifically, this Court will view however, admitted, that he Helvey mander light in the most favor- they unfolded handcuffing Marvin assisted the (J.A. Marvin, in such a man- but never wrists. able one of Marvin’s by grabbing wholly Facts unsupportable of Material ner that Defs.’ Statement —in ¶ 9.) (“SMF”) jury by undisputed any It is Com- reasonable view of — other contact with Helvey had no recording. mander left the scene with and that he (J.A. arrest. shortly after Marvin’s
family 2. Videos ¶ 11; PL’s J.A. Defs.’ SMF ¶ 11.) matter, SMF an initial the District Court’s As appeal Opinion suggests that the record took jail, at the the officers Upon arrival as that before the District is not the same room. There is into the *6 summary judgment, at the time of Court documenting most of Mar- video extensive the videos. The respect with at least jail, parties at the but the experience vin’s compact that disc noted the District Court actually de- what the video dispute still (“CD”) twelve video it received contained immunity Ordinarily, in a picts. that the CD it suggested It then clips. this, simply the Court would case such as the one coun- might had not be same of the facts. adopt plaintiffs version plaintiffs supplemen- “[i]n sel had because However, Scott, 127 S.Ct. at See motion, plain- to defendants’ response tal videotape cap- a in the record of existence clips entitled refers to a[sic] tiffs counsel question provides turing the events 2’ ‘walking to cell cell 1’ and ‘walking out of ordinary to the situation. “added wrinkle” ” (J.A. at 36 n. ‘booking rooml.’ and greater explained As will be See id. 7.) Court at 12 n. The District below, Op. facts Dist. Ct. version of the detail to the paid “it close attention blatantly noted that sometimes captured on video is typically includes ic- fracture biceps small avulsion "Ruptures are classified html. (far) (close) types. proximal and distal A small avul- ing into the affected area and rest. prox- ruptures extremely rare. The are Distal any problems after rarely causes sion fracture bi- rupture at attachment of the imal is may although still be visi- injury it heals— http: top your See ceps at the shoulder.” may larger X-ray. A avulsion fracture ble on l/www.webmd.com/a-to-z-guides/ruptured- and is surgery reattach the bone require a occurs when tendon. “An avulsion fracture significant usually with tendon or associated pulls to a bone ligament or tendon attached http://www. damage.” ligament See (fragment) It can away piece of the bone. mayoclinic.com/health/avulsion-fracture/ injury with be associated serious also AN00200. Treatment for ligament or tendon involved. ” (J.A. clip ‘bkgbench ... entitled 1.’ Given that this case comes to us 12.) appeal on a Op. Opinion, summary judgment, Dist. Ct. its motion for exercise de novo review, over which we District assumed that “bkgbenchl” Court considering and that all parties appear to “walking out of cell 1” were identical agree the video files before this Court clips, though even the court did not should have been before the District see the clip apparently latter because it Court, this Court will assess the officers’ was not provided contained the CD qualified immunity entitlement based the District Court. This does have upon presented the videos to this Court they indisputably both files and are not the rather than what might only have been “bkgbenchl” place same. The file takes submitted to the District Court. July 11 spans approxi- 21:20:43 on mately clip 8 minutes. The video “walking a) Sally port out of cell 1” occurs more than an hour sequential The first video shows Officer later, 22:33:33, at a different location in police Minard’s car driving jail’s into the jail, and spans about 20 minutes. sally port. alleges that the video discrepancy Another between the record “clearly shows that Minard reached into below and the one before this Court is car, pulled back Marvin out and “booking video file room 1” that was (Marvin pushed him down on the floor.” missing from the District Court’s CD is Br. at The video does not show this ostensibly the same as the video file sub- clearly as Marvin characterizes it. On mitted to this “bookingl.” Court entitled contrary, the video is from an offside important This is “bkgbenchl,” because angle of Officer Minard’s car such which “paid the District Court close atten- that the video does not support Marvin’s to,” tion footage is recorded from what is assertion, it although blatantly does not Indeed, labeled camera 1. pro- camera 1 contradict either. The video does show vides a view of the same events that oc- door, Officer Minard opening the back booking room, curred but from a reaching into where Marvin sitting, greater away distance and a somewhat standing back up looking at the door contrast, obscured perspective. By “book- opening, closing and then the door. After ingl” is from camera 3 booking that, inside the Officers Minard and Shewchuk can *7 room and at a much vantage point closer lifting be seen Marvin to his feet from the to one of the events giving ground by rise to Marvin’s him holding under his arms. claim of excessive force. files cover Both b) Booking room approximately the same time and the same involving Marvin, events viewing video, 1,” The critical “booking begins at “bkgbenchl” arguably ques- raises more 21:22:57 and being shows Marvin escorted However, tions than it answers. the view into the room from the car from “bookingl” clearly camera 3 in by Shewchuk, de- Officers Minard and each of picts in a the events manner that is direct- whom had a hand on Marvin’s arms.2 The ly contrary to the District Court’s and officers walked to a Marvin bench and Thus, Marvin’s characterization. it seems removed his handcuffs. Marvin asserts that this Court has more videos and cam- that the video shows the “pushing angles era available to it than that way which Marvin’s arms all up the into the was available to the District Court. small of his back to remove the cuffs.” Again, particular apparently was not available to the District Court. during broken 11.) right allegedly arm same appear it does (Marvin Br. at While down at quickly struck the the arrest —and raised into hands are that Marvin’s already that was Minard’s hand back, unlocking the officer Officer his small released Mar- moving away having after clearly be seen can also handcuffs (J.A. G, clip Ex. key to left wrist. Video vin’s attempt to insert in an crouch 21:26:25.) words, The officers “bookingl” other the handcuffs. unlock aggressive reasonably responded be con- Marvin’s quickly conduct cannot officers’ subdued Marvin claims. Officer Shewchuk Marvin move. gratuitous, as as strued wrist, pulling grabbing Marvin’s by that Minard “[w]hen asserts Marvin back, extending and his his arm behind belt, at- Marvin’s to remove went A third and over his head. up that arm him- could do it him if he to ask tempted cadet, officer, apparently unidentified very tight in the the belt was because self Marvin’s left behind held Marvin’s wrist turn, Shew- tried to loops. When Minard continued while Officer back right arm his broken grabbed chuk (Id. at pockets. Marvin’s back search Marvin’s head.” and over up it twisted 21:26:29-44.) twenty than sec- After less 11-12.) Indeed, (Marvin the Dis- Br. at officers released position, in this onds asser- Marvin’s countenanced trict Court them back on placed arms and Marvin’s and the did not resist “plaintiff that tion down, with Officer Shew- palms the bench lift his he was to only movement made holding one of the cadet chuk and each slight rotation the counter and off head again began wrists. Marvin Marvin’s “in- that Marvin’s finding his torso” at- Minard struggle Officer somewhat not unreason- of the events is terpretation (Id. at shoes. tempted to remove Marvin’s 13.) (J.A. Op. at Ct. Dist. able.” 21:27:01-32.) strongly suggests finding This blatantly the video enti- did not This video contradicts see District i.e., showing the asserts the video of events. Marvin “bookingl,” version tled booking room. turn to remove simply he tried to from closer inside action when belt, “grabbed Officer Shewchuk own Indeed, Marvin’s characterization it right arm and twisted broken [Marvin’s] actual clearly refuted events (Marvin Br. head.” up and over Marvin’s 21:25:46, Mi- At Officer “bookingl” video. that Mar- clearly shows The video out of Marvin’s began taking items nard already removed had been belt vin’s the bench. placing on pocket and them left in direct was the officers’ conduct items 21:25:57, took Officer At Shewchuk swing aggressive response to Marvin’s 21:26:19, At right pocket. of Marvin’s out right arm” at Officer his “broken with off Marvin’s belt took Officer Shewchuk at the scene of While events Minard. very next placed bench. light most arrest must be taken *8 21:26:20, torso second, Marvin raised his at Marvin, the existence of favorable the left and turning to off the bench up Marvin’s clearly refutes in the record video In the bench. his left hand from removed in the occurred of the events that account took hold of Mar- response, Officer Minard booking room. placed hand and one left wrist with vin’s and held it bench hand flat on the c) cell Outside As soon for about five seconds. there room Upon conclusion Marvin’s left go let Minard Officer Marvin, events, escorted the three officers his closed wrist, raised quickly Marvin handcuffs, stopped a hall and down using the without fist level with his right head — cell, Standing thereby causing pain injured outside a cell. outside the right to his event, any shoulder. explains Officer Minard read Marvin Marvin his “chemical point, pain “[a]t intense rights” and asked Marvin to take “the irate with the treatment on the street and (Marvin 12.) breathalyzer.” Br. at Mar- jail, at Marvin at struck Minard.” admits, that, vin and the video confirms at (Pl.’s Br. at Defendants elaborate point, “shoeless Marvin kicks out at that as soon as Officer Shewchuk uncuffed (Id. 13; G, Minard.”3 at J.A. at Ex. Video wrist, Marvin’s left swung Marvin at Offi- 21:29:32.) clip “walked to celll” at The right cer Shewchuk with his fist—hand- shows Officer Minard moved cuffs still attached right to his wrist— backward to avoid Marvin’s kick and then striking the officer in the chin. Marvin Marvin, Officer Minard moved toward who asserts that he cannot remember whether being pulled was backwards Officer contact, he made but nevertheless admits apparent attempt Shewchuk to re- taking swing. At some point there- strain him assaulting from Officer Minard. after, personnel the medical were able to scuffle, In the Marvin ground fell to the draw blood from Marvin. The results of and Officers Minard and Shewchuk re- the blood draw showed that Marvin’s blood strained him on the ground approxi- 0.18, alcohol approximately level was 225% (J.A. mately thirty G, seconds. at Ex. legal above the limit.4 clip Video “walked to celll” at 21:29:35 to draw, After the blood the officers trans- 21:30:01.) kick, punch officers did not ported jail Marvin back to the where he or hit Marvin while he ground. was on the was booked and photographed. During The officers then dragged Marvin into his process booking, complained Marvin (Id. 21:30:24.) cell and closed door. pain result, his shoulder. aAs (“EMS”) emergency medical services were 3. Clinic draw blood summoned. Marvin asserts that he asked After officers obtained a search warrant Aleve,” for “Motrin or per- but EMS blood, to draw Marvin’s he was removed provided sonnel none. Defendants claim transported from his cell and to a clinic. that the personnel EMS told Marvin that clinic, personnel Once medical un- they drugs. did not have those Regard- successfully attempted to draw Marvin’s less, Marvin did person- inform the EMS blood while he was still handcuffed. Mar- nel that he would see a doctor after his vin that the again “pushed asserts jail. release from Marvin jail remained in injured up shoulder into the small of days' for two until his Tuesday, release on (PL’s his back remove the cuffs.” Br. at July 2004. added).) (emphasis There is no video of History B. Procedural clinic,
the events at the but it ap- would pear that Marvin means that 1, 2005, his hands February On filed back, pushed were into the small of his Complaint, pursuant § to 42 U.S.C. “ law, 3. initially According Michigan Officer Minard testified that 'operating test, then, agreed to take the chemical person while intoxicated' means ... [t]he has mind, apparently having changed sug- he grams an alcohol per content of 0.08 or more ass,” gested "you my to Officer Minard suck Comp. 100 milliliters of blood.” Mich. Laws (J.A. and then kicked out the officer. 257.625(l)(b). §Ann. 74:15-16.) Dep. Minard Marvin denies *9 any saying thing, such but ad- nevertheless (Marvin kicking tomits "at” the officer. Br. 13.)
243 Hel- III. DISCUSSION City Taylor, of Don that the alleging Minard, Jeffrey Shew- and vey, Matthew of Review A. Standard Fourth, Eighth, and chuk violated On Janu- rights. Amendment Fourteenth claim under 42 “To state a discovery, 19, 2006, close of at the ary 1983, plaintiff § must set forth U.S.C. summary judgment moved Defendants that, favorably, es when construed facts to dis- agreed all five Counts. (1) deprivation of a se tablish 4, 2 and under Counts miss his claims or laws of the cured the Constitution on the re- summary judgment contested (2) by a act person caused United States maining three Counts.5 v. Sigley the color of state law.” ing under argument held oral 527, The District Court F.3d 533 City Heights, Parma 437 of supplemental Cir.2006) Atkins, allowed subsequently (6th v. 487 (citing West municipal liability. the issue of briefing on 48, 2250, 40 42, 101 L.Ed.2d U.S. 108 S.Ct. 2006, 26, Court issued the District (1988)). On June Nevertheless, government offi (the “Opin- Memorandum and Order its discretionary functions performing cials ion”) to De- summary judgment granting liability through “quali are from shielded 3, which City Taylor of on Count fendant immunity” they if violate individu fied to train and City failed alleged that rights, but the violated al's constitutional The District Court its officers. discipline “clearly at the right was not established” summary judgment to the remain- denied Harlow time of the official’s actions. See Minard, Helvey, ing 800, 818, 102 S.Ct. 457 U.S. Fitzgerald, defendants — v. that there re- grounds Shewchuk—on (1982). 2727, L.Edüd 396 73 dispute of material “genuine mained a as force as well
fact” as to the excessive Supreme As the Court Counts, battery law assault and reiterated, the state “[quali recently United States qualified of thereby precluding grant suit immunity immunity is ‘an fied from (See 37-39, 45, Dist. Ct. immunity. J.A. liability; rather than a mere defense 13-15, Op. at immunity it is effec and like an absolute erroneously permit tively if a case is lost Minard, Helvey, and Shew- Defendants ” Scott, trial.’ 127 S.Ct. go ted to appeal and timely filed a notice of chuk 472 Forsyth, 2 v. (quoting 1774 n. Mitchell cross-appealed grant Marvin has not 2806, 511, 526, 86 L.Ed.2d 105 S.Ct. U.S. City Taylor. summary judgment for (1985)). Indeed, immunity “[qualified 411 result, 1 and 5 are at only Counts As she an officer from suit when shields Helvey, only they relate issue that, if constitution even makes a decision (hereinafter Minard, and Shewchuk deficient, reasonably misapprehends ally “Defendants”). be- previously, As noted circumstances she governing the the law interlocutory appeal stems from cause this Haugen, confronted.” Brosseau summary judgment, only a denial 160 L.Ed.2d 125 S.Ct. U.S. is whether before this Court issue (2004). has ex Supreme denied the Defen- properly District Court immunity operates qualified plained § immunity on the dants officers from the sometimes protect “to immunity on the governmental claim and aecept- excessive and hazy border between state law claim. process. due alleged to reason- denial of access 5. Count alleged a denial medical care. Count able *10 244 Katz, 194,
able force.” Saucier v.
533
inquiry mandatory,
U.S.
especially in cases
206,
2151,
(2001)
121 S.Ct.
245 1. of the Arrest 2637, 110 Scene 77 L.Ed.2d 703, 696, 103 S.Ct. (1983)). a built-in contains “This standard the scene of the ar Starting with officer’s on- to the deference
measure of rest, step is for the Court the first force the level of judgment about the-spot the Defendants’ “ac whether determine circumstances necessary light of the Id. objectively reasonable.” tions were Kiefer, case.” Burchett particular the inquiry, the Court Again, making Cir.2002) (6th 937, (citing F.3d 944 310 crime, severity of the look to the should 1865). Graham, 396, at 109 S.Ct. 490 U.S. posed by suspect, threat the whether the Fourth “proper application [of The arrest, actively resisting gen and he is objective reasonableness Amendment’s Graham, suspect. of the eral demeanor facts attention to the requires careful test] Solomon, 1865; 396, at 109 S.Ct. 490 U.S. case, particular each circumstances of and 389 F.3d 174. issue, severity the crime at including scene, an immediate suspect poses At the Defendants encoun- whether or oth- safety elderly of the officers man who had very threat to the tered a drunk actively resisting ers, he is into the back of a just and whether driven his vehicle by to evade arrest Drunk attempting containing or four small children. arrest car Graham, 109 than substantially 490 U.S. more serious flight.” driving is Burchett, 1865; F.3d at 944. the Sixth trespassing 310 the offense of S.Ct. Solomon, addition, Circuit, sufficiently has found that mi- the Sixth Circuit found par- force is objective of reasonable reason- weigh against “the definition nor to of the on the demeanor actions in that tially dependent of the officer’s ableness If, Solomon, Solomon, F.3d at F.3d at 174. “[I]t 389 389 suspect.” case. See if, allowing was intoxicated only indisputable the force used consider violates should to drive motor vehicles persons unreasonable address the second v. Local immunity policy.” Interstate Brands public (6th violated was F.2d whether No. question: Union Cir.1990). Mar- indisputable that clearly established. It is also Michigan law. See violated
vin’s actions §Ann. 257.625. Comp. Mich. Laws B. Excessive Force threat Marvin respect to the case, With there are five discrete In Marvin’s say it is difficult posed, at first blush his claim of exces- give rise to events (1) (2) posed man a substantial arrest; 78-year-old that a the scene sive force: (3) Notably, to the three Defendants. sally port; threat arrival at the station old, 270 (4) years cell; Minard “was room; and Officer outside the time 6 feet tall” at (5) pounds, over [and] clinic. The first draw the blood these contrast- Arguably, of the incident. are not documented and fifth events Mar- a scenario which ing suggest Mar- facts accept must and thus the Court little, any, if threat to Officer posed of vin purposes of the events for version vin’s alone, Defen- third, much less the three second, Minard summary judgment. Solomon, 389 F.3d collectively. See jail dants events occurred inside and fourth “immediate threat (finding no on video such well documented and are others” where above, safety of the officers or need that, the Court as discussed tall, a five-feet-five-inches suspect was where that accept Marvin’s version trespassed had 120-pound female who by the blatantly contradicted version is who against an officer Scott, not resisted arrest at 1776. 127 S.Ct. video. See weighed rough- was three inches taller and asserts that he told the officer that he was ly suspect). twice as much as the physically place unable to behind arms *12 his back because it painful was do to so. abstract, easy
In the say is to that After being again put instructed to his posed Marvin little threat to Officer Mi- him, arms behind Marvin again said he others, keep nard or but it is to important so, could not point do at which Officer heavy in mind that Marvin’s intoxication Minard exerted the force at created a volatile situation. issue here. As the video demonstrates, footage jail from alleged physical it took While Marvin’s disability Officers Minard and Shewchuk and the weighs against actions, Officer Minard’s present cadet to restrain Marvin when he fact remains that Marvin resisting was began struggling with the officers in the Arguably, arrest. Marvin’s method of re- result, booking room. As a it does not sisting could be characterized passive as necessarily that posed follow little Marvin such that the great resistance was not so threat to the officers at simply the scene as to require Officer allegedly Minard’s by age virtue of his advanced as contrasted rough Hickey, treatment. See St. John v. youthful with officers’ Drunk brawn. (6th Cir.2005) F.3d (noting persons are generally unpredictable and suspect that the was “at most ... passive- unpredictability a created situa- ly resisting by sitting prone”).6 arrest where it not objectively tion was unreason- Finally, permeating all of preceding for the Defendants to able take the extra general factors is the demeanor of the precaution handcuffing of Marvin behind suspect. Again, Marvin’s blood-alcohol back than in his rather front. His intoxi- level more than legal cated condition was 225% over the might render a decision to limit, him that objectively handcuff behind his was from a reading back taken reasonable, but that does than an necessarily more hour-and-a-half after his ar- question rest, answer the and, whether it was according Marvin, to at least six objectively reasonable to use such force as hours since he had his last shot of vodka. shoulder, would result a (See fractured J.A. at heavy Such intoxication alleges Marvin he help suffered. To an- created a more volatile situation and that question, necessary swer that it is to con- fact can only serve to buttress Officer Mi- sider whether Marvin was resisting arrest. nard’s decision Marvin’s hands and arms to be needed immobilized hand- by regard suspect
With
to whether was
cuffing
Indeed,
behind
arrest,
his back.
resisting
undisputed
it is
Officer
when
given
Minard’s
by
a command
concerns were borne
Officer Minard to
out as the
place
back,
his hands behind
Marvin’s own
admissions later
credit,
refused to do so. To Marvin’s
he
demonstrate that when his arms were not
passive
Scott,
6. The St. John court noted the
resis-
der the circumstances. See
S.Ct. at
tance,
ultimately
such,
concluded that "[e]ven if
1776 n. 8. As
the St. John court's deter-
resistance,
there was evidence of
it would be
a
mination
such
determination
is for
improper to determine whether the resistance
jury
directly
first
contrary
instance is
justified the officers' actions because such a
subsequent Supreme
authority.
Court
See
jury
determination is for a
in the first in-
Scott,
Circuit
insofar
of Walton
firmed the usefulness
he noticed
a vehicle because
pulled over
claim can
force
that an excessive
it found
in the front
standing
child
two-year-old
i.e.,
right
handcuffing,
premised
be
passenger.
lap
in the
passenger seat
un
Cir.1993).
(6th
in an
not to be handcuffed
1331, 1333-35
995 F.2d
clearly established.
manner was
reasonable
discovered
stop,
the officer
During the
John,
(recog-
id;
Thus, it clearly established that hand- cuffing an objectively arrestee in an unrea- Therefore, we find that the Defendants sonable manner is a Fourth Amendment did not violate Marvin’s Fourth Amend- However, violation. it is important to ment rights at the scene of the arrest in keep simply mind that right because the the because objec- Defendants acted in an not to be handcuffed in an objectively un- tively reasonable in light manner of Mar- clearly reasonable manner was estab- heavily state, vin’s intoxicated abusive lan- lished, it necessarily does not follow that guage, and his resistance arrest. the Defendants the instant matter actu-
ally Sally Port objectively behaved unreason- able Again, manner. the value of Walton Upon station, arrival at the and similarly strictly situated cases is lim- alleges Marvin that “clearly the video ited to “clearly prong established” that shows Minard into reached the back immunity analysis because ear, pulled pushed Marvin out and perform Walton did objective not rea- (Marvin him down on the floor.” Br. at analysis sonableness by as announced 10.) The video “sallyportl” entitled does Supreme recently Saucier and re- not show anything quite clearly so as Mar But, reiterate, articulated Scott. we to vin asserts. The positioned camera is get clearly to the prong, established there looking down at the front must first be a constitutional violation. vehicle and Marvin exits from the back event,
In any
to the extent that the facts
left. All that
the video shows is Officer
of Walton might be so similar
pre-
as to
opening
door,
Minard
reaching
back
suppose a
qualified immunity
denial of
into
Marvin is sitting, standing
where
back
here, those
distinguishable.
facts are
up
The
looking
at
opening,
the door
Walton court
suspect’s
credited the
claim
closing
that,
then
the door. After
Officers
that she told the officers that she had an Minard and Shewchuk
lifting
can be seen
injured
put
shoulder and could not
her
Marvin
his feet
ground by
from the
Walton,
hands behind her back.
holding
995 F.2d
him under his arms. The video
at 1334. Similarly, Marvin claimed he was
“clearly”
does not
show
Officer Mi-
physically
put
unable to
his hands
“pushed
behind
nard
[Marvin] down on the floor.”
21:26:25.)
(Id.
The
view,
right arm.
jured”
obstructs the
vehicle
Because
attempt-
by
reacted
the cadet
officers and
Mar-
“blatantly contradict”
not
video does
aggressive
Marvin’s
ing to neutralize
Scott,
assertion,
S.Ct.
see
vin’s
be-
manipulating his arms
movements
strong doubts
certainly casts
video
but
to force
his head so as
hind him and over
Marvin’s characterization.
posture.
submissive
into more
Marvin
crediting Marvin’s assertion
Even
21:26:29-44.)
(Id.
kept
The officers
on the
him down
pushed
Minard
Officer
uncomfortable, and conceiv-
in this
Marvin
he was
floor,
clearly shows
the video
twenty
position for less than
ably painful,
for less
the vehicle
ground outside
on the
oppor-
him another
giving
before
seconds
(J.A.
G,
at Ex. Vid-
seconds.
than fifteen
flat on the bench
hands
tunity
place
21:24:26-39.) The
clip “sallyportl”
eo
Nev-
search to resume.
to allow the
so as
physically
the officers
does not show
shows that
ertheless,
the video
rather,
he
Marvin,
as soon as
abusing
Mi-
as Officer
struggled somewhat
again
Minard
Officer
ground,
on the
up
ended
at a
shoes one
removed Marvin’s
nard
door,
he and
and then
closed the back
21:27:01-32.)
(Id. at
time.
to his
helped Marvin
Shewchuk
Officer
to which
offending conduct
him inside
and walked
feet
Fourth
of his
points for
violation
21:24:39-56.)
(See
There-
id. at
room.
that of
rights is
Amendment
version,
offi-
fore,
even under
him and
his arms behind
moving
cadet
unrea-
act in an
cers did
ac-
reading of Marvin’s
head. A
over his
violated
such that
manner
sonable
*15
would
of the
benefit
video
count without
right.
constitutional
nothing
absolutely
did
suggest that Marvin
(See Mar-
actions.
the officers’
provoke
to
Booking Room
The
3.
(“When
to re-
Minard went
vin Br. at
above,
booking room
As noted
belt,
to
attempted
Marvin
Marvin’s
move
and that
on video
clearly depicted
is
event
because
do it himself
him if he could
ask
ver
Marvin’s
blatantly contradicts
video
loops.
in the
When
very tight
belt was
result,
this Court
As
of the facts.
sion
turn,
grabbed
to
Shewchuk
tried
Marvin
version
to Marvin’s
blindly defer
will
and
upit
and twisted
right arm
his broken
at sum
is the non-movant
just because he
head”).)
video, howev-
The
over Marvin’s
Scott,
at
127 S.Ct.
mary judgment. See
and
raised his torso
er,
shows
Marvin
“bookingl”
video entitled
Again, the
bench;
Minard
Officer
left hand off
his
cadet,
officers,
and Mar
the two
shows
back
Marvin’s hand
by placing
responded
in the
coexisting
peacefully
very
vin
holding
there
on the bench
his
Marvin raised
jail
right
until
fist
swung
room at
his
briefly; Marvin then
bench,
slightly to
Minard;
turned
sub-
up off
torso
officers
at Officer
hand from
left,
his left
his arms behind
by bringing
and removed
his
Marvin
dued
seconds,
ques
twenty
and,
the officers
than
as if to ask
for less
back
the bench
his
head, relax-
(J.A.
G,
“bookingl”
his
arm over
clip
holding
right
Ex. Video
his
tion.
became
21:26:20.)
as Marvin
Minard
soon
response,
ing
pressure
In
Officer
blatantly contradicts
searching Marvin’s
The
his task
calmer.
stopped
supports
of the facts
left
version
calmly returned Marvin’s
Marvin’s
pockets,
acted
the Defendants
for a
there
the conclusion
and held it
to the bench
hand
The
21:26:20-25.)
manner.
(Id.
objectively reasonable
Marvin
an
seconds.
few
does not
booking room event
of the
with video
out at Officer Minard
struck
quickly
right.
a constitutional
a violation
“in-
show
swing of his
closed-fist
aggressive,
4. Outside the Cell
tions the officers could have taken
re-
sponse to
aggressive,
Marvin’s
albeit mi-
The other
depicted
event
on video
nor, kick,
proper
inquiry is whether
giving rise to Marvin’s claim of excessive
the officers acted in an objectively reason-
force is that of the scene outside the cell in
able manner. The video reveals that the
which the
attempted
officers
place
to
Mar
satisfy
officers’ actions
objective
rea-
vin immediately after the booking room
sonableness standard.
event. Marvin admits that he kicked at
Officer Minard
standing
while
outside the
5. The Clinic Blood Draw
(Marvin
13.)
cell.
Br. at
The video con
firms that Officer Shewchuk stood
behind
event
in question
final
oc
Marvin, apparently restraining both
curred at a clinic
jail,
outside of so no
Marvin’s arms. Officer Minard
result,
faced
video is
Mar
available. As a
the Court
and,
vin
without any physical
again
provocation,
must countenance Marvin’s version
(J.A.
Marvin kicked at Officer Minard.
facts insofar as it
supported
by
G,
Ex.
clip
Video
“walked to cell 1” at
the record. After obtaining a warrant
21:29:32.)
It
then appears that
draw Marvin’s
Officer
blood to test for its blood-
Shewchuk pulled
content,
back on Marvin’s arms to
alcohol
transported
officers
pull
away
him
from assaulting
Officer Mi-
to the clinic. The clinic medical
nard.
doing,
so
personnel
fell
unsuccessfully
backward
attempted
ground
and then both
draw
Marvin’s
re
while
blood
he was still
strained
ground
Marvin on the
for about
handcuffed. As the officers tried to unlock
thirty seconds.
handcuffs,
he asserts that
they
again pushed his hands into the small of
Marvin,
According
however,
Officers
back,
his
thereby causing pain to
in
his
Minard and Shewchuk “tackle[d] Marvin.”
jured right shoulder. Much like the book
(Marvin
Br. at
But that characteriza-
ing room episode, as soon as Marvin’s left
clearly
tion is
itself,
belied
the video
wrist
handcuff,
became free of the
using
which shows that
already
Marvin was
“injured”
arm,
*16
he swung
right
ground
the
before
got
Officer Minard
to
fist,
attached,
handcuffs still
at Officer Mi-
him and Officer
simply
Shewchuk
stepped
nard’s face. Officer Minard asserts that
to the side as Marvin fell back. Once
contact,
Marvin made
but Marvin “cannot
Marvin hit
ground,
the
Officer Shewchuk
remember”
actually
whether he
struck Of
stayed
torso,
at Marvin’s
and Officer Mi-
ficer Minard.
nard used one of
legs
his own
to neutralize
Marvin’s,
both of
in an apparent attempt
Again,
question
the
is whether it was
prevent
to
Marvin from kicking again.
objectively reasonable for the
to
officers
placed
Neither officer
weight
his own
on elevate Marvin’s hands so as to remove his
Marvin,
kick,
nor did they ever
punch, or handcuffs. The booking room video showed
Moreover,
hit him.
they only restrained
a similar scene whereby Officer Minard is
him in
position
ground
on the
obviously
trying to unlock the handcuffs.
approximately thirty
Indeed,
seconds.
as The video showed Officer
leaning
Minard
Supreme
the
advised,
Court has
down,
ev-
“[n]ot
attempting to view the underside of
ery push
shove,
or
even if it may later
the handcuffs. The video does not show
seem unnecessary ... violates the Fourth Officer Minard gratuitously trying to cause
Graham,
Amendment.”
490
U.S. at
pain
Marvin
and Marvin
allege
does not
251 issue of whether threshold the ac- addressed that their admits contrary, Marvin the the state over jurisdiction has this Court “to remove were clinic at the tions duty “a have nevertheless We Considering law claims. (PL’s Br. at cuffs.” appellate whether sponte sua to consider nature— combative progressively Marvin’s Mat arrest, invoked.” properly to jurisdiction of at the scene resisting from Bank, F.3d 153 State in the v. Farmers tingly hand Minard’s to hit Officer trying Cir.1998). is an (6th this Because Minard room, kicking Officer to unfet do not have interlocutory Officer we cell, appeal, punching and to outside every any and cannot to decide jurisdiction clinic—it face at the tered Minard es instead, parties re- must attempt raised; to the officers’ issue be said that to clinic an through exception jurisdiction handcuffs tablish Marvin’s move are final orders only unreasonable rule general amounted (“The § Amend- the Fourth of 28 U.S.C. in violation See appealable. force of jurisdiction ... appeals have of ment. courts of decisions all appeals from final to establish sum, has failed States.”) (em of the United courts district Amendment his Fourth of deprivation added). phasis event, from the In each discrete rights. draw the blood through arrest inter- scene an state law authorizes Michigan to demon- clinic, failed has denying at the an order from locutory appeal objec- acted an See immunity strate from suit. governmental Therefore, (A 7.202(6)(a)(v) manner. tively or- unreasonable “final Rule Ct. Mich. summary were entitled Defendants governmental denying is an “order der” claim, and § 1983 includ- judgment party, governmental immunity to a further inquire official, need em- thus we or agency, ing governmental quali- entitled were Indeed, whether Defendants noted as this Court ployee”). Saucier, 533 U.S. immunity. See re- Lubelan, held fied “we have Livermore (“If no constitutional gov- that, S.Ct. the denial because peatedly were been violated have order’ right would a ‘final immunity is now ernmental established, no necessi- there is appeal allegations defendants with providing concerning quali- inquiries Appeals, further ty for Michigan Court immunity.”). fied over interlocu- jurisdiction court has law state concerning pendent tory appeals of Assault Law Claims State C. immunity.” of governmental claims Battery Cir.2007). (6th 397, 408 F.3d *17 law state pendent respect to the With their support brief In Defendants’ battery, Defendants and claims assault they did summary judgment, for motion immune are individual that officers argue they were entitled that state explicitly not meth- amount and if the such claims from immunity the pendent on governmental to is arrest to force used effectuate od of However, argue they did law claims. state agrees reasonable. objectively that absolutely no evidence “there is that argu- standard, to his points with what anything other than did these officers argue § 1983 claim ment under to do under them job required their reason- actions were the Defendants’ all and the case circumstances able. rea- objectively acted these times (J.A. the circumstances.” however, matter, under sonable preliminary aAs (emphases 16at 85, J. Br. Defs.’ Summ. has party neither must noted be 252
added).) From this it is a fair inference to (quoting Hanna, *6 People v. 223 Mich. conclude that the officers were in fact ar- 466, App. 12, 16 (1997)). 567 N.W.2d guing governmental for immunity. This Therefore, because this Court finds that (1) conclusion is buttressed two facts: the Defendants’ actions were governmental officers asserted immu- § reasonable under the analysis, 1983 their nity as an affirmative defense their An- actions are likewise reasonable with re- (J.A. ¶ swer, (2) 65, 9); the stan- gard to the state law assault and battery dard for governmental immunity on state (“For claims. See id. the same reasons law claims essentially identical to that of that Officer Antal’s alleged actions were qualified immunity §on 1983 claims such objectively reasonable for purposes of the that the officers made an abbreviated state claim, § 1983 they are also reasonable for argument law summary their judgment purposes of the state law claim assault brief because it would have been redun- and battery.”). result, As a the Defen- dant to do otherwise.
dants were entitled to summary judgment Antal, pendent Anderson v. a Sixth Cir state law claims as panel cuit explained that well. Michigan, “[i]n
governmental immunity does not extend to intentional torts unless the actions consti IV. CONCLUSION tuting the intentional tort justified.” are Marvin has failed to establish depri- Antal, Anderson v. 717993, 1999 WL at *6 vation (6th of his Fourth 1999) rights. Cir. Amendment Sept.7, (unpublished) (citing In each event, Perrin, discrete Brewer v. from the 520, scene of Mich.App. 132 349 “ arrest, 198, (1984)). sally N.W.2d port, 202 to the ‘Specifically, room, cell, jail officer may use reasonable blood draw at force when making clinic, an Therefore, arrest. Marvin has failed to demon- measure necessary force is that strate that which the officers objec- acted an ordinarily prudent intelligent per tively unreasonable Therefore, manner. son, with the knowledge and in the situa the Defendants were entitled to summary tion of arresting officer, would have judgment § on Marvin’s claim, 1983 ” necessary.’ deemed Brewer, Id. (quoting thus we inquire need not further as to 349 202); N.W.2d at see also Delude v. whether Defendants were entitled quali- Raasakka, 296, 391 Mich. 685, 215 N.W.2d immunity. Saucier, fied See 533 U.S. (1974); Burmeister, VanVorous v. 262 201, (“If S.Ct. no constitutional 467, Mich.App. (2004) N.W.2d right would have been violated were the (“It is well-settled in [Michigan] jurispru allegations established, there is no necessi- dence that a police may officer use reason ty for inquiries further concerning quali- arrest.”) (inter able force when making an fied immunity.”). Furthermore, because quotation nal omitted); marks Tope v. the Defendants’ actions were objectively Howe, 179 Mich.App. 445 N.W.2d reasonable, they cannot be liable on the *18 (1989). In addition, “Michigan courts pendent state law assault and battery have also recognized that ‘[w]hether offi claims. cers hypothetically could have used less painful, injurious, less or For the foregoing reasons, more effective judgment the force in executing an simply arrest is of the not district court is hereby RE- ” Anderson, the issue.’ 1999 WL VERSED. applicable is not Scott or Whether DAUGHTREY, force. CRAIG MARTHA its current this case retroactively to dissenting. Judge, Circuit relevant be both clearly would posture, the to reverse decision majority’s The by the ruling a new applicable immunity of denial district court’s summary for motion on the court district on the just not based apparently judgment. the district before that were files video files six additional court, also on the district not before clearly were its consider- justifies majority
court. evidence this extraneous of
ation novo to exercise de authority of our
basis on a ruling court’s a district of
review re- That summary judgment. for
motion to resolve however, us not allow view, does America, of STATES UNITED here, are, material of fact that disputes Plaintiff-Appellee, case, to consider nor of the outcome v. find or to below introduced not evidence In- court. by the district found facts not ALEXANDER, Lee Sheldon Appellate Rule deed, in Federal nothing Defendant-Appellant. ap- record on governing Procedure No. 07-1432. or, pre- permits peal, introduction — evi- new the consideration —of sumably, Appeals, Court States United appeal. courts of dence in Circuit. Sixth remand reason, I would For this 27, 2007. Argued: Nov. a direction court with district case 7, 2007. Dec. evi Filed: into Decided 12 files submitted identify the all 18 alternatively, to or, view dence below defen ruling on the its reconsider
files and summary judgment motion
dants’ of Scott intervening case
light of — 1769, 167 U.S.-, 127 S.Ct.
Harris, (2007). Supreme That recent
L.Ed.2d after the district released opinion, case, in this was issued decision
court’s for sum a motion ruling on
holds that need court a district judgment,
mary favorable most light facts in
view party’s if that party nonmoving “blatantly contradicted events is
version jury record, no reasonable so
by the in this As it.” Id.
could believe video included
case, Scott record with conflicted arguably
tapes that in a events version of
non-moving party’s law enforce charging 1988 action
section excessive the use with
ment