Alan MILLER, Plaintiff-Appellant, v. SANILAC COUNTY and Jim Wagester, in his individual and official capacity, Defendants-Appellees.
No. 09-1340
United States Court of Appeals, Sixth Circuit
June 4, 2010
606 F.3d 240
Argued: March 10, 2010.
Before MERRITT, COLE, and COOK, Circuit Judges.
MERRITT, J., delivered the opinion of the court, in which COLE, J., joined. COOK, J. (pp. 255-58), delivered a separate opinion concurring in part and dissenting in part.
OPINION
MERRITT, Circuit Judge.
In this lawsuit brought under
I. Factual Background and Procedural History
Miller began the night of February 19, 2006, with some friends at a demolition derby from 8:00 p.m. to about 11:00 p.m. The temperature was approximately zero degrees with a significant wind-chill, and there is no dispute that there was ice on the roads. After dropping off his friends on the way home, he assisted another friend he learned had driven into a ditch. Around midnight, Miller approached a stop sign at an intersection. Miller states that he was driving at approximately 30 m.p.h. but was unable to stop because of the ice. Wagester, who was observing the area after hearing reports of an underage drinking party nearby, estimated that Miller was traveling over 60 m.p.h. before slowing down to about 30 m.p.h. as he went through the stop sign.1 After Wagester
Upon walking up to Miller‘s car, Wagester asked for Miller‘s license, registration, and proof of insurance. Miller claims he had his seatbelt on at this time whereas Wagester said Miller never had his seatbelt on. Because Miller‘s license had been confiscated for a previous arrest for Operating a Vehicle while Intoxicated (hereinafter “drunk driving“), Miller gave him the documentation he was provided to use as a license. Miller alleges he had proper registration and proof of insurance but could not produce them immediately. Both agree that Wagester walked away as Miller was searching his glove box and Wagester did not ask for them again.
Wagester claims to have “detect[ed] a slight odor of alcohol coming from [Miller‘s] breath.” After running a check on Miller, he learned of the drunk driving arrest and asked him to step out of the vehicle to perform field sobriety tests. According to Wagester, Miller did not stagger or stumble as he got out of the vehicle and walked around, but his eyes appeared “glazed or glassy.”2 Miller was asked to recite the ABCs, walk a straight line, touch his fingertips to his thumb, touch his nose, and count backwards from 54 to 43. Wagester determined he failed all but one, although Miller said he was not in-
Thereafter, Wagester placed Miller under arrest for reckless driving. Miller claims that Wagester effected the arrest by spinning him around, kicking his feet apart, and slamming him against his vehicle. Miller concedes, however, that he was not hurt by any of these actions. Miller was put in handcuffs and placed in a patrol car. Wagester estimates that Miller was out of the vehicle for six to eight minutes, but Miller claims it was 45 minutes. At some point, Miller complained that his handcuffs were too tight. They were removed during the booking process, although Miller is unsure how long they remained on.
After processing, Wagester secured a search warrant from a magistrate judge authorizing him to draw Miller‘s blood for further investigation of suspected drunk driving. Miller also gave consent. Miller was transported to a nearby hospital for the blood draw. The individual who drew Miller‘s blood observed that Miller was shaking and was cold to the touch, which Miller claims to be the result of being subjected to the cold during the arrest. Miller alleges that he passed out from the cold at some point while he was at the jail although he indicated on a medical questionnaire at the time that he was in good physical condition and was not having any medical problems.
Deputy Wagester wrote seven tickets for Miller: failure to use a seatbelt, no proof of registration, no proof of insurance, reckless driving, refusal to submit to a breath test, minor in possession, and 0.02% blood-alcohol-no-tolerance-law violation.3 Miller left the jail on February 19, 2006, on a personal recognizance bond. The next week, Miller‘s blood test results came back indicating that Miller‘s blood-alcohol level was 0.00%. In early April, all charges against Miller related to this case were dismissed. A few days later, Deputy Wagester requested that the lab test Miller‘s blood for controlled substances. That test also came back negative.
Miller filed the present suit against Deputy Wagester and Sanilac County on November 20, 2007. Against Deputy Wagester, Miller alleged three constitutional violations pursuant to
II. Liability of Deputy Wagester
“To state a claim under
“Under the doctrine of qualified immunity, ‘government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir.2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Determining whether government officials are entitled to qualified immunity generally requires two inquiries: “First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown that a constitutional violation has occurred? Second, was the right clearly established at the time of the violation?” Id. at 538-39.4 These prongs need not be considered sequentially. Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir.2009) (citing Pearson v. Callahan, 555 U.S. 223 (2009)).
The issue of qualified immunity may be submitted to a jury only if “the legal question of immunity is completely dependent upon which view of the [disputed] facts is accepted by the jury.” Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir.2007) (quoting Brandenburg v. Cureton, 882 F.2d 211, 216 (6th Cir.1989)).
A. Section 1983 Federal Constitutional Claims
1. Malicious Prosecution
The parties on appeal have not challenged the District Court‘s holding that Miller‘s federal Fourth Amendment claim for malicious prosecution under
(1) the defendant has initiated a criminal prosecution against him, (2) the criminal proceedings terminated in his favor, (3) the private person who instituted or maintained the prosecution lacked probable cause for his actions, and (4) the action was undertaken with malice or a purpose in instituting the criminal claim other than bringing the offender to justice.
Walsh v. Taylor, 263 Mich.App. 618, 689 N.W.2d 506, 516-17 (2004).
The District Court properly granted summary judgment on the malicious prosecution claim with respect to four of the seven tickets because they constituted civil infractions, not criminal prosecutions. See
As to the three criminal charges—reckless driving, minor in possession, and violation of the 0.02% no-tolerance law—the District Court found that Deputy Wagester had probable cause to arrest. An officer has probable cause when “the facts and circumstances known to the officer warrant a prudent man in believing that an offense has been committed.” Henry v. United States, 361 U.S. 98, 102 (1959).
In general, the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible. But under § 1983, an arresting agent is entitled to qualified immunity if he or she could reasonably (even if erroneously) have believed that the arrest was lawful, in light of clearly established law and the information possessed at the time by the arresting agent. Parsons v. City of Pontiac, 533 F.3d 492, 501 (6th Cir.2008). An arrest is valid so long as there is probable cause for a single charge of an arrestable offense. Lyons v. City of Xenia, 417 F.3d 565, 573 (6th Cir.2005). Under Michigan law, arrestable offenses include felonies, misdemeanors, and ordinance violations, but not civil infractions. People v. Chapman, 425 Mich. 245, 387 N.W.2d 835, 839 n. 11 (1986);
(i) Arrest for Drinking while Driving.—Wagester is correct that “subsequent evidence that plaintiff had not been drinking does not vitiate the probable cause established by what the officer observed and the results of the field sobriety tests.” (Resp. Br. at 24-25.) However, the fact that Miller‘s blood alcohol was found to be 0.00% casts doubt on Deputy Wagester‘s claims that Miller smelled of alcohol and failed the field sobriety tests. Although the District Court notes that “Miller has not argued that he actually passed the field sobriety tests or that Deputy Wagester lied about his other perceptions,” Miller stated in his briefs here and in the District Court, “even though [Miller] had not been drinking that night nor did he exhibit any physical manifestations that he had been drinking, [Wagester] ordered him to exit his vehicle and performed a series of field sobriety tests on him for no
Although Wagester‘s claims, if believed, would constitute probable cause to arrest for driving under the influence of alcohol, a jury could reasonably conclude, in light of the 0.00% blood alcohol result and Miller‘s testimony, that Wagester was being untruthful generally about his observations and did not have probable cause to believe Miller was drinking. In light of the conflict in the evidence, the jury could conclude that Wagester was lying.
(ii) Arrest for Reckless Driving.—The District Court concluded that Wagester had probable cause to arrest for reckless driving because “Miller admits that he ran a stop sign going approximately 30 miles per hour.” This exaggerates Miller‘s deposition testimony. Although he acknowledged driving 30 miles per hour past a stop sign, he also stated that the road was icy and he was unable to brake at the intersection. An “officer must consider the totality of the circumstances, recognizing both the inculpatory and exculpatory evidence, before determining if he has probable cause to make an arrest.... [A] suspect‘s satisfactory explanation of suspicious behavior is certainly a factor” in determining whether probable cause exists. Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir.2000). For example, this Court upheld denial of summary judgment in a similar § 1983 suit against a police officer when the plaintiff ran a red light but claimed his car stalled as he tried to go through the light when it was yellow. Ciak v. City of Louisville, No. 93-6119, 1995 WL 7959, *1 (6th Cir. Jan.9, 1995).5
Under Michigan law, reckless driving is driving a vehicle “in willful or wanton disregard for the safety of persons or property.”
(iii) Arrest for Minor in Possession.—Finally, Wagester wrote Miller a criminal ticket for minor in possession of alcohol. We are unable to find any discussion or explanation in the record from the briefs, depositions, the police report, or the District Court opinion as to the basis for this charge. Thus, we cannot conclude that Deputy Wagester had probable cause to arrest Miller on that basis.
(iv) Showing Malice.—Having concluded that there is a genuine issue of material fact as to whether Wagester had probable cause to arrest Miller for all three criminal charges, the final element of malicious prosecution is that “the action was undertaken with malice or a purpose
Moreover, as Miller notes in his brief, the fact that Wagester ordered Miller‘s blood to be retested for drugs after it came back negative for alcohol and all charges were dropped could also, along with other evidence, lead a jury to infer malice under a theory that Wagester was indeed trying to harass Miller.6 (Pet. Br. at 41). See Ciak v. Lasch, 1997 WL 535781, *4 (suggesting finding of malice because “a review of the record suggests that [the officer‘s] claim at trial that he suspected that [plaintiff] was impaired by drugs, rather than alcohol, was a disingenuous post-hoc attempt to justify the arrest. The evidence at the scene of the arrest and [the officer‘s] own statements and actions at the time of the arrest show that [the officer] had no such suspicion.“).
2. Unlawful Seizure: Arrest
Miller alleges that Deputy Wagester arrested him in violation of his Fourth Amendment rights. Similarly to malicious prosecution, “in order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police lacked probable cause. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir.2009) (quoting Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir.2007)). The District Court granted summary judgment to Deputy Wagester for this claim because it found that, under the facts and circumstances known to him, Wagester had probable cause to arrest Miller. For the reasons stated above, there is a genuine issue of material fact on this matter.
3. Unlawful Search and Seizure: Blood Test
Miller alleges that Deputy Wagester violated his Fourth Amendment rights by requesting that the lab test his blood sample for controlled substances after the first analysis came back negative for alcohol. Miller argues that Deputy Wagester obtained the search warrant in order to test for alcohol and that testing for anything other than alcohol exceeded the scope of the warrant. The District Court granted Wagester summary judgment because it concluded that the additional test did not exceed the scope of the warrant: in Michigan, drivers are guilty of Operating a Vehicle while Intoxicated—the charge listed on the search warrant—if they are intoxicated with alcohol, a controlled substance, or both.
4. Excessive Force
Miller alleges that Deputy Wagester violated his constitutional rights by using excessive force. Miller specifically complains about his exposure to cold weather during the stop, Deputy Wagester‘s conduct in effecting the arrest, and the tightness of the handcuffs. Claims of excessive force are analyzed under an objective-reasonableness standard, which depends on the facts and circumstance of each case viewed from the perspective of a reasonable officer on the scene. Graham v. Connor, 490 U.S. 386, 395-96 (1989). An officer making an investigative stop or arrest has “the right to use some degree of physical coercion or threat thereof to effect it.” Id. at 396. “The question we must ask is whether, under the totality of the circumstances, the officer‘s actions were objectively reasonable.” Fox v. DeSoto, 489 F.3d 227, 236-37 (6th Cir.2007) (citing Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir.2001)).
The District Court granted summary judgment to Wagester on this claim because “Miller has failed to allege conduct on behalf of Deputy Wagester that amounts to excessive force.” We agree with respect to the allegations of unnecessary detention in freezing weather and the tightness of the handcuffs, but disagree with respect to Miller‘s allegation that he was kicked and thrown against Wagester‘s vehicle.
(i) Unnecessary Detention in Freezing Weather.—“[U]nnecessary detention in extreme temperatures ... violates the Fourth Amendment‘s prohibitions on unreasonable searches and seizures.” Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir.2002). Although there is disagreement as to exactly how long Miller was subjected to the extremely cold weather,7 as the District Court noted: “There are no allegations that Deputy Wagester left Miller in the cold longer than was necessary to conduct the field sobriety tests or that Deputy Wagester was not likewise exposed to the cold for the same amount of time.” Miller claims that he was so cold that he was visually shaking and passed out. Indeed, the medical technician who drew Miller‘s blood observed him shaking. However, several factors weigh heavily against Miller‘s allegation of excessive force from exposure to cold weather: he had recently been at an outdoor event and helped a friend who had driven into a ditch, admits he never told Deputy Wagester he was cold while on the side of the road or elsewhere, indicated during the booking process that he did not need medical attention and described his present physical condition as good, and does not appear to have presented any notable symptoms during a medical evaluation a week later for hypothermia. Accordingly, we agree with the District Court that a jury could not
(ii) Failure to Loosen Handcuffs.—The Fourth Amendment prohibits unduly tight or excessively forceful handcuffing during the course of a seizure. Morrison v. Bd. of Tr. of Green Twp., 583 F.3d 394, 400 (6th Cir.2009). This right was “clearly established” for qualified immunity purposes at the time of Miller‘s arrest. Id. at 401. In order for a handcuffing claim to survive summary judgment, a plaintiff must offer sufficient evidence to create a genuine issue of material fact that: (1) he or she complained that the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced “some physical injury” resulting from the handcuffing. Id. (citing Lyons v. City of Xenia, 417 F.3d 565, 575-76 (6th Cir.2005)).
The District Court properly concluded that Deputy Wagester did not use excessive force in handcuffing Miller because Miller did not complain about the handcuffs until they arrived at the jail, at which point they were removed. Moreover, Miller cannot provide a specific amount of time that it took Wagester to remove the handcuffs after he first complained. Thus, although Miller meets the first prong, it cannot be said that Wagester “ignored” his complaints.8 Cf. Morrison, 583 F.3d at 402 (holding the second prong satisfied when officer denied request to loosen and stated he could place handcuffs on “as tight as he wanted to and that‘s how they were staying“). He also fails to satisfy the third prong: although Miller stated in his deposition that he lost color in his hands for more than a day after the arrest and has a continuing inability to use his hands, these assertions are not supported by his medical records or the intake form he completed during his arrest.
(iii) Slamming Miller against Vehicle.—In his claim for excessive force, Miller alleges that Deputy Wagester spun him around, slammed him against his vehicle, and kicked his feet apart. Miller admits that he was not “hurt” by this conduct. The District Court granted summary judgment for Wagester by concluding, without citation to authority, that “[i]t is not objectively unreasonable for an officer to place an individual under arrest using force that does not cause harm.”
This Court has made clear that a plaintiff may “allege use of excessive force even where the physical contact between the parties did not leave excessive marks or cause extensive physical damage.” Morrison, 583 F.3d at 407 (quoting Ingram v. City of Columbus, 185 F.3d 579, 597 (6th Cir.1999)); see also Holmes v. City of Massillon, 78 F.3d 1041, 1048 (6th Cir.1996). In determining whether there has been a violation of the Fourth Amendment, we consider not the “extent of the injury inflicted” but whether an officer subjects a detainee to “gratuitous violence.” Morrison, 583 F.3d at 407 (citing Pigram ex rel. Pigram v. Chaudoin, 199 Fed.Appx. 509, 513 (6th Cir.2006) (denying
“Not every push or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal citation omitted). The question whether force is excessive turns on the objective reasonableness of the officer‘s conduct under the circumstances. Id. at 397. The Supreme Court has provided three factors for courts to consider in evaluating an excessive force claim: the severity of the crime, whether the suspect posed an immediate threat to the safety of officers or others, and whether the suspect actively resisted arrest or attempted to evade arrest by flight. Id. at 396. Here, at least under Miller‘s account of the arrest, all three factors strongly weigh in favor of a valid claim for excessive force.
The facts of this case are analogous to Minchella v. Bauman, in which this Court reversed summary judgment for a police officer accused of using excessive force after a traffic stop. 72 Fed.Appx. 405 (6th Cir. 2003). The plaintiff was also grabbed, thrown into a police car, and was kicked in the leg, and the parties disputed the facts preceding the arrest: the plaintiff claimed she had done nothing wrong while the officer claimed she was speeding, did not stop immediately, was agitated, and threw her license and registration at him. Id. at 406. This Court held that there was a genuine issue of material fact as to whether the officer‘s actions were excessive. Id. at 409-10.
This Court has also found genuine issues of material fact to exist in other cases of alleged excessive force during arrest. See Carpenter v. Bowling, 276 Fed.Appx. 423, 426-28 (6th Cir.2008) (suspect thrown against van despite not resisting arrest); Zantello v. Shelby Twp., 277 Fed.Appx. 570, 574 (6th Cir.2008) (officers continued to use force against suspect involved in violent assault “even after they had full control of the scene and even after he cooperated with them“); Lustig v. Mondeau, 211 Fed.Appx. 364, 369–71 (6th Cir. 2006) (officer twisting arm of woman accused of driving a watercraft while intoxicated despite not resisting); Solomon v. Auburn Hills Police Dep‘t., 389 F.3d 167, 174 (6th Cir.2004) (woman arrested for trespassing in movie theater kicked in legs and thrown against display case despite minor offense, posing no immediate threat, and not attempting to flee); Burden v. Carroll, 108 Fed.Appx. 291, 293-94 (6th Cir.2004) (officer pushed belligerent suspect against brick wall after suspect had reportedly threatened someone); Bass v. Robinson, 167 F.3d 1041 (6th Cir.1999) (officer allegedly slammed suspect‘s head against tree after drug sale). Cf. Dunn v. Matatall, 549 F.3d 348, 354-55 (6th Cir.2008) (not excessive force when suspect thrown out of car after attempting to drive away from police and apparently refused to exit vehicle); Lockett v. Donnellon, 38 Fed.Appx. 289, 291-92 (6th Cir.2002) (not excessive force when suspect pushed and pulled into car in rough matter where suspect was uncooperative and verbally abusive).
Miller‘s claim of excessive force admittedly comes close to the “scintilla of evidence” of excessive force this Court has previously found to be insufficient to survive summary judgment. See, e.g., Goodrich v. Everett, 193 Fed.Appx. 551, 557 (6th Cir.2006); Gaddis ex rel Gaddis v. Redford Twp., 364 F.3d 763, 773-74 (6th Cir.2004). However, we believe that a
“Qualified immunity will often operate to protect officers from the sometimes hazy border between excessive and acceptable force.” Solomon, 389 F.3d at 174 (internal quotations and citations omitted). An officer should be entitled to qualified immunity if he made an objectively reasonable mistake as to the amount of force that was necessary under the circumstances with which he was faced. Greene v. Barber, 310 F.3d 889, 894 (6th Cir.2002). The facts here, however, do not present one of those hazy cases. In the light of the precedent in this Circuit, a jury could reasonably find that the officer‘s alleged conduct violated Miller‘s rights.
B. State Claims
Plaintiff‘s state law claims include false arrest/false imprisonment, malicious prosecution, assault and battery, and gross negligence. Deputy Wagester claims that he is entitled to governmental immunity on these claims. With the exception of gross negligence, each one constitutes an intentional tort because they contain intent as an element. Odom v. Wayne County, 482 Mich. 459, 760 N.W.2d 217, 228 (2008). To be entitled to governmental immunity for an intentional tort, Wagester must establish that he was acting in the course of his employment and at least reasonably believed that he was acting within the scope of his authority, that his actions were discretionary in nature, and that he acted in good faith. Id. The only factor at issue here is “good faith,” which is defined as “without malice.” Id. at 225.
The District Court awarded summary judgment to Wagester on the state tort claims of false arrest/false imprisonment and malicious prosecution because it found that he had probable cause to arrest Miller, Walsh, 689 N.W.2d at 513-14, 517, and on the assault and battery claim because it is analogous to the excessive force claim in that Miller can only recover if Deputy Wagester‘s conduct was objectively unreasonable, which the District Court found not to be the case. VanVorous v. Burmeister, 262 Mich.App. 467, 687 N.W.2d 132, 142 (2004). Because malice may be inferred from absence of probable cause, Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585, 617 (1981), there are genuine questions of material fact with regard to both of these issues.
The District Court granted summary judgment on Miller‘s claim of gross negligence, which is based on Deputy Wagester‘s use of handcuffs and conduct while effecting the arrest. However, Michigan “has rejected attempts to transform claims involving elements of intentional torts into claims of gross negligence.” VanVorous, 687 N.W.2d at 143 (listing cases). Thus, Miller did not state a claim on which relief could be granted. The remaining basis for Miller‘s gross negligence claim is his exposure to cold weather during the field sobriety tests, but Miller has failed to demonstrate that Wagester was negligent in this respect for the reasons stated above. Thus, we affirm the District Court as to this claim.
III. Municipal Liability
Finally, Miller asserts a
The District Court granted summary judgment to Sanilac County after finding that Miller failed to establish a violation of his federal rights. Although we disagree with this conclusion for the reasons stated above, we affirm the District Court as to the claim asserted against Sanilac County because Miller has not shown that a policy or custom was the moving force behind the alleged violations or that there was deliberate indifference based on prior instances of unconstitutional conduct.
IV. Conclusion
For the reasons stated above, we REVERSE the grant of summary judgment with respect to the federal claims of malicious prosecution for the criminal charges, unlawful arrest, and excessive force (for allegedly slamming Miller against the vehicle and kicking his legs, but not for exposure to cold temperatures or use of handcuffs), and the state claims of false arrest/false imprisonment, malicious prosecution, and assault and battery. We AFFIRM the grant of summary judgment for all other claims, including malicious prosecution for the civil infractions, unlawful search and seizure for the second blood test, the state claim of gross negligence, and municipal liability against Sanilac County.
COOK, Circuit Judge, concurring in part and dissenting in part.
I would affirm the district court‘s decision and, therefore, respectfully dissent from those portions of the majority opinion reversing the grant of summary judgment to Deputy Wagester.
I.
A. § 1983 Claims
1. Unlawful Seizure: Arrest1
Reckless Driving
Despite Miller‘s admission “that he ran a stop sign going approximately 30 miles per hour,” the majority concludes that “icy road conditions—which could certainly have caused Miller to inadvertently drive
“In order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police lacked probable cause.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.2002). “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir.2007) (quotation marks and citation omitted). Michigan law provides that “[a] person who drives a vehicle upon a highway ... in willful or wanton disregard for the safety of persons or property is guilty of reckless driving,”
Miller‘s driving through a stop sign at 30 miles per hour supplied probable cause for his arrest. See, e.g., United States v. Miller, 326 Fed.Appx. 513, 516 (11th Cir.2009) (police had probable cause to stop vehicle for reckless driving after observing plaintiff “drive recklessly and ignore a stop sign“); United States v. Jackson, 167 Fed.Appx. 812, 813 (D.C.Cir.2005) (police had probable cause to stop vehicle for reckless driving after observing plaintiff fail to stop at a stop sign, fail to signal when turning, and swerve to avoid oncoming traffic in an alley). The vehicle‘s speed is critical to this finding. If Miller skidded through the stop sign or traveled through the intersection at a greatly reduced speed, for example, the majority might justifiably find a genuine issue of material fact. But driving through an intersection at 30 miles per hour evinces wanton disregard for the safety of others. Indeed, rather than call into question the issue of probable cause, the icy road conditions favor the officer‘s judgment that Miller was driving too fast for the conditions.
Driving Under the Influence2
Probable cause to arrest Miller for reckless driving precludes a wrongful arrest claim, even if Wagester lacked probable cause for the additional charges. Lyons v. City of Xenia, 417 F.3d 565, 573 (6th Cir. 2005); Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir.2006). But because probable cause is a necessary element of malicious prosecution, I address the issue here.
The probable cause inquiry entails an examination of the totality of the circumstances “from a law enforcement officer‘s perspective.” United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993) (en banc) (citations omitted). The determination hinges not on hindsight, but on the facts as perceived by a reasonable officer in Wagester‘s position when the stop and arrest occurred. Other circuits recognize that “[a] plaintiff‘s refusal to take a breathalyzer test, coupled with the smell of alcohol from the vehicle, g[i]ve[s] [officers] probable cause to arrest.” Miller v. Harget, 458 F.3d 1251, 1260 (11th Cir.2006); see also Summers v. Utah, 927 F.2d 1165, 1166 (10th Cir.1991). Here, Miller drove recklessly, gave varying accounts of his whereabouts, failed all but one of the field sobriety tests,3 and refused a breathalyzer.
2. Malicious Prosecution
While the elements of a federal malicious prosecution claim remain undefined in this circuit, our cases clearly establish a plaintiff‘s obligation to show, “at a minimum, the absence of probable cause to justify his arrest and prosecution.” Barnes v. Wright, 449 F.3d 709, 716 (6th Cir.2006) (citations, quotation marks, and editorial marks omitted). And, here, the circumstances offered the requisite probable cause to justify Miller‘s arrest and prosecution.
3. Excessive Force
I agree with my colleagues’ conclusion that Miller failed to come forward with evidentiary support for his first two excessive force claims—unnecessary detention in freezing weather and failure to loosen handcuffs. I cannot agree, however, with the view they take on the third claim—slamming against the vehicle.
Drawing all inferences in Miller‘s favor, Wagester spun him around, “slammed” him against his vehicle, and kicked his feet apart—but caused no injury. Arrests effected by law enforcement officials on a daily basis could be described that same way. Indeed, this is why the Supreme Court counsels that “the right to make an arrest ... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it” and that “not every push or shove ... violates the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citation and quotation marks omitted).
Although a slam might constitute excessive force in some circumstances, it fails to rise to that level here. Miller‘s deposition testimony confirms this conclusion. According to Miller, as Wagester informed him that he was under arrest, the officer “turned [him] around and shoved [him] against [the car].” Miller does not claim that Wagester shoved him violently, maliciously, or gratuitously. Cf. Burden v. Carroll, 108 Fed.Appx. 291, 293 (6th Cir. 2004) (officer violently shoved plaintiff into a brick wall with protrusions, causing significant injury). And when asked if Wagester‘s actions hurt him, Miller responded: “I mean, not really.” Miller‘s “ambiguous description of the ... shov[e]” he endured constitutes at best a scintilla of evidence, insufficient for a rational trier of fact to conclude that a reasonable officer would consider the force excessive. Goodrich v. Everett, 193 Fed.Appx. 551, 557 (6th Cir.2006). Because Miller fails to “allege a level of force or brutality that a reasonable officer would consider excessive,” id., the district court correctly granted Wagester qualified immunity.
B. State Claims
As with Miller‘s federal claims, the existence of probable cause proves fatal to his state tort claims of false arrest/false imprisonment and malicious prosecution. Similarly, Miller‘s assault and battery claim mirrors his federal excessive force claim insofar as Miller can only recover if Wagester acted unreasonably—which he did not. The district court properly resolved Miller‘s state law claims.
II.
Wagester discharged his duties constitutionally and reasonably. Thus, I would affirm the district court‘s grant of summary judgment.