*1
747, 751-53,
(1952). “If the conduct and revelations of agent operating without electronic
equipment do not invade the defendant’s
constitutionally justifiable expectations of
privacy, neither does a simultaneous re-
cording of the by same conversations made agent others from transmissions agent
received from the to whom the de-
fendant is talking and whose trustworthi-
ness the necessarily defendant risks.” White, v.
United States
401 U.S.
(1971)
(plu-
S.Ct.
rality opinion). The District Court did not admitting
err in the tape recordings.
IV
The District judgment Court’s is af-
firmed.
Sylvia NAILS, Plaintiff-Appellant
Cross-Appellee RIGGS, Defendant-Appellee
Dale
Cross-Appellant Grove, Kentucky, of Vine
Defendant-Appellee. 05-5142,
Nos. 05-5143.
United States Court of Appeals,
Sixth Circuit.
Aug. *2 a constitution- Riggs
tects defendant from cause, probable al claim for arrest without supports con- and insufficient evidence city. against claim The stitutional regarding on the verdict judgment force proper. excessive was We therefore judgment claims, affirm the on all federal some law but remand of the state claims for further consideration. Background
I. Sylvia hurry in a to Ms. Nails was take for a 10:00 pediatrician her son to a.m. It 9:40 a.m. on June appointment. was 2001 and Nails’ son needed to be in 20 Mr. Nails was not doctor minutes. overly pediatrician’s concerned about garage he to find the appointment; wanted opener. fought Mr. and Ms. Nails door open- door garage over the location of the thought er. Mr. Nails that Ms. Nails have it car. Mr. Nails took might her keys car and Ms. Nails’ to look her Ms. SUHRHEINRICH, NORRIS, Before: police. help Nails called the She wanted ROGERS, Judges. keys Circuit retrieving the from her husband. Riggs at the scene re- Chief arrived ROGERS, Judge. Circuit Riggs negotiat- to Nails’ sponse request. This case whether there was involves of the car ed with Mr. Nails for return cause to arrest Ms. Nails for probable keys. Nails approached Ms. disorderly conduct after a forceful dis- in the they her husband as talked front and Police agreement between Nails Chief of Mr. Nails’ Ms. Nails lawn home. asked force Riggs, and whether excessive was keys. to Ms. According for her car her. court took used The district she deposition, yell gesticulate did not or every possible step within its discretion to wildly. merely She “talked” to redress, to permit including Nails seek body up her hand her own six put towards complaint her amend her permitting face, making a talk- inches from her own after ini- and submit additional evidence upset gesture. Ms. Nails was to-the-hand tially losing summary judgment. on her, Riggs “disrespected” judgment granted summary district being violent claims she was federal claims on the on various and state noisy all. cause for ground he arrived at According Riggs, force claim arrest. Nails’ excessive her to a domes- jury, responding the Nails residence to the found went which an assault call. tic disturbance and While a conclude defendant. “screaming, shouting that Nails no cause to arrest stated that there was keys.” car Nails, pro- things about some immunity nonetheless different dismissed on November go charges She would not back inside the house were despite requests. Riggs expired three wanted of limitations and the statute pres- talk to Mr. Nails without Ms. Nails’ June go ence. Ms. Nails did not back in the action, se, pro then instituted this *3 said, Riggs house “I want and claims she 7, 2002. Nails listed “Jefferson on June * my keys” car to her husband as f[* *]in’ Riggs” Co. Official Chief Corrections Riggs she reached towards him. testified the com- Riggs the defendant. answered said, that Ms. Nails also hit me. “Now plaint denying allegations and asserted here, me,” police The now hit to her [are] qualified immunity. After the defense husband. Nails denies she said counsel, retaining amended her com- Nails things. Riggs these then “advised her she 18, 2003, plaint on March to state claims
was under arrest.” Riggs capac- his individual Nails, According Riggs displayed to Ms. ity City Riggs Vine Grove. racial animus before and after the arrest. allega- Vine Grove moved to dismiss the Nails, Riggs forcefully After arrested complaint tions in the amended on the her, “I’m Riggs teaching you told how to ground they that were barred the stat- up.” shut alleges Riggs Nails also that ute of limitations because the amended (who white) displayed racial animus to- complaint filing did relate back to the (who family wards Ms. Nails and her are complaint. of the initial The district court black). to, Riggs allegedly told Nails ruled that the amendments do relate back damn mouth get “[s]hut [her] [her] Riggs was on notice that he was black ass back in the house.” being capacity. sued his individual Riggs disorderly arrested Nails for con- complaint alleges The amended various duct. He said that her “statements and state law and constitutional torts. Nails demeanor at “disorderly.” the scene” were alleged against Riggs state law torts his He also said she was in a public place— arrest, individual capacity including false yard.” “her front Riggs did not if know legal process misuse of and assault. Nails there people were other Ac- the scene. alleged Riggs clearly also violated her cording deposition to Nails’ her husband rights established constitutional under the was on the front lawn and her children Fourth Amendment in violation of 42 standing Thus, were on the porch. there § Lastly, alleged U.S.C. only person one other at the scene. of Vine Grove was liable for the Riggs’ Nails and stories diverge constitutional torts committed based on a amount of force used the arrest. theory. failure to train claims that Nails was not in pain visible and faked a seizure when arrested. In an order dated June 2004 the claims she was knocked unconscious after district court dismissed all of Nails’ claims being slammed into a car. In Nails’ ver- pursuant summary to a motion for judg- sion of appeared the arrest she to be un- ment. The district court dismissed all immediately upon being conscious almost § ground claims under 1983 on the arrested. Nails claims that she sustained provide damages. Nails did not evidence of injuries various neck and back which Lastly, the June 18 order dismissed all the she received medical treatment. state law tort claims because there was charged
Nails was arrested and cause to arrest with Nails for disor- disorderly resisting derly conduct and arrest. conduct as a matter of law. Nails charging evidence, was the The officer. then submitted additional medi- cause to records, stage, she was
cal which tended to show prob- injured. Nails then moved for reconsider- arrest as a matter of law. granting court’s order is reviewed de ation of the district cause determination able pur- the defendants summary judgment appropriate Summary judgment novo. Rules of suant to a motion under Federal issue of material genuine there is no when 59(e). district court Civil Procedure fact; light is considered in the all evidence motion, part, by reviving granted the to Nails. See Matsushita most favorable claim that used excessive Corp., Radio Elec. Indus. Co. v. Zenith arresting force when her for 89 L.Ed.2d court ruled that conduct. The district (1986). immuni- Riggs was not entitled *4 jurors can long reasonable dis- As to
ty and the excessive force claim went circum- material facts and agree about presented trial. Nails evidence that she officer, cause facing probable stances the Riggs present- did not resist at all. jury. fact the Hale v. question is a of behaving errat- ed evidence that Nails was Cir.2005). (6th Kart, 721, Of 396 F.3d minimum nec- ically and that he used the course, of fact when no material issue ex- of force to Nails. essary amount subdue ists, cause determinations are le- objected Nails to the instructions gal determinations. Id. the arrest was lawful. The that stated every given stated that instruction grant court’s decision to The district right not to be person has a “constitutional 59(e) mo- Federal Rules of Civil Procedure subjected to or excessive unreasonable to amend is reviewed for abuse of tion arrested, being though even force while Invs. discretion. Hansmann v. Fid. Insti- in accordance the arrest is otherwise made Co., 760, 326 F.3d 766-67 tutional Servs. jury instructions fur- with the law.” The (6th Cir.2003). that, ther noted as “a law enforcement arrest,” Riggs had making
officer a lawful III. Statute of Limitations right “a to use an amount of force reason- ably necessary under the circumstances to outset, At the we conclude that fi- complete the arrest.” The instructions by claim is not barred the statute of Nails’ stated, already “I ruled that nally have The statute of limitations limitations. cause. Riggs] did have [Chief close, the district court question However, circum- you may consider the amended correctly reasoned that Nails’ part your of as- stances of the arrest as timely can relate back to her complaint necessary of force to effectu- sessment complaint. By asserting the original filed in favor ate the arrest.” The decided immunity, Riggs qualified of defense Riggs. of being he was sued showed that he knew capacity. See Moore timely appeal notice of on his individual Nails filed her Harriman, 769, 13, 272 F.3d 772-74 January 2005. has filed cross (en banc). Cir.2001) that he Riggs claims appeal. im did not assert the defense II. of review Standard that he did. munity, but his answer reveals Thus, its the district court did abuse summary judgment
Claims dismissed on to re Lee, permitted it discretion when Heggen v. are reviewed de novo. (6th Cir.2002). adding claims back the amendment 675, late The district F.3d capacity. Riggs in his individual ruled, summary judgment court action identity proper party, parties agree proper All that the statute brought against have year [him from would been period of limitations is one capacity].” Fed.R.Civ.P. Thus, his individual injury. of limita- date of the statute 15(c)(3). correctly ap- (one The district after year tions ran on June from proceedings” test 2001). plied the “course on Nails filed the arrest June Moore, “course 772-74. The 2002. original complaint her June test determines whether proceedings” face, complaint its the 2002 asserted a On § received notice of 1983 defendants “have only against Riggs claim in his official personal- intent to hold them plaintiffs capacity. Nails filed her amended com- ly Id. at 772. “The ‘course of liable.” plaint on March unless proceedings’ test considers such factors as original amendment relates back claims, re- plaintiffs the nature of the complaint, complaint against Riggs quests compensatory punitive dam- capacity in his individual is barred ages, defenses and the nature statute of limitations. Because the “course partic- response complaint, raised proceedings” origi- test that the shows ularly qualified immunity, claims of to de- complaint provided nal actual notice termine the defendant had actual whether intended sue his individu- *5 for knowledge potential individual al it capacity, was not an abuse of discre- liability. The test also considers whether tion to complaint. relate back the amended subsequent pleadings put the defendant on Because the claim asserted against in which he or she is capacity notice of the Riggs in his capacity individual arose out (internal 1 sued.” Id. at 772 n. citations of the same circumstances as the claim omitted). against Riggs in capacity his official and Riggs’ counsel asserted the defense added, Riggs prejudiced by being was not qualified immunity Riggs on and thus was the first two elements are met. Under in indi- being notice he was sued his 15(c)(2), Federal Rules of Civil Procedure capacity. vidual The third defense assert- in change party origi- relates to the back was, ed all times mentioned in Plain- “[a]t complaint nal if the claim asserted Complaint, Answering tiffs the Defendant party the new arose out of the same trans- faith, acted in good without malice action and occurrence. It did. Additional- scope public within the of his duties as a ly, undisputed Riggs it is that Officer official.” Asserting quali- the defense of days required by notice within 120 as immunity fied can be seen as admission the Federal Rules Civil Procedure § the 1983 defendant knows she 15(c)(3). The second element of relation being capacity. sued in his individual See adding Riggs back is met because in his Banks, (6th 587, Rodgers v. 594 capacity individual does not prejudice his Cir.2003). interpreted The district court Riggs defense. knew that he could face asserting qualified the immuni- answer liability improper some for the conduct ty, though even answer does use the initial complaint when was filed. magic “qualified immunity” words like little, any, if prejudice There is from add- “clearly right.” established constitutional ing Riggs capacity in his individual In Kentucky, qualified the defense of im- § purposes Riggs 1983 retained because munity commonly referred as the “ early proceedings. counsel in the Fed. See ‘good qualification faith’ to official immu- 15(c)(2). R.Civ.P. nity discretionary acts.” v. Yanero Davis,
Riggs (Ky.2001). or should have known 65 523 Ar- “[knew] S.W.3d that, in concerning guing public good but for mistake that a official acted
308 not threaten undisputed of his as a Nails did use scope faith within duties of force or of harm to create risk public pleading official is tantamount arrest, Riggs placed after she was immunity Kentucky. in qualified See id. Riggs’ position no reasonable Moore, officer asserted Applying could believe that Nails resisted arrest. immunity he was qualified being he knew capacity sued his individual disagreement with Officer amendment should relate back. type front on her own lawn is the behav did district court not abuse its discretion Kentucky Revised ior the drafters of Stat by permitting Nails to relate her amended sought utes 525.060 to exclude from the complaint original back to of her the date of disorderly definition conduct. “Where pro complaint. se supreme spoken, the state court has not discern,
our task is from all available Probable cause and im- IV. sources, respond how if that court would munity with Rector v. confronted the issue.” Gen. Corp., Motors F.2d 146 963 Cir. Riggs, capaci- Because individual his 1992). The facts taken Nails’ favor ty, qualified immunity asserted we apply finding permit that it was unreasonable Katz, familiar test of v. Saucier 533 engaged for Officer to believe Nails S.Ct. L.Ed.2d Ohio, conduct. See Beck (2001) courts to con- (instructing lower 89, 91-92, 379 U.S. the threshold sider issue whether a (1964) (stating L.Ed.2d right violated in addition constitutional facts cause standard as whether right clearly to whether at issue was circumstances were sufficient to warrant a established). disagree While we with the *6 prudent person believing in the arrestee court’s that district decision offense). had committed an Kentucky’s to probable cause arrest under Generally, statute, disorderly conduct criminal- disorderly Kentucky conduct cases wantonly creating public izes risk of an- sufficiently are not clear that actions noyance Kentucky or alarm. Revised clearly violated law. established Chapter defines Statutes 525.060 disorder- immunity. is entitled to
ly conduct follows: (1) A. Constitutional disorderly Violation A person guilty con- place in public duct when a with jury A find the reasonable could facts inconvenience, public intent to cause an- supporting a constitutional violation for an alarm, wantonly noyance creating or or illegal arrest. A material issue fact thereof, a risk he: that, favor, if remains in Nails’ construed (a) violent, in Engages fighting in or permit that would conclusion did behavior; threatening tumultuous or not have cause. Construed in or Nails, most no light favorable to rea- (b) noise; or Makes unreasonable officer in could Riggs position sonable have (c) official obey Refuses order to that in engaged concluded conduct disperse public to maintain issued “disorderly” defined as statute. safety proximity in to a dangerous Also, there was no cause to ar- fire, emergency; hazard or other or disorderly Nails for conduct because a rest (d) that jury physically could find Nails was neither a a hazardous or Creates any act might public by nor create risk of offensive public place condition purpose. it no Additionally, legitimate serves disturbance. juryA could reason- jury public whether a risk of alarm. question There is a as to only who prudent Riggs’ position ably person officer in could conclude that believe that committed a “disorder Nails’ conduct was Chief was alarmed 525.060(l)(a- ly” Ky.Rev.Stat. act listed a Causing only police alarm Riggs. d) by gesticulating erratically yelling of an arrest officer cannot form the basis Riggs. A could conclude that disorderly conduct. “threatening Nails’ conduct is not behav requires public alarm as statute [T]he ior,” Ky.Rev.Stat. violation from alarm. For distinguished private 525.060(l)(a), because Nails said she was may a not be arrested example, person violent, anyone, did not threaten conduct as a result disorderly only up held her hand six inches from her annoys only police. activity which own face. A could conclude The statute is not intended to cover the noise,” Nails did not make “unreasonable private a citizen en- situation which 525.060(l)(b) Ky.Rev.Stat. in violation of gages argument police with the so because Nails said she did not make long argument proceeds as the without (in than asking non-yelling more noise a offensively language coarse or conduct voice) keys. for her car Common Of intentionally wantonly which creates Jones, wealth v. 880 S.W.2d 545-46 public a disturbance. risk (Ky.1994) (upholding conviction under the Ky.Rev.Stat. (emphasis § 525.060 cmt. disorderly conduct statute where officer added).1 comments, Applying testified to speech). defendant’s volume of no reasonably prudent per- could conclude undisputed It is that there was no emer Riggs’ position son in could believe gency on the order a fire or hazard. amounted Nails behavior 525.060(l)(c). Ky.Rev.Stat. See Taking the conduct conduct because Nails’ created light Nails, facts in the most favorable to annoying only Riggs. risk of juror rational asking could conclude that keys for one’s is not a physi “hazardous or A Kentucky review of the one case condition,” cally offensive asking and that dispute where a domestic on a front lawn keys for car to take a child to a doctor is a public permits created risk of alarm “legitimate purpose.” Ky.Rev.Stat. a jury reasonably conclusion that *7 525.060(l)(d); Jones, also 880 S.W.2d at public conclude there was no risk of cf. case, alarm in in this case. Unlike this Commonwealth, Collins v. No.2002-CA- Additionally, a reasonably could 001991-MR, (Ky. at *1 WL conclude that Nails’ conduct does not satis- 2004), Feb.20, Ct.App. appeals the court of fy public Ky.Rev. the alarm element of disorderly affirmed a conviction for con Stat. 525.060. dispute, including duct where a domestic reasonably noise, 1. A could conclude that annoying neigh boisterous risked wantonly Nails did not create risk bors it 2:00 a.m. in a because was trailer public alarm. park. The Collins Court described the as, scene reasonably A conclude that
the support calling facts known to did not after the police, appellant de- girlfriend inference Nails’ conduct created a manded that his be removed binding, pursu- App.1982), may 1. The comments are not but comments an aid be used as Ky.Rev.Stat. ant to 500.100 and Williams construing in statutes. Commonwealth, (Ky.Ct. 639 S.W.2d family watching her from the officer and lawn with from his trailer. While throughout his brief porch. Riggs argues stood outside the appellant’s girlfriend girlfriend’s yard friend in and was waiting trailer for the that Nails was her front home, came out of appellant to take her in but such an public place, therefore a yelled and cursed at his the trailer and a matter of law. assertion is incorrect as premises. The girlfriend to leave commentary types The describes appellant officer twice ordered inside generally “public places.” that are places him that if he came back and warned provision, the actor must ei- Under the cursing, and he would be yelling outside public ther intend to cause inconven- disorderly conduct. arrested for When ience, wantonly annoyance or alarm or time, emerged a third the offi- appellant statute is not create a risk thereof. The him cer informed he was arrest. liability Ky.Rev.Stat. offense. a strict public in a if the arrestee was not Even Public requires ‘public’ alarm. 525.060 (a lawn), 525.010(2) conduct place front Ky.Rev.Stat. in is defined a.m. in a was boisterous noise at 2:00 likely to affect a that which affects or is “produc- that had a chance of park trailer course, persons. group of Of substantial ing proscribed its offensive or conse- inconvenience, public annoyance place.” Ky.Rev.Stat. in a quences public in facil- privately alarm can occur owned 252.010(8); Collins, 2004 see WL 315035 stores, houses apartment ities such as *1. Collins and the instant case are differ- by This is made clear theaters. appeared to ent because other trailers be ‘public place’ Ky.Rev. definition proximity in closer than the houses 525.01(3). provision not in- The Stat. case, instant it was after 2:00 a.m. rather to include conduct which disturbs tended case, than 10:00 a.m. the instant quiet person. ‘one’ peace person fewer on may have been one Ky.Rev.Stat. 525.060 cmt. The commen- pru- case. Id. A the scene the instant disagreement tary illustrates that a short dent officer is entitled to believe bois- front lawn morning private in the late alarm in a may public terous noise cause type place not the that could probably a.m., 2:00 but a park crowded trailer pro- virtue of qualify public place as a can- jury could conclude such conclusion consequences in a ducing proscribed its in Nails’ case where be warranted public place. neighbors were not evidence shows language sug- of the statute plain example, For evidence shows alarmed. yard front is not a gests private that a neighbor porch door was on his the next Statutory examples public public place. Although smoking cigarette. Collins to, include, are not limited places noisemaking found that boisterous facilities, “highways, transportation *8 yard in the front morning wee hours of the amusements, schools, parks, places of annoy- public a created risk of of trailer business, and hall- playgrounds, places ance, distinguishable it is from the instant portions apart- ways, lobbies and other finding a supports case because evidence constituting hotels not ment houses and annoyed not neighbors that Nails’ were designed for actual apartments rooms or and it 10:00a.m. was 525.010(3). A Ky.Rev.Stat. residence.” reasonably conclude jury 2. A could a people two private front lawn with public place. in a Nails was not explicitly is not excluded police officer 525.010(3)’s pub- Ky.Rev.Stat. definition Nails was not a juryA could conclude noise at 2:00 boisterous place on her front lic because place because she was public
311
Qualified immunity is warranted when
might
public annoyance.
a.m.
create risk of
Collins,
315035,
reasonably
proba-
believe that
Riggs’
2004
at *1.
officer could
See
WL
See
rationale,
yard
ble cause existed to arrest Nails.
that Nails was
her front
224, 228, 112
502
public
Bryant,
in a
is not Hunter v.
place,
and was therefore
(1991);
534,
312 on the record There is no evidence 534. The district 112 S.Ct.
U.S.
claim that Vine
supports
which
Nails’
fact
on the uncontroverted
court relied
city’s
A
fail-
Riggs.
failed to train
Grove
told Nails to return
Riggs repeatedly
§
1983
may
train
be the basis
ure to
the
Riggs talked with
to the house while
Harris,
liability. City
Canton
husband,
to do so. The
and Nails refused
386-392,
very sparse, and
Kentucky case law is
(1989).
Evidence on the rec-
L.Ed.2d
to be drawn to determine
inferences need
received
standard
ord shows
apply the
Kentucky courts would
how the
training
hours. Nails submits
number
affirm
case.
therefore
statute
this
We
training offered was
no evidence that the
of Nails’ fed-
the district court’s dismissal
all,
that it reached
much less
deficient
the alter-
no-probable-cause claims on
eral
deficiency re-
of constitutional
the level
immunity.
ground
native
489 U.S. at
quired by City Canton. See
390-91,
(stating that a
vise. claims VI. State law respond repeated include a failure to against Riggs, violations but constitutional The district court dismissed is on the record. See no such evidence arrest, im claims of false false state law Shaner, 927, 930-31 Brown v. prosecution on prisonment, and malicious Cir.1999). Evidence submitted cause was ground that lack Riggs has had no similar Riggs shows that necessary of each tort. We element This alleged misconduct. complaints above, however, that a have determined Thus, Nails has evidence is not refuted. cause un find lack of jury could of fact as to analysis a material issue above Kentucky created Our der statute. respond remaining city’s liability failure to precludes whether case, does not § to fail- in this complaints against Riggs amounted 1983 claims necessarily control the resolution of Nails’ con- supervise ure to violation these claims.4 remand state law We rights. stitutional did not actu- against Chief because she the district waived her claim that 4. Nails body any argument in the of her ally make incorrectly assault claim dismissed her
313 correctly jury of rele court further tions informed the claims to the district light opinion. consideration in of this Is- de novo. Gibson v. vant law is reviewed municipal Louisville, 511, sues of state law official and 336 F.3d 512 City of immunity dis- .2003). are better addressed Cir trict court in the first instance. We also jury given instruction stated that The leave to the district to determine every right has a “constitutional person proper
whether it is
to exercise its discre-
subjected
unreasonable or
not to be
to
point
tion at this
to dismiss the state law
arrested,
being
while
even
excessive force
prejudice,
claims without
now that no fed-
arrest
is otherwise made
thought the
eral law claims remain and there is no
in-
jury
The
accordance with
law.”
diversity
citizenship.
pen-
‘Whether
that, as “a law
structions further noted
jurisdiction
properly
dent
has been
as-
making
officer
a lawful ar-
enforcement
open through-
sumed is one which remains
rest,”
an amount
right
had “a
to use
litigation.”
out the
United Mine Workers
reasonably necessary
of force
under the
Gibbs,
715, 727,
Am. v.
383 U.S.
86 S.Ct.
to
the arrest.”
complete
circumstances
1130,
(1966);
VII. Motion for a trial on new pro question presented The this
§ 1983 excessive force claim posture cedural is whether there must be new trial on the claim for excessive force. The claim properly excessive force of whether there was issues following jury determined cause to arrest and whether excessive jury trial.5 Nails claims that verdict force was used are distinct. Nails cannot favor of should be out thrown due to recover for both an unlawful arrest and improper jury In reviewing instructions. if instructions, excessive force there was no jury we if must determine “A an instructions, plaintiff may cause. not recover on jury erroneous as a viewed whole, merely misleading. independent were excessive force claim See Sutkiewicz v. un County applied during because force was an Sheriff, Monroe 110 F.3d (6th Cir.1997). objected McCauley, seizure.” Cortez v. lawful See (10th Cir.2006). instructions. Whether the instruc 995-97 An only genuine brief. The mention of the assault claim assault ... because there existed a heading. Merely putting argument is in a issue of material fact.” Nails does not devel- heading preserve argument ain does not argument op this at all brief. Inman, appeal. See Buziashvili, Buziashvili it is waived. (6th Cir.1997) (stating ”[a]l- F.3d issue, though they judgment defendants listed this as an 5. Because we affirm the on the argument support make no in their brief in Riggs, verdict in favor of defendant we need Therefore, contention. we consider this argument not reach Nails’ the district waived.”). argument by applying court abused its discretion Feder- 59(e) Rule Procedure to amend its heading argues, al of Civil In one Nails "The district previous grant summary judgment per- granting summary judgment court erred in Dale on Mrs. claim of mit on the excessive force claim. defendant trial *11 regarding whether incorrect instruction has properly arrested therefore
Nails was jury’s
no effect on a determination force used mak- not excessive
ing arrest. Jay and A. EILERMAN Jennifer
VIII. Conclusion Eilerman, M. Plaintiffs- against Riggs respect Appellants, to the claims With affirm the capacity in his individual we the district court on all fed- judgments of of the state Cargill
eral claims and the dismissal INC., Oilseed CARGILL d/b/a the state law Defendant-Appellee. assault claim. We remand Processing, arrest, imprisonment, for false false claims No. 05-3950. prosecution claim for further and malicious light opinion. consideration in of this Appeals, United States Court Sixth Circuit. NORRIS, Judge, ALAN E. Circuit 9, 2006. Aug. concurring. recognized its As the district summary judgment, this
opinion granting from an unfortunate series
lawsuit arose by a of “a mar-
events marked combination concern for dispute parental
ital
children, communica- perhaps inadequate enforcement, distraught among
tion law perhaps, participants,
and emotional police.” Memorandum
overreaction Riggs’ decision to
Option at 2. While may have been ill-ad-
arrest Mrs. Nails hindsight, not the benefit of
vised with part on the
every questionable decision arises to the level of
law enforcement case, In I
constitutional tort. this would of the district court
affirm the conclusion they ap- on the facts “[biased [] arrest, time of a reasonable
peared at the evidence prudent officer had sufficient Plain- cause to arrest
to establish conduct,” Id at 6.
tiff for respect, I concur
In all other
opinion majority.