*1 Christopher NELSON, Plaintiff- GUY, SUHRHEINRICH, BEFORE: Appellee, GRIFFIN, Judges. Circuit PER CURIAM. RIDDLE Matthew and Thomas O. Appellants Matthew Riddle and Thomas Moore, individually and in their offi Moore, O. appeal the district court’s denial capacities; City cial of Cadiz Police of summary judgment on qual- the basis of Department, Defendants-Appellants. ified in Appellee Christopher No. 06-5570. Nelson’s alleging illegal action United States Court of Appeals, arising arrest out of traffic in viola- Sixth Circuit. tion the Fourth Appel- Amendment. interlocutory lants seek review on this lim- 15, Feb. reasons, ited basis. For we REVERSE.
I. At the question, the incident in August twenty-three Nelson was years old and a recent graduate of the University recently of Illinois. He had Kentucky returned to the Western area to parent's live with his and search em- ployment. night 21-22, August On the parents’ Nelson left his home on Old Hopkinsville Road in Trigg County, Ken- Cadiz, tucky, city outside the visit shop friends and Hop- at the Wal-Mart in kinsville. in Hopkinsville Nelson was early evening midnight. until after Upon leaving the in Hopkins- Wal-Mart ville, Nelson drove westbound on U.S. Highway towards home outside Cadiz. officers,
Cadiz Mat- Moore, thew Thomas were parked next to each other their marked patrol cars, driver’s door to driver’s door. “ride along” civilian was in car. Moore’s parallel Both to Highway facing with Riddle’s vehicle an east- erly facing direction and Moore’s westerly passed direction. Nelson’s car position their at about 1:30 a.m. Moore told Riddle that he did not think Nelson’s *2 pursuit. to his up had resume and to back plate. thought Both officers had a license nonetheless that he was testified to have illumi- Riddle that Nelson’s car also failed view, in and that keep to Nelson plate, required as nation over the license erratically Hop- Old driving on was § Riddle fol- Nelson by Ky. Rev. St. 186.170. Road, of the line crossing center kinsville Nelson. lowed very high at a driving highway the and Highway off U.S. Nelson turned left of tail that Nelson’s Riddle said speed. Baptist Church Road Rocky Ridge 68 onto out, had Nelson went lights also at a distance from where the officers short switched them off. purposefully Moore, watching, parked. who was just past that turn Nelson heard the testified that that when he Moore testified yards perhaps transmission, pursuit. in front of Riddle. joined the radio up caught to Hop- Riddle estimated Old caught up the He to quarters within three of mile Nelson had He stated that Riddle kinsville Road. original parked position. from the officers’ turned on dur- his blue pursuit. the ing “cut the Riddle testified Nelson Road, Rocky Ridge which Riddle curve” driveway into Nelson his or constituted erratic reckless thought Road. Riddle testi- Hopkinsville off of Old driving, that he switched on his car, out of his jumped fied that Nelson siren, lights and ra- car’s blue yelled into the air and arms threw both dispatcher he had initi- dioed to his had said that Nelson “what?!” Riddle pursuit, failing ated a and that Nelson told in hand and that Riddle something Alexander, to stop. According to Hollis it Rid- slowly place ground. on the Police, of can police Cadiz’s Chief siren thought He Nelson. dle handcuffed background be heard in the commands react to verbal son was slow to radio Officer Rid- communication between eyes. thought He had also and bloodshot dispatcher. dle and in- been under the that Nelson methamphetamine, or marijuana fluence of straight stated that on a section
Riddle given driving and failure to his erratic just Rocky Ridge past Road the curve police lights, to blue response “cut,” had close as that Nelson he was as sobriety Nelson field tests. Nelson, administered lengths three car to but Nelson to on one foot but failed was able stand response failed blue in- by fading to follow “countdown” test light into Nel- spot Riddle had shined regarding the numeric count- structions mirror. Riddle testified son’s rearview horizontal Nelson also failed the dangerously high that he had reached down.1 (HGN) gaze test. speeds chasing nystagmus while Nelson. Hopkins- testified that he arrested right turned onto Old officer, police in violation Riddle, fleeing a
ville Road.
still about three car
520.095,2
turn,
driving
Nelson,
Ann.
lengths
Ky.Rev.Stat.
behind
overshot
evading
(1)
guilty
allegedly
person
1.
failed the countdown test
degree:
police
first
back-
he was instructed
count
When,
(a)
operating a motor vehicle
while
counted back to
wards from 39
flee,
person
with
elude or
intent
disobeys
wantonly
a direction
vehicle,
given
his or her motor
(West 1998)
Ky.Rev.Stat. Ann.
520.095
officer,
police
to be
entitled, "Fleeing
first
condi-
and at least one
degree,” states that:
tions exists:
report
under the influence. The DUI
indi-
The
stop Nelson’s vehicle.
stopping
cates
the reason for
the vehi-
trict court reasoned that:
“[ijnitially
cle was
for a
plate
viola-
Kentucky
it
true that
law pro-
While
tion,” and “[sjecondly for
driving,
reckless
operation
hibits the
a motor vehicle
*3
fleeing
evading police,
or
and DUI suspi-
plate,
without an illuminated rear license
cion.”
neither
nor
Officer Moore
Officer Riddle
taken
was
local
could determine whether Nelson’s car
sample
room where a blood
was drawn.
lacking
plate
was
a
proper
lodged
Trigg County
He was then
in the
investigation.
without further
At that
Jail for
night.
the remainder of the
The
point,
Officer Riddle could
have had
negative
blood tests were
for alcohol or
suspicion non-moving
a
narcotics.
occurring.
traffic violation was
The ad-
story.
Nelson tells a different
He
by
ditional factors cited
Officer Riddle
claims that just west of the intersection of
justification
ensuing pursuit
for the
Highway 68 and
Interstate
observed
acceleration,
curve,
include
cutting a
police
sitting side-by-side.
two
cars
ambiguously
described erratic driv-
son
police
testified that when he
saw
ing.
a
driving mph
mph
The
rejected
district court also
the offi-
zone. Nelson
stated
he did not see
they
cers’ contention
were entitled to
police
lights on the
cars until
qualified immunity. It
that:
reasoned
got
out of his car and Riddle shouted at
him.
The
in-
placed
prosecu-
in “deferred
stant case turns on
a
whether
reason-
months,
tion” for six
the end of that
person in possession
facts
period, no further crimes
been
having
com-
known
Officers Riddle and Moore
mitted,
Trigg County Attorney
would believe that the Plaintiff was vio-
charges against
missed the
him.
186.990(1).
lating
186.170,
KRS
The
carefully
Court has
reviewed the facts of
brought
Nelson then
this action against
and,
the record
Riddle,
as discussed herein-
Moore and
in both their individual
above, notes that several factual dis-
capacities.
and official
Defendants moved
putes exist central to the
summary judgment.
determination
The district court
First,
denied the
of whether Officers Riddle and Moore
motion.
the court held
genuine
that there was
could have
issue of material
believed
fact as to whether Riddle had
cause existed to arrest
at any
520.100,
"Fleeing
entitled
or
evading police
person
driving
degree,” pro-
in the
The
second
under the influence
vides as follows:
any
of alcohol or
other substance or combi-
person
guilty
fleeing
A
or
nation of substances
in violation of KRS
degree
in the second
when:
189A.010;
(b)
operating
While
a motor vehicle with
By fleeing
eluding,
person
or
is the
flee,
person
or
intent to elude
cause,
risk,
or creates
substantial
serious
wantonly disobeys
or
direction
physical
injury
any
or death to
or
vehicle,
given by person recog-
properly____
peace
nized
be a
officer.
(2) Fleeing
evading police
in the first de-
(3) Fleeing
evading police
in the second
gree
felony.
is a
D
Class
degree
is Class misdemeanor.
the constitutional
whether
resulting
violation and
pursuit and
It does not
established.
right was
events.
determination
district court’s
apply to a
interlocutory review
sought
Defendants
genuine and
are
factual issues
about what
portion of the district
of that
Jones,
515 U.S.
triable.
Johnson
summary judg-
that denied
court’s order
L.Ed.2d 238
313, 115
S.Ct.
immunity.
ment on the basis of
(1995).
is,
de
“summary judgment
That
II.
re
appealable
are
terminations
an abstract
is
dispute concerning
solve
argue that their decision
immunity—
relating
sue of law
arrest Nelson for
offense
*4
federal
by
the
whether the
protected
typically,
the
issue
police should be
qualified immunity
clearly
estab
infringed
doctrine of
right allegedly
response
Pelletier,
299,
car in
stopped
Nelson never
516 U.S.
Behrens v.
lished.”
lights and
(1996).
to the officers’
sirens
834,
313,
773
116
133 L.Ed.2d
S.Ct.
“
him,
clearly
it is not
pursued
Thus,
interlocutory ap
for an
‘in order
a
particularized
a
sense that
established
seek
peal
a defendant
appropriate,
to be
officer violates
cause stan-
willing to
immunity must be
ing qualified
a
to
by arresting
faffing
dards
motorist for
alleged by the
the facts as
concede to
signaled to do so.
stop when
plaintiff
legal
the
issues
and discuss
”
addressing
this ar
by
Before
the merits of
v. Wisnes
raised
the case.’ LeMarbe
however,
(6th Cir.2001)
we must
gument,
ki,
429,
address
(quot
266 F.3d
435
procedural
Luttrell,
295,
substantive
doctrines
F.3d
299
v.
199
ing Shehee
govern
type
appeal.
which
this
of
Govern
(6th Cir.1999)).
see
Wilhelm v.
also
discretionary
performing
ment officials
Cir.2002)
(6th
822,
290 F.3d
824-25
Boggs,
functions are entitled to
immuni
standards);
v. Meh
(discussing
Williams
ty
damages
from
for civil
unless their
suit
Cir.1999) (en
(6th
ra,
685,
186 F.3d
689-90
clearly
a
actions have violated
established
banc) (same).
right.
statutory or constitutional
Harlow
district
Finally, “regardless
of
800, 818,
Fitzgerald,
v.
U.S.
102
457
S.Ct.
of
denial
court’s reasons”
(1982).
2727,
Thus,
396
to
73 L.Ed.2d
juris-
this
exercise
show that a
1983 defendant is not enti
it
appeal
to
extent
diction over
suit, plaintiff
to
from
a
must
tled
Williams,
questions of law.
186
raises
(1)
prove
the facts as
omitted).
(citations
at 689-90
F.3d
plaintiff show violation of constitutional
district court’s
This Court reviews the
right;
right
clearly
such
estab
194,
grant
summary judgment de
Katz,
200,
or denial of
lished. Saucier v.
533 U.S.
56(c).
(2001). novo,
2151,
under Fed.R.Civ.P.
Id.
121
at 689. A nonmovant must show sufficient
analysis,
irrelevant
1983
and that
genuine
evidence to create a
issue of mate-
pure legal
issue
be decided is wheth-
rial fact. Id. A “mere
scintilla
er Defendants
clearly
notice that
insufficient;
‘there must be evidence on their
decision to arrest
jury
which the
could
find for
or evading when he
to stop
failed
would be
”
(quoting
Id.
[non-movant.]’
Anderson
unlawful.
Inc.,
242, 252,
Liberty Lobby,
v.
477 U.S.
beyond
August
It
(1986)).
2505,
106 S.Ct.
awareness,” GUY, JR., which as Defendants assert dissenting. B. RALPH assessing what irrelevant majority acknowledges, for As the objective police officer would be- jurisdiction over an interloc to have court tell- exchange particularly lieved. One denial of utory appeal from the ing: immunity, the defendant must “concede Q: Okay. wrong So tell me if I’m then. facts to the most favorable view the recollection, your your If that’s then Ber plaintiff purposes appeal.” of the testimony offi- (6th Rieger, ryman v. cers—that did Officer Riddle not Cir.1998). that, argue whatev have his or blue disputed, be the evidence dem er else you. he followed plaintiff cause to arrest onstrated A: I knew he never Fleeing officer. me. person operat that a evading requires Further, never in his com- asserted to elude or ing a motor vehicle with intent plaint (prior were not on to flee, wantonly disobey a knowingly or must home) his parents’ his arrival at and does by a given the vehicle direction appeal not make this assertion on either. person recognized to an officer. be Thus, “the to [Nel- best inference available §§ 520.095 and 520.100. To be RevStat. *6 son] is that he unaware of simply sure, he stop not car until Nelson did his Appellants’ get stop efforts to his driveway. probable parked it in his For car,” which does not rebut Defendants’ cause, however, material testimony unequivocal have whether a reasonable officer would him prior stopping to his at his failure to was a stop believed that Nelson’s respond. home and that failed to officer’s knowing disregard son therefore failed to meet his burden of words, In signal stop. other would a “a producing more than mere scintilla of officer have believed Nelson jury on which the could find for evidence” aware of Riddle’s should been him. See attempt him. sum, this Court that Nelson did holds believed, testimony If is to be Riddle’s not meet his that the showing burden though offi- Nelson failed to even are entitled defendants not lights car cer a marked activated his Mullins, immunity. v. See Sheets siren, lengths three car came within (6th Cir.2002). For these during highspeed pursuit, car reasons, rely need not on the district we spotlight into the back window directed incorrect on the viola- court’s focus undoubtedly of Nelson’s car. This would Ky. Rev. St. 186.170 and tions ar- establish cause. Defendants 186.990. can no of fact be- gue there be III. (and that matter cause did not Nelson not) lights reasons, testify that Riddle’s could foregoing we hold that For issue, on. Nelson said all that entitled not On Defendants Riddle Moore are under the circumstances—that he and REVERSE he could not see Riddle’s did the police car fied Nelson’s claim that until after Riddle into his driveway. was arrested without cause. it, As I see this misses the crux of the
case. argued that the most favorable
view of all the permits an infer-
ence that did Riddle not come close
enough pursuit Nelson’s
for a reasonable officer to believe Nelson
knowingly disobeyed recognized officer’s
signals That evidence includes
testimony sight lines were short curvy, hilly,
on the lit poorly roads over Mike TURNER and Susie which the pursuit two-mile was conducted. Harmon, Petitioners, dispute There is no that Nelson had head start, and that Riddle initiated after observing going a sharp into UNITED STATES DEPARTMENT OF curve. Even Officer Moore testified that AGRICULTURE, Respondent. he could not see Riddle’s car until he approached the plaintiff’s scene outside No. 05-4487. Hopkinsville residence on Old Road. To United States Court of Appeals, this is added testimony Nelson’s Sixth Circuit. nearly had to slow to in order to sharp make the Hopkinsville turn onto Old Feb. admittedly Road—a turn that Riddle over- that, shot. From argues had enough been close seen, be lights to then Riddle should
also have seen Nelson’s brake
would not have missed the turn himself. *7 addition, specifically averred
way delay of affidavit that there was a
30 to 45 seconds between the driveway in the
arrived of his home and driveway
when Riddle into the be- This, argues,
hind him. supports
Ms enough claim that Riddle was not close pursuit reasonable officer
under the circumstances to believe that wantonly
Nelson had
obeyed a reeogmzed signal officer’s
Because I disputed believe the facts con-
cermng the create whether there was
arrest Nelson for eluding an
officer, I quali- would affirm the denial of