NOT RECOMMENDED FOR PUBLICATION File Name: 20a0374n.06
No. 18-2432
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED BRYAN RICHARDS, ) Jun 24, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) v. ) ) ON APPEAL FROM THE COUNTY OF WASHTENAW, et al., ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN Defendants, ) DISTRICT OF MICHIGAN ) JUSTIN BERENT, ) Defendant-Appellant. )
Before: BOGGS, BATCHELDER, and DONALD, Circuit Judges.
BOGGS, Circuit Judge. Justin Berent, a security officer at the University of Michigan,
arrested Bryan Richards and the Washtenaw County, Michigan prosecutor charged Richards with
one misdemeanor count of assault and battery and two felony counts of assaulting or obstructing
a police officer and a medical first responder. A jury acquitted Richards of all charges. Richards
filed a 42 U.S.C. § 1983 suit against Berent, as well as Washtenaw County and two Washtenaw
County officers—Sergeant Thomas Arnett and Deputy John Cratsenburg—who were involved
with his arrest. Richards alleged: (1) Fourth Amendment violations for unreasonable search and
seizure (Count I); (2) Fourth Amendment violations for excessive force (Count III); (3) Fourth
Amendment violations for malicious prosecution (Count IV); and (4) state-law claims for false
arrest/imprisonment and malicious prosecution (Counts II, V). With eight months remaining for
the parties to conduct discovery, Berent moved for summary judgment, asserting qualified Case No. 18-2432, Richards v. Cty. of Washtenaw, et al.
immunity. The district court denied the motion, noting that it was influenced by Berent’s decision
to file the motion so early. Berent now appeals.
Richards has gone through a criminal trial. The summary-judgment record contains the
trial transcript, which includes Richards’s sworn testimony, as well as that of four witnesses who
had direct contact with the events surrounding Richards’s arrest. Based on Richards’s prior
sworn testimony, we affirm the district court’s ruling on count III, but reverse as to counts I, II,
IV, and V.
I. Background
On October 1, 2016, Richards was in Ann Arbor with a group of friends to attend a
University of Michigan football game. At the time, Richards was 46 years old, 5'11'' tall, and
weighed 300 lbs. Prior to the game, he consumed at least five 12-ounce beers between 12:30 PM
and 2:45 PM. A little before 3:30 PM—the scheduled start time for the game—the group
proceeded to the stadium on foot. Richards suffers from arthritis in his left ankle, so he put his
arms around his friends for support. Inside the stadium, Richards’s friends continued to support
him as the group walked to their seats. It was then that UM police officers approached the group
and asked Richards if he was drunk. He denied being drunk, but the officers gave him an
ultimatum: He could either go to the stadium’s emergency medical area or be arrested. Richards
agreed to go to the medical area. He was then strapped onto a motorized cart and transported to
the medical area, which was located near Gate Nine of Michigan Stadium.
At the medical area, Richards was placed on a gurney with steel railings on both sides. He
was offered, but refused, a breathalyzer test. He complied for “[p]robably about 15 minutes” with
tests and questions from the medical staff, but then decided to leave. While he was scooting to the
end of the gurney, Paramedic Rick Johnson “shoved” him back, telling him that he could not leave
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because he was drunk, to which Richards replied, “I’m not drunk.” Richards continued scooting
off the gurney during this exchange, and when he stood up, Paramedic Johnson “grabbed” his
“right arm by the bicep” and would not let go, even as Richards tried to pull away. After “probably
less than ten seconds” of this, someone—Richards’s testimony gives no indication that, until this
point, anyone other than Paramedic Johnson and a nurse were in the medical area—grabbed
Richards by the left arm, twisting it behind him and bending him over, and someone else then
jumped over Richards’s head onto his back, causing Richards to fall to his hands and knees.
Richards was later able to identify these two individuals as Officer Berent and Deputy Cratsenburg.
While he was on the ground, the officers continued “jumpin’ up and down on” Richards until he
was flat on the floor with his “hands pinned underneath” him. The entire incident—from his first
encounter with Johnson until he was pinned on the ground—took “maybe 20, 25 seconds.”
Once he was on the ground, the officers told Richards to “stop resisting” and to put his
hands behind his back but he could not comply because his hands were pinned underneath him.
After the officers “let up a little bit,” Richards rolled over so that he could be handcuffed. The
officers told him he was under arrest for “public intoxication” and took him to a separate holding
area where he realized he was bleeding from cuts on his head. Richards told the officers that they
were “gonna’ get sued” and asked why they could not have just told him to put his hands behind
his back before taking him to the ground.
Berent concedes that he was the first officer to respond and immediately “grabbed
[Richards’s] left arm” in an attempt “to place [Richards] under arrest.” Deputy Cratsenburg
concedes that, when he arrived at the medical area, he joined the officers who took Richards to the
ground. While Berent and Cratsenburg “took [Richards] down to his knees,” Arnett “assisted by
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taking control of [Richards’s] legs and helping place him in a prone position” to be handcuffed.
None of the officers told Richards that he was under arrest.
The Washtenaw County prosecutor charged Richards with one count of misdemeanor
assault and battery, and two felony counts of assaulting or obstructing a police officer and a
medical first responder. At trial, Paramedic Johnson and the three officers testified for the
prosecution. Richards testified in his own defense, under oath and threat of perjury, and was
subject to cross examination. The jury acquitted Richards of all charges, which suggests that they
believed Richards or disbelieved the officers, or—at a minimum—that they did not believe the
officers beyond a reasonable doubt. Richards filed the instant § 1983 suit in the federal district
court and Officer Berent, alone, moved for summary judgment based on qualified immunity. The
district court denied the motion, leading to this interlocutory appeal.
II. Jurisdiction and Standard of Review
Qualified immunity shields government officials in the performance of discretionary
functions from standing trial for civil liability unless their actions violate clearly established rights
of which a reasonable official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A plaintiff who brings a § 1983 action against such an official bears the burden of overcoming the
qualified-immunity defense. Bunkley v. City of Detroit, 902 F.3d 552, 559 (6th Cir. 2018). At the
summary-judgment stage, the plaintiff must show that (1) the defendant violated a constitutional
right and (2) that right was clearly established. Ibid. In so doing, the plaintiff must, at a minimum,
offer sufficient evidence to create a “genuine issue of fact”; that is, “evidence on which [a] jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
If the district court finds that the plaintiff’s evidence could support a jury’s finding that the
defendant violated a clearly established right, the court must deny summary judgment. DiLuzio v.
4 Case No. 18-2432, Richards v. Cty. of Washtenaw, et al.
Vill. of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). As the denial of summary judgment is
ordinarily not a final decision within the meaning of 28 U.S.C. § 1291, it is generally not
immediately appealable. But the “denial of a claim of qualified immunity, to the extent that it
turns on an issue of law, is an appealable ‘final decision’ within the meaning of [] § 1291
notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
When presented with an interlocutory appeal from the denial of qualified immunity in
which legal and factual challenges are confused or entwined, “we must separate an appealed
order’s reviewable determination (that a given set of facts violates clearly established law) from
its unreviewable determination (that an issue of fact is ‘genuine’).” Roberson v. Torres, 770 F.3d
398, 402 (6th Cir. 2014) (citing Johnson v. Jones, 515 U.S. 304, 319 (1995)) (quotation marks
omitted). We likewise separate an appellant’s reviewable challenges from the unreviewable ones.
DiLuzio, 796 F.3d at 610; see also Romo v. Largen, 723 F.3d 670, 674 & n.2 (6th Cir. 2013)
(accepting appellate jurisdiction by ignoring the “factual disputations” and “ruling on what [wa]s
properly before us [while] say[ing] nothing about what [wa]s jurisdictionally not before us”). That
is, we must “ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal
issue, obviating the need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter v.
City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (deciding based on the plaintiff’s record facts).
Upon ignoring the defendant’s attempts to dispute the facts, we follow the same path as did the
district court—considering the sufficiency of the plaintiff’s proffered evidence, drawing all
reasonable inferences in the plaintiff’s favor,and we need look no further than the district court’s
opinion for the pertinent facts and inferences. DiLuzio, 796 F.3d at 611.
Ultimately, we must make the legal determination of whether the defendant violated a
clearly established right based on the now (for this purpose) undisputed record facts, i.e., “once
5 Case No. 18-2432, Richards v. Cty. of Washtenaw, et al.
we have determined the relevant set of facts and drawn all inferences in favor of the nonmoving
party to the extent supportable by the record.” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). In
the instant case, we can accept Richards’s version of events—as he presented it in his sworn
testimony during his state-court criminal trial—as the “undisputed” record facts of this case.
III. Discussion
A. Unreasonable Seizure/False Arrest (Count I)
Ordinarily, an assessment of whether an officer is entitled to qualified immunity after a
plaintiff has alleged an illegal arrest requires determining whether there was probable cause for
the arrest. Probable cause exists if the “facts and circumstances within [an officer’s] knowledge
and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent
man in believing that the [arrestee] had committed or was committing an offense.” Beck v. Ohio,
379 U.S. 89, 91 (1964). At the summary-judgment stage, all reasonable inferences are to be made
in favor of the arrestee, but “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.” Harris v. Bornhorst, 513 F.3d 503,
511 (6th Cir. 2008). But at the present stage of this case—the interlocutory appeal from the denial
of the officer’s claim of qualified immunity—the question for us is not the broad question of
whether Berent had probable cause to seize Richards, but rather the narrow question of whether
Richards has produced evidence upon which a reasonable juror could find that Berent’s (even
mistaken) seizure of him was necessarily unreasonable under the those facts.
We conclude that it was not unreasonable for Berent to believe that Richards “had
committed or was committing an offense” at the time of the arrest. See Beck, 379 U.S. at 91. By
Richards’s own account, when the officers came to the medical area, they immediately witnessed
6 Case No. 18-2432, Richards v. Cty. of Washtenaw, et al.
some form of physical altercation between Richards and Paramedic Johnson. Even though it was
Johnson who was restraining Richards, Berent still witnessed a uniformed medical professional
struggling with or attempting to restrain a man who was pulling away. Michigan law permits an
officer to arrest an individual for misdemeanor assault, which can be “either an attempt to commit
a battery or an unlawful act which places another in reasonable apprehension of receiving an
immediate battery.” Michigan v. Johnson, 284 N.W.2d 718, 718 (Mich. 1979). Given the scene
that Berent encountered—even as described by Richards—it was not unreasonable for him to have
concluded that Richards, and not the uniformed paramedic, was the perpetrator of an alleged
assault.
The district court’s denial of summary judgment hinged on the fact that the source of the
original request for police assistance was unknown. However, this is irrelevant to the probable-
cause analysis. Regardless of how the officers were alerted, what they encountered upon their
arrival in the medical area—a man in a physical struggle with a uniformed paramedic—is
undisputed. That is enough to excuse any mistake by Berent, as being reasonable or at least not
wholly unreasonable. We reverse the district court’s denial of summary judgment for this count.
B. Excessive Force (Count III)
As with the inquiry into probable cause, determining “[t]he ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 398 (1989). Relevant are
(1) “the severity of the crime at issue”; (2) “whether the suspect poses an immediate threat to the
safety of the officers or others”; and (3) “whether [the suspect] is actively resisting arrest.” Id. at
396. Ultimately, “[w]hether the force was excessive turns on its objective reasonableness under
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the totality of the circumstances.” Id. at 395–96. Because genuine disputes of fact exist as to some
of the factors, we affirm the denial of qualified immunity for this count.
Richards says he was neither swinging at Johnson nor physically intimidating him when
Berent entered the medical area. He was only attempting to pull away after Johnson had grabbed
his arm and refused to let him leave. Berent also acknowledged that he did not order Richards and
Johnson to desist before immediately moving in to subdue Richards. Richards did not continue to
pose a threat after the officers arrived, but twenty-five seconds later he was on the ground with his
head bleeding. A genuine dispute thus remains as to whether Richards was actively resisting. An
officer’s use of force is excessive when an arrestee is compliant. Harris v. City of Circleville, 583
F.3d 356, 366 (6th Cir. 2009) (denying qualified immunity when, in a nonthreatening situation,
officers immediately took a man to the ground prior to issuing any verbal commands).
The situation in Harris is particularly illuminating. Officers arrested Harris after a traffic
stop and took him to the Circleville City Jail. Inside the jail’s “drunk tank,” officers attempted to
take Harris’s jewelry and belt, which prompted Harris to step back and verbally object. Without
warning or further instruction, the officers immediately “kicked Harris’s leg out from under him
and pushed him in the back, causing him to fall and hit his head.” Id. at 366. Harris was then
lifted back onto his feet and was led out to the booking area. An officer then instructed Harris to
“kneel down” even though he could not physically comply as another officer was forcefully pulling
up on his arms which had been handcuffed behind his back. Again, without further instruction,
the officers used a takedown maneuver to take Harris to the ground. Ibid. Harris suffered a spinal-
cord injury as a result. Id. at 362. Based on those facts we concluded that the officers were not
entitled to qualified immunity from Harris’s excessive-force claim.
8 Case No. 18-2432, Richards v. Cty. of Washtenaw, et al.
Richards’s situation is similar to Harris’s in that it is disputed whether the officers in
Richards’s situation failed to issue any verbal commands before using strong physical force to
subdue him. Richards says he was never told he was under arrest and there was not enough time
for him to have resisted the officers as they immediately converged on him upon entering the
medical area. Berent acknowledges that he did not order Richards to stop before moving in for
the arrest; and while Berent stated that he told Richards to “stop resisting” several times before the
officers took Richards to the ground, Richards denies this fact. Richards further testified that,
while he was on the ground, he could not comply with any commands to place his hands behind
his back as his arms were pinned beneath him. Our “prior opinions clearly establish that it is
unreasonable to use significant force on a restrained subject, even if some level of passive
resistance is presented.” Meirthew v. Amore, 417 F. App’x 494, 499 (6th Cir. 2011). We have
also repeatedly held that, “[t]he right to be free from excessive force during an arrest is clearly
established.” Rudolph v. Babinec, 939 F.3d 742, 752 (6th Cir. 2019). See also Smoak v. Hall, 460
F.3d 768, 784 (6th Cir. 2006); Kostrzewa v. City of Troy, 247 F.3d 633, 641 (6th Cir. 2001).
Accordingly, we affirm the district court’s denial of summary judgment on this count.
C. Malicious Prosecution (Count IV)
Richards further asserts that Berent lied in his police report and at trial about witnessing
Richards “pushing” Johnson, fueling an improper prosecution in retaliation for Richards’s threat
to sue the officers who had arrested him. To establish a malicious-prosecution claim, a plaintiff
must demonstrate that: “(1) the defendant made, influenced, or participated in the decision to
prosecute the plaintiff; (2) there was no probable cause for the criminal prosecution; (3) as a
consequence of the legal proceedings, the plaintiff suffered a deprivation of liberty apart from the
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initial arrest; and (4) the criminal proceeding was resolved in the plaintiff’s favor.” Webb v. United
States, 789 F.3d 647, 659 (6th Cir. 2015).
Richards has not put forth evidence to create a genuine dispute over whether Berent “made,
influenced, or participated in the decision to prosecute.” We have held that “[t]o be liable for
participating in the decision to prosecute, the officer must participate in a way that aids in the
decision, as opposed to passively or neutrally participating.” Webb, 789 F.3d at 660. The crux of
Richards’s claim is that Berent lied about his witnessing Richards push Paramedic Johnson. But
Richards did not allege to the district court or here on appeal that Berent furthered the prosecution
in any way beyond filing the initial police report and testifying at trial. Neither action is sufficient
to defeat Berent’s qualified immunity on this count. Testifying at trial can never be the basis of a
malicious prosecution claim, as “a trial witness has absolute immunity with respect to any claim
based on the witness’ [sic] testimony.” Rehberg v. Paulk, 566 U.S. 356, 367 (2012). Moreover,
merely filing an allegedly misleading case report, without more active participation, qualifies only
as “passive or neutral” participation and is thus an insufficient basis for a malicious-prosecution
claim. In Skousen v. Brighton High Sch., 305 F.3d 520 (6th Cir. 2002), the plaintiff asserted a
malicious-prosecution claim against a state trooper who had submitted an investigatory report
concerning allegations that the plaintiff had struck her daughter. From the record, it was
undisputed that “after [defendant] turned in his investigative report [he] did nothing more than
fingerprint [plaintiff] at the police station and testify at her trial.” Id. at 525. Although the plaintiff
alleged that there were deliberate lies and misrepresentations in the report, we held that because
there was “no evidence that [the defendant] made or even was consulted with regard to the decision
to prosecute,” the defendant was entitled to qualified immunity. Id. at 529. Notably, as in the
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present case, the district court in Skousen had denied summary judgment because discovery was
not yet complete; nevertheless, we reversed. Id. at 522.
Cases after Skousen have continued to apply its holding that filing a case report, taken
alone, is insufficient to support a malicious-prosecution claim. See Miller v. Davis, 653 F. App’x
448, 455–56 (6th Cir. 2016) (holding that a detective’s report to prosecutors, even if “fundamental
to the commencement of the criminal proceedings” was by-itself insufficient for a malicious-
prosecution claim); Kinkus v. Vill. of Yorkville, 289 F. App’x. 86, 91 (6th Cir. 2008) (holding that
an officer’s actions of only filing a police report, signing a blank criminal complaint, and soliciting
a written report from another officer was insufficient). We therefore hold that Berent is entitled to
qualified immunity on Richards’s Fourth Amendment malicious-prosecution claim.
D. State-Law Claims (Counts II, V)
Richards also filed state-law claims for false arrest/imprisonment (count II) and malicious
prosecution (count V). Berent asserted state-law immunity under Michigan law, which requires
that he demonstrate: (1) the challenged acts were undertaken during the course of his employment
and that he was acting, or reasonably believed that he was acting, within the scope of his authority;
(2) the acts were undertaken in good faith and; (3) the acts were discretionary, as opposed to
ministerial. Odom v. Wayne County., 482 Mich. 459, 480 (Mich. 2008). Unlike federal § 1983
jurisprudence, “the burden continues to fall on the governmental employee to raise and prove his
entitlement to immunity as an affirmative defense.” Id. at 479. Although only the second factor
is in dispute, the district court rejected Berent’s claim of immunity as it held that, under Michigan
law, a lack of good faith could be inferred from the lack of probable cause.
In Odom, the Michigan Supreme Court concluded that a lack of good faith requires the
official to act “maliciously or with a wanton or reckless disregard of the rights of another.” Id. at
11 Case No. 18-2432, Richards v. Cty. of Washtenaw, et al.
474. So long as an officer “honestly believed he had probable cause to arrest, even if he later
learned that he was mistaken,” he is entitled to immunity. Id. at 481. Furthermore, Odom held
that “a claim of false arrest or false imprisonment cannot be sustained if the arrest was legal.” Ibid.
We have held that Berent was not unreasonable in arresting Richards. That demonstrates a lack
of subjective malice or wonton recklessness and is therefore enough to grant Berent governmental
immunity for the state false-arrest claim.
As to the malicious-prosecution claim, Richards is required to show that Berent “instituted
or maintained the prosecution.” Matthews v. Blue Cross and Blue Shield of Michigan, 456 Mich.
365, 379 (Mich. 1998). The discussion in the preceding section demonstrates that there is not
enough evidence for a reasonable jury to conclude that Berent instituted or maintained the
prosecution. We thus reverse the district court’s denial of state-law immunity for these counts.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of qualified immunity
for Richards’s excessive-force claim but REVERSE the district court’s denial of qualified
immunity for the false-arrest and malicious-prosecution claims, and their state-law counterparts.
Berent is therefore entitled to summary judgment for counts I, II, IV, and V.