James Mitchell v. Hamilton County, Tenn.

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 21, 2024
• Docket: 23-5388
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0138n.06

Nos. 23-5387/5388

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) FILED JAMES MYRON MITCHELL, Mar 21, 2024 ) Plaintiff-Appellee, KELLY L. STEPHENS, Clerk ) ) LATISHA SHANA MENIFEE, ) ON APPEAL FROM THE Plaintiff, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF TENNESSEE ) HAMILTON COUNTY, TENNESSEE, ) ) Defendant, OPINION ) ) DANIEL CAMERON WILKEY (23-5387) and ) BOBBY BREWER (23-5388), individually and in ) their capacities as Deputy Sheriffs for Hamilton ) County, Tennessee, ) Defendants-Appellants. )

Before: KETHLEDGE, BUSH, and READLER, Circuit Judges.

KETHLEDGE, Circuit Judge. James Mitchell claims that Deputy Sheriffs Daniel Wilkey

and Bobby Brewer used excessive force and unreasonably strip-searched him after they detained

him for possession of marijuana. Wilkey and Brewer appeal the district court’s partial denial of

their motions for summary judgment. We affirm in part, reverse in part, and dismiss in part.

I.

We take the district court’s view of the facts in the light most favorable to Mitchell, unless

video evidence clearly contradicts it. Hayden v. Green, 640 F.3d 150, 152 (6th Cir. 2011); Scott

v. Harris, 550 U.S. 372, 380–81 (2007). Here, we have video from two dash-cams. Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

One night in July 2019, James Mitchell got a ride from Latisha Menifee in Soddy Daisy,

Tennessee. Just before 9:30 p.m., Menifee passed Deputy Sheriffs Wilkey and Brewer, who were

parked in separate patrol cars along the two-lane highway. Wilkey pulled out, with Brewer

following, and stopped Menifee for a tinted-window violation. Wilkey and Brewer smelled

marijuana, and Mitchell readily admitted that he had smoked some in the car.

At Brewer’s direction, Mitchell got out of the passenger seat with his hands raised, turned

to face the car, and put his hands on the roof. Mitchell submitted to Brewer’s pat down, during

which Brewer removed cash and a small baggie of marijuana from Mitchell’s front pants pocket.

Meanwhile, Wilkey handcuffed Menifee and left her standing between her car and his patrol car.

Wilkey noticed Mitchell lifting a hand a few inches, but Mitchell did not resist when the deputies

pulled his arms down and cuffed his hands behind his back. Mitchell said he was not “reaching

for the stuff,” and Wilkey said, “if that’s all you’ve got, then I’ll write you a ticket.” Neither the

validity of the stop nor the existence of probable cause to arrest Mitchell for possessing marijuana

is at issue here.

The deputies walked Mitchell to the front of the patrol car, where they stood in its

headlights. Mitchell denied having anything else on him. Wilkey patted down Mitchell’s pockets

and pressed Mitchell’s groin area, causing him to grunt and tell them that he had a hernia. Wilkey

asked about his hernia but continued to bunch up and pull on the front of Mitchell’s pants. Wilkey

then moved to Mitchell’s waist area—tugging, twisting, and shaking Mitchell’s loose-fitting pants

from behind without finding anything. When Wilkey reached between Mitchell’s legs to grab his

crotch from behind, Mitchell grunted, and Wilkey told him to “hold still.” Wilkey then reached

around and prodded Mitchell’s left groin area further, felt something “hard,” and asked, “what’s

right there?” Mitchell groaned, bent forward, and protested that it was his hernia. Wilkey and

2 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

Brewer lifted Mitchell’s arms behind him; Brewer told Mitchell several times to “stop tensing up”;

and Wilkey pushed Mitchell’s head down onto the patrol car. At that point, Wilkey had frisked

Mitchell for a full minute and a half.

Mitchell, who still had his head down and his arms restrained behind him, spread his fingers

and pressed his hands downward. The deputies warned Mitchell to “stop reaching in there” and

to “tell us what it is.” Mitchell responded, “I’ll give it to you right now, man,” and louder, “I’ll

give it to you.” But Wilkey suddenly pulled Mitchell’s arm, kneed Mitchell twice, and yanked

Mitchell and Brewer to the ground. There, Brewer held Mitchell down while Wilkey punched

Mitchell’s thigh in a series of at least seven “pain compliance strikes.” Shouting back and forth,

Wilkey accused Mitchell of “reaching for something on us,” and Mitchell denied that he would do

anything to them, said he was about to “give it” to them, and insisted that he was not resisting.

Wilkey and Brewer rolled Mitchell onto his side, turned him onto his back, lifted and pulled his

legs, and searched Mitchell’s pants further. Mitchell (and Menifee) said Brewer also hit and kneed

Mitchell during the several minutes they were on the ground; but Brewer denied that he did.

As the deputies searched Mitchell, one of them said he felt something; Mitchell shouted

that it was his “dick” and pleaded, “don’t do me like that, man.” Mitchell finally told them he had

a “piece of plastic” on him and would give it to them. Wilkey told Brewer to take Mitchell’s

clothes off, and Brewer pulled his pants off and shook them out without finding anything. The

deputies then lifted Mitchell up and each pulled his boxers down or out to visually inspect his

buttocks and genitals with a flashlight. Lastly, Wilkey got some gloves and, while Brewer held

Mitchell, Wilkey pulled Mitchell’s boxers down, smacked his bare buttocks, and took a plastic

baggie with drug residue from his backside. Wilkey set the baggie down and finished searching

Mitchell’s buttocks and groin area before pulling his boxers up. Wilkey denies that he touched

3 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

Mitchell’s privates; but Mitchell says Wilkey “bumped” his anus twice. Wilkey picked up a

syringe by the back tire of the patrol car and found some crack cocaine behind Menifee’s car.

When they found no contraband inside her car, Wilkey issued Menifee a ticket and took Mitchell

to jail. Mitchell later sought treatment for contusions and a possible anal tear.

Mitchell thereafter sued Deputies Wilkey and Brewer and their employer Hamilton County

alleging claims under 42 U.S.C. § 1983 and Tennessee law. Wilkey and Brewer moved for

summary judgment, which the district court granted in part and denied in part. These appeals

followed. Both deputies argue that they are entitled to qualified immunity on Mitchell’s § 1983

claims that they each used excessive force, failed to prevent the other’s use of excessive force, and

subjected him to an unreasonable roadside strip search. They also argue that, if they prevail on

those § 1983 claims, they are entitled to summary judgment on Mitchell’s state-law claims for

assault, battery, and negligence.

II.

Our interlocutory jurisdiction extends only to questions of law, which we review de novo.

Bey v. Falk, 946 F.3d 304, 311–12 (6th Cir. 2019). The legal question is whether Wilkey or Brewer

are entitled to qualified immunity, on the facts as we must construe them here. Hayden, 640 F.3d

at 152. “Determinations of qualified immunity require us to answer two questions: first, whether

the officer violated a constitutional right; and second, whether that right was clearly established in

light of the specific context of the case.” Id. at 153. We are free to answer those questions in

whichever order we see fit. Id.

A.

“The Fourth Amendment prohibits the use of excessive force by arresting and investigating

officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). We examine an officer’s use of force

4 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

from “the perspective of a reasonable officer on the scene” and with “a built-in measure of

deference to the officer’s on-the-spot judgment about the level of force necessary” under the

circumstances. Id. (quotations omitted). That standard requires us to “consider the amount of

force used, on the one hand, and ‘(1) the severity of the crime at issue, (2) whether the suspect

posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was

actively resisting arrest or attempting to evade arrest by flight,’ on the other.” Jarvela v.

Washtenaw Cnty., 40 F.4th 761, 764 (6th Cir. 2022) (quotation omitted).

Here, for one thing, the offense that provided probable cause to arrest Mitchell—possession

of about a gram of marijuana—was not particularly severe: in Tennessee, simple possession is a

Class A misdemeanor. Tenn. Code Ann. § 39-17-418(c)(1). Nor was the tinted-window violation

that justified the stop in the first place. For another thing, the video confirms that Mitchell got out

of the car as instructed, did not object to Brewer’s pat down, and submitted to the deputies’

authority without resisting being handcuffed. Mitchell denied having anything else on him; but he

was generally compliant, submitted to Wilkey’s thorough frisking, and displayed no aggressive

behavior toward the deputies (or anyone else).

The district court denied qualified immunity to Wilkey because, it said, a jury could

conclude that Wilkey’s use of force against Mitchell—specifically, “kneeing [him], taking him to

the ground, and repeatedly punching him”—was objectively unreasonable under the

circumstances. Wilkey now argues that his force was reasonable because he felt a “hard object”

in Mitchell’s groin and Mitchell had repeatedly attempted “to reach into his pants to, presumably,

either wield the foreign object as a weapon or conceal or destroy it as evidence.” (Wilkey Br., p.

21.) But the video from Wilkey’s dash-cam does not contradict the district court’s finding.

Specifically, the video shows that, when the deputies told Mitchell to stop “reaching,” Mitchell

5 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

stood handcuffed between them with his arms raised behind him—hardly poised to retrieve, much

less wield or destroy, whatever Wilkey might have felt in Mitchell’s groin. Moreover, when we

view the evidence in Mitchell’s favor, a genuine issue of fact existed whether Mitchell’s

movements amounted to active resistance.

Nor does Wilkey’s reliance on our decision in Pennington dictate a contrary result. See

Pennington v. Terry, 644 F. App’x 533, 543–47 (6th Cir. 2016). There, the officer used a taser to

keep a subdued suspect from swallowing pills and to avoid a potential overdose and the imminent

destruction of evidence. Id. at 535–36. We held that, under the relevant case law, the officer

lacked notice that his conduct was unlawful. Id. at 544. But here no reasonable officer would

have believed Mitchell’s “tensing” or “reaching” posed a risk of overdosing or the imminent

destruction of evidence.

Brewer, for his part, argues that he never struck Mitchell. But the district court found that

there was a genuine dispute whether Brewer hit or kneed Mitchell while they were on the ground.

True, the video from Brewer’s dash-cam confirms that it was Wilkey who inflicted the half-dozen

“pain compliance strikes.” But Mitchell says that Brewer landed some punches and kneed him in

the back while he was on the ground. Menifee also said she saw Brewer hit Mitchell, and her

vantage point was from the opposite direction and closer than Brewer’s dash-cam. Brewer’s dash-

cam produced a dark and, at times, blurry video that does not clearly contradict the district court’s

finding. Scott, 550 U.S. at 380. We therefore lack jurisdiction to revisit the district court’s finding

on this point. See Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018) (“[W]e may not

decide a challenge aimed solely at the district court’s determination of the record-supported

evidence, but we may decide a challenge with any legal aspect to it.”)

6 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

To overcome qualified immunity, Mitchell also must show that his asserted right was

clearly established at the time. That means the contours of the right must have been defined enough

that “every reasonable official” in the defendant’s shoes would have understood that the conduct

would cross the constitutional line. Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per

curiam). In this circuit, at the time of the incident here, “a clearly established legal norm

preclude[d] the use of violent physical force against a criminal suspect who already has been

subdued and does not present a danger to himself or others.” Harris v. City of Circleville, 583

F.3d 356, 366–67 (6th Cir. 2009). Specifically, we have found it was objectively unreasonable for

officers to tackle a handcuffed and generally compliant detainee who had jumped up from a

kneeling position after officers shot his dog. Smoak, 460 F.3d at 783–84. And, in another case,

we denied qualified immunity to officers who struck the legs of a subdued and handcuffed detainee

who said he could not kneel. Harris, 583 F.3d at 367. We have also concluded that officers used

excessive force when they repeatedly hit an arrestee who had been incapacitated and handcuffed.

Shreve v. Jessamine Cnty. Fiscal Ct., 453 F.3d 681, 687 (6th Cir. 2006).

When the facts are construed in Mitchell’s favor, a reasonable officer in Wilkey or

Brewer’s shoes would have understood that tackling and punching (Wilkey) or hitting and kneeing

(Brewer) a handcuffed arrestee who posed no immediate threat to safety, was generally compliant,

and was not actively resisting, would violate the Fourth Amendment.

B.

Both deputies challenge Mitchell’s claim that they are each liable for the other’s use of

force. An officer may be liable for another officer’s use of excessive force when that officer

“observed or had reason to know that excessive force would be or was being used” and “had both

the opportunity and the means to prevent the harm from occurring.” Turner v. Scott, 119 F.3d 425,

7 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

429 (6th Cir. 1997). Here, Wilkey argues only that this claim must fail because Brewer never

struck Mitchell. But Mitchell says Brewer did strike him, and the video does not clearly show

otherwise. Likewise, Brewer argues that he had no duty to intervene because Wilkey used

reasonable force as a matter of law. Again, a jury could conclude otherwise. We therefore lack

jurisdiction to review either argument.

Brewer also contends that he lacked a realistic opportunity to intervene in Wilkey’s use of

force. Id. at 429; Smoak, 460 F.3d at 784–85. True, Wilkey might not have warned Brewer that

he was about to take down Mitchell, but Brewer then held Mitchell against the ground while

Wilkey repeatedly punched him. A reasonable juror could therefore find that Brewer had the

opportunity and means to intervene in Wilkey’s use of force. Turner, 119 F.3d at 429–30; see also

Goodwin v. City of Painesville, 781 F.3d 314, 329 (6th Cir. 2015).

C.

The deputies challenge the denial of qualified immunity on Mitchell’s claim that his strip

search violated the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches,

but “what is reasonable depends on the context within which a search takes place.” Maryland v.

King, 569 U.S. 435, 461–62 (2013) (quotation omitted). Here, Mitchell’s custodial arrest, based

on probable cause, authorized a full warrantless search of his person and the property in his

immediate possession for weapons or contraband. United States v. Robinson, 414 U.S. 218, 227

(1973); see also Riley v. California, 573 U.S. 373, 386 (2014). And when officers book a detainee

into custody, they may conduct “a relatively extensive exploration” of the detainee’s person and

require “at least some detainees to lift their genitals or cough in a squatting position.” King, 569

U.S. at 462 (citations omitted).

8 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

Even so, a search incident to arrest also “must be reasonable in its scope and manner of

execution.” Id. at 448. As in other Fourth Amendment contexts, reasonableness “requires a

balancing of the need for the particular search against the invasion of personal rights that the search

entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In doing so, we “consider the scope of the

particular intrusion, the manner in which it is conducted, the justification for initiating it, and the

place in which it is conducted.” Id.

Here, the district court denied qualified immunity on Mitchell’s claim about the scope and

manner of the search incident to arrest—specifically, taking Mitchell’s pants off, pulling his boxers

down, and exposing and reaching into his anal area on the side of the road and in view of Menifee.

The deputies argued the search was reasonable because it was a dark night, exposure was not

prolonged, and Mitchell gave them probable cause to believe he was hiding evidence or contraband

in his boxers. Wilkey and Brewer are entitled to qualified immunity unless Mitchell shows both

(1) that the deputies violated a constitutional right and (2) that the right was clearly established at

the time of the violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). We only address the

second requirement here.

“A right is clearly established when it is ‘sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.’” Rivas-Villegas, 595 U.S. at 5

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)). A case “directly on point” is not

required, but “existing precedent must have placed the statutory or constitutional question beyond

debate.” Id. (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). “Specificity is especially important

in the Fourth Amendment context” because “it is sometimes difficult for an officer to determine

how the relevant legal doctrine” applies “to the factual situation the officer confronts.” Id. at 6

(cleaned up) (quotation omitted). That means, except in an “obvious” case where the standard

9 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

provides the answer, the plaintiff must point to pre-existing Supreme Court or Sixth Circuit

precedent that would have put a reasonable officer on notice that his specific conduct was unlawful.

Id.; see also Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 992–93 (6th Cir. 2017).

Mitchell has not done that.

The district court likewise acknowledged the absence of materially similar Supreme Court

or Sixth Circuit cases that would have put Wilkey or Brewer on notice that their search of Mitchell

would have violated the Fourth Amendment. Instead, the district court relied on Timberlake v.

Benton, 786 F. Supp. 676, 691 (M.D. Tenn. 1992). That reliance was misplaced: among other

reasons, Timberlake involved a strip search without probable cause of a minor who was never

placed under arrest. Nor is this an “obvious” case in which the general rule from Bell would give

“fair and clear” warning that that the specific conduct would violate that right. See Kisela v.

Hughes, 584 U.S. 100, 105 (2018) (per curiam). Here, the deputies asserted a legitimate interest

in the search incident to arrest and had probable cause to believe Mitchell was still concealing

evidence or contraband. “[W]hen the constitutional test is one of interest-balancing, the point at

which the constitutional shades into the unconstitutional will necessarily be gray.” Sumpter v.

Wayne Cnty., 868 F.3d 473, 488 (6th Cir. 2017). Such is the case here.

D.

Finally, Wilkey and Brewer appeal from the denial of summary judgment on Mitchell’s

state-law assault, battery, and negligence claims. But our pendent jurisdiction reaches only those

issues that are “inextricably intertwined” with the issues properly before us. Browning v.

Edmonson Cnty., 18 F.4th 516, 529–30 (6th Cir. 2021). And here our analysis of qualified

immunity does not necessarily determine the merits of those state-law claims. We therefore lack

pendent jurisdiction to consider that argument.

10 Nos. 23-5387/5388, Mitchell v. Hamilton County, et al.

* * *

The district court’s denial of qualified immunity on Mitchell’s claims of excessive force

and failure to intervene in the use of excessive force is affirmed; the court’s denial of qualified

immunity on Mitchell’s claims of unreasonable search incident to arrest is reversed; and the

defendants’ appeals from the denial of summary judgment on the state-law claims are dismissed

for lack of jurisdiction.