NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0288n.06
No. 18-2156
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 04, 2019 KEVIN CAMPBELL, DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, v. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR DANIEL MACK, et al., THE EASTERN DISTRICT OF MICHIGAN Defendant-Appellant.
BEFORE: GUY, CLAY, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. Defendant Daniel Mack moved for summary judgment with
respect to Defendant’s alleged violations of Plaintiff Kevin Campbell’s First and Fourth
Amendment claims brought pursuant to 42 U.S.C. § 1983. The district court denied Defendant’s
motion for summary judgment, and Defendant now brings this timely interlocutory appeal, arguing
that he was wrongfully denied qualified immunity. For the reasons explained below, we affirm.
I. BACKGROUND
We must, for the purposes of this interlocutory appeal of the denial of qualified immunity,
view the facts in the light most favorable to the plaintiff and draw all reasonable inferences in his
favor. McDonald v. Flake, 814 F.3d 804, 814 (6th Cir. 2016); DiLuzio v. Vill. of Yorkville, 796 F.3d
604, 609–12 (6th Cir. 2015). In this procedural posture, we generally need not “engage in a plenary
review of the record.” DiLuzio, 796 F.3d at 611. Often, we “need look no further than the district
court’s opinion for the facts and inferences cited expressly therein.” Flake, 814 F.3d at 813 (citing
DiLuzio, 796 F.3d at 611). The district court’s opinion properly construes the facts in the light No. 18-2156, Campbell v. Mack
most favorable to Campbell. Thus, unless otherwise indicated, the facts contained herein are
derived from the district court’s opinion. See, e.g., Flake, 814 F.3d at 813.
A. Factual History
During the early evening of June 7, 2016, Campbell, an African American man, was
driving his wife’s minivan through Allen Park, Michigan. The minivan, which Campbell’s wife
had recently purchased, had a temporary license plate displayed in the back window. It was “broad
daylight,” visibility was “good,” and one could easily see the temporary license plate from at least
60 feet away. (Dist. Ct. Op., ECF No. 85 at 6.)
Campbell drove past Mack, an Allen Park police officer parked on the shoulder of the
freeway, monitoring traffic with Clyde, his police dog. Mack initiated a traffic stop on the minivan.
Campbell pulled over. Mack exited his cruiser, approached the driver’s side window of the
minivan, and asked Campbell to produce his driver’s license and registration. Campbell gave Mack
his state identification card because he did not have a driver’s license. He also handed Mack “all
of the paperwork [he] had for the automobile.” (Id. at 6.) Mack asked Campbell to step out of the
vehicle, and Campbell complied. As Campbell exited the vehicle, his pants were fully zipped.
When Campbell exited the minivan, Mack “jostled” Campbell, handcuffed him “very
tightly,” conducted a patdown search of Campbell’s person, and placed Campbell in the backseat
of his cruiser. (Id.) Campbell complained that the handcuffs hurt his wrists and asked Mack to
loosen them. Mack tightened the handcuffs and replied, “[t]hat’s the loosest they’re going to get.”
(Id. at 7.)
Mack also accused Campbell of having stolen the minivan. Campbell denied the
accusation. He explained that he was traveling from his home to a friend’s house, though he did
not explicitly state where he lived.
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Mack removed Clyde from his cruiser and “put the dog directly into” Campbell’s minivan.
(Id.) Campbell could not see what transpired inside the minivan, as he was still seated in the
backseat of Mack’s cruiser. While inside Mack’s cruiser, Campbell never moved around or
otherwise acted suspiciously. After a few minutes, Mack extracted Clyde from the minivan,
returned Clyde to the cruiser, and searched the minivan himself.
A tow truck arrived, and Mack brought Campbell to the Allen Park police station to book
him for driving with a suspended license. Mack never told Campbell of his supposed probable
cause to search the minivan or informed him that he planned to conduct an additional search of
Campbell’s person once they arrived at the station.
When they arrived at the station, Mack brought Campbell to a booking area and removed
Campbell’s handcuffs.1 Campbell again complained that the handcuffs had been too tight and held
out his wrists to show Mack the bruises and marks the handcuffs had caused. Mack responded that
“[h]andcuffs leave marks on everybody.” (Id. at 8.)
Mack believed that Campbell was hiding contraband and decided to perform a strip search.
Mack did not obtain a warrant prior to strip-searching Campbell. Mack ordered Campbell to enter
a cage in the booking area and remove his pants. Campbell entered the cage but objected to
removing his pants. Mack ordered Campbell to “get naked” and “drop” his “drawers.” (Id.)
Campbell continued to protest and incredulously asked, “You want me to get naked?” (Booking
Video, ECF No. 75. at 7:56:47–:49.) Mack replied, “Yeah, you’re getting naked. You’re in holding
facility. You’re getting naked.” (Id. at 7:56:47–:50.)
1 A video camera captured the events that took place in the booking area. The video footage is choppy in places, the quality of the picture is relatively poor, and the camera angle combined with the position of the officers prevented the camera from capturing the events with sufficient clarity to resolve the disputed factual issues arising from the alleged strip and body cavity searches.
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Mack stated that “we’re getting down to the nitty gritty” because Clyde had indicated the
presence of a narcotic odor, and he again ordered Campbell to “drop ‘em.” (Id. at 7:56:55–
7:57:03.) Campbell responded that it was “not possible” that Clyde had indicated narcotic odor
because he had not smoked in five years. (Id. at 7:57:03–:06.) Mack said that he did not care and
again ordered Campbell to remove his underwear. Campbell stated that he had never heard of
people being required to remove their clothes in jail, to which Mack responded, in a loud voice,
“You’re in a holding facility. You’re in jail. You get naked in jail. Let’s go! Drop your drawers.”
(Id. at 7:57:17–:25)
Mack again ordered Campbell to remove his underwear. Campbell replied, “I’m a man like
you, man,” and asked Mack why he would lie to him by falsely stating that he needed to remove
his pants. (Id. at 7:57:33–:41.) Mack raised his voice and exclaimed, “I ain’t lying to you. I’ve
been doing this job for 22 years. I don’t need to lie [to] you, man. You’re a small fish in the sea. .
. . Drop ‘em. Your pants are unzipped. There ain’t no reason for your pants to be unzipped. We’re
going to do this one way or another.” (Id. at 7:57:42–7:58:00.)
Another officer entered the doorway of the booking area. Mack entered the cage, ordered
Campbell to put his hands against the wall and spread his feet, and pulled down Campbell’s pants.
Mack then turned Campbell around to face him, pulled down the front of Campbell’s underwear,
bent down, and examined Campbell’s genitals. Campbell became agitated and repeatedly
complained, “Nah, you can’t do that, man,” to which Mack replied, “Yes I can, Yes I can.” (Id. at
7:58:43–:49.) Mack then turned Campbell back around to face the cage and felt Campbell’s
buttocks through his underwear. Campbell continued to protest, repeating “You can’t do that.” (Id.
at 7:58:55.) Mack pulled up Campbell’s pants and responded, “the dog indicated,” to which
Campbell replied, “the dog didn’t indicate anything.” (Id. at 7:58:52–:56.)
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Mack, still standing behind Campbell, then pulled down Campbell’s pants and underwear
again, bent down, and visually examined Campbell’s buttocks. Mack then stated, “You’ve got it
f***ing tucked in your f***ing ass crack, that’s where you got it.” (Id. at 7:59:01–:03.) Mack
pulled up Campbell’s pants, searched Campbell’s pant legs and ankle area, and, finding no
contraband, stood up and told the second officer, “He’s got it tucked in his f***ing ass crack.” (Id.
at 7:59:12–:15.) Campbell replied, “I ain’t got nothing tucked.” (Id. at 7:59:15–:16.)
A third officer came to the door of the booking area. Mack announced to the officer, “He’s
got it tucked underneath his balls.” (Id. at 7:59:37–:40.) Campbell complained that Mack had “just
got done looking under my balls” and did not uncover anything. (Id. at 7:59:40–:42.) Mack
repeated that Campbell still had drugs “tucked underneath” his “balls” or his “ass.” (Id. at 7:59:46–
:51.)
Mack ordered Campbell to take off his wedding ring. Campbell quizzically replied, “my
wedding ring?” Mack responded, “Yeah, your wedding ring comes off. You want to argue that?”
(Id. at 7:59:54–8:00:01.) Mack then tossed Campbell’s ring onto a table outside of the cage.
Mack reentered the cage and ordered Campbell to remove his underwear. Campbell
repeated that he would not take his underwear off and continued to protest that Mack could not
lawfully order him to “get naked.” (Id. at 8:00:06–:14.) Mack partially pulled down Campbell’s
pants, but Campbell held his pants up and protested, stating that Mack had searched him “four or
five times” and had already pulled his pants and underwear down. (Id. at 8:00:10–:18.)
Mack exited the cage and put blue latex gloves on his hands. Campbell continued to protest,
stating that Mack had already looked underneath his pants and underwear. Campbell then stated
that this was the most disrespectful situation he had ever been in in his life. Mack responded,
“Well, then don’t tuck shit underneath your nuts!” (Id. at 8:00:30–:40.)
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Mack reentered the cage, along with two other officers also wearing blue latex gloves. One
of the officers stated, “He’s going to check, alright?” to which Campbell responded “No one’s
getting me naked. . . . He just got done checking on me two times.” (Id. at 8:00:52–:59.) Mack
ordered Campbell to turn around and spread his feet. Campbell complained “I just did that.” (Id.
at 8:01:02–:04.)
Mack reached into Campbell’s pants and, with his hand outside of Campbell’s underwear,
felt around Campbell’s genitals and buttocks region for approximately fifteen seconds. Towards
the end of the search, Mack stated, “You’ve got it tucked in your ass.” (Id. at 8:01:14–:16.)
Campbell responded, “ain’t nothing in my ass.” (Id. at 8:01:17–:18.) According to Campbell, Mack
then inserted his finger into Campbell’s anus.2 Mack then pulled up Campbell’s pants, slapped
Campbell twice on the chest, and told him “you can keep it,” ostensibly referring the drugs that
Campbell had purportedly hidden inside his anus. (Id. at 8:01:22–:24.)
Mack did not discover any drugs or contraband during the search.
B. Procedural History
Campbell filed a three-count Amended Complaint. However, only Count 1 is pertinent to
this appeal.3 In Count 1, Campbell asserted § 1983 claims against Mack in his individual capacity,
alleging (1) that Mack violated Campbell’s Fourth Amendment rights by (a) initiating the traffic
2 Importantly, like the district court, we find that the video is inconclusive about the veracity of Campbell’s allegation that Mack inserted his finger into Campbell’s anus. 3 In Count 2, Campbell asserted a municipal liability claim against Allen Park for failing to train and maintaining a custom or policy of performing unlawful strip searches and unlawful body cavity searches. In Count 3, Campbell asserted that Mack’s conduct constituted intentional infliction of emotional distress under Michigan law. The district court granted in part and denied in part Defendants’ motion for summary judgment with respect to Campbell’s municipal liability claim against Allen Park, and denied Defendants’ motion for summary judgment with respect to Campbell’s state law claim against Mack. The district court’s disposition of these claims is not before us.
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stop without probable cause, (b) searching his minivan without probable cause, and (c) conducting
two unlawful strip searches and one unlawful body cavity search, and (2) that Mack violated
Campbell’s First Amendment rights by tightening his handcuffs and conducting the strip and body
cavity searches in retaliation for Campbell’s objecting to Mack’s conduct.
Mack moved for summary judgment based on qualified immunity with respect to
Campbell’s § 1983 claims. In order to prevail based on his claim of qualified immunity at the
summary judgment stage, Mack would have to convince the district court that he did not violate
Campbell’s constitutional rights or that the constitutional rights that Campbell alleges that Mack
violated were not clearly established.
The district court denied Mack’s motion. The district court found that a genuine dispute of
material fact existed regarding whether the traffic stop violated the Fourth Amendment and that
Campbell’s Fourth Amendment rights were clearly established. The district court further found
that, because Mack was not entitled to qualified immunity on Campbell’s Fourth Amendment
claim arising from the traffic stop, he was also not entitled to summary judgment on Campbell’s
Fourth Amendment claims concerning conduct that occurred after the stop, i.e., the search of the
minivan, the two strip searches, and the body cavity search. The court also found that a genuine
dispute of material fact existed regarding whether Mack retaliated against Campbell by tightening
his handcuffs, conducting the strip and/or body cavity searches, and doing so in an overly
aggressive manner, and that Campbell’s First Amendment rights were clearly established.
This appeal followed.
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II. DISCUSSION
A. Mack’s Improper Attempt to Argue Disputed Factual Issues and Whether Mack Violated Campbell’s Clearly-Established Constitutional Rights
Throughout his principal brief, Mack presents disputed material facts in the light most
favorable to him and relies on his preferred version of the disputed material facts to argue that the
district court improperly denied him qualified immunity. In response, Campbell argues that this
Court lacks jurisdiction over this interlocutory appeal to the extent that Mack fails to concede the
version of the facts most favorable to Campbell. In his reply brief, Mack asserts, disingenuously,
that he conceded the facts in the light most favorable to Campbell.
We lack jurisdiction to resolve disputed factual issues in the context of this interlocutory
appeal; this appeal is therefore subject to outright dismissal for lack of jurisdiction. We,
nevertheless, will disentangle Mack’s impermissible arguments involving disputed material facts
from the purely legal issues to determine whether, viewing the facts in the light most favorable to
Campbell, the district court properly denied Mack qualified immunity on Campbell’s
constitutional claims.
1. Relevant Legal Standards
“Under 28 U.S.C. § 1291, this Court has jurisdiction to hear an appeal only from a ‘final
decision’ of the district court.” McCallum v. Geelhood, 742 F. App’x 985, 990 (6th Cir. 2018).
“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.” Flake, 814 F.3d at 812. However, 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.” DiLuzio, 796 F.3d at 609 (quoting Mitchell v. Forsyth, 472 U.S. 511 (1985)).
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“The denial of qualified immunity in a § 1983 case is a final, immediately appealable
decision under the collateral order doctrine[,]” but “only to the extent the appeal presents a ‘neat
abstract issue[] of law.’” Kindl v. City of Berkley, 798 F.3d 391, 398 (6th Cir. 2015)) (alteration in
original) (emphasis added) (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)); see Gregory v.
City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006) (holding that this Court may entertain an
interlocutory appeal of a denial of qualified immunity “[o]nly to the extent that a summary
judgment order denies qualified immunity based on a pure issue of law”).
When faced with an interlocutory appeal challenging the denial of qualified immunity, we
may review “the district court’s legal determination that the defendant’s actions violated a
constitutional right or that the right was clearly established.” Flake, 814 F.3d at 812. We may also
review “a legal aspect of the district court’s factual determinations, such as whether the district
court properly assessed the incontrovertible record evidence,” id. (citing Plumhoff v. Rickard, 572
U.S. 765, 772 (2014)), or whether the district court’s factual findings are “blatantly contradicted
by the record, so that no reasonable jury could believe it,” id. (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)). But we may not review challenges to the plaintiff’s account of “what actually
occurred or why an action was taken[,]” the district court’s acceptance of the plaintiff’s proffered
facts, or the inferences drawn by the district court from the plaintiff’s facts. Flake, 814 F.3d at 813
(citing Ortiz v. Jordan, 562 U.S. 180, 190 (2011)). Because these issues involve factual, not legal,
disputes, we lack jurisdiction to consider them in the context of an interlocutory appeal. Id. at 812–
13.
When a defendant improperly argues disputed factual issues in the context of an
interlocutory appeal, we may dismiss the appeal for lack of jurisdiction. See Kindl, 798 F.3d at
398. However, rather than dismiss the appeal outright, we may alternatively “discard the fact-
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based or ‘evidence sufficiency’ portion of [the defendant’s] arguments—that is, any challenge to
the district court’s view of the facts or its associated inferences—and exercise the jurisdiction we
do have to reconsider the district court’s legal determinations based on the plaintiffs’ version of
the facts and the inferences as articulated by the district court.” Flake, 814 F.3d at 814 (quoting
Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005)); see DiLuzio, 796 F.3d at
611–12.
2. Application to the Matter at Hand
In its opinion on summary judgment, the district court identified numerous disputed
material facts that precluded granting Mack’s motion for summary judgment based on qualified
immunity. The district court explicitly found that the parties had presented conflicting evidence on
the following disputed factual issues: (1) “[w]hether the temporary license plate affixed to the back
of Campbell’s minivan was visible;” (2) “[w]hether Campbell told Mack where his ‘home’ was
and whether Campbell said specifically what city he was coming from and what city he was driving
to;” (3) “[w]hether Campbell’s pants were unzipped when he stepped out of the minivan and
whether and how his pants became unzipped during the encounter;” (4) “[h]ow much physical
force Mack used to patdown and handcuff Campbell, and whether Mack tightened Campbell’s
cuffs after Campbell complained they were too tight;” (5) whether Mack walked Clyde, the police
dog, around Campbell’s minivan and whether Clyde indicated the presence of narcotic odor, or
whether, alternatively, Mack placed Clyde directly inside the minivan; (6) whether Campbell
moved around or otherwise acted suspiciously while he was handcuffed in the backseat of Mack’s
cruiser; (7) “[w]hether Mack told Campbell that Mack would need to perform a strip and/or body
cavity search of Campbell at the Allen Park police station;” (8) “[w]hether Mack placed his hands
inside of Campbell’s underwear during the strip search;” and (9) “[w]hether Mack placed his
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finger(s) inside Campbell’s anus during the strip and/or body cavity search.” (Dist. Ct. Op. at 10–
11.)
In arguing that the district court improperly denied his motion for summary judgment
based on qualified immunity, Mack relies on his preferred version of many of these facts, which
the district court explicitly found were disputed. For example, Mack asserts that he initiated the
traffic stop because the temporary license plate was not visible. He states that after he pulled
Campbell over, Campbell said that he was traveling from a friend’s house in Livonia or Westland
to his own home in Wixom. Mack asserts that, when Campbell exited the minivan, his pants were
unzipped. He contends that he performed a proper canine search of the vehicle, and that Clyde
indicated the presence of narcotics by scratching the driver’s side door. He claims that he observed
Campbell shifting in the backseat of his cruiser and therefore believed that Campbell was trying
to hide narcotics. He alleges that, prior to arriving at the Allen Park police station, he informed
Campbell that, based on Campbell’s suspicious movements and his pants being unzipped, Mack
would need to conduct a strip search when they arrived at the station. And he avers that he never
conducted a body cavity search or inserted his finger into Campbell’s anus. As stated above, the
district court found that Campbell furnished enough conflicting evidence on each of these points
to create a genuine dispute of material fact.
Because Mack failed to accept Campbell’s version of the facts, we could simply dismiss
his appeal outright for lack of jurisdiction. See, e.g., Kindl, 798 F.3d at 398. However, because this
case presents important legal questions notwithstanding Mack’s improper factual arguments, we
will proceed to decide the purely legal issue of whether, viewing the facts in the light most
favorable to Campbell, the district court properly denied Mack qualified immunity on Campbell’s
constitutional claims. See Flake, 814 F.3d at 814; DiLuzio, 796 F.3d at 611–12.
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B. Campbell’s Fourth Amendment Claims
1. Standard of Review
“We review de novo a district court’s denial of a defendant’s motion for summary
judgment on qualified immunity grounds.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 565
(6th Cir. 2013) (citing Tucker v. City of Richmond, 388 F.3d 216, 219 (6th Cir. 2004)).
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“A dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.’” Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th
Cir. 2013) (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002)). When
evaluating a motion for summary judgment, the court must “view[] [the evidence] in the light most
favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). Further, “all reasonable
inferences must be made in favor of the non-moving party.” Moran v. Al Basit LLC, 788 F.3d 201,
204 (6th Cir. 2015) (quoting Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th
Cir. 2000)). The moving party bears the burden of showing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324–25 (1986).
2. Relevant Legal Principles
a. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘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.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As the Supreme Court has
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explained, “[q]ualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Id.
“The qualified immunity analysis entails two general steps, which can be considered in any
order.” Godawa v. Byrd, 798 F.3d 457, 462–63 (6th Cir. 2015) (citing Pearson, 555 U.S. at 236).
“First, taken in the light most favorable to the party asserting the injury, do the facts alleged show
that the officer’s conduct violated a constitutional right? Second, is the right clearly
established?” Rafferty v. Trumbull Cty., 915 F.3d 1087, 1093 (6th Cir. 2019) (internal citation
omitted). For a right to be clearly established, the contours of the right must be “sufficiently clear”
such that a “reasonable official would have understood that what he is doing violates that
right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). “In other words, ‘existing precedent must have placed the statutory or
constitutional question’ confronted by the official ‘beyond debate.’” Plumhoff, 572 U.S. at 779
(internal citation omitted).
“[T]he plaintiff bears the burden of showing that an officer is not entitled to the defense of
qualified immunity.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (citing
Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)).
b. Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . .
against unreasonable searches and seizures.”4 U.S. Const. amend. IV. “An ordinary traffic stop by
4 The Supreme Court has repeatedly explained that the “basic purpose” of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v. Mun. Court of City and Cty. of S.F., 387 U.S. 523, 528 (1967) (internal quotation marks omitted)).
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a police officer is a ‘seizure’ within the meaning of the Fourth Amendment.” United States v.
Jackson, 682 F.3d 448, 453 (6th Cir. 2012) (quoting United States v. Blair, 524 F.3d 740, 748 (6th
Cir. 2008)). “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham
City v. Stuart, 547 U.S. 398, 403 (2006). “A warrantless search or seizure is ‘per se unreasonable
under the Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions.’” United States v. Roark, 36 F.3d 14, 17 (6th Cir. 1994) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)). Traffic stops of automobiles are well-established exceptions to the
warrant requirement. United States v. Street, 614 F.3d 228, 232 (6th Cir. 2010).
We apply different standards for ascertaining whether a traffic stop comports with the
Constitution depending on the nature of the alleged infraction. See, e.g., United States v. Collazo,
818 F.3d 247, 253–54 (6th Cir. 2016). Generally, an officer needs probable cause to stop a vehicle
for a civil infraction and only reasonable suspicion to stop a vehicle for a criminal violation. See
id. “Probable cause exists where ‘the facts and circumstances within [an officer’s] knowledge and
of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that’ an offense has been or is being committed.” Safford
Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (alterations in original) (quoting
Brinegar v. United States, 338 U.S. 160, 175–176 (1949)). Reasonable suspicion exists if, under
the totality of the circumstances, the officer has “‘specific facts’ that ‘would lead a reasonable
officer to suspect illicit activity.’” United States v. Winters, 782 F.3d 289, 298 (6th Cir. 2015)
(citations omitted).
3. Application to the Matter at Hand
The district court did not determine whether Mack required reasonable suspicion or the
higher probable cause showing to stop Campbell, instead finding that the standard was not outcome
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determinative because, viewing the facts in the light most favorable to Campbell, Mack lacked any
objective basis for the stop. On appeal, the parties do not challenge the district court’s declining to
definitively determine which standard applied.
We agree with the district court that the applicable Fourth Amendment standard is not
outcome determinative in this case. Viewing the facts in the light most favorable to Campbell,
Mack lacked probable cause or reasonable suspicion to believe that Campbell had committed a
license plate violation. Campbell asserts in his affidavit that “the temporary plate [was] taped on
all sides flush to the back window,” and that “the temporary license [plate] was written in large
black characters, easily visible for at least 20 yards behind the vehicle.” (Campbell Aff., ECF No.
80-2 at PageID #963.) Moreover, Campbell has presented evidence that the stop occurred in
“daylight” when “visibility was good.” (Id.) Assuming the veracity of Campbell’s facts, as the
Court must at this stage, Mack lacked any objective basis for believing that Campbell had
committed a civil offense. Therefore, Mack did not have probable cause or reasonable suspicion
to stop Campbell’s automobile. See Collazo, 818 F.3d at 253–54.
Mack is not entitled to qualified immunity on Campbell’s Fourth Amendment claims.
When the traffic stop occurred, it was clearly-established that an officer needs either probable
cause or reasonable suspicion to conduct a traffic stop. See, e.g., Collazo, 818 F.3d at 253–57.
Because a reasonable jury could conclude that Mack lacked any objective basis for stopping
Campbell, Mack is not entitled to qualified immunity.
Mack makes two arguments for why the district court erroneously denied him qualified
immunity on Campbell’s Fourth Amendment claim based on the traffic stop. Neither is persuasive.
First, Mack argues that he is entitled to qualified immunity because he subjectively
believed that the minivan did not have a license plate. But it is hornbook law that the Fourth
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Amendment’s touchstone is “reasonableness,” an objective standard. See Brigham City, 547 U.S.
at 403. And while probable cause or reasonable suspicion certainly depends on the information
that the officer possessed at the time of the challenged search or seizure, this Court analyzes an
officer’s subjective beliefs “from the perspective of a reasonable officer on the scene . . . .” Klein
v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (emphasis added) (citations omitted). Viewing the
evidence in the light most favorable to Campbell, a jury could conclude that Mack’s subjective
belief that the minivan did not have a license plate was unreasonable. Therefore, Mack is not
entitled to qualified immunity. Id.; see Anderson, 483 U.S. at 641 (holding that qualified immunity
turns on the objective reasonableness of an officer’s actions, not an officer’s subjective beliefs).
Mack fails to appreciate that the case he relies on undermines his argument. In Rowland v.
Perry, 41 F.3d 167 (4th Cir. 1994), the Fourth Circuit held that for probable cause to exist, “it is
necessary . . . that the officer be objectively reasonable in believing that it is present.” Id. at 174
(emphasis added). In this case, if the minivan’s license plate were plainly visible and if the traffic
stop occurred in broad daylight, as Campbell contends, a jury could conclude that Mack’s
subjective belief that the minivan lacked a license plate was unreasonable. Further, in holding that
the officer had probable cause to believe that the plaintiff had committed misdemeanor larceny in
Rowland, the Fourth Circuit emphasized that it was “not contested” that the officer witnessed the
plaintiff pick up and fail to return money that another person had dropped. Id. By contrast,
Campbell disputes that Mack failed to see the temporary license plate and has supported his
assertion with evidence that the license plate was prominently displayed and plainly visible.
Therefore, Rowland is inapposite.
Mack also asserts that the district court erred by concluding that Campbell provided
evidence that he complied with the applicable Michigan license plate laws. According to Mack,
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the undisputed evidence establishes that Campbell violated M.C.L. § 257.224(8), which requires
that registration plates “be plainly readable from a distance of 100 feet during daylight,” and
M.C.L. § 257.225(2), which requires that registration plates be free from “foreign materials that
obscure or partially obscure the registration information.” Mack argues that the minivan’s license
plate violated these requirements because it was not visible from 100 feet away and because it was
partially obscured by the tinted window, and that he therefore had probable cause to stop Campbell.
In response, Campbell argues that Mack waived this argument because he raised it for the first
time on appeal. He additionally asserts that the temporary license plate complied with MCL
§ 257.226a which, he argues, governs temporary license plates and, unlike M.C.L. § 257.224(8),
does not contain a 100-foot visibility requirement.
We find that Mack forfeited his statutory argument by failing to raise it before the district
court. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 615 (6th Cir. 2014) (holding that
“an argument not raised before the district court is waived on appeal to this Court”). Mack did not
raise his statutory argument in his motion for summary judgment; in fact, neither his principal brief
nor his reply brief cited M.C.L. § 257.224(8), M.C.L. § 257.225(2), or any other license plate-
related statute, and Mack never argued that Campbell’s license plate was not visible from 100 feet
away. Mack has not articulated any reason why this Court should exercise its discretion to excuse
his failure to raise this argument below. Further, this is not an “exceptional case” where applying
this Court’s standard rule would result in a “plain miscarriage of justice.” Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 552 (6th Cir. 2008). Accordingly, Mack forfeited his statutory argument,
and we will not address it for the first time here.5 See Hayward, 759 F.3d at 615.
5 Even if we excused Mack’s failure to raise his statutory argument below, we would still affirm the district court’s denial of qualified immunity on Campbell’s Fourth Amendment claims. While Michigan’s intermediate court has held that the visibility requirements of M.C.L. § 257.225 apply to temporary license plates, see People v. Stanley, No. 319229, 2015 WL 1314665, at *2
- 17 - No. 18-2156, Campbell v. Mack
4. Summary
Because a reasonable jury could find that Mack lacked any objective basis for the traffic
stop, and because Campbell’s Fourth Amendment rights were clearly established, qualified
immunity does not shield Mack from Campbell’s Fourth Amendment claim arising from the traffic
stop.6
C. Campbell’s First Amendment Retaliation Claims
Mack argues that the district court erred by denying him qualified immunity on Campbell’s
First Amendment retaliation claims arising from Mack’s tightening his handcuffs and performing
the strip and body cavity searches. He asserts that tightening a suspect’s handcuffs does not
constitute an adverse action under clearly-established law. He further argues that no causal
connection existed between Campbell’s protected speech and strip and/or body cavity searches
and that these searches do not constitute adverse actions that would chill First Amendment rights.
In response, Campbell contends that excessive handcuffing can constitute an adverse action where,
as here, the handcuffing causes a physical injury. He further asserts that the strip and/or body cavity
searches constituted adverse actions because they were sufficiently severe to deter a person of
(Mich. Ct. App. Mar. 24, 2015), a genuine factual dispute exists about whether the temporary license plate complied with § 257.225’s 100-foot visibility requirement. Campbell testified that “the temporary plate [was] taped on all sides flush to the back window,” and that “the temporary license [plate] was written in large black characters, easily visible for at least 20 yards behind the vehicle.” (Campbell Aff., ECF No. 80-2 at PageID #963) (emphasis added). Campbell never testified that the license plate was not visible from 100 feet away. Given that the existence of probable cause constitutes a jury question in § 1983 cases, see Green v. Throckmorton, 681 F.3d 853, 865 (6th Cir. 2012), and given the fact that Mack has the burden to establish the absence of any genuine issues of material fact at the summary judgment stage, see Fed. R. Civ. P. 56(a), Campbell’s testimony that the license plate was visible from at least 20 yards away would be sufficient to create a genuine dispute of material fact about whether the license plate complied with § 257.225’s 100-foot visibility requirement. 6 As explained above, the district court did not reach the merits of Campbell’s other Fourth Amendment claims. Accordingly, we similarly limit our analysis of the Fourth Amendment issue to the claim arising from the traffic stop.
- 18 - No. 18-2156, Campbell v. Mack
ordinary firmness from engaging in protected speech. He additionally argues that he established
causation because a jury could conclude that Mack conducted the strip and/or body cavity searches
out of retaliation for Campbell objecting to the initial strip search.
1. Relevant Legal Principles
In Thaddeus-X v. Blatter, this Court articulated a three-part test for First Amendment
retaliation claims:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Mack conceded below that Campbell engaged in protected conduct when he complained
about Mack’s actions during the traffic stop and the strip and/or body cavity searches. Accordingly,
to determine whether Campbell established a constitutional violation for purposes of summary
judgment, we need only evaluate whether he satisfied the second and third prongs of his First
Amendment retaliation claim; that is, whether Mack took an adverse action against Campbell and,
if so, whether a causal connection existed between Campbell’s complaints and Mack’s adverse
action. See id. at 394.
Regarding the second element—whether the officer took an adverse action that would deter
a person of ordinary firmness from engaging in the protected conduct—we have “emphasize[d]
that while certain threats or deprivations are so de minimis that they do not rise to the level of
being constitutional violations, this threshold is intended to weed out only inconsequential actions,
and is not a means whereby solely egregious retaliatory acts are allowed to proceed past summary
judgment.” Id. at 398. Further, “[w]hether a retaliatory action is sufficiently severe to deter a
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person of ordinary firmness from exercising his or her rights is a question of fact.” Bell v. Johnson,
308 F.3d 594, 603 (6th Cir. 2002). “Thus, unless the claimed retaliatory action is truly
‘inconsequential,’ the plaintiff’s claim should go to the jury.” Id. (quoting Thaddeus–X, 175 F.3d
at 398).
Regarding the third element—whether a causal connection existed between the protected
conduct and the adverse action—we evaluate “the totality of the circumstances to determine
whether an inference of retaliatory motive [may] be drawn.” Holzemer v. City of Memphis, 621
F.3d 512, 526 (6th Cir. 2010) (citing Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th
Cir. 2010)). To establish causation, the plaintiff need only demonstrate “that his protected conduct
was a motivating factor” for the retaliatory acts. Maben v. Thelen, 887 F.3d 252, 262 (6th Cir.
2018) (quoting Thaddeus–X, 175 F.3d at 399). “[T]he motivating factor prong of a First
Amendment retaliation case can be supported by circumstantial evidence, with temporal proximity
aiding in the analysis.” Spencer v. City of Catlettsburg, 506 F. App’x 392, 396 (6th Cir. 2012)
(citing Gaspers v. Ohio Dep’t of Youth Servs., 648 F.3d 400, 412 n.15 (6th Cir. 2011)). Because
“[p]roof of an official’s retaliatory intent rarely will be supported by direct evidence of such
intent[,] . . . claims involving proof of a [defendant’s] intent seldom lend themselves to summary
disposition.” Holzemer, 621 F.3d at 525 (citation omitted).
Campbell has satisfied the second element of his retaliation claim for purposes of summary
judgment. Campbell has presented evidence that, after he complained about the handcuffs being
too tight, Mack replied, “[t]hat’s the loosest they’re going to get” and tightened them even more,
causing injuries to Campbell’s wrists that required medical treatment. Further, Campbell has
presented evidence that, after he protested Mack’s initial demand that Campbell remove his
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underwear, Mack conducted invasive strip and/or body cavity searches, and did so in an overly
aggressive manner, including by jostling Campbell’s genitals and inserting his finger into
Campbell’s anus. Mack’s alleged retaliatory actions cannot be characterized as “inconsequential.”
Bell, 308 F.3d at 603. A reasonable jury could conclude that Mack’s actions would deter a person
of ordinary firmness from continuing to complain about his or her allegedly unlawful treatment.
See id. Therefore, Campbell has satisfied his burden of demonstrating that Mack took adverse
actions against him. Thaddeus-X, 175 F.3d at 394.
Mack asserts that an officer’s tightening a suspect’s handcuffs fails to rise to the level of
an adverse action as a matter of law. In support of his argument, Mack relies on two district court
cases from Illinois, neither of which apply here. In Verser v. Smith, No. 14 C 1187, 2017 WL
528381 (N.D. Ill. Feb. 9, 2017), the district court held that tightening an inmate’s handcuffs did
not rise to the level of an adverse action because the handcuffing amounted to “a de minimis use
of force from which [the plaintiff] did not suffer any serious injury.” Id. at *8. Similarly, the
handcuffing in Heard v. Hardy, No. 11 C 6683, 2013 WL 3812102 (N.D. Ill. July 22, 2013), did
not rise to the level of an adverse action because the plaintiff “suffered no injury and sought no
medical attention.” Id. at *3. But Campbell did not merely suffer “de minimis” injuries; he sought
medical treatment at a hospital and received bandages for his wrists. Accordingly, the district court
cases cited by Mack are inapposite.
Campbell has satisfied the third element of his retaliation claim for purposes of summary
judgment. A jury could conclude that Mack tightened Campbell’s handcuffs in retaliation for
Campbell’s complaining that they were too tight, particularly given the temporal proximity
between Campbell’s complaint and Mack’s tightening and the fact that Mack facetiously remarked
“[t]hat’s the loosest they’re going to get” when he tightened them. See Spencer, 506 F. App’x at
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396. A jury could similarly find that Mack performed the strip and/or body cavity searches, and
did so in an aggressive, intimidating, and hostile manner, because of Campbell’s protests. The
video footage depicts Mack growing increasingly frustrated with Campbell’s continued protests in
the face of Mack’s orders to remove his underwear. For example, when Campbell continued to
object to Mack’s demands that he “get naked,” Mack excoriated Campbell, exclaiming, “You’re
in holding facility. You’re in jail. You get naked in jail. Let’s go! Drop your drawers.” (Booking
Video, ECF No. 75. at 7:57:17–:25) Thereafter, Mack repeatedly accused Campbell of hiding
contraband in his “f***ing ass crack” (Id. at 7:59:01–03; 7:59:13–:15) or “tucked underneath his
balls.” (Id. at 7:59:36–:39.) And later, after Campbell expressed incredulity that Mack would
require him to remove his wedding ring, Mack responded, “Yeah, your wedding ring comes off.
You want to argue that?” and carelessly tossed Campbell’s ring onto a table. (Id. at 7:59:54–
8:00:04.) Furthermore, Campbell presented evidence that Mack aggressively groped his genitals
and inserted his finger into Campbell’s anus during the ensuing body cavity search. Under the
totality of the circumstances, a reasonable jury could find that Mack conducted the strip and/or
body cavity searches, and carried them out in an overly aggressive manner, in retaliation for
Campbell’s protests. See Holzemer, 621 F.3d at 526.
Having determined that Campbell established a First Amendment violation for purposes of
summary judgment, we must analyze whether Campbell’s First Amendment right to be free from
retaliation was clearly-established. We find that it was. Therefore, Mack is not entitled to qualified
immunity on Campbell’s First Amendment retaliation claim.
“[I]t is well-established that a public official’s retaliation against an individual exercising
his or her First Amendment rights is a violation of § 1983.” Barrett v. Harrington, 130 F.3d 246,
264 (6th Cir. 1997) (citing cases). Further, “the courts that have considered qualified immunity in
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the context of a retaliation claim have focused on the retaliatory intent of the defendant” rather
than on the retaliatory action the defendant allegedly undertook. Bloch v. Ribar, 156 F.3d 673, 682
(6th Cir. 1998). This is because “[t]he unlawful intent inherent in such a retaliatory action places
it beyond the scope of a police officer’s qualified immunity if the right retaliated against was
clearly established.” Id. (quoting DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990)).
Recognizing that the unlawful intent aspect of a public official’s retaliatory action violates clearly-
established law, this Court has denied qualified immunity to a police officer who arrested a citizen
in retaliation for protesting and failing to comply with his order to return to his home, McCurdy v.
Montgomery Cty., 240 F.3d 512, 516 (6th Cir. 2001), and to a police officer who effectuated an
arrest in retaliation for being called a derogatory term, Greene v. Barber, 310 F.3d 889, 897–98
(6th Cir. 2002).
Mack is not entitled to qualified immunity with respect to Campbell’s First Amendment
retaliation claim. When the events at issue occurred, the right to be free from retaliation at the
hands of police officers for asserting one’s First Amendment rights was “sufficiently clear” that a
reasonable officer would have understood that retaliating against Campbell as a result of his
complaints would violate his First Amendment rights. See al-Kidd, 563 U.S. at 741. Further, just
as the police officers in McCurdy and Greene should have known that arresting someone in
retaliation for asserting his or her First Amendment rights violated clearly-established law, Mack
should have known that further tightening Campbell’s handcuffs and engaging in aggressive strip
search and/or body cavity searches in retaliation for Campbell’s asserting his First-Amendment
rights violated clearly-established law. In fact, Mack argues that while “this case involves a claim
of a retaliatory search, rather than a retaliatory arrest or prosecution, [this] is a distinction without
a difference, particularly in the context of applying qualified immunity.” (Mack Br. at 39.) Mack
- 23 - No. 18-2156, Campbell v. Mack
makes this statement in arguing that qualified immunity protects searches supported by probable
cause from First Amendment retaliation claims, just as it protects arrests and prosecutions
supported by probable cause. But the inverse is also true—just as arrests or prosecutions without
probable cause can support a First Amendment retaliation claim, so can a retaliatory search.
Mack argues that the district court erred by denying him qualified immunity on this claim
because it failed to cite a case with sufficiently analogous facts to place him on notice that his
conduct violated Campbell’s First Amendment rights. However, “the Supreme Court ‘do[es] not
require a case directly on point [if] existing precedent [has] placed the statutory or constitutional
question beyond debate.’” Rafferty, 915 F.3d at 1097 (alterations in original) (quoting al-Kidd,
563 U.S. at 741). “Instead, the operative inquiry is ‘whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.’” Id. (quoting Saucier v. Katz,
533 U.S. 194, 202 (2001)). Based on Sixth Circuit precedent that existed before 2016, a reasonable
officer would have known that retaliating against Campbell for complaining about Mack’s conduct
by tightening his handcuffs to the point of injury, subjecting him to strip and/or body cavity
searches, and conducting these searches in an overly aggressive manner would violate the First
Amendment. Accordingly, Campbell’s failure to locate a case with perfectly analogous facts does
not entitle Mack to qualified immunity.
3. Summary
Because a reasonable jury could find that Mack tightened Campbell’s handcuffs to the
point of injury, subjected him to strip and/or body cavity searches, and conducted these searches
in an overly aggressive manner in retaliation for Campbell’s protected conduct, and because
Campbell’s First Amendment rights were clearly established, Mack is not entitled to qualified
- 24 - No. 18-2156, Campbell v. Mack
III. Conclusion
For the reasons stated above, we affirm the district court’s denial of Mack’s motion for
summary judgment based on qualified immunity.
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