McCarty v. City of Southfield

644 F. App'x 411
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 25, 2016
DocketNo. 15-1492
StatusPublished

This text of 644 F. App'x 411 (McCarty v. City of Southfield) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarty v. City of Southfield, 644 F. App'x 411 (6th Cir. 2016).

Opinion

ALICE M. BATCHELDER, Circuit Judge.

In this interlocutory appeal from a denial of a motion for summary judgment, a defendant police officer, Keith Birberick, [412]*412argues that the plaintiffs evidence did not create a genuine dispute of material fact so as to overcome his assertion of qualified immunity. We establish our appellate jurisdiction and AFFIRM.

I.

According to Cheryl McCarty, she was driving her three young grandchildren to school when Officer Birberick pulled her over and accused her of illegally passing a stopped school bus. She argued with him, claimed there had been no school bus, accused him of racism, and refused to accept the ticket, letting it instead drop on the ground. Officer Birberick returned to his patrol car — a large SUV — and drove away. But McCarty, who had turned off her ignition but not her headlights, had accidentally drained her car battery and could not restart her car.

Stranded on the side of a very busy city street, she turned on her emergency lights and attempted, unsuccessfully, to phone a friend for assistance. Approximately 20 minutes later, Officer Birberick returned, as part of his routine patrol, and pulled up behind her. When he approached McCarty’s driver-side window, she rolled her eyes in disgust and looked away. They did not speak. Officer Birberick returned to his SUV, which he then rammed into McCarty’s sedan from behind, purportedly to move her car off the busy street into the adjacent gas station lot. He did not forewarn McCarty of his intention to ram her car and the collision took her and the children by surprise, throwing them from their seats.

Rather than moving the car to the gas station, however, this collision actually forced the car further into traffic. McCarty and the children were wailing in panic. Officer Birberick got out of his car and began screaming at McCarty that she could have been killed, though he did not specify what she had done wrong or should have done differently. He then waited for traffic to clear and rammed her car again, this time so hard that he knocked the rear end of the car up off the ground, causing it to lurch into the gas station, just missing the gas pumps. At this point, McCarty was dazed, the children were on the floor with one bleeding from the head, and the car was severely damaged. Officer Bir-berick drove off without any further interaction.

A service station attendant jump started the car and McCarty drove the damaged car and children away. She filed a police complaint and, eventually, this lawsuit. Officer Birberick moved for summary judgment on qualified immunity which the district court denied upon concluding that, taking these facts in the light most favorable to McCarty, a jury question remained as to whether Officer Birberick’s ramming of her car, without warning and with three young children in it, was so outrageous as to shock the conscience and violate McCarty’s clearly established, substantive due process rights. Officer Birberick appeals.

II.

This is an interlocutory appeal from a denial of a motion for summary judgment, in which the defendant argues that the plaintiffs evidence did not actually create a genuine dispute of material fact so as to overcome his assertion of qualified immunity. Thus we must establish the bounds of our appellate jurisdiction and then decide the appeal within those bounds.

To overcome a qualified immunity defense at the summary judgment stage, the plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was clearly established. This means, at a minimum, pointing to “evidence on which [a] jury could reasonably find for [413]*413the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the district court determines that the plaintiffs evidence would reasonably support a jury’s finding that the defendant violated a clearly established right, it must deny summary judgment.

The denial of summary judgment is ordinarily not a final decision within the meaning of 28 U.S.C. § 1291 and is 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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We may decide an appeal challenging the district court’s legal determination that the defendant’s actions violated a constitutional right or that the right was clearly established. Id. We may also decide an appeal challenging a legal aspect of the district court’s factual determinations, such as whether the district court properly assessed the incontrovertible record evidence. See Plumhoff v. Rickard, 572 U.S. -, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014); Roberson v. Torres, 770 F.3d 398, 402 (6th Cir.2014).

We may not, however, decide an appeal challenging the district court’s determination of “‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Such a challenge is purely fact-based, lacking any issue of law, and is therefore not an appealable “final decision” within the meaning of 28 U.S.C. § 1291. These types of prohibited fact-based (“evidence sufficiency”) appeals challenge only the plaintiffs allegations (and the district court’s acceptance) of “what [actually] occurred[] or why an action was taken or omitted,” Ortiz v. Jordan, 562 U.S. 180, 190, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011), who did it, Johnson, 515 U.S. at 307, 115 S.Ct. 2151 or “nothing more than whether the evidence could support a [jury’s] finding that particular conduct occurred,” Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The defendant-appellant may not challenge the inferences the district court draws from those facts, as that too is a prohibited fact-based appeal. See Romo v. Largen, 723 F.3d 670, 673-74 (6th Cir.2013).

When necessary, we “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, 770 F.3d at 402. Similarly, we separate an appellant’s reviewable challenges from its unreviewable. DiLuzio v. Village of Yorkville, 796 F.3d 604, 610 (6th Cir.2015). That is, we can “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,

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Related

Rochin v. California
342 U.S. 165 (Supreme Court, 1952)
Mitchell v. Forsyth
472 U.S. 511 (Supreme Court, 1985)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Johnson v. Jones
515 U.S. 304 (Supreme Court, 1995)
Behrens v. Pelletier
516 U.S. 299 (Supreme Court, 1996)
County of Sacramento v. Lewis
523 U.S. 833 (Supreme Court, 1998)
Ortiz v. Jordan
131 S. Ct. 884 (Supreme Court, 2011)
Odom v. Wayne County
760 N.W.2d 217 (Michigan Supreme Court, 2008)
Candido Romo v. Jeff Largen
723 F.3d 670 (Sixth Circuit, 2013)
Plumhoff v. Rickard
134 S. Ct. 2012 (Supreme Court, 2014)
Nicholas Roberson v. James Torres
770 F.3d 398 (Sixth Circuit, 2014)
Angelo DiLuzio v. Village of Yorkville Ohio
796 F.3d 604 (Sixth Circuit, 2015)

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Bluebook (online)
644 F. App'x 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarty-v-city-of-southfield-ca6-2016.