NOT RECOMMENDED FOR PUBLICATION File Name: 25a0181n.06
Case No. 24-1201
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Apr 02, 2025 MIKE POP, ) KELLY L. STEPHENS, Clerk Plaintiff - Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT BROOKFIELD CHRYSLER DODGE JEEP, INC., ) COURT FOR THE WESTERN Defendant, ) DISTRICT OF MICHIGAN ) ) OPINION GREGORY GUNTHER; ANTHONY TURNER, ) Defendants - Appellants. ) )
Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.
GIBBONS, J., delivered the opinion of the court in which GRIFFIN, J., concurred. CLAY, J. (pp. 18–28), delivered a separate dissenting opinion.
JULIA SMITH GIBBONS, Circuit Judge. This 42 U.S.C. § 1983 action alleging an
unconstitutional search and seizure of plaintiff Mike Pop’s Jeep arises out of a series of unfortunate
actions during which Pop, despite having valid title to the vehicle, was forced to navigate a maze
of government bureaucracy and police officers who all believed—incorrectly—that his Jeep was
stolen. The sequence of events culminated when defendant Sheriff’s deputies, Gregory Gunther
and Anthony Turner, were dispatched to Pop’s home where they persuaded Pop to consent to the
surrender of the vehicle. Pop now alleges his consent was coerced, amounting to an unreasonable
seizure of his vehicle. The district court denied the deputies’ motion to dismiss on qualified
immunity. Because the deputies are entitled to qualified immunity, we reverse. No. 24-1201, Pop v. Gunther et al.
I.
Brookfield Chrysler Dodge Jeep, Inc. sells cars to consumers using retail installment sales
contracts (RISCs). Under a RISC, the car dealer obtains a consumer’s credit report, then attempts
to obtain conditional approval from an investment company to fund the deal and purchase the
contract subject to the satisfaction of later additional terms (e.g., verification of employment and
income). When Brookfield receives conditional approval, it informs the customer that he or she
has been approved for financing. Brookfield prepares the documents related to the transaction, the
customer signs them, and then the customer takes ownership of the vehicle. But sometimes, a car
dealership may later find itself unable to satisfy all the conditions, so the third-party investment
company will refuse to honor its conditional agreement to buy the RISC. When this happens, the
car dealer may then refuse to honor its contract with the consumer, sometimes known as a “spot
delivery” or “yo-yo” transaction. The car dealer may then attempt to get the customer to provide
more documents, sign additional contracts, or demand that the vehicle be returned.
In November 2021, Pop signed a RISC prepared and provided by Brookfield to buy a Jeep.
The RISC contained no provision making its enforceability contingent on the sale or assignment
of the RISC by Brookfield to any other third party. (See id.) Brookfield transferred the title of the
Jeep to Pop. Pop received certificate of title to the Jeep by mail with a listed issue date of
November 26, 2021.
Initially, the state of the purchase seemed to be fine, and Pop was communicating with the
dealership as normal, discussing various aspects of his ownership such as when he would pick up
the license plate and how he would pay his monthly installments. His relationship with Brookfield
quickly deteriorated, though, when in February 2022, the car dealership stated that it needed the
Jeep back or they would file a “big case against” Pop. Pop did not return the Jeep and alleges, on
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information and belief, that Brookfield was attempting to take the Jeep back because it could not
sell his RISC to a third party.
Around April 2022, Brookfield contacted the Benton Township Police Department to make
a stolen vehicle report concerning Pop’s Jeep. Deputy Alex Povenz met with Andrew Beam and
Austin Froberg from the Brookfield dealership. Pop alleges that Beam and Froberg told Povenz
that the contract for the Jeep with Pop had a typo and was invalid and Pop had illegally refused to
return the vehicle, which was now stolen. Beam completed a Benton Township Police Incident
Report on April 14, 2022, which indicates that he told the police that Pop stole his vehicle and that
he intended to prosecute him. Deputy Povenz then filed a stolen vehicle worksheet listing the Jeep
as stolen for the law enforcement information network (LEIN). This is a statewide computerized
information system that provides all Michigan police officers the ability to quickly check whether
a vehicle is stolen. See generally Law Enforcement Information Network (LEIN), Mich. State
Police, https://www.michigan.gov/msp/le/lein [https://perma.cc/6JBX-6G56] (last visited Mar. 5,
2025). The county then issued a warrant for Pop’s arrest for stealing the Jeep. Pop was unaware
of the warrant; no one told him that Brookfield reported the Jeep stolen or that a warrant had been
issued for his arrest.
In October 2022, Pop tried to renew his registration for the Jeep but was denied because
his vehicle was listed as stolen. Pop then went to the Benton Township Police Department to
inquire as to why his vehicle was listed as stolen, where he was consequently arrested for stealing
the Jeep. Pop was later released on bond.
Pop moved to dismiss the criminal charges against him for stealing the Jeep, providing
evidence that he had been the registered owner of the Jeep since November 2021. The next day,
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the county prosecutor requested that the case be dismissed and the court signed a nolle prosequi
order.
Before Pop’s criminal charges were dismissed, however, his vehicle was seized in the
incident underlying this dispute. The timing is significant because it means that the information
deputies had at the time of seizure indicated that the vehicle was stolen. On the seizure date,
Povenz contacted the Van Buren County Sheriff’s Department and requested that deputies recover
the Jeep. Deputies Gunther and Turner were dispatched to gain possession of the Jeep and arrived
at Pop’s house to speak to him. The interaction between Pop and the deputies was entirely
amicable. The deputies never raised their voice at Pop nor used any force or threats of violence.
At first, Pop refused to consent to a seizure of his vehicle. He explained his predicament and told
the deputies that he did not steal the vehicle because he had title to it through his lawful purchase.
The deputies continually responded that they believed him, but it was best if he just turned the car
over to them and later sued the car dealership because otherwise, he could be arrested. Pop
eventually relented and consented to the seizure of the vehicle after ten to fifteen minutes of
interactions with the deputies.
About a year later, Pop sued Gunther and Turner, along with the Brookfield dealership,
Beam, Froberg, Povenz, and Evan Smith,1 asserting various federal and state-law claims. Gunther
and Turner moved to dismiss the claims against them. They argued that there was no
unconstitutional search or seizure because they were given permission to seize Pop’s vehicle and
that even if there was an unconstitutional seizure, they were protected by qualified immunity.
During a Rule 16 pretrial conference, the district court considered the deputies’ motion to
dismiss. The court noted that although the deputies could engage in a “knock and talk” with Pop
1 Evan Smith was the police sergeant responsible for Pop’s arrest when he tried to renew his vehicle registration.
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and could seize consensually handed-over property, Pop had made out a plausible claim that his
consent was not voluntary. Therefore, the court denied the deputies’ motion to dismiss without
prejudice. The deputies timely appealed.
II.
We review de novo a district court’s decision to reject a defendant’s qualified-immunity
defense at the motion-to-dismiss stage. Rondigo, L.L.C., v. Twp. of Richmond, 641 F.3d 673, 680
(6th Cir. 2011). We must view Pop’s complaint in the light most favorable to him, accept all
factual allegations as true, and draw all reasonable inferences in his favor. Id. Here, however,
there is video footage from the deputies’ bodycams. Given the unique nature of qualified-
immunity cases, we can generally rely on video footage at the motion-to-dismiss stage. Bell v.
City of Southfield, 37 F.4th 362, 364 (6th Cir. 2022). To the extent that any aspects of the bodycam
footage “‘blatantly contradict’ or ‘utterly discredit’ the plaintiff’s version of events,” we may rely
on the footage over Pop’s allegations. Akima v. Peca, 85 F.4th 416, 422 (6th Cir. 2023) (quoting
Bell, 37 F.4th at 364).
III.
At the district court, the deputies raised two issues in their motion to dismiss. First, the
deputies claimed that there was no unconstitutional search and seizure because Pop’s consent was
voluntary. Second, the deputies claimed that even if there was an unconstitutional search and
seizure, it was not clearly established, and they were therefore entitled to qualified immunity.
Because we hold that Pop’s complaint fails to allege a violation of a clearly established right, the
deputies are entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(“[C]ourts of appeals should be permitted to exercise their sound discretion in deciding which of
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the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.”).
A.
The Fourth Amendment protects individuals from unreasonable searches and seizures,
especially in the individual’s home. United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2016).
“One of the touchstones of the reasonableness requirement is that the police must generally obtain
a warrant based upon a judicial determination of probable cause before entering the home.” Ziegler
v. Aukerman, 512 F.3d 777, 785 (6th Cir. 2008). However, “certain categories of permissible
warrantless searches have long been recognized.” Fernandez v. California, 571 U.S. 292, 298
(2014). One such category is when the property owner consents to the search. Id. Under the
consent exception, the search is not unreasonable so long as the owner gives free and voluntary
consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “Consent is voluntary when it is
‘unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.’” United
States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011) (citation omitted). The determination of
the voluntariness of the consent is a fact question to be determined by the “totality of all the
circumstances.” United States v. Worley, 193 F.3d 380, 384 (6th Cir. 1999) (quoting Schneckloth,
412 U.S. at 227)).
But because the deputies asserted qualified immunity, it is not enough for Pop plausibly
make out a claim that his consent was involuntary; he must also show that it was “clearly
established” from the caselaw2 that his consent would be involuntary at the time of the challenged
2 The deputies urge us to adopt the view that only Supreme Court precedent and not Sixth Circuit precedent can show a clearly established right. It is true that the Supreme Court has been unclear as to whether only its precedent can create clearly established rights. See, e.g., Reichle v. Howards, 566 U.S. 658, 665–66 (2013); Carrol v. Carman, 574 U.S. 13, 17 (2014). But in the Sixth Circuit, we have repeatedly pointed to our own precedent to delineate clearly established rights. See, e.g., Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002). Faced with no clear rule from the Supreme Court, we will continue to follow our own precedent.
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conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see Myers v. City of Centerville, 41
F.4th 746, 757 (6th Cir. 2022) (“A defendant is not entitled to qualified immunity at the pleadings
stage if (1) the facts alleged make out a violation of a constitutional right and (2) that right was
clearly established when the event occurred so that a reasonable official would have known that
his conduct violated it.” (cleaned up)). While it is not necessary to find a case directly on point
for a right to be clearly established, Smith v. Cupp, 430 F.3d 766, 777 (6th Cir. 2005), “existing
precedent must have placed the . . . constitutional question beyond debate,” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011). The Supreme Court has also repeatedly warned courts not to define
clearly established law at too high a level of generality and, instead, look to whether the particular
conduct was clearly established to violate the right. Mullenix v. Luna, 577 U.S. 7, 12 (2015). This
specificity is especially important in the fact-specific context of the Fourth Amendment. Id.
Ultimately, qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
B.
Pop’s complaint alleges that he consented only to give the Jeep to deputies Gunther and
Turner after they threatened to arrest him, and he acceded to the tearful pleas of his family. The
bodycam footage tells a different story. In the footage, Gunther and Turner spend around ten to
fifteen minutes attempting to convince Pop it would be in his best interest to consent to seizure of
his vehicle as it was listed as stolen and he could find himself later arrested. A back-and-forth
conversation ensues where Pop eventually relents and let the deputies take his Jeep. Never were
there any tearful pleas of Pop’s family in the video of the deputies’ interaction with Pop. If
anything, Pop’s son remains entirely calm throughout the ordeal as he cordially explains to deputy
Turner why his dad was initially upset. Turner responds empathetically, asserting that the scenario
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Pop has found himself in is “bull crap” and he would probably be upset at the police too if he was
in Pop’s situation, but he is glad that Pop decided to cooperate. Therefore, Pop’s allegation that
he consented only to seizure after a threat of arrest on the spot and the tears of his family is plainly
contradicted by the bodycam footage, and we cannot rely on them. See Akima, 85 F.4th at 422
(citing Scott v. Harris, 550 U.S. 372, 378–80 (2007)); see also Scott, 550 U.S. at 380 (noting that
the video record discredited plaintiff’s allegations and therefore the court “should not adopt that
version of the facts”).
C.
As to the remaining allegations in his complaint that are not contradicted, Pop bears the
burden of proof to show that it was clearly established at the time of the officer’s conduct that his
consent was not voluntary. Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). Pop fails to
do so.
Pop first contends that it is well established that coercion is prohibited police conduct and
that a suspect’s consent must be voluntarily given. That may be correct, but this is the high level
of generality in qualified-immunity claims that the Supreme Court has repeatedly warned against.
See Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (“It is important to emphasis that this inquiry
‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’”
(citation omitted)). Instead, Pop must point to caselaw that the deputies’ alleged specific conduct
here clearly established that Pop’s consent was not voluntary.
In attempting to do so, Pop cites to three cases that have nothing to do with consent and
instead merely establish that police helping third parties in property disputes are subject to the
limitations set by the United States Constitution. First, Pop cites Soldal v. Cook County, 506 U.S.
56 (1992). In Soldal, the Supreme Court held that deputies assisting police in a private
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repossession action were subject to the Fourth Amendment. Id. at 72. Second, Pop cites this
court’s decision, Cochran v. Gilliam, applying Soldal to hold that it is clearly established that a
deputy’s involvement in repossession is state action. 656 F.3d 300, 311 (6th Cir. 2011). Third,
Pop cites the district court decision of McFarland v. Bobs Saks Toyota, Inc., which states that
deputies cannot engage in repossession of a vehicle without a legal basis. 466 F. Supp. 2d 855,
861–62 (E.D. Mich. 2006). None of these cases address voluntariness and fail to address the issue
here. The deputies do not claim that they can seize Pop’s vehicle without a legal basis; instead,
they are arguing that Pop provided a legal basis when he consented. Any relevant caselaw must
address the issue of consent.
And to that point, the facts and caselaw, if anything, indicate that Pop’s consent was
voluntary. First, while the deputies did tell Pop that if he did not consent to search the car he would
risk later arrest, such “threats”3 did not make Pop’s later consent involuntary. Threatening to get
a warrant does not make one’s consent to search involuntary. United States v. Salvo, 133 F.3d
943, 954–55 (6th Cir. 1998). However, it can make the search coercive if the police could not
have lawfully executed on the threat. United States v. Johnson, 351 F.3d 254, 263 (6th Cir. 2003);
United States v. Ivy, 165 F.3d 397, 402–03 (6th Cir. 1998) (distinguishing between threats that are
allowed to obtain consent, such as a threat to obtain a warrant, and threats that are not allowed,
such as a threat to take away a suspect’s child); see also United States v. Watson, No. 96-5037,
1997 WL 377035, at *3 (6th Cir. July 2, 1997) (per curiam) (“Notifying a person that a warrant
can be obtained does not render consent involuntary unless the threat to obtain a warrant is
baseless.”). Because the car was listed as stolen and Pop had already been arrested, the deputies’
3 Because we are at the motion-to-dismiss stage, we will assume that the deputies’ statements that Pop could be arrested if he kept the car were threats of arrest.
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threats were not baseless and were instead plausible statements of truth: Pop could plausibly be
arrested by later deputies if he is caught driving this car. Indeed, this very circuit has described
the proposition that Michigan LEIN information can establish probable cause as “a natural
extension of this Court’s holding that a digital ‘license check’ can establish probable cause.”
United States v. Conley, No. 21-1723, 2023 WL 165966, at *4 (6th Cir. Jan. 12, 2023).
Pop argues, without case citation, that the threat of the warrant was baseless because the
police had not sought a warrant to date. That argument is unconvincing as there is no reason to
infer that the lack of a warrant for a stolen car would mean it was “baseless” to say that one could
be obtained. See Salvo, 133 F.3d at 955; see also United States v. Carter, No. 1:20-cr-62, 2021
WL 2592561, at *5 (S.D. Ohio, June 24, 2021). Instead, the decision to not obtain a warrant is a
simple matter of police discretion and it is incorrect to claim that police are to be expected to get
a warrant as soon as they are able to. See United States v. Sangineto-Miranda, 859 F.2d 1501,
1509 (6th Cir. 1988) (noting that deputies need not seek a warrant as soon as they have probable
cause). In fact, the Supreme Court has explicitly noted that courts should not fault police who,
despite having evidence to make out probable cause for a warrant, opt to, instead, first attempt to
obtain consent to search. See Kentucky v. King, 563 U.S. 452, 466–68 (2011). Following that
guidance, we will not unduly read into the discretionary decision of the police to first attempt to
obtain Pop’s voluntary consent as evidence that they could not obtain a warrant.
Pop could perhaps argue that the arrest threats were baseless because the deputies had
countervailing information from Pop that the car was not stolen. However, clearly it would not
make sense if mere protestations of innocence from a suspect whose vehicle is listed as stolen
could defeat probable cause. See Carter, 2021 WL 2592561, at *5 (“[W]hatever the actual facts
regarding his ownership, . . . police officers are entitled to rely on a report that the vehicle was
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stolen to support their conclusion that the car is, in fact stolen. After all, most persons who are
caught in a criminal act would deny liability for that crime, so [a suspect’s] protestations of
innocence cannot undo the probable cause that the stolen vehicle report created.”); see also Panetta
v. Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006) (“The fact that an innocent explanation may be
consistent with the facts alleged does not negate probable cause and an officer’s failure to
investigate an arrestee’s protestations of innocent generally does not vitiate probable cause.”
(cleaned up)); Loftin v. City of Prentiss, 33 F. 4th 774, 782 (5th Cir. 2022) (similar). Moreover,
statements that the deputies believed that Pop was innocent do not defeat any probable-cause
inquiry. These statements could just be normal, de-escalatory police tactics. Cf., e.g., United
States v. Burwell, 763 F. App’x 840, 848 (11th Cir. 2019) (example of police being friendly and
understanding with suspect in order to obtain consent being valid police tactic). And regardless,
probable cause is an objective inquiry detached from the subjective views of the police officer.
United States v. Anderson, 923 F.2d 450, 456 (6th Cir. 1991); see also Florida v. Royer, 460 U.S.
491, 507 (1983) (“[T]he fact that the officers did not believe there was probable cause . . . would
not foreclose . . . justifying [suspect’s] custody by proving probable cause[.]”). Ultimately, the
stolen vehicle report is sufficient for probable cause and “once a police officer has sufficient
probable cause, . . . he need not investigate further.” Klein v. Long, 275 F.3d 544, 551 (6th Cir.
2001) (emphasis omitted). But, again, even if we were to hold that there was not enough probable
cause to get a warrant after carefully wading through the facts, that does not foreclose the validity
of the deputy’s threat. The inquiry here is not if there was probable cause to get a warrant, but is,
instead, if the deputies’ threats were baseless. And the analysis above determinatively shows they
were not.
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Secondly, the entire interaction between Pop and the deputies was de-escalatory, non-
violent, and merely constituted the attempts of two deputies to persuade Pop to consent, as
described by Pop’s own complaint.4 This scenario differs markedly from situations in which we
have found consent to have been obtained in a coercive manner. In Harris v. Klare, the police
stopped Harris, her mother, her father, and her sister because of an obstructed license plate. 902
F.3d 630, 633 (6th Cir. 2018.). The mother was arrested for obstructing a license plate, driving
with no registration plates, driving with a suspended license, and possession of a forged instrument.
Id. The police then suspected Harris’s mother and father were engaged in drug activity, so they
began waiting for a drug dog to arrive—which took an hour. Id. at 633–34. While waiting, Harris
had to use the restroom and was escorted to the restroom by officer Kimberly Klare. Id. at 634.
While en route to the restroom, Klare had unstrapped her gun and placed her hand on it several
times. Klare told Harris that she may have to search her, and Harris acquiesced. Id. at 634. We
ultimately found Harris’s consent invalid, reasoning that “[w]hen a minor, untutored in her Fourth
Amendment rights, seized for over an hour and in the presence of numerous armed police officers,
with her arms secured behind her back and facing the choice of consenting to a search or being
kept from the restroom, fails to resist that officer’s search,” a reasonable jury could find the consent
was not voluntary. Id. at 641. In Harris, we also cited to the case of United States v. Beauchamp
where this court held that preventing a suspect from walking away and placing your hands on him
in a movement that suggests you will search him regardless is coercive and any “consent” is
actually just acquiescence. 659 F.3d at 572.
4 And even if Pop’s complaint alleged otherwise, such allegations would be directly contradicted by the bodycam footage.
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The highly coercive conduct in Harris, Beauchamp, and similar caselaw, unlike the
relatively relaxed situation Pop faced, further strengthens the point that a reasonable officer would
not consider the highly restrained conduct in the bodycam footage to invalidate Pop’s consent.5 In
truth, the deputies throughout the interaction were friendly and nonthreatening with Pop and his
family and continually assured all parties that they did not want to arrest them but that it was in
Pop’s interest to surrender the Jeep. We see no indication that our caselaw shows such conduct
would be uniformly viewed by all reasonable officers as coercive.6
D.
Pop contends that the evidence could later show through discovery that factors such as his
education level, his ability to communicate, and other aspects of his background could point to his
consent being involuntary. While the video does indicate that Pop may not speak the English
language well, the complaint makes no such allegations. “[W]hen the video does not blatantly
contradict or utterly discredit the complaint, we do not consider it on [a] Rule 12 motion. Instead,
as when assessing any motion made under Rule 12, we rely on the allegations in the pleadings
alone.” Saalim v. Walmart, Inc., 97 F. 4th 995, 1002 (6th Cir. 2024). The complaint merely alleges
that Pop initially did not consent to the seizure of his vehicle before later being convinced to do so
by the two deputies. That is not a clearly established constitutional violation.
5 This is even more so given caselaw that shows that even when officers use force in the past (which they did not do here), consent can still be voluntary. This court in United States v. Sheckles upheld a decision that an individual could validly give consent even though nine to ten officers barged into her apartment with guns drawn at night, while she was pregnant, undressed, and sleeping with a small child and question her for an hour because by the time she consented, the use of force was over. 996 F.3d 330, 347 (6th Cir. 2021). The conduct of the deputies in Pop’s case do not even come close to a similar use of force. 6 The dissent makes a mountain out of a molehill of our discussion of Harris and Beauchamp. We are not claiming that these cases set any floor or dispositively decide Pop’s claim by themselves. Instead, we reference these cases only to note that typically coercive conduct is much more intense than that experienced by Pop, so it would be reasonable for an officer in defendants’ position to believe that Pop was not coerced. And confusion and disagreement among reasonable officers is all that is needed for qualified immunity. See Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999) (“If reasonable officials could disagree on the issue, immunity should be recognized.”).
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But even if Pop had appropriately pleaded those allegations, the deputies would still be
entitled to qualified immunity. Caselaw sets no clear rule that an individual who does not grasp
the English language well cannot consent. In fact, the caselaw states the opposite: consent can be
voluntarily given by someone who does not speak fluent English depending on the circumstances.
See, e.g., United States v. Valdez, 147 F. App’x 591, 596 (6th Cir. 2006) (determining that
defendant who had a “tenuous grip on the English language” freely and voluntarily gave consent);
see also, e.g., United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999) (collecting caselaw
from several circuits that individuals who do not understand English, but can respond to general
officer questions, can consent). And while lack of education can certainly be considered in a
totality-of-circumstance test to determine the voluntariness of consent, e.g., United States v. Jones,
846 F.2d 358, 360–61 (6th Cir. 1988), there is no per se rule in this circuit—or any circuits for that
matter—that lack of a formal education completely abrogates any voluntariness of an individual’s
consent.
E.
Despite Pop’s inability to show a clearly established violation of the Fourth Amendment,
the dissent would hold otherwise. In so doing, the dissent accuses us of applying the incorrect
burden of proof and, instead, erroneously suggests that it is the defendants’ burden of proof to
show that a constitutional right was not violated in a qualified immunity posture. The dissent is
mistaken. It is true that when it comes to evaluating the actual Fourth Amendment violation, the
burden of proof is on the officer to show consent. See Andrews v. Hickman Cnty., 700 F.3d 845,
854 (6th Cir. 2012). But we are not solely analyzing whether a constitutional right was violated.
As permitted in Pearson, 555 U.S. at 236, our decision today is a ruling on qualified immunity,
which is fundamentally a separate issue with additional, differing analysis beyond just deciding
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whether a reasonable jury could find that plaintiff’s constitutional right could have been violated.
Indeed, as the Supreme Court has explicitly stated, “a claim of immunity is conceptually distinct
from the merits of the plaintiff’s claim that his rights have been violated.” Mitchell v. Forsyth,
472 U.S. 511, 527–28 (1985). This is why the passage the dissent incorrectly cites in Andrews for
the proposition that the burden of proof is on the officers in qualified immunity was, in truth, from
the court’s consideration of the Fourth Amendment prong and not the qualified-immunity prong.
See Andrews, 700 F.3d at 854. We have never held that the burden of proof is on the defendant
officers when it comes to the qualified-immunity stage of the litigation. In fact, we have
consistently held the opposite. See, e.g., Palma v. Johns, 27 F.4th 419, 427 (6th Cir. 2022) (“The
ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified
immunity.” (alteration removed) (internal citations omitted)).
The dissent’s error on the burden of proof is compounded throughout its analysis as it
continually fails to grapple with defendants’ assertion of qualified immunity. But again, this is not
just a Fourth Amendment case, it is also a qualified-immunity case. Therefore, the question is:
has Pop pointed to any caselaw which shows that it was clearly established that every reasonable
official in the deputies’ position would know that a suspect in Pop’s position was not giving his
consent voluntarily. See Myers, 41 F.4th at 757. Pop has not. The three cases he explicitly directs
us to, Soldal, Cochran, and McFarland—as discussed above—do not even have anything to do
with consent.
The dissent too cannot point to any cases that indicate the law on this issue is clearly
established. Instead, the dissent paints a broad general idea that it is clearly established that it is
unlawful to take property without that individual’s consent. But this is exactly the sort of “high
level of generality” that the Supreme Court has repeatedly instructed courts of appeals to not
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engage in. Ashcroft, 563 U.S. at 742. Avoiding such high level of generality is “especially
important in the Fourth Amendment context” where we must look at if the “particular conduct”
has been established to be unconstitutional. Mullenix, 577 U.S. at 12. Defining the clearly
established violation here as merely taking property without consent is at such a “high level of
generality,” Aschroft, 563 U.S. at 742, that one could not make it any more general if they tried.
Pop (and the dissent) instead must point to more particularized cases of law. A case establishing
perhaps that officers cannot ask for consent after previously being denied or maybe a case that
states that officers cannot seek to obtain consent by explaining to the suspect the very real threat
that he may face arrest otherwise for driving a stolen car. These cases do exist in this circuit, but
they state the opposite. Officers can ask for consent after being previously denied, see Lucas, 640
F.3d at 175, and officers can obtain consent by noting the threat of a warrant, see Salvo, 133 F.3d
at 954–55. Therefore, not only is there no clearly established law that states every reasonable
officer in the deputies’ position would know Pop’s consent was involuntary, but there is, in truth,
caselaw that suggests the opposite.7
Finally, the dissent argues it is “generally inappropriate” to grant a 12(b)(6) motion on
qualified immunity. But, where, as here, the validity of the qualified-immunity defense is
“apparent from the face of the complaint,” we can—and have decided—qualified immunity on a
motion to dismiss. Crawford v. Tilley, 15 F.4th 752, 763 (6th Cir. 2021). What is more, we have
bodycam footage of the entire interaction giving us a “sufficiently developed record” to decide the
“immunity question[.]” Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017). “The Supreme
Court has clearly emphasized that ‘qualified immunity questions should be resolved at the earliest
7 But again, we are not holding one way or the other. We are simply holding that the presence of such conflicting cases indicate that the right cannot be clearly established.
- 16 - No. 24-1201, Pop v. Gunther et al.
possible stage of litigation.’” Yates v. City of Cleveland, 941 F.2d 444, 449 (6th Cir. 1991)
(quoting Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987)). Following this directive, we now
resolve the qualified immunity question.
***
To conclude, Pop has failed to satisfy his burden under qualified immunity. The caselaw,
as articulated above, if anything, points to Pop’s consent being voluntary. But even if it was not,
at best, Pop’s complaint can make out only the existence of a debate as to his voluntariness. And
“if there can be reasonable disagreement about whether the officer’s conduct was unlawful based
on the law at the time of the incident, then the rights cannot be considered clearly established.”
Barton v. Martin, 949 F.3d 938, 954 (6th Cir. 2020) (brackets and internal quotation marks
omitted).
IV.
For the foregoing reasons, we reverse the district court’s denial of qualified immunity to
defendants Gunther and Turner.
- 17 - No. 24-1201, Pop v. Gunther et al.
CLAY, Circuit Judge, dissenting. Plaintiff Mike Pop had legal possession of a Jeep
Cherokee when two police officers approached him and demanded that he hand over the vehicle.
Though Plaintiff initially refused, he eventually relented after fifteen minutes of repeated warnings
and threats of arrest by the officers. Despite the frequent threats from the officers, and despite the
fact that the officers knew Plaintiff had legal ownership of the vehicle, the majority finds that
Plaintiff “voluntarily consented” to the surrender. Because a factfinder could reasonably find that
Plaintiff did not voluntarily consent, I respectfully dissent.
I
On November 15, 2021, Plaintiff purchased a Jeep Cherokee from Brookfield Chrysler
Dodge Jeep, Inc. (“Brookfield”). Both Plaintiff and Brookfield signed a Retail Installment Sails
Contract (“RISC”) on the date of the purchase. Typically, before an RISC is signed, a car
dealership will first obtain a customer’s credit history and then apply for a finance company’s
conditional approval to finance the deal. Once the finance company provides approval, the car
dealership notifies the customer and the customer takes possession of the vehicle. That is what
happened in this case. Plaintiff approached Brookfield to purchase a vehicle and provided a $3,000
deposit. Brookfield then separately contacted Michigan State University Federal Credit Union
(“MSUFCU”) to request financing for the vehicle. MSUFCU conditionally agreed, and executed
an agreement with Brookfield to finance the purchase. Brookfield then told Plaintiff that he had
been approved for financing, and both Brookfield and Plaintiff signed a RISC. The RISC provided
that Plaintiff was to make 84 monthly installments to Brookfield. After the agreement was signed,
and after Plaintiff signed an Application for Michigan Title and Registration, title and ownership
of the vehicle passed to Plaintiff.
- 18 - No. 24-1201, Pop v. Gunther et al.
Yet after the finance company gave its conditional approval, it apparently decided that the
car dealership could not meet the terms of the financing contract; consequently, MSUFCU refused
to honor its financing agreement with Brookfield. Brookfield responded by asking Plaintiff to
come to the dealership in February 2022, three months after Plaintiff had purchased the vehicle.
After Plaintiff arrived at the dealership, Brookfield told him that he must return the vehicle due to
“a paperwork error,” to which Plaintiff refused. The dealership then attempted to regain the Jeep
via a towing service and by filing a claim with Brookfield’s insurance company, but both efforts
were unsuccessful. Brookfield then turned to law enforcement and filed a stolen vehicle report on
April 14, 2022, with the Benton Township Police Department, falsely claiming that the vehicle
had been stolen. After speaking with two of Brookfield’s employees, and without conducting any
further investigation, an officer with the Benton Township Police Department filed a stolen vehicle
report with the Law Enforcement Information Network System (“LEIN”). The officer then sought
a felony warrant for Plaintiff’s arrest for unlawful driving away of a motor vehicle, and a local
prosecutor issued an arrest warrant for Plaintiff several days later.
Six months later, in October 2022, Plaintiff attempted to renew his registration for the Jeep.
However, the Michigan Secretary of State’s office informed him that the vehicle was reported
stolen. One month later, on November 8, 2022, Plaintiff visited the Benton Township Police
Department to address the matter, at which time he was arrested based on the outstanding warrant.
The prosecution later dropped the charges and the court signed an order of nolle prosequi on
December 21, 2022.
A few days prior to the court’s nolle prosequi order, on December 12, 2022, two Sheriff’s
deputies were dispatched, presumably at Brookfield’s request, to recover the vehicle from Plaintiff.
Those officers, Gregory Gunther and Anthony Turner (collectively, “Defendants”), approached
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Plaintiff’s house and first met with Plaintiff’s wife. Defendants asked Plaintiff’s wife if she had
any paperwork regarding the Jeep, and she responded by providing a copy of the Brookfield RISC.
Defendants then left the property for thirty minutes, returned to meet with Plaintiff, and proceeded
to have a conversation with both Plaintiff and his son. Body camera footage depicted the
interaction between the parties. Plaintiff, who was born in Romania and speaks English as a second
language, frequently relied on his son to help translate throughout the encounter.
The encounter began with Defendants asking Plaintiff to relinquish the vehicle to Benton
Township. Defendants told Plaintiff that the vehicle was reported stolen, to which Plaintiff
responded by noting that he had title to the Jeep and was in court trying to resolve the issue.
Plaintiff also told the officers that he had been previously arrested for possessing the Jeep. The
officers then proceeded to repeatedly tell Plaintiff that he needed to return the vehicle, and that if
he did not, he could face negative repercussions, including arrest. Throughout the encounter,
Defendants repeatedly indicated that they believed Plaintiff did in fact have legal possession of the
Jeep. Specifically, the officers stated on various occasions: “[s]eems like you [Plaintiff] have a
legitimate civil suit against the dealer,” Bodycam Footage, 6:38; “[y]ou are not a thief—I can see
you are not a car thief,” id. at 6:53; “[i]f I thought you were wrong, I would already have cuffs on
you,” id. at 9:26.
After nearly fifteen minutes of repeated warnings and demands from Defendants, Plaintiff
finally acquiesced to the officers’ demands and told his son to get the Jeep. A tow truck then
arrived at Plaintiff’s property to remove the vehicle, and Brookfield regained possession of the
Jeep several days later. Plaintiff subsequently filed a complaint in the U.S. District Court for the
Western District Michigan against various parties, including a 42 U.S.C. § 1983 claim for Fourth
Amendment unconstitutional seizure against Defendants. Defendants moved to dismiss the
- 20 - No. 24-1201, Pop v. Gunther et al.
Complaint, which the district court denied. Defendants now appeal the district court’s
determination, arguing that the district court should have dismissed the complaint against them
based on qualified immunity.
II
The Fourth Amendment of the U.S. Constitution provides “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. “[A] search or seizure carried out on a suspect’s premises without a warrant
is per se unreasonable, unless the police can show that it falls within one of a carefully defined set
of exceptions based on the presence of ‘exigent circumstances.’” Coolidge v. New Hampshire,
403 U.S. 443, 474–75 (1971). There are, however, certain exceptions that may protect a defendant
from civil liability in Fourth Amendment suits. For example, “a person may waive his Fourth
Amendment rights by consenting to a search.” United States v. Carter, 378 F.3d 584, 587 (6th Cir.
2004). Consent may consist of “words, gesture, or conduct,” but it “has effect only if it is given
freely and voluntarily.” Id. “Consent must be proved by clear and positive testimony, and must
be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.”
United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977) (cleaned up). It is also the officer’s
burden to establish that the consent exception is applicable. Andrews v. Hickman Cnty., Tenn., 700
F.3d 845, 854 (6th Cir. 2012). Additionally, an official may be protected from civil liability by
qualified immunity. However, “[a] defendant is not entitled to qualified immunity at the pleadings
stage if (1) the facts alleged make out a violation of a constitutional right and (2) that right was
clearly established when the event occurred so that a reasonable official would have known that
his conduct violated it.” Myers v. City of Centerville, Ohio, 41 F.4th 746, 757 (6th Cir. 2022)
(cleaned up). “Since the defendant officers have raised the qualified immunity defense, plaintiff
- 21 - No. 24-1201, Pop v. Gunther et al.
bears the burden of showing that defendants are not entitled to qualified immunity.” Johnson v.
Moseley, 790 F.3d 649, 653 (6th Cir. 2015).
The majority contends that Plaintiff voluntarily consented to Defendants’ seizure of the
Jeep. That contention is misguided, and is not supported by the record. To begin, the majority
applies an incorrect burden of proof. According to the majority, it is Plaintiff’s burden to
demonstrate that his consent was not voluntary. However, the case which the majority cites for
that proposition, Johnson, does not support that statement of law. 790 F.3d at 653. Instead,
Johnson only holds that a “plaintiff bears the burden of showing that defendants are not entitled to
qualified immunity.” Id. (emphasis added). Johnson does not hold that a Plaintiff must prove lack
of consent. Instead, this Circuit has explicitly held that defendant-police officers raising a
voluntariness defense bear that burden. Andrews, 700 F.3d at 854 (“The burden to establish that
the exception applies is on the officer invoking consent.”).1
In reviewing the evidence presented, it is clear that Defendants have failed to meet their
burden. It is important to first establish that the officers had information demonstrating Plaintiff’s
innocence well before Plaintiff spoke with Defendants. When Defendants first arrived at
Plaintiff’s residence, they spoke with Plaintiff’s wife. She provided Defendants with the RISC
agreement that Plaintiff had signed with Brookfield, which demonstrated not only that Plaintiff
had entered into a binding agreement with Brookfield, but also that Plaintiff had legal possession
1 The majority attempts to argue that the dissent misreads Andrews, and that the burden always lies with the plaintiff in the qualified immunity context. This is a plain misreading of Andrews and a misunderstanding of qualified immunity. The question of whether a party gave consent is a “threshold question” that must be answered before conducting a traditional qualified immunity analysis. Andrews, 700 F.3d at 854. In evaluating that threshold question, Andrews quite clearly instructs that the burden of proof lies with the party invoking the consent exception. Id. If the answer to that threshold question favors the party invoking qualified immunity, the analysis then turns to a traditional qualified immunity review. See id. at 856. It is at this point that the burden shifts to the plaintiff. Id. at 853. - 22 - No. 24-1201, Pop v. Gunther et al.
of the Jeep. The agreement is a mere six pages long, is signed by both Brookfield and Plaintiff,
and clearly outlines that Plaintiff is the owner of vehicle. Any individual who took even a cursory
glance at the document would understand that Plaintiff was the valid owner of the Jeep. And in
fact, Defendants themselves appeared to concede that Plaintiff had legal possession of the vehicle.
Throughout the encounter, Defendants made repeated statements to Plaintiff indicating the
officers’ belief in his innocence, including: “[s]eems like you [Plaintiff] have a legitimate civil suit
against the dealer,” Bodycam Footage, 6:38; “[y]ou are not a thief—I can see you are not a car
thief,” id. at 6:53; “[i]f I thought you were wrong, I would already have cuffs on you,” id. at 9:26.
Despite this very obvious proof of innocence, and Defendants’ acknowledgement of the
same, the officers nevertheless persisted to demand that Plaintiff turn over the vehicle. For nearly
fifteen minutes, the officers repeatedly demanded that Plaintiff surrender the Jeep, and warned that
failure to comply would likely result in arrest. From Plaintiff’s perspective, these threats of arrest
could not have appeared as mere idle warnings. Not only were Defendants uniformed Sherriff’s
deputies, but Plaintiff had also been arrested just weeks prior due to his possession of the Jeep.
Any logical person sitting in Plaintiff’s shoes would have fairly assumed that failure to comply
with Defendants’ demands would result in yet another arrest.
It is Defendants’ burden to show that consent was voluntary. In this case, there is little to
definitively establish that Plaintiff voluntarily consented to surrender the Jeep. The majority
emphasizes that the interaction between Plaintiff and Defendants was non-violent, de-escalatory,
and involved no raising of voices. Yet a factfinder could see the encounter in a very different light.
For fifteen minutes, the officers warned that Plaintiff could face arrest if he did not comply with
their demands, which was a threat made all too real by the fact that Plaintiff had already once been
arrested because of his dispute with Brookfield. Thus, a jury could conclude that the interaction
- 23 - No. 24-1201, Pop v. Gunther et al.
was anything but amicable and de-escalatory. Instead, a jury could determine that the vast
imbalance in power dynamics, combined with the length of the interaction, made Plaintiff’s
decision wholly involuntary. Where there are clearly differing interpretations of the facts, it is the
role of the jury, and not the courts, to determine the outcome of a case. See, e.g., Onwenu v.
Bacigal, 841 F. App’x 800, 811 n.7 (6th Cir. 2021) (finding that differing factual interpretations of
an officer’s motivation are best left to a jury).
The majority argues that the officers’ threats of arrest did not render involuntary Plaintiff’s
alleged consent. According to the majority, this is because the threats were not baseless; to the
majority’s thinking, the car was reported stolen and Defendants believed that the LEIN report
provided probable cause for arrest. The majority’s argument, however, misinterprets our caselaw.
The majority cites to United States v. Conley for the proposition that a LEIN report can provide
probable cause for arrest. No. 21-1723, 2023 WL 165966 (6th Cir. Jan. 12, 2023). Yet what Conley
actually holds is that LEIN information is sufficient probable cause for a traffic stop. Id. at *4.
Conley does establish that a LEIN report gives sufficient probable cause for an arrest.
Furthermore, Conley does not hold that LEIN information establishes probable cause where the
information is fraudulent. In this case, the underlying evidence that formed the basis of the LEIN
report was entirely false. Brookfield reported that the Jeep was stolen, and the police either simply
accepted Brookfield’s story without any further investigation, or proceeded despite knowing the
information to be false. Yet the RISC agreement between Plaintiff and Brookfield—the same
agreement that Defendants were provided by Plaintiff’s wife—clearly demonstrates that the Jeep
was not stolen.
The majority further contends that Plaintiff cannot rely on evidence that Defendants had
“countervailing information” regarding Plaintiff’s ownership of the Jeep. Specifically, the
- 24 - No. 24-1201, Pop v. Gunther et al.
majority states that Defendants’ threats of arrest did not become baseless merely because
Defendants were presented with information from Plaintiff that the Jeep was not stolen. According
to the majority, this is because “mere protestations of innocence from a suspect whose vehicle is
listed as stolen [cannot] defeat probable cause.” Maj. Op. at 11. However, Defendants had more
than “mere protestations of innocence” from Plaintiff. Instead, Plaintiff’s wife provided
Defendants with a copy of the Brookfield RISC. That document specifically detailed the legal
agreement between Plaintiff and Brookfield, and demonstrated that Plaintiff was the legal
possessor of the vehicle. Furthermore, Defendants themselves admitted at multiple points that
they believed in Plaintiff’s innocence.2 Defendants were thus presented with concrete, verifiable
evidence of Plaintiff’s innocence and nevertheless continued to threaten Plaintiff with arrest.
To support its finding, the majority relies on inapplicable and irrelevant case law. For
example, the majority cites to Harris v. Klare, 902 F.3d 630 (6th Cir. 2018). In that case, this
Circuit held that a fourteen-year-old’s consent to search was not voluntary where a police officer
repeatedly placed her hand on a semi-unholstered gun and held the minor suspect for over an hour.
Id. at 640–41. The majority also cites to United States v. Beauchamp, which held that a search was
not voluntary where an officer placed his hands on suspect suggesting that the officer was about
to commence a frisk. 659 F.3d 560, 572 (6th Cir. 2011). According to the majority, the officers in
these cases engaged in far more coercive conduct than Defendants, thus demonstrating that
2 The majority argues that Defendants’ statements regarding their belief in Plaintiff’s innocence do not defeat probable cause because those statements “could just be normal, de-escalatory police tactics.” Maj. Op. at 11. The majority does not cite to in-Circuit case law to support its point. Instead, the majority vaguely references an Eleventh Circuit case which found that friendly “sweet talk” by an officer does not constitute involuntary consent. United States v. Burwell, 763 F. App’x 840, 848 (11th Cir. 2019). Nowhere does that opinion hold that an officer’s explicit acknowledgement of a suspect’s innocence is irrelevant to a voluntariness analysis. And no case law in this Circuit holds the same. - 25 - No. 24-1201, Pop v. Gunther et al.
Plaintiff’s consent was in fact voluntary. Yet Harris and Beauchamp do not set a floor for what is
considered coercive. Those cases do not hold that the highly egregious conduct of the officers in
those cases is the only type of conduct that can be considered coercive. Instead, both Harris and
Beauchamp emphasize that in looking at whether consent is voluntary, a court must consider the
totality of the circumstances. Id. at 571–72; Harris, 902 F.3d at 639. And in reviewing the totality
of the circumstances of this case, Defendants have failed to establish that Plaintiff’s purported
consent was voluntary.
The majority argues that the dissent does not grapple with Defendants’ qualified immunity
assertion. Yet what the majority fails to recognize is that a traditional qualified immunity analysis
is inappropriate for this case. Before beginning a traditional qualified immunity review, we must
first ask a basic threshold question: whether the consent was voluntary. Andrews, 700 F.3d at 854.
If the answer to that question is no, the analysis ends there, and a review of the two-step qualified
immunity test is unnecessary. See id. And in this case, it is clear that Defendants have failed to
prevail on the threshold question, as they have not demonstrated that Plaintiff’s consent was
voluntary. Accordingly, we do not need to undertake the kind of qualified immunity analysis that
the majority advances.
But even if we were to adopt the majority’s approach and proceed to the two-step qualified
immunity review, it is evident that Defendants would still not prevail. It should be noted that this
Court has repeatedly emphasized that “it is generally inappropriate for a district court to grant a
12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v. Campbell, 779 F.3d 421,
433 (6th Cir. 2015). The reason it is inappropriate to grant qualified immunity at this stage is
because of the uncertainty that exists prior to discovery, in which the factual record is highly
disputable. See Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d
- 26 - No. 24-1201, Pop v. Gunther et al.
223, 235 (6th Cir. 2005) (Sutton, J., concurring) (“But just as these considerations frequently will
make it difficult for a plaintiff to surmount a qualified-immunity defense after discovery, so they
make it difficult for a defendant to claim qualified immunity on the pleadings before discovery and
before the parties (much less the courts) know what is being balanced against what.”). Such is the
case here. The majority spends much of its opinion focusing on facts that are either highly disputed
or left up to interpretation. That analysis was conducted without the aid of discovery, which would
have more fully developed the record and provided more sufficient means to evaluate this case.
Instead of waiting to evaluate qualified immunity after the motion to dismiss stage, the
majority instead undertakes an “inappropriate” qualified immunity analysis. Campbell, 779 F.3d
at 433. But even when pressed against the two-step qualified immunity standard, Plaintiff still
prevails. First, Plaintiff has established that “the facts alleged make out a violation of a
constitutional right.” Myers, 41 F.4th at 757. Defendants clearly lacked Plaintiff’s voluntary
consent for the seizure of the Jeep, but nevertheless took illegal possession of the vehicle. An
unlawful seizure of property by state actors is definitionally a violation of the constitutional
protections contained in the Fourth Amendment. See Brown v. Battle Creek Police Dep’t, 844 F.3d
556, 566 (6th Cir. 2016). Second, Plaintiff has established that his right against an unlawful seizure
of property “was clearly established when the event occurred so that a reasonable official would
have known that his conduct violated it.” Myers, 41 F.4th at 757. For decades, courts have
emphasized that “[i]t is well settled” that a seizure “conducted without a warrant issued upon
probable cause is per se unreasonable.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)
(internal quotation marks omitted). And there was no warrant or court order authorizing seizure
of the vehicle. Plaintiff has therefore easily met both of the qualified immunity elements, and
Defendants should not be afforded such immunity.
- 27 - No. 24-1201, Pop v. Gunther et al.
III
Defendants have failed to satisfy their burden of establishing that Plaintiff’s acquiescence
was the result of voluntary consent. A reasonable factfinder could find that the officers’ repeated
questioning, the length and nature of the questioning, and the frequent and coercive threats of
future arrest rendered Plaintiff’s purported consent entirely involuntary. It is for this reason that
this issue is best resolved by a jury and not by this Court. I would therefore affirm the district
court’s decision to deny Defendants’ motion to dismiss.
For these reasons, I respectfully dissent.
- 28 -