O'MALLEY v. City of Flint

652 F.3d 662, 2011 U.S. App. LEXIS 15367, 2011 WL 3055227

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 26, 2011
• Docket: 09-2037
• Status: Published

Opinions

GRIFFIN, J., delivered the opinion of the court, in which COLLIER, Chief D.J., joined. GILMAN, J. (pp. 672-78), delivered a separate opinion concurring in part and dissenting in part.

OPINION

GRIFFIN, Circuit Judge.

Defendant Police Chief Gary Hagler appeals an order of the district court denying his motion for summary judgment based upon qualified immunity regarding plaintiff Sean O’Malley’s 42 U.S.C. § 1983 claims of unlawful search and seizure and excessive force. We reverse and remand for entry of a judgment in favor of defendant Hagler.

I.

The events giving rise to this case began when defendant Gary Hagler, then Acting Chief of Police for the City of Flint, Michigan, was driving an unmarked police vehicle and noticed a blue Chevrolet Tahoe that looked like a Michigan State Police vehicle. The Tahoe had several features regularly found on Michigan State Police vehicles, which included a large, whip-like antenna mounted on the roof; an emergency vehicle push-bar; “Call 911” decals on its rear quarter panels; red emergency lights in the rear window; a tinted rear window; and the number “47” stenciled in white on the rear tailgate.¹ Because Hagler suspected that the vehicle was being used to facilitate the impersonation of a law-enforcement officer, he began following the Tahoe. He also contacted the Michigan State Police to determine whether they had a vehicle in the area that matched its license plate number and description. He was advised that they did not.

Eventually, the Tahoe was driven into a residential driveway and parked. After its driver, plaintiff O’Malley, exited the Tahoe and began walking toward the back of the house, Hagler parked his police vehicle in the driveway behind the Tahoe.² Thereafter, Hagler approached O’Malley, identified himself as a police officer, and said that he would like to speak with him. According to O’Malley, Hagler asked about the vehicle before identifying himself.

O’Malley told Hagler that he was a security guard, had a carrying-concealed-weapon permit, and owned a handgun that was on the front passenger seat of the Tahoe underneath a t-shirt. Thereafter, Hagler asked O’Malley to keep his hands in view and walk toward him. • He also requested backup police. When O’Malley approached Hagler, he was angry, raising his voice shouting “this is bulls--t.” In response, Hagler handcuffed O’Malley “for safety reasons, and to further investigate whether there were other occupants in the vehicle ... as well as to verify the validity of his CCW permit, driver’s license, proof of insurance, and registration.” O’Malley claims that he complained to Hagler that the handcuffs were too tight. However, O’Malley admits that he never asked Hagler to loosen the handcuffs.

Less than two minutes after the handcuffing, additional police officers arrived who assumed custody of O’Malley. Officer Connie Johnson, with the assistance of another police officer, placed O’Malley in the back of her police vehicle, where O’Malley stayed while the officers searched the Tahoe, confirmed its lawful ownership, verified O’Malley’s concealed-carry permit, and checked his criminal record with the Law Enforcement Information Network (LEIN). During their search of the Tahoe, the police recovered a loaded .45 caliber, semi-automatic handgun in the location specified by O’Malley. In addition, the LEIN check indicated that a warrant had been issued for O’Malley’s arrest by the City of Warren. In view of the arrest warrant, Hagler instructed Johnson to transport O’Malley to the Flint Police Department for pick up by the Warren Police Department. Hagler then left the scene. About two hours later, the Warren Police Department advised Hagler that it had mistaken O’Malley for another individual and that there were no outstanding warrants for O’Malley’s arrest. In response, Hagler called Johnson, who was still at the scene, and ordered her to release O’Malley and return his property. O’Malley had been in custody for approximately two hours before his release. O’Malley alleges that at some point during his custody he asked Officer Johnson to loosen his handcuffs, but she refused to do so. Hagler was unaware of the request.

O’Malley filed suit in the Genesee County Circuit Court against the City of Flint and Chief Hagler, alleging violations of various statutory and constitutional rights. O’Malley v. City of Flint, No. 08-11595, 2009 WL 2008480, at *2 (E.D.Mich. July 10, 2009). On defendants’ motion, the case was removed to federal district court. Id. After remanding the state-law claims, the district court retained jurisdiction over O’Malley’s 42 U.S.C. § 1983 claims alleging violations of his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Id. The defendants thereafter filed motions for summary judgment. The district court granted the City’s motion in its entirety³ and granted Hagler’s motion in part. Id. at *4-*7. It determined that Hagler was not entitled to qualified immunity with respect to (1) O’Malley’s claim that his Fourth Amendment rights were violated when Chief Hagler stopped, handcuffed and detained him, and caused his Tahoe to be searched; and (2) O’Malley’s excessive-force handcuffing claim. Id. at *6-*7. Hagler filed a motion for reconsideration, which the district court denied. O’Malley v. City of Flint, No. 08-11595, 2009 WL 2413543 (E.D.Mich. Aug. 6, 2009). Hagler now timely appeals.

II.

We have interlocutory jurisdiction over the district court’s denial of Hagler’s motion for summary judgment on grounds of qualified immunity “to the extent that [the appeal] raises a question of law.” Risbridger v. Connelly, 275 F.3d 565, 568 (6th Cir.2002); see also Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial”). Under 42 U.S.C. § 1983, an individual may bring a private right of action against anyone, who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statutes. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Defendant Hagler contends that he is entitled to summary judgment on plaintiffs § 1983 claims on the basis of qualified immunity. Generally, summary judgment based on qualified immunity is proper if the officer was not on notice that his conduct was clearly unlawful. Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.2002). However, if genuine issues of material fact exist as to whether the officer committed acts that would violate a clearly established right, then summary judgment is improper. Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir.1988).

“We review the denial of summary judgment on grounds of qualified immunity de novo because application of this doctrine is a question of law.” McCloud v. Testa, 97 F.3d 1536, 1541 (6th Cir.1996). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation[.]” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). “Through the use of qualified immunity, the law shields ‘government officials performing discretionary functions ... from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.’ ” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir.2004) (quoting Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Once raised, the plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir.2006). In determining whether a defendant is entitled to qualified immunity, the court makes two inquiries: (1) “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right[,]” and (2) was the right “clearly established” to the extent that a reasonable person in the officer’s position would know that the conduct complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Although Saucier mandated that these questions be addressed in order, that requirement has since been relaxed. See Pearson, 129 S.Ct. at 818 (“On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”).

With regard to the second step,

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Anderson, 483 U.S. at 640, 107 S.Ct. 3034 (citations omitted); see Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir.1993) (quoting Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir.1991) (“In inquiring whether a constitutional right is clearly established, we must ‘look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.’”)). “This standard requires the courts to examine the asserted right at a relatively high level of specifícity[,]” and “on a fact-specific, case-by-case basis[.]” Cope v. Heltsley, 128 F.3d 452, 458-59 (6th Cir.1997) (citations and internal quotation marks omitted).

III.

On appeal, we analyze the claims of qualified immunity in light of the following sequential events: (1) Hagler’s parking of his vehicle and initial questioning of O’Malley; (2) Hagler’s handcuffing and detention of O’Malley and search of his vehicle; and (3) Hagler’s failure to respond to O’Malley’s complaint that the handcuffs were too tight.

A.

The first question is whether Hagler is entitled to qualified immunity with respect to his initial encounter with O’Malley and inquiry. Plaintiff claims that Hagler unreasonably seized him when Hagler parked his police vehicle behind O’Malley’s Tahoe. He also alleges that Hagler unlawfully asked him questions. We disagree and hold that Hagler is entitled to qualified immunity for the initial encounter and inquiry.

1.

The Fourth Amendment does not apply to consensual encounters with the police. Rather, the “safeguards of the Fourth Amendment, with respect to police/citizen contact, vest only after a citizen has been seized.” Smoak v. Hall, 460 F.3d 768, 778 (6th Cir.2006) (citation and internal quotation marks omitted). A seizure occurs when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). We have noted that “[cjircumstances indicative of a seizure include ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” United States v. Jones, 562 F.3d 768, 772 (6th Cir.2009) (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870). Here, the dissent argues that pursuant to United States v. See, 574 F.3d 309 (6th Cir.2009), and United States v. Gross, 624 F.3d 309 (6th Cir.2011), a reasonable person in O’Malley’s position would not have felt free to leave when Hagler parked his vehicle in the driveway. We disagree and note that See and Gross are readily distinguishable.

See and Gross dealt with the conduct of a police officer who parked his patrol car in front of (or behind) cars in the parking lots of public-housing complexes in Cleveland, Ohio, and approached passengers who were seated inside the vehicles. In See, the officer was “on patrol in a public-housing parking lot when he noticed a car that was backed into a parking space in a dimly lit area farther from the building than other vacant spots” and he “pulled his patrol car in front of [defendant] See’s car and parked so that See could not move his vehicle.” Gross, 624 F.3d at 316 (citing See, 574 F.3d at 311-12). In Gross, the officer similarly “parked his police vehicle directly behind” a car parked in “the parking lot of [a] housing eomplex[]” and “turned on his vehicle spotlights” before approaching the car and asking questions of a man sitting in the car’s passenger seat. Id. at 313. In each case, we held that the officer’s conduct was a seizure because “the blocking of [the] car to determine the identity of the occupants and maintain the status quo” would have made a reasonable occupant of the vehicle feel “not ... free to leave.” Id. at 316 (citation and internal quotation marks omitted).

The present case is factually different. Most importantly, O’Malley was out of his vehicle and walking toward the house at the time Hagler parked his vehicle behind the Tahoe. Thus, O’Malley not only reasonably thought he was free to leave his vehicle at the time of the alleged seizure, but in fact had left it and was walking away. Also, parking behind a vehicle in a driveway does not inherently send a message of seizure because it is how driveways are routinely used.⁴ For these reasons, we conclude that Gross and See do not control and hold that a reasonable person would feel free to continue walking even after Hagler’s vehicle was parked behind the unoccupied Tahoe.

Next, Hagler’s approach and accompanying statement to O’Malley that he was a police officer and wanted to talk to him was clearly a consensual encounter. See Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir.2005). Hagler was not accompanied by the “threatening presence of several officers.” Jones, 562 F.3d at 772 (citation omitted). He neither displayed a weapon, nor touched O’Malley. Id. Moreover, Hagler did not use language or a tone of voice compelling compliance. Id. Rather, he merely stated that he was a police officer (which is insufficient to “transform a police-citizen encounter into a seizure requiring some level of objective justification,” United States v. Byrom, 1992 WL 3711, at *2, 952 F.2d 403 (6th Cir. Jan. 10, 1992) (unpublished table decision) (citing Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870)), and said he wanted to talk to O’Malley about the Tahoe. Cf. United States v. Matthews, 278 F.3d 560, 561-62 (6th Cir.2002) (holding that a person walking down the street was not detained when an officer driving in a marked police car yelled “Hey, buddy, come here,” since the statement was a request rather than an order) (internal quotation marks omitted); United States v. Caicedo, 85 F.3d 1184, 1191 (6th Cir.1996) (finding no seizure where, as the car in question moved slowly through an airport parking lot, the officer “asked for permission to speak to either [the driver] or his passenger as [the driver] drove toward the exit, and ... [the driver] voluntarily stopped the car”). According to O’Malley, Hagler began his conversation by saying, “Hey! Whose truck is that?”

The fact that O’Malley stopped walking to respond to Hagler’s inquiry also does not, by itself, transform this encounter into a seizure for purposes of the Fourth Amendment. See Wayne R. LaFave, 4 Search & Seizure § 9.4 (4th ed. 2004) (explaining that police may rely on the moral and instinctive pressures of citizens to cooperate and that a confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse) (citations omitted); cf. generally United States v. Thomas, 430 F.3d 274, 277, 280 (6th Cir.2005) (noting that “driveway[s]” provide “ready access to visitors” and are therefore open to consensual encounters between citizens and police) (citation and internal quotation marks omitted). In view of the totality of the circumstances, we hold that defendant O’Malley was not “seized” for purposes of the Fourth Amendment at the time of the initial encounter and questioning.

2.

Alternatively, we hold that had Hagler temporarily seized O’Malley, such a brief investigatory stop was constitutional pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “To justify a brief, investigatory stop under Terry v. Ohio, an officer must point to specific, articulable facts that give rise to a ‘reasonable suspicion’ that the suspect was engaged in criminal activity.” Gross, 624 F.3d at 313; see also Terry, 392 U.S. at 30, 88 S.Ct. 1868 (holding that police officers are permitted to conduct an investigatory stop “where a police officer observes unusual conduct which leads him reasonably to conclude ... that criminal activity may be afoot”). The reasonableness of a stop is determined by two factors: “ ‘(1) whether there was a proper basis for the stop, ...’” and, if there was a proper basis for the stop, “ ‘(2) whether the degree of intrusion into the suspect’s personal security was reasonably related in scope to the situation at hand....’” Smoak, 460 F.3d at 779 (quoting United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986)). “[T]he greater the degree of intrusion during a stop, the more solid must be the officer’s suspicion that the stopped individual is guilty of wrongdoing.” Smoak, 460 F.3d at 779.

Here, Hagler had reasonable suspicion to briefly detain O’Malley and inquire about the Tahoe because it appeared to be a Michigan State Police vehicle that could facilitate the impersonation of a police officer. Although O’Malley argues that Hagler had no direct evidence that he was “not only assuming] to be [a peace officer] but [also ] act [ing ] as such.... ” in violation of Michigan Compiled Laws § 750.215 (emphasis added), “reasonable suspicion” does not require conclusive evidence. The fact that O’Malley was driving what appeared to be a Michigan State Police vehicle was itself highly “unusual conduct,” which led Hagler to draw the reasonable and objective inference that O’Malley may have been impersonating a police officer in violation of state law. Terry, 392 U.S. at 30, 88 S.Ct. 1868. It is not dispositive that O’Malley was not in fact breaking the law. Moreover, contrary to the dissent’s contention, an officer would have more justification for believing an individual is impersonating a police officer when the apparent-police vehicle is not registered in the police fleet, as compared to when it is. Pursuant to Terry v. Ohio, a brief investigatory stop is justified when the specific facts give rise to “reasonable suspicion” that “criminal activity may be afoot.” Id. The circumstances of the present case satisfy the Terry standard.

For the dual reasons set forth above, we hold that Chief Hagler is entitled to qualified immunity for his initial encounter and inquiry with O’Malley.

B.

The next issue is whether Hagler is entitled to qualified immunity for the handcuffing and detention of O’Malley and subsequent search of his vehicle. We conclude that he is.

It is not disputed that O’Malley told Hagler that he had a gun in his vehicle, was angry, raised his voice, turned his back and lifted his shirt, and called Hagler’s inquiry “bulls--t.” Thus, notwithstanding O’Malley’s alleged compliance and truthful answers to Hagler’s questions, Hagler was faced with a threatening situation. Before him was an obviously agitated individual in possession of a firearm whom he reasonably suspected of impersonating a police officer. Chief Hagler was in a one-on-one situation with this unknown, angry individual outside the safe confines of a police station or police cruiser. Further, because of the tinted windows, Hagler could not see into O’Malley’s vehicle to determine just how close the gun was to O’Malley or if there were any passengers. In view of the circumstances, we conclude that for safety reasons, alone, Hagler was objectively reasonable in briefly handcuffing and detaining O’Malley. Cf. United States v. Atchley, 474 F.3d 840, 849 (6th Cir.2007) (explaining that “[biased on Atchley’s nervous behavior and Officer Cobb’s past experience, Cobb was justified in handcuffing Atchley as a safety precaution”); Houston v. Clark Cnty. Sheriff Deputy Does 1-5, 174 F.3d 809, 814 (6th Cir.1999) (citations omitted) (noting that when an officer fears for his safety, the use of handcuffs does not exceed the bounds of a Terry stop, nor does it transform the stop to a formal arrest).

Moreover, pursuant to Terry, O’Malley’s detention was justified for investigatory purposes for the brief time necessary to verify O’Malley’s lawful ownership of the vehicle and confirm the validity of O’Malley’s concealed-carry permit. While at some point during the two-hour stop O’Malley’s detention ripened into an arrest, cf. Florida v. Royer, 460 U.S. 491, 497-500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see also United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), this occurred after the police learned of and properly detained O’Malley on the arrest warrant issued by the City of Warren. See Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). For these reasons, we hold that Hagler is also entitled to qualified immunity on O’Malley’s Fourth Amendment claims regarding handcuffing, detention, and search.

C.

Finally, we address whether Hagler is entitled to qualified immunity on O’Malley’s claim of excessive force regarding his handcuffing. “The Fourth Amendment prohibits unduly tight or excessively forceful handcuffing during the course of a seizure.” Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir.2009) (citation omitted). However, “[n]ot all allegations of tight handcuffing ... amount to excessive force.” Lyons v. City of Xenia, 417 F.3d 565, 575 (6th Cir.2005); see also Meadows v. Thomas, 117 Fed.Appx. 397 (6th Cir.2004). “In order for a handcuffing claim to survive summary judgment, a plaintiff must offer sufficient evidence to create a genuine issue of material fact that: (1) he or she complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced some physical injury resulting from the handcuffing.” Morrison, 583 F.3d at 401 (citation and internal quotation marks omitted). And, even when a plaintiff makes this showing, a defendant officer may still be entitled to summary judgment on the basis of qualified immunity if it would not be clear to a reasonable officer that he was violating the plaintiffs rights. Id.; see also Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (explaining that courts must ask “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted”).

In the present case, we hold that it would not have been clear to a reasonable officer in Hagler’s position that his failure to immediately loosen O’Malley’s handcuffs was a constitutional violation. While O’Malley claims that he told Officer Hagler that his handcuffs were too tight, O’Malley did not ask Hagler to loosen the handcuffs. Furthermore, O’Malley did not have an obvious physical injury and was handcuffed for only about two minutes before Officer Johnson arrived and escorted him to her vehicle. At that point, Hagler had no more contact with O’Malley.

Because “[o]ur precedents fail to notify officers that any response to a complaint of tight handcuffing other than an immediate one constitutes excessive force,” Fettes v. Hendershot, 375 Fed.Appx. 528, 533 (6th Cir.2010), and because “[i]n the absence of an obvious physical problem caused by the handcuffs or a plea by the defendant to loosen them, it is fair to ask how a reasonable officer should know that a problem has occurred,” Lyons, 417 F.3d at 576, we hold that Hagler’s failure to loosen O’Malley’s handcuffs did not violate clearly established federal law. Cf. Fettes, 375 Fed.Appx. at 533 (explaining that “a constitutional requirement obligating officers to stop and investigate each and every utterance of discomfort and make a new judgment as to whether the handcuffs are ‘too tight’ is neither reasonable nor clearly established”).

IV.

For these reasons, we reverse, in part, the order of the district court and remand for the entry of judgment in favor of defendant Hagler.

1 . After the events at issue, Chief Hagler learned that the Tahoe had been a Michigan State Police vehicle before its purchase by plaintiff Sean O'Malley.

2 . The district court characterized the facts as follows: “Plaintiff, a Caucasian male, stepped out of the vehicle and walked toward the backyard of the residence. Hagler pulled into the same driveway, notified the MSP desk officer of his location and exited his vehicle.” (Dist. Ct. Opinion & Order, July 10, 2009, at p. 2.)

3 . O’Malley has not appealed the summary judgment in favor of the City.

4 . Additionally, O'Malley did not argue below or on appeal that his vehicle was blocked in, and he has not offered any evidence that it was. O’Malley failed to submit any evidence regarding the width of the driveway.