Sandul v. Larion
| Citation | 119 F.3d 1250 |
| Decision Date | 23 July 1997 |
| Docket Number | No. 95-2050,95-2050 |
| Parties | John SANDUL, Robert Sandul, and Devona Sandul, Plaintiffs-Appellants, v. Timothy LARION, Sgt. Robert Stevenson, and Sgt. Lawrence Little, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Frank G. Becker (argued and briefed), Becker & Van Cleef, Southfield, MI, for Plaintiffs-Appellants.
Gail P. Massad (argued and briefed), Edward E. Salah, Joseph Nimako, Cummings, McClorey, Davis & Acho, Livonia, MI, for Defendants-Appellees.
Before: KENNEDY, JONES, and DAUGHTREY, Circuit Judges.
JONES, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KENNEDY, J. (pp. 1257-59), delivered a separate dissenting opinion.
Plaintiff John Sandul appeals the district court's granting of summary judgment to Defendants in this civil rights action brought under 42 U.S.C. § 1983. Sandul claimed that Defendants falsely arrested him and used excessive force. The district court granted summary judgment to Defendants, reasoning that Defendant Officer Larion had probable cause to arrest Sandul. We hold that the district court erred in granting summary judgement to Defendant Larion. We therefore reverse and remand this case to the district court for further proceedings consistent with this opinion.
This is the second appeal of this case to this court. A synopsis of the substantive facts will suffice for purposes of this appeal.
On August 3, 1990, Officer Timothy Larion of the Livonia Police Department, while on patrol duty, was talking with a group of abortion protesters who were picketing outside a local restaurant. While Larion was talking with the protesters, a truck drove by at a high rate of speed. The passenger in the truck, Plaintiff John Sandul, leaned out of the vehicle as it passed by the abortion protesters and shouted "f--k you," and extended his middle finger to the group. The car in which Sandul was traveling was separated from the protestors by a lane of traffic, a grassy median strip, and a sidewalk.
Believing that Sandul's conduct violated the city of Livonia's disorderly conduct ordinance, Larion began pursuing the truck until it stopped in front of Sandul's home. Larion requested identification, and Sandul replied that his identification was inside his house. Larion then informed Sandul that he was under arrest for trying to start a riot. Sandul, not believing that Larion was serious, turned and walked toward his house. Larion followed Sandul to the porch and grabbed Sandul's arm in an attempt to prevent him from entering the house. Larion maintains that Sandul swung at him and missed, pulled away from him, and entered the house. Larion further contends that Sandul began yelling obscenities at him from inside the house and that Sandul emerged from the house carrying a butcher knife, threatening to kill Larion.
Officer Larion called for backup assistance. Among the responding officers were Defendants Sergeant Stevenson and Sergeant Little. Ultimately, Sandul was arrested and charged with disorderly conduct and felonious assault 1.
Following a trial in state court, Sandul was acquitted of the disorderly conduct charge. A mistrial was declared on the felonious assault charge. On March 30, 1993, Sandul filed a complaint in Michigan's Wayne County Circuit Court against Defendants Officer Larion, Sergeant Stevenson, and Sergeant Little, asserting claims under 42 U.S.C. § 1983. Sandul alleged violations of his constitutional rights under the First, Fourth, and Fourteenth Amendments and violations of analogous state laws. Specifically, Sandul alleged unlawful arrest, unlawful entry, and excessive force. The action was removed to the District Court for the Eastern District of Michigan. Defendants then filed a Motion to Dismiss and/or a Motion for Summary Judgment for all of claims involved. The district court granted summary judgement to Defendants on the false arrest claim for felonious assault. The court denied Defendants' summary judgment motion on the excessive force claim. Because the false arrest claim was Sandul's primary claim, Sandul then requested a voluntary dismissal of all other claims (including the excessive force claim), so that an immediate appeal could be taken. The action was dismissed with prejudice, and Sandul then appealed to this court.
On appeal, this court affirmed in part, and reversed in part, holding that: 1) the district court did not err in granting summary judgment to the Defendants on Sandul's claim of false arrest for attempted felonious assault; 2) the district court erred by failing to address Sandul's claim of false arrest based on his initial arrest for disorderly conduct; 3) the district court did not err in granting summary judgment to Defendants Stevenson and Little for Sandul's claim of false arrest because these Defendants did not participate in Sandul's initial arrest for disorderly conduct; 4) the district court did not err in dismissing Sandul's unlawful entry claim, because Sandul's behavior at his home constituted an immediate threat to the arresting officers; and 5) the dismissal of Sandul's false arrest claim did not render the excessive force claim an involuntary adverse judgment. Sandul v. Larion, 94-1233, 1995 WL 216919, at * 3-4 (6th Cir. Apr.11, 1995). This court further found that the district court had misled the Plaintiffs' attorney as to the effect of dismissal with prejudice. Id. at * 6 n. 5. As a result, the court reversed the dismissal of the excessive force and state law claims. Id. at * 6.
On remand, the district court granted summary judgment to Larion concluding that Livonia's disorderly conduct ordinance did not rise to the level of being "so flagrantly unconstitutional" that any person of reasonable prudence would be bound to see its flaws. See Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979). The district court also found that Larion had probable cause to arrest Sandul for violating the disorderly conduct ordinance. Thus, the court held that there was no violation of Sandul's First Amendment rights and that even if the ordinance was unconstitutional, Larion was entitled to qualified immunity. In addition, the district court dismissed without prejudice Sandul's excessive force claims.
On appeal, Sandul contends that the district court erred in granting summary judgment to Larion and that the district court erred in dismissing the excessive force claim.
We review a district court's grant of summary judgment de novo. Front Row Theatre, Inc. v. American Mfr.'s Mutual Ins Cos., 18 F.3d 1343, 1346 (6th Cir.1994). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
We begin by confronting the second issue, the dismissal of Sandul's excessive force claim. Sandul cannot appeal the order dismissing the excessive force claim because the dismissal was without prejudice. Such a dismissal is not a final judgment, and thus, no appeal is permitted. See Laczay v. Ross Adhesives, 855 F.2d 351, 354 (6th Cir.1988). The granting of summary judgment on the false arrest claim, however, constitutes a final judgment and is reviewable. We now turn to the first issue, whether Larion is entitled to qualified immunity for the arrest of Sandul.
We state initially that Sandul does not challenge the constitutionality of the Livonia ordinances. Rather, Sandul argues that Officer Larion violated his constitutional rights by falsely arresting Sandul while he was exercising his right to free speech and that because Officer Larion should have known that he was violating Sandul's First Amendment rights he is not entitled to qualified immunity.
Government officials are generally entitled to qualified immunity when performing discretionary functions as long as the conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In order to assert a violation of a "clearly established" right and defeat a qualified immunity defense, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). In other words, "in the light of pre-existing law the unlawfulness must be apparent." Id. To prove that a right was clearly established a claimant can draw from either Supreme Court precedent, precedent from this court, or cases from other courts which "point unmistakably to the unconstitutionality of the conduct and [are] so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct was unconstitutional." Mumford v. Zieba, 4 F.3d 429, 432-33 (6th Cir.1993).
We utilize an "objective reasonableness" standard to determine whether a government official would believe that a right is clearly established. Long v. Norris, 929 F.2d 1111, 1115 (6th Cir.1991). "[T]he objective reasonableness test focuses on whether an official, given the facts that the official knew or reasonably should have known about the situation, should have known that his or her particular conduct would not pass scrutiny when applied to the law." Id.(citations omitted).
On appeal, our task is limited to a determination of whether Sandul's rights were "clearly apparent" at the time of his arrest. Mumford, 4 F.3d at 432. As a preliminary matter, it is necessary to determine whether Sandul's actions were protected speech.
It is a well-established that "absent a more particularized...
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THOSE ARE FIGHTING WORDS, AREN'T THEY? ON ADDING INJURY TO INSULT.
...fisticuffs,' it is not entitled to First Amendment protection." (citing Texas v. Johnson, 491 U.S. 397, 409 (1989))); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) ("Sandul's words and actions do not rise to the level of fighting words. The actions were not likely to inflict injury ......