Painter v. Robertson

• Decision Date: 17 March 1999
• Docket Number: PLAINTIFF-APPELLANT,No. 98-3340,DEFENDANTS-APPELLEES,98-3340
• Citation: 185 F.3d 557
• Parties: (6th Cir. 1999) ROBERT PAINTER,, v. BILL ROBERTSON; ROBERT TUSH, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 557

185 F.3d 557 (6th Cir. 1999)

ROBERT PAINTER, PLAINTIFF-APPELLANT, v. BILL ROBERTSON; ROBERT TUSH, DEFENDANTS-APPELLEES.

No. 98-3340

U.S. Court of Appeals, Sixth Circuit

Argued: March 17, 1999

Decided and Filed: July 20, 1999

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 96-01278--James L. Graham, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] James D. McNamara (argued and briefed), Columbus, OH, for Plaintiff-Appellant.

Charles Keith Plummer (argued and briefed), Tribbie, Scott, Plummer & Padden, Cambridge, OH, for Defendants-Appellees Bill Robertson and City of Holloway.

Douglas J. Suter (argued and briefed), Isaac, Brant, Ledman & Teetor, Columbus, OH, for Defendants-Appellees Belmont Sheriff, Robert Tush and Tim Stephen.

Before: Krupansky, Siler, and Batchelder, Circuit Judges.

KRUPANSKY, J., delivered the opinion of the court, in which SILER, J., joined. BATCHELDER, J. (pp. 572-74), delivered a separate opinion Dissenting in part.

OPINION

Krupansky, Circuit Judge.

The plaintiff-appellant, Robert Painter ("Painter" or "the plaintiff"), has challenged the district court's summary judgment for the defendant-appellee peace officers William Keith Robertson ("Robertson") and Robert Leonard Tush ("Tush") (collectively referenced as "the defendants"), which dismissed, upon according the officers qualified immunity, his individual capacity claims for damages under the Fourth Amendment¹ and 42 U.S.C. § 1983² related to his submission without resistance, to an involuntary body search, and his consequent arrest for carrying a concealed loaded firearm. On review, the plaintiff has contended that qualified immunity was unavailable to the defendants because clearly established federal law directed that law enforcement authorities may not frisk a citizen for weapons purportedly to ensure their individual safety when reasonable officers in the posture of the implicated agents would have known that their target was not dangerous, and lacked probable cause to arrest a person for carrying a concealed weapon if objective officers would have known that their subject carried his weapon lawfully.

Painter, a 1987 graduate of the United States Military Academy at West Point, is an honorably discharged Captain who had served five years in the United States Army as, inter alia, a military police commander at a major army base wherein he trained and supervised military police officers. Prior to November 1995, Painter had never been arrested, jailed, or charged with any crime. On the evening of Friday, November 18, 1995, the plaintiff worked as the sole barman at Lucky's Bar and Grill ("Lucky's") in Holloway, Belmont County, Ohio. Lucky's was owned by Painter's sister-in-law. The tavern attracted a rough and sometimes dangerous clientele, and had earned a local "punch palace" reputation. Although Painter's employment as a full-time marketing representative ("hospice consultant") for a pharmaceutical company entailed responsibility for a sales territory encompassing six West Virginia counties plus two Ohio counties, he nonetheless had agreed, commencing in July or August 1995, to assist his sister-in-law, on a part time basis, in the management and operation of Lucky's.

On the evening in controversy, a female regular patron of the pub complained sporadically to Painter that a male customer, who the plaintiff did not then recognize but was later identified as Michael E. Doan ("Doan"), was harassing her. On each occasion, Painter admonished Doan to desist from annoying the woman. Nonetheless, following intermittent post-admonition respites, Doan would promptly resume his vexation of the female. Painter suspended further alcoholic beverage sales to the intoxicated Doan, and, ultimately, at about 12 midnight, directed Doan to leave the premises because of his obstinate obstreperous and obnoxious conduct.

Approximately two hours after Doan's expulsion, Painter responded to a dissonant commotion in the tavern's back room.³ Upon entering, he observed a fight in progress involving several individuals, including Doan, who apparently had surreptitiously re-entered the building via a side door. A companion of Doan's, later identified as Dan Shepard ("Shepard"), was a participant in the melee. In an effort to halt the violence, Painter sprayed mace at the combatants, including Doan and Shepard. Shortly thereafter, most of the party attendees departed Lucky's via the side exit. While leaving, Doan damaged the screen door. However, Shepard did not leave, but instead returned to the main area of the lounge. Painter subsequently heard Shepard, a brawny individual standing approximately 6'5" and weighing 250 pounds, loudly threaten repeatedly to kill whoever had maced him.

Painter, fearing for his safety, went outside and armed himself with a nine millimeter Smith and Wesson model 915 semiautomatic pistol which he kept in the trunk of his automobile. The plaintiff, who at that time resided in Wallace, West Virginia, possessed a valid West Virginia permit to carry a concealed firearm⁴. Painter fully loaded the weapon, and subsequently secreted it behind the bar. He then resumed tending the bar. A short time thereafter, at about 2:00 a.m. on the morning of November 19, 1995, a visibly agitated Shepard pointed his finger menacingly at Painter as he, Shepard, advanced towards the service counter. Shepard then moved the hinged shelf which overlay the swinging gate which afforded access to the area behind the L-shaped bar, and attempted to unlatch the gate. The plaintiff responded to this aggression by aiming his handgun at Shepard, accompanied by an advisory that he "might not want to come back here." Shepard retreated, and as he left the premises, threatened that he would see the plaintiff outside. Shortly thereafter, Painter elected to close the tavern for the night.

Momentarily, as the remaining patrons were departing the bar, defendant City of Holloway Police Chief William Robertson arrived at Lucky's in response to a citizen's report of a fight at the tavern. At that time, Painter described for Robertson the earlier disturbances, including Shepard's belligerent actions, and lodged a criminal complaint against Doan for damaging the club's side screen door. The uncontradicted testimony of both Painter and Robertson evidenced that, at this juncture, the exchange between the two men was cordial, cooperative, and friendly. Both individuals testified that they had been previously acquainted, and that Painter addressed Robertson as "Bill" and Robertson addressed Painter as "Bobby." Robertson testified that he did not feel threatened in any way by Painter during this discourse. He further attested that Painter had never threatened him, nor had he instigated any problems, during any of their prior interactions. However, although the record of testimonial evidence⁵ reflected that the long-standing relationship between Painter and Robertson had generally been cordial and positive, it also revealed that Robertson had previously expressed a negative opinion of Lucky's.⁶

Following Robertson's interview of the plaintiff, the police chief returned to the tavern's parking lot, where between 15 and 30 customers, including Doan and Shepard, were milling around. Because of ongoing arguments in the parking lot, coupled with a palpable tense mood among the crowd's less than sober members, Robertson feared that further violence might erupt. Upon arresting Doan by reason of Painter's property damage complaint, Shepard or Doan, and perhaps others, advised Robertson that Painter had brandished a pistol inside the bar⁷. According to Robertson's testimony, the information supplied to him by members of the unruly belligerent mob suggested that Painter, after ordering the complete evacuation of the establishment, had indiscriminately waved his weapon around the barroom to enforce his command⁸. Nonetheless, Robertson conceded that he knew that Painter had produced his firearm in an effort to forestall further rowdy conduct by Shepard or Doan.

Robertson subsequently radioed the Belmont County Sheriff Office to request backup assistance. Defendants Captain Robert Tush and Deputy Tim Stefan ("Stefan"), as well as Auxiliary Deputy Timothy Newhart ("Newhart"), responded immediately. Although Tush had not previously met Painter and knew nothing about him, he had been summoned to terminate hostilities at Lucky's on many prior occasions. Tush testified that he heard some unidentified individuals outside the lounge state that, while inside, they had been threatened with a gun by some unidentified person. However, Tush did not know the identity of any purported speaker. Tush recalled that one person, possibly a "burly man," had asserted that he had been ordered from the tavern at gunpoint. However, Tush attested without contradiction that, as a sheriff department employee who Holloway Police Chief Robertson had requested merely to supply backup in a difficult situation, he was present only to protect Robertson. Tush testified that he was not responsible for interrogating witnesses, taking statements, or performing other investigatory functions. Rather, Robertson alone exercised professional discretion in the conduct of the investigation; Tush merely followed Robertson's lead.

Newhart, who also had never known Painter, characterized Lucky's as "a known problem spot." He testified that, while in the parking lot, he overheard various former bar patrons assert that some unidentified person had displayed a weapon inside the pub following a fight and macing incident. For his part, Stefan disclosed that he had no prior knowledge of the plaintiff, and had never seen him prior to the morning in controversy, although he also had been called to Lucky's on numerous prior occasions to restore order among unruly customers.

For unknown reasons, the officers did not disperse the disorderly,...