205 F.3d 303 (6th Cir. 2000), 98-6434, Gardenhire v Schubert

Docket Nº:98-6434
Citation:205 F.3d 303
Case Date:March 02, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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205 F.3d 303 (6th Cir. 2000)




No. 98-6434

United States Court of Appeals, Sixth Circuit

March 2, 2000

Argued: August 5, 1999

Appeal from the United States District Court for the Middle District of Tennessee at Cookeville. No. 97-00061--Thomas A. Higgins, District Judge.

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Samuel J. Harris (briefed), Lisa B. Harris (argued and briefed), Harris Law Firm, Cookeville, TN, for Plaintiffs-Appellees.

Daniel H. Rader III (argued and briefed), Lane Moore (briefed), Moore, Rader, Clift & Fitzpatrick, Cookeville, TN, for Defendant-Appellant.

Before: Batchelder and Cole, Circuit Judges; Marbley, District Judge.[*]

MARBLEY, D. J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 321-23), delivered a separate opinion concurring in part and dissenting in part.


Algenon L. Marbley, District Judge.

Plaintiffs-Appellees Katherine and Walter Gardenhire brought this suit against the Defendant-Appellant, Algood Police Chief Donald Schubert, alleging that Chief Schubert violated their civil rights, in violation of 42 U.S.C. § 1983, by arresting them without probable cause and refusing to arrest and to prosecute their neighbor for burglarizing their retail business. Chief Schubert filed a motion for summary judgment based on qualified immunity, which the district court denied. This interlocutory appeal followed, and raises the same questions presented in the court below. For the following reasons, we AFFIRM in part and REVERSE in part the judgment of the district court.


In December of 1996, Katherine Gardenhire owned a retail clothing store called Uniquely Yours. Located immediately adjacent to Ms. Gardenhire's establishment was a thrift shop owned by Mary Della Sala. The two businesses shared a common interior doorway. The bathroom and climate-control panel for both stores were located in Ms. Della Sala's shop. Some time shortly before December 1996, Ms. Gardenhire and Ms. Della Sala agreed to trade store fronts. On December 31, the two women were in the process of moving their merchandise; both women had access to the other's establishments and each had property in both locations.

On December 31, 1996, Ms. Della Sala telephoned the Algood Police Department to report a theft of property from her thrift shop. She claimed that a banjo, fiddle, pink flamingo dish, television and VCR were among the items stolen. Algood Police Officer Bill Davis responded to Ms. Della Sala's call by going to her store; he subsequently contacted Chief Schubert, who was also acting detective for the city. When Chief Schubert arrived on the scene, Officer Davis told him that Ms. Della Sala had reported certain items missing from her store, and that some of these items were visible, through the windows, inside Uniquely Yours.

Chief Schubert, dressed in civilian clothes, and another officer, in uniform, then went to the Gardenhires' home and asked them to come to the police station as part of the investigation. There is no evidence in the record as to how the officers phrased this directive. Although Katherine Gardenhire is the sole owner of Uniquely Yours, the police also solicited the cooperation of her husband, Walter Gardenhire. The Gardenhires are an interracial couple: Katherine is Caucasian, and Walter is African-American.

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The Gardenhires drove their own car to the station, where they met Chief Schubert and Officer Davis. Chief Schubert explained why the couple had been summoned there and read them their Miranda rights. The Gardenhires agreed to cooperate in the investigation and answered all police questions. During the interview, the couple admitted that they had, at their home, the flamingo dish Ms. Della Sala reported stolen. They also told the police that they had a key to the Della Sala store. Ms. Gardenhire alleges that she asked to call her attorney at one point during the questioning, but the police denied the request. The police asked for permission to search Uniquely Yours, and Mr. Gardenhire signed a consent to search form. Ms. Gardenhire claims that throughout this encounter, Chief Schubert made "condescending glares" at her and her husband. After spending some hours at the police station1, the Gardenhires left, unaccompanied, in their own car, and retrieved the flamingo dish from their home. They then met the police at their store.

At the store, Mr. Gardenhire opened the door and allowed Officer Davis and Chief Schubert to enter and recover Ms. Della Sala's items. The police found all of the goods Ms. Della Sala claimed were stolen. At that point, both officers noted that the placement of these items was oddly conspicuous. Officer Davis thought it would be "foolish" for someone to steal merchandise and then display it in the next-door window in plain view.

While the police were recovering Ms. Della Sala's items, Ms. Gardenhire noticed that several pieces of merchandise from Uniquely Yours were missing. Mr. Gardenhire discovered that the cash register was gone. The Gardenhires suspected that Ms. Della Sala had stolen the items and told Chief Schubert that they had been robbed. The officer refused to deal with their complaint. Ms. Gardenhire became agitated and demanded to make a police report. According to Ms. Gardenhire's affidavit, Chief Schubert told her to "shut up," and ordered her to leave the store and wait in her car. She did so.

Soon afterwards, Chief Schubert asked the Gardenhires to follow Officer Davis to the Putnam County Justice Center to present the facts to Magistrate Martin Wheeler. He advised the couple that they would be booked on charges of theft, burglary and criminal trespass, and would have to post bond to be released. Ms. Gardenhire's affidavit describes her impressions at that point: "We were not given a choice to go and I understood that if I did not drive myself that I would be physically forced to go. We were warned not to deviate from the specified route and that if we did not show up at the Putnam County Justice Center that a capias would be issued for our arrest." The parties stipulate that the police did not place the Gardenhires in a police car, nor did the officers say "you are under arrest," handcuff or physically touch the couple. The Gardenhires complied with Schubert's direction and followed Officer Davis to the Justice Center in their own car. As Officer Davis led the couple to the Justice Center, he did not use his police lights or siren.

At the Justice Center, Magistrate Wheeler spoke to the Gardenhires. After this interview, the magistrate determined that there was no probable cause to arrest the couple, and concluded that this was a civil matter. At some point during the Justice Center episode, Chief Schubert told the couple they should "just collect up the rest of [their] things and get out of town." The Gardenhires were not booked, fingerprinted or photographed. They were not incarcerated and were free to leave after the interview with Magistrate Wheeler.

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On June 16, 1997, The Gardenhires brought this suit in the United States District Court for the Middle District of Tennessee against Chief Schubert and the Algood Police Department. Chief Schubert is the only remaining defendant, and is sued in both his individual and official capacity. The Gardenhires have brought two claims against Chief Schubert pursuant to 42 U.S.C. § 1983. First, the Gardenhires allege that Chief Schubert violated the Fourth Amendment's prohibition against unreasonable searches and seizures by arresting them without probable cause. Second, the Gardenhires claim Chief Schubert violated the Fourteenth Amendment's guarantee of equal protection of the laws by not pursuing an investigation against Ms. Della Sala, and arresting the Gardenhires instead. The second claim is premised on the theory that the officers' failure to investigate was motivated by the fact that the Gardenhires are an interracial couple.

On November 14, 1997 Chief Schubert filed a motion for summary judgment arguing that he is protected from this suit by the doctrine of qualified immunity. The district court denied this motion, holding that Chief Schubert was not entitled to qualified immunity because a reasonable jury could find that his actions on December 31, 1996 amounted to an arrest of the Gardenhires, and that the arrest was made without probable cause. The district court also held that selective enforcement of state laws is actionable under the Equal Protection Clause of the Fourteenth Amendment. Chief Schubert now brings this interlocutory appeal of the issues raised in his original motion for summary judgment.


The denial of a summary judgment motion on the issue of qualified immunity is immediately appealable. See Mitchell v. Forsyth, 472 U.S. 511 (1985). The issue of qualified immunity is a question of law to be reviewed de novo by this Court. See Long v. Norris, 929 F.2d 1111, 1114 (6th Cir. 1991). Summary judgment is only appropriate where 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). All facts, as well as all inferences drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Schubert claims he is entitled to summary judgment based on the affirmative defense of qualified immunity against the Gardenhires' § 1983 claims....

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