240 F.3d 512 (6th Cir. 2001), 99-3473, McCurdy v Montgomery County, OH, et al

Docket Nº:99-3473
Citation:240 F.3d 512
Party Name:James E. McCurdy, Plaintiff-Appellant, v. Montgomery County, Ohio, et al., Defendants-Appellees.
Case Date:February 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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240 F.3d 512 (6th Cir. 2001)

James E. McCurdy, Plaintiff-Appellant,


Montgomery County, Ohio, et al., Defendants-Appellees.

No. 99-3473

United States Court of Appeals, Sixth Circuit

February 16, 2001

Argued: May 4, 2000

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 96-00498, Michael R. Merz, Magistrate Judge.

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[Copyrighted Material Omitted]

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Zach Zunshine, Columbus, Ohio, for Appellant.


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Dayton, Ohio, for Appellees.

Before: ENGEL, JONES, and COLE, Circuit Judges.

JONES, J., delivered the opinion of the court, in which COLE, J., joined. ENGEL, J. (pp. 522-27), delivered a separate dissenting opinion.

NATHANIEL R. JONES, Circuit Judge.


Plaintiff-Appellant James McCurdy brought this § 1983 suit against Defendants-Appellees Officer David Cole and Montgomery County, claiming that they violated his right to be free from unreasonable seizures under the Fourth Amendment and retaliated against him for the assertion of his First Amendment rights. The district court dismissed McCurdy's First Amendment retaliation claim after granting Officer Cole's motion for qualified immunity, and a jury returned a verdict for Defendants on McCurdy's Fourth Amendment claim. McCurdy then moved for judgment as a matter of law, or a new trial in the alternative, and the district court denied these motions in their entirety. For the following reasons, we REVERSE both the district court's denial of McCurdy's motion for judgment as a matter of law on his Fourth Amendment claim and its grant of qualified immunity on McCurdy's First Amendment retaliation claim. Accordingly, we REMAND for further proceedings.


On July 6, 1996, McCurdy hosted a graduation party for his nephew, Dwayne Smith, who had just graduated from Wright State University. The party was held at the clubhouse in the apartment complex where McCurdy then resided in Centerville, Ohio. The party ended around midnight, and while most of the patrons went home at that time, McCurdy and several others, including his brother-in-law Roger Smith and acquaintance Heath Goolsby, went to McCurdy's apartment to play cards. McCurdy had consumed alcohol both at the clubhouse party and the card game in his apartment. Around five in the morning, McCurdy and his son, James McCurdy Jr., accompanied Smith and Goolsby to their cars to see them off. The four men, who are all African-American, conversed for about fifteen minutes when a police cruiser drove by.

Officer Cole, who was on "routine patrol" and not responding to any specific complaints concerning McCurdy's apartment or the surrounding area, drove past McCurdy and company very slowly. After this initial drive-by, Officer Cole, without any provocation from McCurdy or his group, circled back towards them. As Officer Cole drove by the group for a second time, he, in his own words, "stopped and observed them for just a few seconds and [to] gain their attention . . . said what's up gentlemen?" J.A. at 161. At that point, Officer Cole recalled McCurdy asking either "what's the problem?" or "can I help you?" Id. Officer Cole, who had parked his car a short distance away from the men, could not hear McCurdy and asked him to repeat what he had said. According to Officer Cole, McCurdy then demanded, "what the fu*k do you want?" Id.

Office Cole then exited his vehicle and approached McCurdy. According to Officer Cole, he then questioned McCurdy as to why he used profane language in addressing him. After McCurdy reiterated his queries as to the reason for Officer Cole's approach, the officer asserted that it was his job to "see what's going on" if "somebody's standing out here at 5:00 in the morning." J.A. at 162. According to Officer Cole, McCurdy then exclaimed "what the fu*k is your job?" and Officer Cole asked him, as well as Smith, Goolsby, and McCurdy Jr., for identification. McCurdy responded that he was standing in front of his home, that he was without

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identification, and that neither he nor his friends needed to display any.

Officer Cole next asked McCurdy if he had been drinking that night. Upon responding in the affirmative, the fifty-three year old was ordered to go back inside his house because he lacked identification and was, in Officer Cole's view, "obviously intoxicated." Id. at 162-163. McCurdy rejected Officer Cole's admonishment, claiming that he did not have to go inside and that, furthermore, he did not have to do "sh*t" that Officer Cole ordered. Id. at 163. After McCurdy reiterated his objections to Officer's Cole purported harassment, Officer Cole warned that if he did not return to his home immediately, he would be arrested and taken to jail. McCurdy then questioned the grounds on which he could be arrested. The officer responded by simply repeating that if he did not go inside, he would be arrested. Once again, McCurdy refused to return to his home, whereupon Officer Cole told him to step to the side and place his hands on the wall. McCurdy again questioned the grounds for arrest. Without specifying the legal basis for the arrest, Officer Cole proceeded to take him into custody. Officer Cole subsequently brought McCurdy to the precinct station and arrested him for Disorderly Conduct/Public Intoxication and Obstructing Official Business under Ohio Rev. Code §§2917.11(B)(2) & 2921.31, respectively.

McCurdy subsequently sued Officer Cole and Montgomery County, asserting inter alia that he was arrested in violation of both the First and Fourth Amendments. During jury proceedings, McCurdy contended that the County illegally exercised one of its peremptory challenges on the basis of race. Originally, there were three black members among the twenty-six person venire. See J.A. at 37. One black venireperson was excused for cause because he was connected to the County Sheriff's office, and three white members were also excused for cause. With these dismissals, twenty-two persons, including two African-Americans, remained in the venire from which a jury of eight needed to be selected. Initially, an eight-person jury was seated without any black members. After McCurdy exercised the second of his two peremptory challenges, and after the County passed on exercising its first, African-American Sylvia Williams was seated on the jury. At that point, the County used its last peremptory to excuse Williams, and McCurdy objected that the strike was racially motivated. Without questioning Williams, or engaging in a colloquy with either McCurdy's or the County's counsel, the district court rejected McCurdy's objection, crediting the County's assertions that Williams' demeanor showed that she was disinterested in serving on the jury.

After the trial commenced, the district court granted qualified immunity to Officer Cole on McCurdy's First Amendment retaliation claim. The court concluded that it was not clearly established that the First Amendment prohibited an officer from effectuating an otherwise valid arrest if that officer was partially motivated by a desire to retaliate against the arrestee's assertion of First Amendment rights. See J.A. at 35-36. The trial proceeded on McCurdy's remaining claims, and the jury returned a verdict in favor of Defendants. McCurdy then moved for judgment notwithstanding the verdict, or in the alternative, a new trial. McCurdy claimed that Officer Cole did not have probable cause to arrest him, and essentially renewed a challenge to the district court's qualified immunity judgment by re-asserting his First Amendment retaliation claim. McCurdy also re-asserted his claim that the County exercised one of its peremptories in violation of the Equal Protection Clause. The district court denied McCurdy's motion in its entirety, and McCurdy filed this timely appeal.



On appeal, McCurdy first asserts that the district court erred in denying his

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motion for judgment notwithstanding the verdict, or new trial in the alternative. This court reviews the denial of a motion for judgment as a matter of law de novo,see Cook v. American Steamship Co., 53 F.3d 733, 740 (6th Cir. 1995), and the denial of a motion for new trial for an abuse of discretion. See Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir. 2000). Like the district court, we must affirm the jury's verdict "unless this Court 'is left with the definite and firm conviction that a mistake resulting in plain injustice has been committed,' or . . . the verdict 'is contrary to all reason.'" Schoonover v. Consolidated Freightways Corp., 147 F.3d 492, 494 (6th Cir. 1998) (citation omitted). Judgment as a matter of law "is appropriate only when there is a complete absence of fact to support the verdict, so that no reasonable juror could have found for the nonmoving party." Pouillon v. City of Owosso, 206 F.3d 711, 719 (6th Cir. 2000).

Although McCurdy has not asserted his appellate claims in the most artful fashion, his first claim essentially contends that Officer Cole did not have probable cause to arrest him, and that he therefore violated his Fourth Amendment right against unreasonable searches and seizures. While the Fourth Amendment allows brief investigatory detentions, or "Terry" stops, to be justified on the basis of a "reasonable suspicion," see Terry v. Ohio, 392 U.S. 1, 21-22 (1968), a full-fledged arrest must be supported by probable cause. See Gardenhire v. Schubert, 205 F.3d 303, 313 (6th Cir. 2000).

Probable cause requires that police have reasonably trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an...

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