255 F.3d 301 (6th Cir. 2001), 00-1253, Darrah v City of Oak Park

Docket Nº:00-1253
Citation:255 F.3d 301
Party Name:Lucinda Darrah, Plaintiff-Appellant, v. City of Oak Park, et al., Defendants, Russell Bragg, a Troy police officer, Defendant-Appellee.
Case Date:June 22, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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255 F.3d 301 (6th Cir. 2001)

Lucinda Darrah, Plaintiff-Appellant,


City of Oak Park, et al., Defendants,

Russell Bragg, a Troy police officer, Defendant-Appellee.

No. 00-1253

United States Court of Appeals, Sixth Circuit

June 22, 2001

Argued: March 9, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 98-74365, George E. Woods, District Judge.

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[Copyrighted Material Omitted]

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Kevin S. Ernst, LAW OFFICE OF K. S. ERNST, Detroit, Michigan, for Appellant.

Audrey J. Forbush, O'Connor, DeGrazia & Tamm, Bloomfield Hills, MI, Lori Grigg Bluhm, Troy, Michigan, for Appellees.

Before: SILER , MOORE , and CLAY , Circuit Judges.


MOORE, Circuit Judge.

Plaintiff-Appellant Lucinda Darrah ("Darrah" or "plaintiff") appeals the district court's decision granting summary judgment to Officer Russell Bragg ("Bragg") on her excessive force and malicious prosecution claims, both brought pursuant to 42 U.S.C. §1983. We AFFIRM the district court's decision.


Early in the morning on October 8, 1995, Lucinda Darrah arrived at the Detroit Newspaper Agency's ("DNA") Oak Park, Michigan distribution center to participate in an organized picketing in support of Detroit's unionized newspaper workers. The picketing was organized to coincide with the DNA's efforts to distribute the Sunday edition of the newspaper. Upon seeing the growing number of picketers arriving at the distribution center, Detective Krizmanich of the Oak Park Police Department called upon other officers from surrounding areas to assist in the handling of the situation. Thirty-seven officers and thirteen commanders responded to this call for assistance, including Officer Russell Bragg of the City of Troy Police Department.

By around 4:00 a.m., approximately two hundred picketers had arrived at the DNA distribution center. About one hour later, after several hours of unsuccessful negotiations aimed at encouraging the demonstrators to leave the distribution center driveway voluntarily so that the newspaper trucks could leave the premises, the officers decided to attempt to move the picketers off the driveway. The officers first spoke to the crowd over a bullhorn, stating that it was in violation of an Oak Park ordinance prohibiting demonstrators from blocking ingress and egress to property. The crowd only became more vocal after this warning, and then began to chant at the officers.

After the picketers ignored this warning, the officers then formed two lines and began to walk toward the middle of the driveway. The officers planned to expand their two lines out from the middle of the driveway, thus forcing the picketers to move back and away from the driveway. The officers in the formation had been instructed to take no shields or sticks and to use no tear gas. The officers were also told that if they met any physical resistance, they should retreat to the original staging area, where they would then make a decision as to what to do.

The police had previously assigned various officers to form three arrest teams, whose duty "was to arrest individuals that were pointed out to [them] by supervisors as violating a city ordinance." Joint Appendix ("J.A.") at 115 (Bragg Test.). Officer

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Bragg was assigned to one of the arrest teams.

As the officers expanded their lines across the driveway, approximately half of the picketers voluntarily moved off to the side. One group of picketers refused to move, however, and remained in the middle of the driveway in a tight circle. Lieutenant Richard Cain, one of the supervising officers on the scene, approached a man in this group and instructed him to leave the driveway. The man, Bill Dearmond, remained in the driveway, looking defiantly at Cain as he repeated his order to move. After Dearmond refused to move, Cain instructed Bragg and the other two officers in his arrest team, Officers Petrides and Smith, to arrest Dearmond.

Officers Petrides and Bragg approached Dearmond and were able to grab hold of him. At this point, however, another picketer jumped onto the officers' backs before Officer Smith could restrain Dearmond. Dearmond backpedaled further into the crowd as Officers Bragg and Petrides again attempted to arrest him. The plaintiff, who was back too far in the crowd to see what was happening at the front of the picket lines, only then noticed Officers Petrides and Bragg approaching. According to Darrah, the two officers were running toward the back of the crowd, pushing Dearmond along as they went. Darrah testified that the officers then "ram[med]" Dearmond to the ground and placed him in an arm lock, jerking his arm back further and further. J.A. at 86 (Darrah Dep.).

Upon witnessing this use of force, Darrah bent over, grabbed Officer Bragg by the ankle, and began tugging it with both hands, all the while telling him to stop hurting Dearmond. 1 Darrah stated that she was interfering with the officers' actions because she felt their conduct constituted police brutality.

Bragg was able to pull his ankle loose from Darrah's grasp, yet Darrah again grabbed hold of his ankle and told him to stop. At this point, both Darrah and Bragg essentially agree that Bragg "turned and swung backwards" with his left arm, hitting Darrah in the mouth. J.A. at 116 (Bragg Test.); J.A. at 88 (Darrah Dep.). Darrah was knocked backward and hit her head on what she believes was a parking block. Darrah suffered a "split lip" from the blow which required six or seven stitches. J.A. at 79 (Darrah Dep.).

Officer Bragg testified that he did not get a good look at the person who he claimed was tugging at his belt, other than to see that the person was female. After knocking Darrah away from him, Bragg went back to "trying to arrest" Dearmond with Officer Petrides, yet by this point Dearmond had regained his footing and had taken off through the crowd. J.A. at 116-17 (Bragg Test.).

After the situation had settled down, officers spoke with Darrah and asked for her version of what had transpired. According to Lieutenant Cain's police report, Darrah refused to identify herself to the police. Cain further stated in his police report that "[t]he only reason she was not placed under arrest" at that time was because she asked to go to a hospital. J.A. at 223 (Cain Police Report). Darrah's personal information was later obtained from the ambulance staff that treated her on the scene. An arrest warrant for Darrah for obstructing a police officer was not issued

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until February 14, 1996, more than four months after the incident.

A preliminary hearing on Darrah's obstruction charge was held on May 9, 1996, at which time the state district court determined that there was probable cause to hold Darrah over for trial. The court noted that regardless of Darrah and Bragg's differing accounts of the events, the mere act of pulling an officer while he was lawfully performing his duty was enough to "constitute[] ... resisting and obstruction." J.A. at 144 (Prelim. Examination Tr.). Darrah's case proceeded to trial, where she was acquitted by a jury on August 7, 1997.

On October 7, 1998, plaintiff filed suit in the United States District Court for the Eastern District of Michigan, raising several claims against Officer Bragg, in his individual capacity, and the Cities of Oak Park and Troy. More specifically, Darrah alleged that Officer Bragg's conduct violated her Fourth Amendment rights, and, under 42 U.S.C. §1983, sued him for excessive force in striking her in the face after she attempted to prevent him from subduing Dearmond, and for malicious prosecution based on her claim that the state court's probable cause finding was founded upon Bragg's materially false statements, including Bragg's claim that Darrah had grabbed his gun belt.

The defendants then filed a motion for summary judgment. While it is unclear from the record, it appears that the plaintiff thereafter voluntarily dismissed her claims against the Cities of Oak Park and Troy. The district court then granted the defendants' motion for summary judgment with respect to the remaining §1983 claims of excessive force and malicious prosecution against Officer Bragg. Darrah now appeals these remaining claims against Officer Bragg to this court.


A. Standard of Review

This court reviews de novo a district court's decision to grant summary judgment. Campbell, 238 F.3d at 775. The moving party has the burden of establishing that there are no genuine issues of material fact, and that it is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute over a material fact cannot be "genuine" unless a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the district court's decision to grant summary judgment, this court must view all evidence in the light most favorable to the nonmoving party. Campbell, 238 F.3d at 775.

B. Darrah's Excessive Force Claim

While excessive force claims are often best analyzed under the Fourth Amendment's protection against unreasonable seizures, Graham v. Connor, 490 U.S. 386, 394 (1989), the Supreme Court has recently cautioned that not "all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments[.]" United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). Instead, the Court noted that "Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." Id. Thus, while the Fourth Amendment "objective reasonableness" analysis should be used in excessive force cases involving searches and seizures,

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where there...

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