Barnes v. Wright

• Decision Date: 02 June 2006
• Docket Number: No. 04-6288.,04-6288.
• Parties: Wilbur BARNES, Plaintiff-Appellee, v. Tony WRIGHT et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

449 F.3d 709

Wilbur BARNES, Plaintiff-Appellee, v. Tony WRIGHT et al., Defendants-Appellants.

No. 04-6288.

United States Court of Appeals, Sixth Circuit.

Argued: November 10, 2005.

Decided and Filed: June 2, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Cara L. Jarrell, Kentucky Commerce Cabinet, Frankfort, Kentucky, for Appellants. Brenda Popplewell, Brenda Popplewell, Attorney at Law, Somerset, Kentucky, for Appellee. ON BRIEF: Ellen F. Benzing, Kentucky Commerce Cabinet, Frankfort, Kentucky, for Appellants. Brenda Popplewell, Brenda Popplewell, Attorney at Law, Somerset, Kentucky, for Appellee.

Before: MERRITT, MOORE, and SUTTON, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendants-Appellants appeal the district court's denial of their motion to dismiss or for summary judgment as to whether they are entitled to absolute or qualified immunity. Conservation officers had a dispute with Wilbur Barnes ("Barnes"), in which Barnes criticized them for failing adequately to perform their duties; Barnes removed a gun from his pocket, prompting one of the officers also to pull out his gun. The officers initiated and testified in grand jury proceedings against Barnes, who was later convicted in state court of three counts of second-degree wanton endangerment for pointing a gun at one of the officers. Barnes filed a complaint in federal district court, alleging that the officers maliciously prosecuted him and retaliated against him in violation of the First Amendment. The officers argue that they are entitled to absolute immunity, or, in the alternative, to qualified immunity. For the reasons discussed below, we REVERSE the district court's denial of qualified immunity to the officers.

I. BACKGROUND

Wilbur Barnes regularly visited the Helm's Landing area, near the Cumberland River in Russell County, Kentucky, because his son, daughter-in-law, and granddaughter lived and owned property there. Joint Appendix ("J.A.") at 225 (Compl. ¶ 21). On March 24, 2002, Officer Tony Wright ("Wright") of the Kentucky Department of Fish and Wildlife Resources saw Barnes walking towards Helm's Landing with a gun in his hand. J.A. at 197 (Grand Jury Tr. at 6) (Wright Test.). Wright testified that he was not alarmed, because it was not unusual for Barnes to be carrying a gun. J.A. at 197 (Grand Jury Tr. at 6) (Wright Test.). Barnes approached Wright to complain about the fact that Wright had not taken any action against people on nearby property who were apparently shooting guns while consuming alcohol. J.A. at 197-98 (Grand Jury Tr. at 6-7) (Wright Test.). Wright told Barnes not to ever approach him with a gun in his hand again, or Wright would assume that Barnes intended to harm him. J.A. at 198 (Grand Jury Tr. at 7) (Wright Test.). After this incident, Barnes and Wright saw each other on several occasions without incident. J.A. at 202 (Grand Jury Tr. at 11) (Wright Test.).

On September 28, 2002, Barnes was checking on the family's property with his granddaughter. J.A. at 228 (Compl. ¶ 37). Wright and Officer Joby Gossett ("Gossett") drove by Barnes and his granddaughter, who were on an all-terrain vehicle; Wright, who was driving, stopped the officers' vehicle to investigate another vehicle. J.A. at 194 (Grand Jury Tr. at 3) (Wright Test.). After Barnes approached the officers with his hands in his pockets,¹ he commented that the officers had not been performing their duties. J.A. at 194 (Grand Jury Tr. at 3) (Wright Test.). Wright got out of the officers' truck, with his hand on his gun. J.A. at 195 (Grand Jury Tr. at 4) (Wright Test.). Wright asked Barnes if he had his gun in his pocket, and Barnes responded, "you damn right I have." J.A. at 195 (Grand Jury Tr. at 4) (Wright Test.). At that point, Barnes pulled his gun out of his pocket; Wright testified that Barnes's gun was pointed at him for a moment, but Barnes states that the gun was laying flat on his hand. J.A. at 195 (Grand Jury Tr. at 4) (Wright Test.); J.A. at 229 (Compl. ¶ 41). Gossett also testified that Barnes held the gun flat in his hand. J.A. at 209 (Grand Jury Tr. at 5) (Gossett Test.). When Wright pulled his gun out in response, Barnes put his gun back in his pocket. J.A. at 195 (Grand Jury Tr. at 4) (Wright Test.). Upon Wright's request, Barnes produced his carry and concealed gun permit. J.A. at 207 (Grand Jury Tr. at 3) (Gossett Test.). The men exchanged further angry words about whether the officers should have taken action with regard to the individuals who were drinking and shooting guns, and then the officers left. J.A. at 198 (Grand Jury Tr. at 7) (Wright Test.).

Barnes claims that the officers attempted to obtain an arrest warrant from the county attorney but that the county attorney "refused to issue the warrant." J.A. at 230 (Compl. ¶ 52). However, two county attorneys submitted affidavits stating that this was untrue; rather, the attorneys stated that "it was mutually decided that no warrant would be issued at this time in the hopes that the situation involving Mr. Barnes's behavior would improve." J.A. at 215-16 (Cooper Aff. ¶¶ 3-5); J.A. at 217-18 (Shearer Aff. ¶¶ 3-5); see also J.A. at 201 (Grand Jury Tr. at 10) (Wright Test.) (explaining that the county attorney said, "if you want a warrant I'll issue a warrant, but I believe it would [be] best to wait until it happens again, so that we can seize his gun"). Wright and Gossett testified before a grand jury on November 18, 2002. At the conclusion of the testimony, the grand jury issued an indictment on three counts of first-degree wanton endangerment and one count of interfering with a conservation officer. J.A. at 190-91 (Indictment). Barnes was arrested on November 19, 2002. J.A. at 219 (Uniform Citation).

Barnes filed a complaint against Wright, Gossett, and John Doe(s) in charge of training law enforcement officers (the "defendants") in federal district court on October 24, 2003. J.A. at 221 (Compl.). The complaint included claims brought pursuant to 42 U.S.C. § 1983 alleging conspiracy, false arrest and unlawful seizure, free speech violation and retaliation, malicious prosecution, failure to train, and it also included state-law claims of malicious prosecution, false imprisonment and false arrest, negligent and intentional infliction of emotional distress, gross negligence, and conspiracy. J.A. at 236-50 (Compl.). On December 12, 2003, the defendants filed a motion to dismiss or for summary judgment. J.A. at 139 (Mot. to Dismiss or for Summ. J.).

Barnes's state criminal trial was held in the Russell Circuit Court in May 2004. J.A. at 34 (Notice of Status of State Criminal Action). The jury found him guilty of three counts of second-degree wanton endangerment; Barnes was fined $1,500.00 ($500.00 for each count). J.A. at 66-71 (Jury Instructions) (Verdict Form). He was acquitted of interfering with the duties of a conservation officer. J.A. at 76 (Jury Instructions) (Verdict Form). In July 2004, Barnes notified the federal district court of the status of his state criminal case, explaining that he was not appealing his misdemeanor convictions. J.A. at 35 (Notice of Status of State Criminal Action).

The federal district court issued an opinion on September 28, 2004, in which it granted in part and denied in part the defendants' motion for dismissal or summary judgment. J.A. at 8 (Mem. Op. at 1). All of the claims were dismissed except for Barnes's First Amendment retaliation claim and his claim for "malicious prosecution and false arrest for interfering with the duties of Fish and Wildlife Officers." J.A. at 17 (Mem. Op. at 10). The district court found that the defendants were not entitled to absolute immunity for their grand jury testimony, J.A. at 12 (Mem. Op. at 4-5), and that they were not entitled to qualified immunity with respect to Barnes's remaining constitutional claims, J.A. at 15-16 (Mem. Op. at 8-9). The defendants timely appealed the district court's denial of their motion as to absolute and qualified immunity. J.A. at 5 (Notice of Appeal).

II. ANALYSIS

A. Jurisdiction

"As a threshold matter, we must first determine whether we have jurisdiction to consider [the defendants'] interlocutory appeal." Sample v. Bailey, 409 F.3d 689, 694 (6th Cir.2005). Appellate courts have "jurisdiction to hear appeals only from `final decisions' of district courts." Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (citing 28 U.S.C. § 1291). "[I]nterlocutory appeals-appeals before the end of district court proceedings-are the exception, not the rule." Id. The Supreme Court "has held that certain so-called collateral orders amount to `final decisions' immediately appealable under the here-relevant statute, 28 U.S.C. § 1291, even though the district court may have entered those orders before (perhaps long before) the case has ended." Id. at 310, 115 S.Ct. 2151 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).

The Supreme Court recently addressed the collateral-order doctrine in Will v. Hallock, ___ U.S. ___, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). Will involved the question of "whether a refusal to apply the judgment bar of the Federal Tort Claims Act is open to collateral appeal." Id. at 956. The Court held that the judgment bar is not open to collateral appeal, id.; in so holding, the Court emphasized the "modest scope" of the collateral-order doctrine, id. at 958. The opinion explains:

Since only some orders denying an asserted right to avoid the burdens of trial qualify, then, as orders that cannot be reviewed "effectively" after a conventional final judgment, the cases have to be combed for some further characteristic that merits appealability under Cohen; and as Digital Equipment explained, that something further boils down to "a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement."

Id. at 958-59 (quoting Digital...