Smoak v. Hall

• Decision Date: 25 August 2006
• Docket Number: No. 05-6511.,05-6511.
• Citation: 460 F.3d 768
• Parties: James W. SMOAK et al., Plaintiffs-Appellees, v. Eric HALL et al., Defendants, David Bush; Jeff Phann; Tim McHood; Brian Brock; Jerry Andrews, Lieutenant, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

460 F.3d 768

James W. SMOAK et al., Plaintiffs-Appellees, v. Eric HALL et al., Defendants, David Bush; Jeff Phann; Tim McHood; Brian Brock; Jerry Andrews, Lieutenant, Defendants-Appellants.

No. 05-6511.

United States Court of Appeals, Sixth Circuit.

Argued: July 20, 2006.

Decided and Filed: August 25, 2006.

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ARGUED: Michael B. Leftwich, Tennessee Attorney General's Office, Nashville, Tennessee, for Appellants. Mary A. Parker, Parker & Crofford, Nashville, Tennessee, for Appellees. ON BRIEF: Michael B. Leftwich, Tennessee Attorney General's Office, Nashville, Tennessee, for Appellants. Mary A. Parker, Parker & Crofford, Nashville, Tennessee, for Appellees.

Before: GILMAN and COOK, Circuit Judges; DOWD, Senior District Judge.^*

GILMAN, J., delivered the opinion of the court.

COOK, J. (pp. 786-787) and DOWD, D.J. (pp. 787-789), delivered separate opinions concurring in part and dissenting in part.

OPINION

RONALD LEE GILMAN, Circuit Judge.

This case provides a classic example of how plausible but unsubstantiated speculation and miscommunication on the part of law enforcement officers can cause grievous consequences to innocent citizens. It also highlights how, in time-sensitive situations, officers are often forced to make difficult judgments that appear improvident through the lens of hindsight. The innocent citizens in this case were James Smoak, his wife Pamela Smoak, and Pamela's teenage son Brandon Hayden (the Smoaks), who brought a civil-rights action against five members of the Tennessee Highway Patrol (THP) after three of its troopers pulled over the Smoaks' car in the mistaken belief that they were the perpetrators of a robbery.

Because the troopers decided to conduct a "felony stop" of the Smoaks' vehicle, the family was removed from their car at gunpoint, handcuffed, and separately placed in the back of three squad cars. James Smoak also sustained a knee injury when he was forcibly restrained after the family's dog was shot to death by a local police officer on the scene. The district court held that none of the defendants were entitled to qualified immunity based upon the Smoaks' claims under the Fourth Amendment, but it dismissed the Smoaks' state-law conspiracy claim. For the reasons set forth below, we REVERSE the district court's denial of qualified immunity with respect to all aspects of the Smoaks' claims other than James Smoak's claim of excessive force against THP troopers Jerry Andrews and David Bush. As to this latter claim, we AFFIRM the district court's denial of qualified immunity and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

On January 1, 2003, the Smoaks were traveling home to the Carolinas after spending New Year's Eve in Nashville. Their two young dogs, General Patton and Cassie, were also riding inside of their green Mercury station wagon. After stopping at a gas station to refill the tank, James accidentally left his wallet on the roof of the car before driving off.

At 4:40 p.m. that afternoon, Veronica Louwien called the THP and spoke to dispatcher Shanon Pickard. She told Pickard that

"[m]y name is Veronica Louwien, and I'm driving down Interstate 40 in Wilson County, going towards Lebanon. I passed the Mt. Juliet Exit, and a car passed me. It was kind of like a station wagon. It was dark green. It was probably going 110 miles an hour. And then not too far in front of me, there was money flying all over the interstate . . . ."

Pickard responded by sending state troopers to the scene to meet Louwien.

After assessing the scene, the troopers reported to Pickard that they found a lot of loose currency, but they did not inform him of the actual amount—which turned out to be $445—at that time. Pickard then contacted local law enforcement, including police dispatchers in the City of Cookeville, and told them to look for a green station wagon traveling at a high rate of speed. He also sent a teletype to area law enforcement inquiring if a "recent robbery" had occurred, possibly involving a green station wagon.

Once Pickard was informed that the amount recovered on the highway was only $445, and that a wallet was found at the scene, he no longer considered the green station wagon to be involved in a robbery. The parties dispute when Pickard was told the actual dollar amount, but both sides agree that Pickard did not relay this information to the other dispatchers until after the Smoaks' station wagon had been stopped.

In Cookeville, THP dispatcher Brian Brock, who had taken the initial call from Pickard, put out a "be on the lookout" (BOLO) notification for the vehicle, stating that a green station wagon had been seen traveling at a high rate of speed and had lost a large amount of currency. Tim McHood, another THP dispatcher in the general vicinity, issued a second BOLO, stating that the vehicle was possibly involved in a robbery. He based this on a misreading of Pickard's teletype inquiring about any recent robberies, which he took to mean that the station wagon was involved in a "possible robbery," but "[w]e're not sure."

McHood then received another call from Pickard, who had been told by the troopers at the scene that a wallet with a South Carolina identification belonging to James Smoak had been found with the money. This caused McHood to send out another broadcast informing law enforcement that the green station wagon was from out of state, and that large amounts of money and an ID were found.

David Bush, a THP trooper who had heard the BOLOs and the messages about a "possible recent robbery," spotted the green station wagon traveling east on Interstate 40 and followed it for approximately eight miles. During that time, he did not observe the vehicle speeding or committing any other traffic violations. Bush was told by McHood that the license-plate information from the station wagon matched Smoak's identification found with the currency. According to the district court and the THP troopers, McHood also instructed Bush to stop the Smoaks' car, but that Bush should not do so without backup. The Smoaks, however, dispute this and claim that "Bush was solely responsible for the decision to ask for backup."

McHood and Bush then requested backup from other THP troopers in the area, and THP dispatcher Brian Brock called City of Cookeville police dispatchers for additional backup. Brock told the city dispatchers that "we're fixing to have a felony stop on a vehicle . . . possible armed robbery out of Nashville." Before pulling over the Smoaks' station wagon, Bush requested and received confirmation that the Nashville division of the THP wanted the vehicle stopped. Lieutenant Jerry Andrews and Trooper Jeff Phann of the THP and two Cookeville police officers joined Bush as backup to participate in the stop.

At the time of the stop, Bush had been a trooper with the THP for nine years and had conducted six felony stops involving stolen vehicles. He testified at his deposition that "based on my training, if there's any probability that a felony has occurred, we treat that as a high-risk stop. And based on the information that my dispatch was giving me, that's the reason I utilized a felony stop."

The felony stop of the Smoaks' car occurred at 5:15 p.m. At that time, the THP in Nashville relayed that it had the exact amount of cash found in the median, but neither McHood nor the troopers in the field inquired as to the amount. A videotape recording by the camera in Bush's car, which is part of the record, captures most, but not all, of the events of the stop.

After the station wagon was pulled over, Bush instructed the Smoaks to individually exit their vehicle, place their hands in the air, and then to get on their knees with their hands behind their backs. As the Smoaks were being handcuffed, the two Cookeville police officers pointed an assault rifle and a shotgun in the direction of the Smoak family, who incredulously inquired as to why they were being stopped. The Smoaks claim that the weapons were aimed at their heads. For the purpose of the summary judgment motion, the THP troopers admit that pointing a gun at a suspect, absent the justification for deadly force, is a significant departure from customary professional police practices, and that the correct position of an officer's gun is in the "down ready" position until deadly force is warranted.

The Smoaks asked the THP troopers several times to "please shut the door[s]" of the station wagon so that their dogs would not escape onto the highway. When Hayden asked Trooper Phann to close the passenger-side door, Hayden was told not to move. Phann believed that he would be jeopardizing his own safety if he had to reach over Hayden's head to shut the vehicle's door. Lieutenant Andrews then approached the driver's side of the vehicle, determined that it was empty, and closed the driver-side door.

While Phann was handcuffing Hayden, General Patton, a one-year-old bulldog/bull terrier mix, jumped from the still-open passenger-side door. Andrews stated in his deposition that 30 seconds to one minute elapsed between him shutting the driver-side door and General Patton jumping out of the car. What followed is disputed by the parties. The Smoaks claim that the dog began to run in a semicircle, with his tag wagging, in order to reach James. They further assert that Eric Hall, one of the Cookeville police officers on the scene, then placed himself in General Patton's path and killed the dog with his shotgun. The THP troopers contend, however, that the dog moved toward Hall after exiting the vehicle, and that Hall backed away before firing at the dog.

At that point, James, who was handcuffed, jumped up in horror and was restrained by Andrews and Bush, who wrestled him back to the ground. James claims that he was "forced down to the ground by Officer Bush...