482 F.3d 840 (6th Cir. 2007), 05-4462, Humphrey v. Mabry

Docket Nº:05-4462.
Citation:482 F.3d 840
Party Name:Raymond E. HUMPHREY, Plaintiff-Appellee, v. Duane M. MABRY; Kevin George; and Kevin Wheeler, Defendants-Appellants.
Case Date:April 02, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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482 F.3d 840 (6th Cir. 2007)

Raymond E. HUMPHREY, Plaintiff-Appellee,


Duane M. MABRY; Kevin George; and Kevin Wheeler, Defendants-Appellants.

No. 05-4462.

United States Court of Appeals, Sixth Circuit.

April 2, 2007

Argued: Sept. 19, 2006.

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David E. Peterson, Columbus City Attorney's Office, Columbus, Ohio, for Appellants.

James D. McNamara, Columbus, Ohio, for Appellee.


David E. Peterson, Columbus City Attorney's Office, Columbus, Ohio, for Appellants.

James D. McNamara, Columbus, Ohio, for Appellee.

Before CLAY and GILMAN, Circuit Judges; OBERDORFER, District Judge. [*]

OBERDORFER, D.J.,, in which GILMAN, J., joined. CLAY, J. (pp. 851-60), delivered a separate dissenting opinion.


OBERDORFER, District Judge.

This civil rights action, brought under 42 U.S.C. § 1983, arises out of a traffic stop, forcible seizure at gun point, search and brief restraint of the plaintiff, who was driving a car mistakenly identified by Columbus, Ohio police officers as a wanted car driven by a dangerous, gun-bearing suspect. The plaintiff's complaint alleges that three Columbus police officers and the City of Columbus are liable for violating his constitutional rights, specifically the Fourth Amendment's prohibition against unreasonable seizures and the use of excessive force. We conclude that Humphrey's complaint sufficiently alleges, and

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a reasonable jury could find, that Columbus police officers did violate his Fourth Amendment rights. But we also conclude that, because a reasonable officer in the shoes of the individual officer defendants, in the particular circumstances here, could have reasonably believed that his actions were constitutional, we REVERSE the denial of qualified immunity for the three individual officer defendants and REMAND for further proceedings consistent with this opinion.


A. Factual Background

Viewing the facts in the light most favorable to the plaintiff, the record establishes the following:

1. The Seizure

On the evening of December 10, 2002, Raymond Humphrey, was driving his bright blue PT Cruiser on Parsons Avenue in Columbus, Ohio. On his way home from work as the Director of Blackburn Recreation Center, a center for inner-city children, he stopped at a Kroger's grocery store. A few minutes past 10:30 p.m., he left the Kroger's and turned south onto Parsons Avenue. After driving a few blocks, he came upon a police roadblock. Officers Dwayne Mabry and Kevin George had stopped traffic and were waving each car through one at a time. Unbeknownst to Humphrey, the two officers had been alerted by an officer in a helicopter, Officer Kevin Wheeler, that he had in sight a PT cruiser heading their direction being driven by a suspect with a gun.

At approximately 10:35 p.m., Humphrey stopped his PT Cruiser in the line. To his surprise, Officers Mabry and George approached, drew their guns, pointed them at the car and yelled at Humphrey to get out. As he began to do as he was ordered, with Officer George acting as cover, Officer Mabry holstered his gun. Officer Mabry then grabbed Humphrey roughly by the wrist, held on to him firmly while pulling him the rest of the way out of the car, and "patted him down." As the officers started to handcuff Humphrey, he alerted them that he had an injured thumb. He was not resisting, and the officers left the injured hand uncuffed. Officer George holstered his gun and briefly shined his flashlight through the windows to search for a gun in the car. Within less than five minutes, Officers Mabry and George discovered that Humphrey was not a suspect. They released him forthwith.

2. The Preceding Events

Earlier that same evening, at approximately 9:52 p.m., Volanda Graham had called 911 from her home at 795 Thurman Avenue in the Eleventh Police Precinct in Columbus. She reported to the 911 dispatcher that her sister's ex-boyfriend, Greg Dunson, "just tried to pull a gun out and shoot my dad." (JA 173). She described Dunson as "male black," very tall (about 6'3"'), with glasses, curly hair, and wearing a black jersey with white letters and red writing, and black jeans. (JA 173, 176). Graham also reported that Dunson had a silver Chrysler and was with a friend named "Lucas." Graham described Lucas as light-skinned, 5'8"' or 5'9"' and wearing a toboggan-type hat. According to Graham, Dunson, still carrying the gun, had left her house on foot.

In response to Graham's 9:52 p.m. call, at 9:53 p.m. the police dispatcher immediately directed three police cruisers to Graham's house for a "33 run" (an incident with a gun). The dispatcher stated that a "male black, 6'3"' in a grey Chrysler, CFT2945, has a 33[gun] out and is threatening caller's father." (JA 178). The dispatcher then aired that the suspect, named Greg Dunson, had left his car at the Graham

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house and "just now took off walking down the street." (JA 178). The dispatcher also alerted the officer in a helicopter then in the air to be on the lookout for Dunson, who she further described as wearing a "black jersey with red lettering" and "wearing glasses and ... black jeans." (JA 116, 178).

Between the dispatcher's initial broadcast and the mistaken stop of Humphrey at 10:35 p.m., officers searching for the suspect at and in the vicinity of the Graham house, officers in nearby police cars, officers in a police helicopter, and the dispatcher transmitted, via a police radio channel, what information they thought they had about where to locate Dunson, his friend, his car (whether Dunson or his friend was driving it) and, particularly, the gun as follows:

· 9:56 p.m.: The dispatcher aired that Dunson was "supposed to be with another male black, light skinned, name of Lucas." (JA 117, JA 179).

· 9:58 p.m.: An officer who had arrived at the Graham house to investigate, Officer [first name] Smith, aired that Dunson "left westbound on Thurman," that he left "in his vehicle," and that the vehicle was "going to be a grey ... PT Cruiser." (JA 117, 179).

· 9:59 p.m.: Officer Wheeler began his shift in the helicopter. The first he heard of the incident at the Graham house was a request from the dispatcher that he check "the area of 795 Thurman" because there was a car "headed westbound about 5 minutes ago on a 33 run, male black in a grey PT cruiser." (JA 117, 180).

· 9:59 p.m.: Officer Smith reported from the vicinity of the Graham home that "the vehicle left eastbound with one of [the suspect's] friends driving it and our suspect left westbound" ... "they're also saying that the suspect threw the 33 into the PT Cruiser before he went walking westbound and the car went eastbound." (JA 117, 180).

· 10:02 p.m.: Another officer at the scene of the incident, Officer Russell, told Officer Wheeler, now in the helicopter, "that car PT Cruiser, grey in color, went eastbound from this location 5 minutes, possibly 10 minutes old now, that's the one that has the 33 in it." (JA 181).

· 10:03 p.m.: The dispatcher reported that the license plate number originally given from the scene, CFT2945, came back to a 1996 GMC truck out of Toledo, Ohio, registered to a Ruth Smith, indicating that the tag number reported by Graham was incorrect. (JA 117-18).

· 10:21 p.m.: Officer Smith reported to the dispatcher that the full name of Dunson's friend is Lucas Downs and that it is Downs who is driving the suspect's vehicle. He added: "supposedly once again the 33 was seen and supposedly was put back in the vehicle before the vehicle left." (JA 185).

There was a brief lull in radio activity on this search from 10:21 p.m. until 10:33 p.m., while other incidents (including another gun incident) were reported and responded to. Then things started to happen very quickly in the search for Dunson. Within five minutes, the entire incident with plaintiff Humphrey began and ended.

· 10:33 p.m.: Officer Smith aired, without indicating the source of his information: "our suspect out of our 33 run was just seen in the PT Cruiser westbound on Frebis from Ohio." (JA 190). 1

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· 10:34 p.m.: Another nearby officer, Officer Wilson, responded that he would head eastbound on Frebis, from Parsons, to look for the vehicle. (JA 118, 190).

· 10:34 p.m.: Officer Russell, without indicating the source of his information, told Officer Wheeler (still in the helicopter) to look for the PT Cruiser on Parsons Avenue, and added: "you may want to check for that PT Cruiser anywhere from Frebis/Parsons, all the way to Livingston and Parsons." (JA 190).

· 10:34 p.m.: Officer Wheeler responded immediately: "We got a PT Cruiser dark grey, southbound from the Kroger here on Parsons, that's probably it."

· 10:34 p.m.: Officer Russell added: "Be advised there is a 33 on board, either in the glove box or under the passenger seat."

· 10:34 p.m.: Officer Wheeler reported that the PT Cruiser he was watching was "still southbound on Parsons, right in front of Parsons market" and that it "is going to be the third one in line." (JA 190).

3. Realizing the Mistake

Officers Mabry and George were the first officers near Parsons market at 10:35 p.m. They were on bicycles patrolling the thirteenth police precinct. They had heard portions of the earlier broadcasts pertaining to the incident at Graham's house in the eleventh precinct, but they attested that they had been focused primarily on communications affecting their precinct. (JA 66, 71). However, hearing the transmission from Officer Wheeler in the helicopter and realizing that they happened to be less than a block away, they set up a road block on the route that Humphrey, the driver of the PT cruiser, was following.

At approximately 10:35 p.m., Officers Mabry and George conducted the stop without yet knowing Humphrey's name. At that time, a back-up officer in a cruiser arrived on the scene and radioed to the dispatcher Humphrey's license place number, AUN1NX. The officer asked what tag...

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