Dorsey v. Barber

• Citation: 517 F.3d 389
• Decision Date: 21 February 2008
• Docket Number: No. 05-4235.,05-4235.
• Parties: Jelini O. DORSEY and Kevin L. Clark, Plaintiffs-Appellees, v. John BARBER, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

517 F.3d 389

Jelini O. DORSEY and Kevin L. Clark, Plaintiffs-Appellees, v. John BARBER, et al., Defendants-Appellants.

No. 05-4235.

United States Court of Appeals, Sixth Circuit.

Argued: October 24, 2006.

Decided and Filed: February 21, 2008.

ARGUED: Nick Tomino, Medina, Ohio, for Appellants. Edward L. Gilbert, Slater, Zurz & Gilbert, Akron, Ohio, for Appellees.

ON BRIEF: Nick Tomino, Medina, Ohio, for Appellants. Edward L. Gilbert, Slater, Zurz & Gilbert, Akron, Ohio, for Appellees.

Before: GIBBONS and McKEAGUE, Circuit Judges; TARNOW, District Judge.^*

McKEAGUE, J., delivered the opinion of the court, in which GIBBONS, J., joined. TARNOW, D.J. (pp. 403-06), delivered a separate opinion concurring in part and dissenting in part.

OPINION

McKEAGUE, Circuit Judge.

This case presents civil rights claims against various law enforcement officers for unlawful arrest and use of excessive force. Now before the court is an appeal from an interlocutory order of the district court denying two defendants' motions for summary judgment on the basis of qualified immunity. In particular, the district court held that, due to outstanding questions of fact, defendants Portage County Sheriff's Deputy Duane M. Dawson and Village of Brady Lake Police Officer Allen C. Begin were not entitled to qualified immunity. Both defendants appealed this ruling. Dawson's appeal (No. 05-4234) was dismissed on joint motion of the parties on March 2, 2007. Now, for the reasons that follow, we hold that the district court erred in ruling that Officer Begin is not entitled to qualified immunity.

I. FACTUAL AND PROCEDURAL BACKGROUND

The claims against Officer Begin stem from his participation in the temporary detention of plaintiffs Jelini O. Dorsey and Kevin L. Clark, who were identified as suspects in an investigation. As it turned out, plaintiffs were totally and unquestionably innocent of the charges under investigation. They were released by the police approximately 54 minutes after they were initially stopped by Officer Begin. In the meantime they had been made to lie face-down on the ground at gunpoint, were handcuffed, and were transported in patrol cars to a police station for identification by an eye-witness. Begin's role in this sequence of events was not insignificant, but was short-lived. The question posed by his motion for summary judgment based on qualified immunity is whether a reasonable officer in his position would have known that his conduct violated plaintiffs' civil rights.

On Saturday, October 10, 2004, Officer Begin was assigned to provide traffic control for the Captain Brady Day Parade in the Village of Brady Lake, southeast of Cleveland. At approximately 10:34 a.m., while driving his police cruiser, he heard a broadcast from the Portage County Sheriff Department instructing all law enforcement officers to "be on the lookout" (a "BOLO") for two suspects wanted by the Ohio State Highway Patrol in connection with an auto theft. Begin aff. ¶ 5, JA 97. The suspects were described as "two black males, one with cornrows, one wearing a blue jersey and one wearing a white jersey." Dispatch audiotape tr., JA 873 (italics in original). They were reported to have last been seen at the intersection of Westshore Drive and Merrill Road in Brady Lake, the very location where Begin happened to be as he heard the BOLO. Id. The State Highway Patrol was said to have a unit en route to that area. Id.

Moments later, Begin observed two young men who matched the suspects' description walking on Westshore Drive. Begin aff. ¶ 6, JA 98. He reported to the sheriff department that he had located the suspects on Westshore. Dispatch audiotape tr., JA 873; Begin (rep. pp. 78-79, JA 544-45. Begin was told by a Sergeant Faddis to "stop and hold for 67" ("67" being the highway patrol unit that was already en route). Dispatch audiotape tr., JA 873. Begin turned his cruiser around and approached the subjects from behind as they walked along the road. He exited his cruiser and, from a distance of 15-20 feet, told the subjects, plaintiffs Jelini Dorsey and Kevin Clark, to stop. Begin dep. at 53-57, JA 521-25. Dorsey and Clark turned around and looked surprised, but continued walking. Id. at 57, JA 525. Begin called out to them a second time, telling them to stop, put down the clipboards they were carrying, and lie down on the ground. Id. They still looked surprised. Id. Again, Begin told them to put down the clipboards and get down on the ground. Dorsey and Clark objected, asking why, and saying they hadn't done anything wrong. Id. at 58, JA 526.¹

Because they remained noncompliant, disregarding two orders, Begin drew his service weapon from its holster to control the situation until a back-up unit arrived: "At that time I felt the best way to contain them from walking away or doing anything is to have them lay on the ground with their, hands spread out." Id. at 59-60, JA 527-28. As Dorsey and Clark continued to object, Begin told them everything would be explained shortly. He ordered them a third time, weapon drawn, to get down on the ground. Id. at 62-63, JA 530-31. This time they obeyed. Id. at 63. Begin instructed them to lie on their stomachs with hands outstretched over their heads. Begin continued to display his firearm until back-up arrived, in the person of Lieutenant Duane Dawson of the Portage County Sheriff Department, at approximately 10:36 a.m. Dawson then handcuffed Dorsey and Clark, and Begin holstered his weapon. Id. at 63-64, JA 531-32.

On his arrival, Dawson took control of the scene. Id. at 68-69, JA 536-37. Dorsey and Clark remained handcuffed, lying on their stomachs until the highway patrol unit arrived, eight to ten minutes later. Id.² According to the sheriff department dispatch radio log report, Highway Patrol Trooper Lindsey Woodward arrived at the scene at 10:41 a.m. Feigert dec. ¶8, JA 151. By 10:48 a.m., both suspects were being transported—Clark in Woodward's patrol car and Dorsey in Dawson's—to the highway patrol post in nearby Ravenna. Id. at ¶ 9, JA 151. They arrived at the Ravenna Post by 11:03 a.m. Id. at ¶ 10, JA 151.

There they were shown to Robert Robinson, a concerned citizen who had provided a description of the suspects that became the subject of the BOLO. Robinson statement, JA 182-86. At approximately 8:00 a.m. that morning, Robinson had picked-up two "nervous" African-American hitch-hikers (one being about 20 years old and the other about 15 years old) in the area where two stolen cars had been abandoned after their drivers had eluded a high-speed police chase at approximately 6:15 a.m. As Robinson traveled in a westerly direction toward Ravenna, he happened to drive past each of the two abandoned cars. A state highway patrol cruiser was parked at the site of each abandoned car. As he passed each site, Robinson noticed that his young passengers "began to panic." Robinson statement, JA 182. On passing the second abandoned car, he observed that the "younger boy got scared and was breathing heavy." Id. Robinson drove his passengers to Ravenna, in the direction of Brady Lake, where he dropped them off. Shortly thereafter, Robinson reported his observations to the state highway patrol at its Ravenna post.

Robinson's description of the two hitchhikers was arguably consistent with observations made by State Highway Patrol Trooper Charles Mendenhall, who, at about 6:15 a.m., had encountered two red Dodge Neons traveling side-by-side and speeding toward him. Mendenhall statement, JA 171; Mendenhall investigation report, JA 404. Mendenhall initially gave chase to the Neon that had almost collided with his patrol car. He noted that the driver of that vehicle was "a black male with a white t-shirt and and a light colored hat or dew rag on his head." Mendenhall statement, JA 171. Mendenhall terminated the pursuit, which had reached speeds of 90-95 mph, because hills and curves made for hazardous conditions. Shortly thereafter, both Neons were found to be abandoned at different locations in the vicinity. Both were determined to be stolen.

Robinson's report of having encountered two young black men on foot in the vicinity of the area where the cars had been abandoned less than two hours earlier, who reacted with visible nervousness on passing the vehicles, was deemed to be possibly related to Mendenhall's earlier encounter. Hence, Robinson's report gave rise to the initial BOLO, which included his description of the subjects. However, when Robinson viewed Dorsey and Clark at the highway patrol post, he confirmed that they were not the same young men he had picked up earlier in the day. That they happened to be black males of about the same ages as, and dressed similarly to, the hitch-hikers he had picked up appears to have been merely an unfortunate coincidence. Dorsey and Clark were released at 11:28 a.m. and returned to Brady Lake. Investigation report, JA 408.

Barely three weeks later, plaintiffs commenced this action, filing their four-count complaint in the Northern District of Ohio. Named as defendants are five named and other unnamed police officers as well as several municipal, county and state governmental entities. The only claims relevant for present purposes are plaintiffs' civil rights claims under 42 U.S.C. § 1983 that Officer Begin unlawfully detained and arrested them and used excessive force in the process. The district court denied Begin's motion for summary judgment on the basis of qualified immunity, finding there to be questions of fact regarding the objective reasonableness of Begin's conduct. On appeal, Begin insists that, even accepting plaintiffs' allegations as true, he is entitled to qualified immunity because, considering the information that he possessed at the time of his encounter with plaintiffs, a reasonable officer in his position could have believed that he was justified in conducting an investigatory stop and that his use of a firearm to effectuate the two-minute detainment...