52 F.3d 326 (6th Cir. 1995), 94-1233, Sandul v. Larion

Docket Nº:94-1233.
Citation:52 F.3d 326
Party Name:John SANDUL, Robert Sandul, and Devona Sandul, Plaintiffs-Appellants, v. Timothy LARION, Sgt. Robert Stevenson, and Sgt. Lawrence Little, Defendants-Appellees.
Case Date:April 11, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 326

52 F.3d 326 (6th Cir. 1995)

John SANDUL, Robert Sandul, and Devona Sandul, Plaintiffs-Appellants,

v.

Timothy LARION, Sgt. Robert Stevenson, and Sgt. Lawrence Little, Defendants-Appellees.

No. 94-1233.

United States Court of Appeals, Sixth Circuit

April 11, 1995

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Eastern District of Michigan, No. 93-71362; Horace W. Gilmore, District Judge.

E.D.Mich.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Before: KENNEDY and MILBURN, Circuit Judges; and WISEMAN, [*] District Judge.

MILBURN, Circuit Judge.

Plaintiffs John, Robert, and Devona Sandul appeal the district court's order granting partial summary judgment to defendant City of Livonia, Michigan, police officers Timothy Larion, Sergeant Robert Stevenson, and Sergeant Lawrence Little on plaintiffs' claim of false arrest, and dismissing all remaining claims with prejudice in this civil rights action brought under 42 U.S.C. § 1983 in which plaintiffs claim that defendants falsely arrested plaintiff John Sandul, that defendants unlawfully entered their house, and that defendants used excessive force against all plaintiffs in effectuating plaintiff John Sandul's arrest. On appeal, the issues are (1) whether the district court erred in granting summary judgment in favor of defendants as to plaintiffs' First Amendment false arrest claim, and (2) whether plaintiffs may appeal the district court's order dismissing with prejudice, at plaintiffs' request, plaintiffs' remaining claims of unlawful entry and excessive force. For the reasons that follow, we affirm in part, reverse in part, and remand the case to the district court.

I.

A.

On August 3, 1990, defendant Officer Timothy Larion was talking to a group of abortion protesters, which included women and children, picketing outside a restaurant in Livonia, Michigan, when a truck, in which plaintiff John Sandul was a passenger, passed by travelling at a high rate of speed. As the truck passed the group, defendant Larion observed plaintiff John Sandul lean out of the truck, make an obscene gesture at the protesters, and shout obscenities at them. Believing that this conduct violated the City of Livonia's disorderly conduct ordinance, Officer Larion began to pursue the truck. The truck, driven by Phillip Krikorian, stopped in front of Sandul's house. 1 John Sandul got out of the truck, and Officer Larion asked him for identification so that Officer Larion could issue him a citation for violating the city's disorderly conduct ordinance. John claims that after being searched by Officer Larion, he informed Officer Larion that his identification was in his house. At that point, John asserts that Officer Larion told him that he was under arrest for trying to start a riot. John claims that he did not believe that Officer Larion was serious and thus started walking toward his house. Officer Larion followed John to the porch of the house and grabbed John's arm in an attempt to prevent John from entering his house, but John pulled away from Officer Larion and went into his house. John claims he went into the kitchen of his house to make a sandwich. Officer Larion claims that John swung at him before entering the house, that John continued to yell obscenities and threats at him from inside the house, and that John punched the screen out of the front door.

At that point, Mrs. Devona Sandul, John's mother, spoke with Officer Larion, who was standing on the front porch. Officer Larion told Mrs. Sandul that John must come out of the house because he was under arrest. John claims that he saw Officer Larion point his gun at the door of the house. During this conversation, Officer Larion could hear John screaming that he was going to kill Officer Larion from the back of the house. Officer Larion then saw John come out of the garage attached to the house carrying a knife. The parties dispute the size of this knife. Officer Larion claims that the knife had a seven inch blade while John claims that the knife, which he allegedly was using to make a sandwich, was only a small paring knife. Officer Larion asserts that John, while about 20 feet away from Officer Larion, again threatened to kill him while John was holding the knife. At that point, Officer Larion radioed for back up. John later signed a handwritten confession admitting that he threatened the police officers with a knife although he now disputes the validity of the signature on this confession.

A large number of police officers responded to Officer Larion's request for back up. The Sanduls claim that at least 14 City of Livonia scout cars came to their house. Mr. Robert Sandul, John's father, and Mrs. Sandul continued to talk to the police officers from the doorway of their house. Defendant Sergeant Robert Stevenson attempted to arrest John for felonious assault while he was standing at the door and tried to grab John's arm. In response, John pulled his arm away, at which point either Sgt. Stevenson was pulled inside the door, as Sgt. Stevenson claims, or Sgt. Stevenson yelled "get him" and the police stampeded the doorway, as John claims. In either case, all of the Sanduls were knocked to the ground by the rushing police officers. John also claims that their house was then ransacked. The police contend that several officers entered the house to effectuate John's arrest, and John struggled violently. While John struggled, Mrs. Sandul attempted to pull the police officers off of John. John claims that at the police station, he was dragged across a cement parking lot and struck in the head, face, shoulder, chest, and stomach with a night stick.

John was arrested for felonious assault and for violating the City's disorderly conduct ordinance. 2 John was acquitted of the disorderly conduct charge by a jury, and a mistrial was declared with regard to the felonious assault charge. John then entered a plea of nolo contendere to a charge of attempted felonious assault for which he was convicted and sentenced. However, the Michigan Court of Appeals vacated this conviction, holding that Michigan does not recognize a charge of attempted felonious assault. 3 Mrs. Sandul was subsequently charged with interfering with a police officer. She was tried and convicted of this charge, but the state district court judge dismissed the case on a post-trial motion.

B.

Plaintiffs John, Devona, and Robert Sandul filed their complaint in the Wayne County (Michigan) Circuit Court on March 30, 1993, asserting claims under 42 U.S.C. § 1983 against defendant police officers Timothy Larion, Sergeant Robert Stevenson, and Sergeant Lawrence Little. In their complaint, plaintiffs alleged that their First, Fourth, and Fourteenth Amendment rights had been violated when defendants unlawfully entered their house to arrest plaintiff John Sandul, when defendants unlawfully arrested plaintiff John Sandul, and when defendants used excessive force during the arrest. Plaintiffs also made claims under the Michigan Constitution of 1963. Defendants removed plaintiffs' action to the United States District Court for the Eastern District of Michigan.

On December 2, 1993, defendants filed a motion to dismiss and/or for summary judgment. The district court held a hearing on this motion on January 18, 1994. At the hearing, the district court granted defendants' motion for summary judgment as to plaintiff John Sandul's constitutional claim based on false arrest but denied defendants' motion as to plaintiffs' claims based on excessive force. On January 25, 1994, plaintiffs stated their desire for an immediate appeal of the district court's grant of partial summary judgment to defendants and thus agreed to have all of their remaining claims dismissed because, according to plaintiffs, plaintiff John Sandul's First Amendment claim based on false arrest was "the essence of [their] case" and therefore "a trial as to the remaining issues would not materially advance the ultimate termination of this litigation." J.A. 317. Thus, plaintiffs concluded that "it would be better to appeal this matter than to proceed through the Final Pre-Trial Order and the Trial absent the First Amendment and False Arrest issues." J.A. 317-18. Accordingly, on January 26, 1994, the district court entered an order dismissing all of plaintiffs' claims, including the excessive force claim, with prejudice. This timely appeal followed.

II.

A.

Plaintiff John Sandul argues that the district court erred in granting summary judgment to defendants as to his claim of false arrest. Specifically, plaintiff John Sandul asserts that he was unlawfully arrested for exercising his First Amendment right to free speech. We review a district court's grant of summary judgment de novo. Front Row Theatre, Inc. v. American Mfr.'s Mut. Ins. Cos., 18 F.3d 1343, 1346 (6th Cir.1994). Granting summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 56(c). See also Meade v. Pension Appeals & Review Comm., 966 F.2d 190, 192-93 (6th Cir.1992). "The moving party must 'show that the non-moving party has failed to establish an essential element of his case upon which he would bear the ultimate burden of proof at trial.' " Front Row Theatre, 18 F.3d at 1346 (quoting Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir.1992)). Moreover, "[w]hen reviewing a grant of summary judgment, inferences to be drawn from the underlying facts must be viewed in the light most favorable to the...

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