601 F.3d 640 (6th Cir. 2010), 09-1249, Binay v. Bettendorf

Docket Nº:09-1249, 09-1400.
Citation:601 F.3d 640
Opinion Judge:CLAY, Circuit Judge.
Party Name:Marion BINAY; Joselito Binay; SB, a minor child, by Marion Binay and Joselito Binay, Next Friends, Plaintiffs-Appellees, v. BETTENDORF, Officer (09-1249), Pongracz, Officer (09-1400), Defendants-Appellants.
Attorney:Joseph Nimako, Cummings, McClorey, Davis & Acho, P.L.C., Livonia, Michigan, Stephon B. Bagne, Kupelian, Ormond & Magy, Southfield, Michigan, for Appellants. Michael M. Wachsberg, Pedersen, Keenan, King, Wachsberg & Andrzejak, P.C., Commerce Township, Michigan, for Appellees. Joseph Nimako, Cummin...
Judge Panel:Before: KEITH, CLAY, and GRIFFIN, Circuit Judges.
Case Date:April 20, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 640

601 F.3d 640 (6th Cir. 2010)

Marion BINAY; Joselito Binay; SB, a minor child, by Marion Binay and Joselito Binay, Next Friends, Plaintiffs-Appellees,

v.

BETTENDORF, Officer (09-1249), Pongracz, Officer (09-1400), Defendants-Appellants.

Nos. 09-1249, 09-1400.

United States Court of Appeals, Sixth Circuit.

April 20, 2010

Argued: March 3, 2010.

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ARGUED:

Joseph Nimako, Cummings, McClorey, Davis & Acho, P.L.C., Livonia, Michigan, Stephon B. Bagne, Kupelian, Ormond & Magy, Southfield, Michigan, for Appellants.

Michael M. Wachsberg, Pedersen, Keenan, King, Wachsberg & Andrzejak, P.C., Commerce Township, Michigan, for Appellees.

ON BRIEF:

Joseph Nimako, Cummings, McClorey, Davis & Acho, P.L.C., Livonia, Michigan, for Appellants.

Michael M. Wachsberg, Pedersen, Keenan, King, Wachsberg & Andrzejak, P.C., Commerce Township, Michigan, for Appellees.

Before: KEITH, CLAY, and GRIFFIN, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendants, Officers Pongracz and Bettendorf, appeal the district court's orders denying summary judgment to Defendants on the basis that they are not entitled to qualified immunity under federal law or governmental immunity under Michigan law. For the reasons set forth below, we AFFIRM the district court's orders.

BACKGROUND

Plaintiffs Marion Binay, Joselito Binay, and Sean Binay brought this suit against Defendants, Downriver Area Narcotics Division (" DRANO" ), Lieutenant Menna, and Officers Jones, Bettendorf, Brown and Pongracz, alleging violations of 42 U.S.C. § 1983 and various Michigan state laws in connection with Defendants' execution of a search warrant at Plaintiffs' apartment. DRANO is a multijurisdictional law enforcement task force under the authority of the Michigan State Police.

Marion and Joselito Binay, along with their son Sean Binay, were living at an apartment located at 11320 Burlington, Apartment 460 in Southgate, Michigan, when Officer Pongracz, a member of DRANO, received an anonymous call that narcotics trafficking was occurring at Plaintiffs' apartment. Acting on this tip, several DRANO officers, a canine handler from the Southgate Police Department, and his dog, Apollo, went to the apartment on December 13, 2006 and January 9, 2007.1 On both occasions, Apollo indicated positive for narcotics on the outside of the door to Plaintiffs' apartment. On the same visits, Apollo sniffed other apartment doors and a couple of storage doors, but only made positive indications on Plaintiffs' door.

Based on the two positive dog indications and the anonymous call, Officer Pongracz determined that he had probable cause for a search warrant, and he informed Lieutenant Menna that he wanted to request a warrant. On January 9, 2007, Assistant Prosecuting Attorney Sarah De Young reviewed and authorized Officer Pongracz's affidavit, and Judge James A. Kandrevas of the 28th District Court signed the search warrant.2

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A DRANO search team composed of the individual Defendants executed the warrant for Apartment 460 on January 10, 2007 and found no evidence of narcotics trafficking. Pursuant to DRANO policies, Officer Pongracz prepared a " Confidential Operation Plan" prior to the raid of Plaintiffs' apartment, which outlined procedures and problems anticipated during the search of Plaintiffs' residence. The Confidential Operation Plan indicated that the officers did not anticipate the presence of firearms.

Plaintiffs and Defendants dispute the facts surrounding the execution of the search warrant. Mr. Binay testified that at approximately 8:20 p.m. he heard a knock at the door of Plaintiffs' apartment and was walking the seven to ten steps to answer the door when six masked men knocked down the door. Defendants brandished weapons as they entered the apartment and forced Mr. and Mrs. Binay to the floor. Defendants pointed their guns at Mr. and Mrs. Binay, instructed them not to look at the officers, and handcuffed them. Because the officers were wearing masks, Plaintiffs were unable to see the faces of the officers who handcuffed them. Defendants secured the kitchen, bathroom, and two bedrooms within moments, during which time the officers found Mr. and Mrs. Binay's son in a bedroom and forced him into the living room. Then the drug sniffing dog went through the premises and found no scent or presence of narcotics anywhere in the apartment. The dog was out of the apartment within 15 minutes. Defendants then ransacked each room for the next few minutes but found nothing. The officers who conducted the search reported the results to Lieutenant Menna and Officer Pongracz. At that point, after completing the search, Defendants interrogated Plaintiffs, who continued to be handcuffed and held at gunpoint. Plaintiffs submitted to the officers and cooperated throughout the entire ordeal. Defendants left after approximately an hour without finding narcotics.

Defendants contest a number of these factual assertions. Relevant to this appeal is Defendants' claim that the facts are undisputed that the interrogation of Plaintiffs and the search of the apartment occurred simultaneously. Defendants argue that Mr. and Mrs. Binay's testimony concerning the timeline of events supports Defendants' position by showing that even Plaintiffs admit that the search and interrogation happened at the same time. Mr. Binay testified that after the police knocked down the door, ordered Plaintiffs to the floor, and handcuffed them, " I was actually asking this guy what was going on and they just ignore [sic] us. And there is this guy who approached us and asked us to lead us to the dining area. And we were seated there. And I think that was the leader. At that time, he started interrogating us ..." (R.E. 51 Ex. G at 17). Mrs. Binay testified that after being handcuffed Plaintiffs were " taken to the dining room" and after that the " leader [of the officers] talked to us." (R.E. 51 Ex. I at 50). In addition, Defendants rely on the testimony of Lieutenant Menna, Officer Pongracz, Officer Bettendorf, and Officer Brown to support their argument that it is undisputed that the interrogation occurred at the same time as the search. In particular, Defendants note that Officer Jones testified that he was still searching his area when Lieutenant Menna, who was conducting the interrogation, told him that " we were wrapping it up." (R.E. 72 Ex. T at 34).

Plaintiffs also allege that Officer Pongracz was armed with a shotgun during the raid. Officer Bettendorf admitted in his deposition testimony to carrying a pistol

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during the raid and to searching the master bedroom. Officer Pongracz admitted in his deposition testimony to executing a " hard entry" based on orders from Lieutenant Menna and to ordering Mr. Binay to the ground in the hallway of the apartment with his shotgun drawn. He also admitted to conducting a hand search of Mr. and Mrs. Binay's master bedroom and to seizing a " Wow!" cable bill from Plaintiffs' residence. Both Officer Bettendorf and Officer Pongracz testified that Officer Pongracz was the leader of the raid.

On November 6, 2007, Plaintiffs filed this lawsuit in Wayne County Circuit Court, alleging state torts of false arrest, false imprisonment, and assault and battery, as well as federal and state constitutional violations. On December 5, 2007, Defendants removed Plaintiffs' lawsuit to the United States District Court for the Eastern District of Michigan. On February 26, 2008, the district court dismissed Plaintiffs' state constitutional claim pursuant to Jones v. Powell, 462 Mich. 329, 612 N.W.2d 423 (2000).

On January 9, 2009, the district court denied in part and granted in part Officer Pongracz's motion for summary judgment. At a hearing on January 27, 2009, the district court denied in part and granted in part Officer Bettendorf's motion for summary judgment. The court denied both officers' motions for summary judgment as to Plaintiffs' federal excessive force claim, finding that the officers were not entitled to qualified immunity. The court denied both officers' motions for summary judgment as to Plaintiffs' state law claims of assault and battery, finding that the officers were not entitled to governmental immunity. The court granted both officers' motions for summary judgment as to Plaintiffs' unlawful search claim under the Fourth Amendment, finding that there was probable cause for the search. The court also granted both officers' motions for summary judgment as to Plaintiffs' false arrest and false imprisonment claims under Michigan state law. Thus, those claims were dismissed from the case.

On January 22, 2009, Officer Pongracz sought reconsideration of the district court's rulings with respect to whether he was entitled to summary judgment on Plaintiffs' remaining claims based on qualified immunity and governmental immunity. On February 25, 2009, Officer Bettendorf filed a timely notice of appeal. On March 10, 2009, the district court denied Officer Pongracz's motion for reconsideration. On March 27, 2009, Officer Pongracz filed a timely notice of appeal.

DISCUSSION

I. Qualified Immunity

A. Jurisdiction

We have jurisdiction pursuant to 28 U.S.C. § 1291 over Defendants' appeal of the district court's denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). However, " [i]n considering the denial of a defendant's claim of qualified immunity, ... our jurisdiction is limited to resolving pure questions of law." Moldowan v. City of Warren, 578 F.3d 351, 369 (6th Cir.2009) (citing Mitchell, 472 U.S. at 530, 105 S.Ct. 2806 (addressing denial of a claim...

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