O'malley v. City of Flint

• Decision Date: 26 July 2011
• Docket Number: No. 09–2037.,09–2037.
• Citation: 652 F.3d 662
• Parties: Sean O'MALLEY, Plaintiff–Appellee,v.CITY OF FLINT, Defendant,Gary Hagler, Acting Police Chief, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

652 F.3d 662

Sean O'MALLEY, Plaintiff–Appellee,

v.CITY OF FLINT, Defendant,Gary Hagler, Acting Police Chief, Defendant–Appellant.

No. 09–2037.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 10, 2010.Decided and Filed: July 26, 2011.

ARGUED: Daniel A. Klemptner, Johnson, Rosati, LaBarge, Aseltyne & Field, P.C., Farmington Hills, Michigan, for Appellant. Christopher J. McGrath, Novi, Michigan, for Appellee. ON BRIEF: Daniel A. Klemptner, Johnson, Rosati, LaBarge, Aseltyne & Field, P.C., Farmington Hills, Michigan, for Appellant. Kenneth M. Scott, Flint, Michigan, for Appellee.Before: GILMAN and GRIFFIN, Circuit Judges; COLLIER, Chief District Judge.^*GRIFFIN, J., delivered the opinion of the court, in which COLLIER, Chief D.J., joined. GILMAN, J. (pp. 672–78), delivered a separate opinion concurring in part and dissenting in part.

OPINION

GRIFFIN, Circuit Judge.

Defendant Police Chief Gary Hagler appeals an order of the district court denying his motion for summary judgment based upon qualified immunity regarding plaintiff Sean O'Malley's 42 U.S.C. § 1983 claims of unlawful search and seizure and excessive force. We reverse and remand for entry of a judgment in favor of defendant Hagler.

I.

The events giving rise to this case began when defendant Gary Hagler, then Acting Chief of Police for the City of Flint, Michigan, was driving an unmarked police vehicle and noticed a blue Chevrolet Tahoe that looked like a Michigan State Police vehicle. The Tahoe had several features regularly found on Michigan State Police vehicles, which included a large, whip-like antenna mounted on the roof; an emergency vehicle push-bar; “Call 911” decals on its rear quarter panels; red emergency lights in the rear window; a tinted rear window; and the number “47” stenciled in white on the rear tailgate.¹ Because Hagler suspected that the vehicle was being used to facilitate the impersonation of a law-enforcement officer, he began following the Tahoe. He also contacted the Michigan State Police to determine whether they had a vehicle in the area that matched its license plate number and description. He was advised that they did not.

Eventually, the Tahoe was driven into a residential driveway and parked. After its driver, plaintiff O'Malley, exited the Tahoe and began walking toward the back of the house, Hagler parked his police vehicle in the driveway behind the Tahoe.² Thereafter, Hagler approached O'Malley, identified himself as a police officer, and said that he would like to speak with him. According to O'Malley, Hagler asked about the vehicle before identifying himself.

O'Malley told Hagler that he was a security guard, had a carrying-concealed-weapon permit, and owned a handgun that was on the front passenger seat of the Tahoe underneath a t-shirt. Thereafter, Hagler asked O'Malley to keep his hands in view and walk toward him. He also requested backup police. When O'Malley approached Hagler, he was angry, raising his voice shouting “this is bulls- -t.” In response, Hagler handcuffed O'Malley “for safety reasons, and to further investigate whether there were other occupants in the vehicle ... as well as to verify the validity of his CCW permit, driver's license, proof of insurance, and registration.” O'Malley claims that he complained to Hagler that the handcuffs were too tight. However, O'Malley admits that he never asked Hagler to loosen the handcuffs.

Less than two minutes after the handcuffing, additional police officers arrived who assumed custody of O'Malley. Officer Connie Johnson, with the assistance of another police officer, placed O'Malley in the back of her police vehicle, where O'Malley stayed while the officers searched the Tahoe, confirmed its lawful ownership, verified O'Malley's concealed-carry permit, and checked his criminal record with the Law Enforcement Information Network (LEIN). During their search of the Tahoe, the police recovered a loaded .45 caliber, semi-automatic handgun in the location specified by O'Malley. In addition, the LEIN check indicated that a warrant had been issued for O'Malley's arrest by the City of Warren. In view of the arrest warrant, Hagler instructed Johnson to transport O'Malley to the Flint Police Department for pick up by the Warren Police Department. Hagler then left the scene. About two hours later, the Warren Police Department advised Hagler that it had mistaken O'Malley for another individual and that there were no outstanding warrants for O'Malley's arrest. In response, Hagler called Johnson, who was still at the scene, and ordered her to release O'Malley and return his property. O'Malley had been in custody for approximately two hours before his release. O'Malley alleges that at some point during his custody he asked Officer Johnson to loosen his handcuffs, but she refused to do so. Hagler was unaware of the request.

O'Malley filed suit in the Genesee County Circuit Court against the City of Flint and Chief Hagler, alleging violations of various statutory and constitutional rights. O'Malley v. City of Flint, No. 08–11595, 2009 WL 2008480, at *2 (E.D.Mich. July 10, 2009). On defendants' motion, the case was removed to federal district court. Id. After remanding the state-law claims, the district court retained jurisdiction over O'Malley's 42 U.S.C. § 1983 claims alleging violations of his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Id. The defendants thereafter filed motions for summary judgment. The district court granted the City's motion in its entirety ³ and granted Hagler's motion in part. Id. at *4–*7. It determined that Hagler was not entitled to qualified immunity with respect to (1) O'Malley's claim that his Fourth Amendment rights were violated when Chief Hagler stopped, handcuffed and detained him, and caused his Tahoe to be searched; and (2) O'Malley's excessive-force handcuffing claim. Id. at *6–*7. Hagler filed a motion for reconsideration, which the district court denied. O'Malley v. City of Flint, No. 08–11595, 2009 WL 2413543 (E.D.Mich. Aug. 6, 2009). Hagler now timely appeals.

II.

We have interlocutory jurisdiction over the district court's denial of Hagler's motion for summary judgment on grounds of qualified immunity “to the extent that [the appeal] raises a question of law.” Risbridger v. Connelly, 275 F.3d 565, 568 (6th Cir.2002); see also Johnson v. Jones, 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial”). Under 42 U.S.C. § 1983, an individual may bring a private right of action against anyone, who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statutes. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Defendant Hagler contends that he is entitled to summary judgment on plaintiff's § 1983 claims on the basis of qualified immunity. Generally, summary judgment based on qualified immunity is proper if the officer was not on notice that his conduct was clearly unlawful. Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.2002). However, if genuine issues of material fact exist as to whether the officer committed acts that would violate a clearly established right, then summary judgment is improper. Poe v. Haydon, 853 F.2d 418, 425–26 (6th Cir.1988).

“We review the denial of summary judgment on grounds of qualified immunity de novo because application of this doctrine is a question of law.” McCloud v. Testa, 97 F.3d 1536, 1541 (6th Cir.1996). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation[.]” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). “Through the use of qualified immunity, the law shields ‘government officials performing discretionary functions ... from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.’ ” Solomon v. Auburn Hills Police Dep't, 389 F.3d 167, 172 (6th Cir.2004) (quoting Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Once raised, the plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir.2006). In determining whether a defendant is entitled to qualified immunity, the court makes two inquiries: (1) “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right[,]” and (2) was the right “clearly established” to the extent that a reasonable person in the officer's position would know that the conduct complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Although Saucier mandated that these questions be addressed in order, that requirement has since been relaxed. See Pearson, 129 S.Ct. at 818 (“On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”).

With regard to the second step,

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

And...