709 Fed.Appx. 331 (6th Cir. 2017), 17-1009, Brenay v. Schartow

Docket Nº:17-1009
Citation:709 Fed.Appx. 331
Opinion Judge:THAPAR, Circuit Judge.
Party Name:Dennis F. BRENAY, Sr.; Linda Brenay, Plaintiffs-Appellants, v. Michael SCHARTOW; Troy Sierras, Defendants-Appellees, and Kyle Glocksine; City of Essexville; Bay City, Defendants.
Attorney:Thomas M. Loeb, Law Office of Thomas M. Loeb, Farmington Hills, MI, for Plaintiff-Appellant. Josephine A. Delorenzo, Plunkett Cooney, Bloomfield Hills, MI, Douglas J. Curlew, Cummings, Mcclorey, Davis & Acho, Livonia, MI, Timothy S. Ferrand, Cummings, McClorey, Davis & Acho, Clinton Township, MI,...
Judge Panel:Before: CLAY, GRIFFIN, and THAPAR, Circuit Judges. CLAY, Circuit Judge, concurring in part and dissenting in part.
Case Date:September 12, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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709 Fed.Appx. 331 (6th Cir. 2017)

Dennis F. BRENAY, Sr.; Linda Brenay, Plaintiffs-Appellants,

v.

Michael SCHARTOW; Troy Sierras, Defendants-Appellees,

and

Kyle Glocksine; City of Essexville; Bay City, Defendants.

No. 17-1009

United States Court of Appeals, Sixth Circuit

September 12, 2017

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Thomas M. Loeb, Law Office of Thomas M. Loeb, Farmington Hills, MI, for Plaintiff-Appellant.

Josephine A. Delorenzo, Plunkett Cooney, Bloomfield Hills, MI, Douglas J. Curlew, Cummings, Mcclorey, Davis & Acho, Livonia, MI, Timothy S. Ferrand, Cummings, McClorey, Davis & Acho, Clinton Township, MI, for Defendants-Appellees.

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

Opinion

THAPAR, Circuit Judge.

Page 332

Parents often tell their children social media can cause problems. This case is proof of that. A few texts and a Facebook post may not seem like much. But when sent to an ex-girlfriend, who has a personal protective order out against you, both are ill-advised. Dennis Brenay, Jr. learned this lesson the hard way— when he contacted his ex-girlfriend, she called the Bay City Police.

Officer Troy Sierras and Sergeant Michael Schartow responded to the call and ultimately ended up on the Brenays’ porch. When they rang the bell, Dennis Brenay, Sr. answered, agreed to get his son, and returned a minute later with his wife and Brenay, Jr. in tow. Brenay, Sr. opened the glass storm door, but remained inside. Brenay, Jr. stood behind his father, six inches from the door, a foot from the outside, and a "few feet" from Officer Sierras. R. 40-3, Pg. ID 594. Linda Brenay stood behind her son— the family of three huddled in a cramped foyer. The officers asked Brenay, Jr. to come onto the porch several times, but he declined; the porch was wet and he had no shoes.

So the officers began to question Brenay, Jr. through the doorway. Brenay, Sr. and Linda Brenay each attempted to interject over the next several minutes. Brenay, Sr. even asked if he could pose a question to the officers. But, he says, Officer Sierras rebuffed him: "No, I’m talking to your son." R. 42-5, Pg. ID 701. What happened next depends on who you ask.

To the Brenays, Officer Sierras appeared to be "pump[ing] himself up" for a confrontation— calling Brenay, Jr. a "f__ ing coward ... [h]iding behind [his] f__ ing mom and dad." R. 40-4, Pg. ID 607; R. 42-5, Pg. ID 702. Frustrated by Officer Sierras’ attitude, Brenay, Sr. declared "that’s enough" and told his son to call his lawyer. R. 40-2, Pg. ID 581. He also raised his arms in exasperation and let go of the storm door. As the door swung shut and Brenay, Jr. retreated back into the house, chaos ensued. Both Brenay, Sr. and Sergeant Schartow reached for the door handle to keep the door ajar. In the process, Sergeant Schartow "ripped" the door from Brenay, Sr.’s hands. R. 42-5, Pg. ID 701. Officer Sierras then "lunged" through the doorway and grabbed Brenay, Jr. by the wrist. R. 42-6, Pg. ID 751. In the process, he "body slam[med]" Brenay, Sr. into the wall. R. 42-5, Pg. ID 701. Brenay, Sr. began to fall, and— in an attempt to catch himself— reached out and "grabbed somebody’s arm." Id. at Pg. ID 702. Officer Sierras continued into the hallway, where he and Brenay, Jr. began to struggle. Sergeant Schartow soon joined them, "jump[ing] over" Brenay, Sr. and striking him in the stomach and groin. Id. at Pg. ID 703. As the parties wrestled, Brenay, Jr. felt someone deploy a taser into his arm. Eventually, the officers pinned Brenay, Jr. down and handcuffed him. Linda Brenay asked Sergeant Schartow "what right he had coming into [their] house [ ] without a warrant or anything." R. 42-6, Pg. ID 756. Sergeant Schartow responded: He could come into their house "any time he want[ed]." Id.

The officers tell a very different story. According to them, the Brenays tried to

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obstruct their son’s arrest. Yes, Officer Sierras reached through the doorway and grabbed Brenay, Jr., but only because Brenay, Sr. moved to close the door when the officers told Brenay, Jr. that he was under arrest. Officer Sierras says that once he crossed the threshold, the Brenays tried to pull their son deeper into the hallway. Brenay, Sr. even tried to "get in between" them during the scuffle— he tried to "push his son back into the house," and when that failed, "to push Officer Sierras away." R. 42-4, Pg. ID 680. Sergeant Schartow, meanwhile, says Brenay, Jr. pulled him into the residence when he intervened in the scuffle.

Either way, the officers eventually handcuffed Brenay, Jr. and led him away. But they were not done with Brenay, Sr. Officer Sierras authored a police report for his department, and Sergeant Schartow signed off on another report. Both accused Brenay, Jr. of resisting arrest and Brenay, Sr. of interfering with his son’s arrest. The Bay City Prosecutor’s Office charged father and son with a felony for obstructing a police officer. Both later prevailed at trial— Brenay, Sr. before the jury; Brenay, Jr. at directed verdict.

After the trial, Brenay, Sr. and Linda Brenay sued Officer Sierras and Sergeant Schartow under 42 U.S.C. § 1983. They accused the officers of unlawfully entering their house, using excessive force, and maliciously prosecuting Brenay, Sr.— all in violation of the Fourth Amendment. Officer Sierras and Sergeant Schartow each mounted qualified-immunity defenses at summary judgment and prevailed. Now on appeal, the Brenays drop their excessive-force claim but press the remaining two.

I.

Whether Officer Sierras and Sergeant Schartow are entitled to qualified immunity turns on two questions: Did they violate Brenay, Sr.’s and Linda Brenay’s constitutional rights? And if so, were those rights clearly established at the time? Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). If the answer to either question happens to be "no," then the officers are not liable.

Still the Brenays have a few advantages at this stage. No jury has yet decided which story to believe. So in answering these questions, we must view the facts in the light most favorable to the Brenays and draw all reasonable inferences in their favor. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). And unlike the officers, the Brenays do not have to prove they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). All the Brenays have to show is that a reasonable jury, accepting their version of the story as true, could conclude that the officers violated their clearly established rights. Scott, 550 U.S. at 380, 127 S.Ct. 1769.

A.

The government is not your nosy neighbor— the one who always pokes her head in, uninvited, to critique your garden or gossip about the couple down the street. Sure, the police, like any Girl Scout, may approach your door, knock, and ask you a question or two. See United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005). But the Fourth Amendment draws a "firm line" at the door. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ("[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed[.]" ). If the government wants inside, they need a warrant, consent, or an exigent circumstance to justify their

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entry. Cummings v. City of Akron, 418 F.3d 676, 685 (6th Cir. 2005).

Sergeant Schartow has an easy out: The Brenays seem to have forgotten all about him. The Brenays contend that Officer Sierras had no business entering their home without a warrant. But the Brenays do not mention Sergeant Schartow. Their silence forfeits any unlawful-entry claim against him. See

Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013).

Officer Sierras, on the other hand, does not get off so easy. He could have obtained a warrant, but chose not to do so. An invitation to come inside would suffice, but Brenay, Sr.s declaring "thats enough" and letting the door swing shut did not exactly shout, "Come on in!" See...

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