750 Fed.Appx. 385 (6th Cir. 2018), 17-4242, Osberry v. Slusher

Docket Nº:17-4242
Citation:750 Fed.Appx. 385
Opinion Judge:NALBANDIAN, Circuit Judge.
Party Name:Brittany OSBERRY, Plaintiff-Appellee, v. Zane SLUSHER; Aaron Montgomery; Mark Frysinger; Kevin Martin, Defendants-Appellants.
Attorney:Jason Nathaniel Flower, Huffman, Kelley, Brock & Gottschalk, Lima, OH, for Plaintiff-Appellee Erin B. Moore, Jane M. Lynch, Green & Green, Dayton, OH, Anthony L. Geiger, City of Lima, Law Department, Lima, OH, for Defendants-Appellants
Judge Panel:Before: COOK, STRANCH, and NALBANDIAN, Circuit Judges.
Case Date:September 13, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 385

750 Fed.Appx. 385 (6th Cir. 2018)

Brittany OSBERRY, Plaintiff-Appellee,


Zane SLUSHER; Aaron Montgomery; Mark Frysinger; Kevin Martin, Defendants-Appellants.

No. 17-4242

United States Court of Appeals, Sixth Circuit

September 13, 2018


Editorial Note:

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

Page 386


Jason Nathaniel Flower, Huffman, Kelley, Brock & Gottschalk, Lima, OH, for Plaintiff-Appellee

Erin B. Moore, Jane M. Lynch, Green & Green, Dayton, OH, Anthony L. Geiger, City of Lima, Law Department, Lima, OH, for Defendants-Appellants

Before: COOK, STRANCH, and NALBANDIAN, Circuit Judges.


NALBANDIAN, Circuit Judge.

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Brittany Osberry was arrested while carpooling. In August 2016, Osberry drove her car to a friend’s house, pulled into the driveway, and parked the car. She was there to pick up her niece and nephew. But within seconds of arriving, three police officers approached her vehicle (one with a gun drawn) and told her to leave. Although she explained that she was just there to pick up the children, the Officers pulled her out of the vehicle (within fourteen seconds of arriving), handcuffed her, and tased her. A bystander caught this entire interaction (totaling less than a minute) on video. The Officers arrested Osberry for obstructing official business, disorderly conduct, and resisting arrest. All charges were eventually dropped, and Osberry filed this lawsuit alleging constitutional violations against the Officers.

In response, the Officers simultaneously filed their answer and moved for judgment on the pleadings. Although the district court dismissed several of Osberry’s claims, it declined to dismiss the claims for unlawful arrest, the use of excessive force, assault, and failure to train the Officers. Because we agree— at this early stage of the proceedings— that Osberry’s complaint satisfies the relevant pleading requirements and the Officers are not entitled to qualified immunity, we affirm.


The procedural posture of the case is important here. In response to Osberry’s original complaint, the Officers simultaneously filed an answer and a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The Officers attached the civilian captured video of the arrest to the motion. The parties have conducted no discovery. Thus, the limited record before us includes only Osberry’s complaint, the Officers’ answer, and the video.


Osberry’s version of the arrest. On August 10, 2016, City of Lima, Ohio police officers Zane Slusher, Aaron Montgomery, and Mark Frysinger were together on duty. At the same time, Osberry was driving to her friend’s house located at 516 South Pine Street. As Osberry pulled into the driveway and parked her black SUV, the Officers approached the vehicle.

Officer Frysinger approached the driver’s side of the vehicle with his gun drawn. He yelled at Osberry and told her to leave the scene. In response, Osberry immediately told the Officers that she was at the house to pick up her niece and nephew. Officer Frysinger continued to approach the vehicle and reached into the open driver’s side window. Osberry again told the Officers that she was only at the house to pick up the children. Officer Frysinger, however, forcefully removed Osberry from the vehicle. At this point, Officer Montgomery also reached the vehicle and, along with Officer Frysinger, threw Osberry against the side of the vehicle. Osberry repeatedly told the Officers she was pregnant. The third police officer, Officer Slusher, reached the vehicle, joined in restraining Osberry, and tased her in the stomach. The Officers arrested Osberry and charged her with resisting arrest, obstructing

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official business, and disorderly conduct. All charges were eventually dismissed.

Osberry alleges that, when making these types of arrests, Police Chief Kevin Martin taught the Officers to yell "stop resisting" and "stop obstructing" to imply that any person being arrested was actively resisting the arrest or obstructing official business. Indeed, Chief Martin taught the Officers to file certain criminal charges any time they hurt a person during an arrest. This practice allows the Officers to "over respond to and escalate casual interactions with citizens to allow officers to use excessive and abusive force." (Am. Compl., R. 13 ¶¶ 23-24.) Lima police officers used these tactics in at least six cases between 2012 and 2017.


The Officers’ version of the arrest. The Officers’ answer tells a different story. According to the Officers, they were at 516 South Pine Street to investigate an active crime scene. This crime scene involved a barricaded subject who was potentially dangerous. Thus, when Osberry pulled her vehicle into the driveway, the Officers repeatedly told her "in a clear and loud voice" that she was in an active crime scene and needed to leave the premises immediately. But rather than comply, Osberry made "argumentative and/or belligerent statements"— refusing to leave the scene. (Answer, R. 4 ¶¶ 9-10.)

This refusal prompted the Officers to arrest Osberry. And once Osberry was under arrest, she "actively and persistently" resisted the Officers by "arguing, yelling, struggling, twisting, and pulling" (even after the Officers told her to stop). (Id. ¶ 10.) Further, the Officers claim Osberry did not provide her arms for handcuffing, and instead, struck Officer Montgomery above the eye. According to the Officers, they had probable cause to arrest Osberry and used a reasonable amount of physical force in making the arrest.


The civilian-captured video. A bystander across the street captured what happened on a cell phone. See Lima News, Arrest Dispute with Lima Police (Oct. 27, 2016), https://www.youtube.com/watch?v=OKJiW1LyiU4. The district court analyzed the video at length, which begins shortly after Osberry pulled into the driveway. Officer Frysinger, as he is approaching the vehicle, yells "you need to leave!"— and Osberry responds, "why do I have to leave?"1 Officer Frysinger yells again: "You’re being disorderly. You need to leave this is a crime scene!" Osberry explains why she is there: "I need to get my nieces and nephews." At this point, only five to seven seconds have elapsed in the video.

Then, as the district court explained, "[e]ight seconds into the video, Officer Frysinger reaches the driver’s side door. He orders [Osberry] to ‘Show me your hands.’ Ten seconds in, he opens the car door for a brief, inaudible exchange." (Order, R. 12 at 2.) And fourteen seconds into the video, Officer Frysinger "pulls Osberry out [of the vehicle], forcefully." When being removed, Osberry asks, "Really? Really?"

At this point, Officers Montgomery and Slusher reach the vehicle and help Officer Frysinger arrest Osberry. The Officers position

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Osberry up against the vehicle, with her face and stomach pressing against the vehicle and her arms behind her back. During this process, Osberry warns the Officers: "you all better know I’m pregnant— you all better know that."

The Officers surround Osberry (who is no longer visible in the video) and appear to struggle with her. The district court could not determine whether Osberry or the Officers were to blame for the scuffle, but explained that seconds later, the "video captures a slight ‘pop’ [as] Officer Slusher tases Osberry in the stomach." Osberry goes limp for a moment before telling the Officers that they are hurting her during the arrest: "Oh my god ... Ouch! ... I’m not doing anything. You all are hurting my arm ... I’m not, oh my god." Throughout this encounter, the video shows several vehicles passing and people riding bicycles nearby. The video ends with the Officers still surrounding Osberry— completing the arrest.


Both parties present different and conflicting characterizations of Osberry’s arrest. The question thus becomes— at this early stage in the litigation— whose version of the arrest is controlling? The Officers suggest that we should consider their answer as part of the pleadings— and accept their counter-factual allegations as true. The Officers also ask us to consider the video because (apparently if we view the video in their favor) it supports the Officers’ version of the arrest and discredits Osberry. Specifically, the Officers argue that the key to this case is that Osberry invaded an "active crime scene" and resisted arrest, provoking Officer Slusher’s use of the taser. Said another way, the Officers argue that, when accepting their characterization of the arrest as true, they did not violate Osberry’s rights. The Officers’ argument fails for two reasons.


First, the Officers— not Osberry— filed the motion for judgment on the pleadings. We review de novo a judgment on the pleadings, using the same standard as a motion to dismiss under Rule 12(b)(6). Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010). This means that "all well-pleaded material allegations of the pleadings of the opposing party must be taken as true." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (emphasis added). Here, Osberry is the party opposing the motion— so we construe the complaint in the light most favorable to Osberry, accept her allegations as true, and draw all reasonable inferences in her favor. See Bailey v. City of Ann Arbor, 860 F.3d 382, 385 (6th Cir. 2017). In contrast, we do not accept the Officers’ allegations as true.

But at oral argument, the Officers asked us to accept some allegations in the answer as...

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