Family Serv. Ass'n ex rel. Coil v. Wells Twp.

• Decision Date: 16 April 2015
• Docket Number: No. 14–4020.,14–4020.
• Citation: 783 F.3d 600
• Parties: FAMILY SERVICE ASSOCIATION ex rel. James W. COIL, II, Plaintiff–Appellee, v. WELLS TOWNSHIP, et al., Defendants, Jeffrey James Kamerer, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

783 F.3d 600

FAMILY SERVICE ASSOCIATION ex rel. James W. COIL, II, Plaintiff–Appellee

v. WELLS TOWNSHIP, et al., DefendantsJeffrey James Kamerer, Defendant–Appellant.

No. 14–4020.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 16, 2015.

ON BRIEF:Gregory A. Beck, Baker, Dublikar, Beck, Wiley & Mathews, North Canton, Ohio, for Appellant. Neal E. Shapero, Abby L. Botnick, Shapero Roloff Co., LPA, Cleveland, Ohio, for Appellee.

Before: NORRIS, SUTTON, and DONALD, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Christmas Day 2011 was an unfortunate day for Jimmy Coil and Officer J.J. Kamerer. At around 10:00 p.m. that night, Coil and his boyfriend Barry Starcher were walking home from a friend's house in Brilliant, Ohio. They stopped for a moment to rest near a gas station. While they sat on a guardrail along the Third Street exit from State Route 7, Officer J.J. Kamerer approached them in his police cruiser. Concerned for their safety, Kamerer asked if anything was wrong.

What happened next remains a mystery—in part. According to Starcher, he and Coil told Officer Kamerer that nothing was wrong and that they were heading home. Kamerer asked for their names, but Starcher hesitated to answer. “I'm not sure I should give you that,” he replied. R. 44–1 at 22. “What do you need that for?” he added. R. 45–1 at 8. Coil then got up and started walking away, saying he was going home. That caused Kamerer to “go[ ] off on [them] like a crazy person.” Id. Kamerer jumped out of the cruiser after Coil, screaming in his face, “You better do what the f[* *]k I tell you when I tell you! You're going to give me your f[* *]king name or I'm going to put you down on the ground!” Id.; R. 44–1 at 27. The men gave their names. Coil handed the officer a prescription bottle to prove who he was and turned to go, yelling “Police brutality!” as he walked away a second time. R. 44–1 at 34. Kamerer ordered Coil to stop and held his flashlight up as he approached Coil as if to hit him. After Coil held out his arms “to protect himself,” he and the officer began “grabbing at each other.” Id. at 39; R. 451 at 45. Coil never hit Kamerer. The same was not true in the other direction. Kamerer “slammed” Coil to the ground, pepper-sprayed him, and left him handcuffed facedown in the street. R. 44–1 at 46.

During the scuffle, Starcher says he stood just a step or two behind Officer Kamerer, pleading with him not to hurt Coil and trying to separate the two. Starcher never hit Kamerer either. That also did not make a difference. As soon as Kamerer was done with Coil, he whipped around and pepper-sprayed Starcher, forcing him back several feet to the neighboring grass. The next thing Starcher remembers is opening his eyes and seeing Kamerer running back to the road and getting hit, along with Coil, by an oncoming SUV.

Officer Kamerer gives a different account. After he asked whether everything was alright, Coil and Starcher “began cussing” and “bec[ame] combative toward [him].” R. 42–1 at 28. They told him to “get the f[* *]k away” and would not calm down. Id. After Coil shoved him, Kamerer told Coil that he was under arrest and asked each man for his identification. They refused and became “combative.” Id. at 29. Coil threw a pill bottle at the officer and said, “There's my f[* *]king ID!” Id. He then “charg[ed]” Kamerer “like a football player.” Id. Starcher joined in, and the two men slapped, punched, and pushed him “all the way up the road.” Id. at 57. When Kamerer tried to handcuff Coil on the ground, Starcher continued to punch and slap the back of his head. After pepper-spraying Coil, Kamerer briefly left him handcuffed facedown “in the road” to spray and tackle Starcher, who charged as soon as Kamerer stood up. Id. at 31. “Within seconds,” he returned to retrieve Coil from the road, and a car struck both of them. Id. at 33. Kamerer radioed for help.

Cynthia Devore, who lived nearby, witnessed some of the incident. She confirmed that it was a dark night, that Coil had dark clothes on, and that Kamerer's cruiser did not have its flashing or regular lights on. She saw “two men fighting in the middle of the street.” R. 46–1 at 17. Officer Kamerer already had Coil on the ground, but Starcher was lightly “pushing at” Kamerer's back to get him away from Coil. Id. at 24, 69. After the officer handcuffed Coil and got Starcher to back away from him, Devore saw headlights coming down the road. Kamerer rushed back to the road to grab Coil, and as soon the officer stood Coil on his feet the car struck them both.

The crash caused a severe traumatic brain injury

to Coil, leaving him with limited cognitive function and requiring around-the-clock care for the rest of his days. Kamerer broke his left shoulder and two bones in his left leg, and it took 30 days in a hospital to recover from his injuries. The Family Service Association, Coil's legal guardian, filed this § 1983 action against Officer Kamerer on Coil's behalf, alleging a baseless seizure in violation of the Fourth Amendment and deliberate indifference to his safety in violation of the Fourteenth Amendment. Officer Kamerer moved for summary judgment on qualified immunity grounds. The district court denied the motion. It ruled that a reasonable jury could find that Kamerer unconstitutionally seized Coil without reasonable suspicion based on Starcher's account of the evening's events. And it ruled that a reasonable jury could find that Kamerer was deliberately indifferent to Coil's safety based on Starcher's account as well as the length of time Kamerer left Coil handcuffed and facedown in the road.

A few familiar principles orient this appeal. Qualified immunity protects Officer Kamerer from this lawsuit unless Coil establishes that Kamerer violated his constitutional rights and that those rights were clearly established. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Officer Kamerer is entitled to summary judgment if no reasonable jury could find in Coil's favor. See Fed.R.Civ.P. 56(a) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). And Coil receives the benefit of the doubt in assessing the factual record. In considering whether an officer violated a citizen's constitutional rights, we “may not call off the trial merely because an officer says he or she acted reasonably in the face of competing testimony. We instead consider the facts in the light most favorable to the plaintiff.” Greco v. Livingston Cnty., 774 F.3d 1061, 1064 (6th Cir.2014).

Fourth Amendment improper seizure claim. Officer Kamerer's seizure of Coil implicates several cornerstones of Fourth Amendment law. Police officers may not stop citizens minding their own business on a public street in the absence of reasonable suspicion that they have committed, or are about to commit, a crime, Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and they may not arrest them in the absence of probable cause that they have committed a crime, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Unsuspicious pedestrians remain free “to ignore the police and go about [their] business.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). And “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). All of this establishes that “walking away from an officer does not create ... reasonable suspicion.” United States v. Beauchamp, 659 F.3d 560, 570 (6th Cir.2011) ; see Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

A jury could reasonably believe that Kamerer did not adhere to these requirements during his encounter with Coil. According to Starcher's account of the evening, Coil never committed a crime or gave Kamerer any reason to think he had. Sitting on a guardrail is not illegal. Doing so at night, whether on Christmas night or any other, does not transform this innocent activity into nefarious conduct. Walking away from an officer without answering his questions or revealing one's name does not establish reasonable suspicion for a Terry stop. And an individual's late-night presence in a high-crime area by itself does not establish reasonable suspicion of anything other than the probability that the individual lives in a high-crime area. That leaves the absence of a nearby car or any open store or business that might explain the men's presence. But walking without evident purpose remains an innocent, even enjoyable, activity in this country, whether in a high-crime area or a suburban park. Papachristou v. City of Jacksonville, 405 U.S. 156, 163–64, 171, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Even after considering “the whole picture,” Navarette v. California, ––– U.S. ––––, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014)(quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ), no reasonable officer could find a basis to stop Coil, let alone probable cause to arrest him on this record. See United States v. Johnson, 620 F.3d 685, 692–95 (6th Cir.2010).

What of the officer's testimony that Coil hit him during the encounter and attempted to flee afterwards? The problem is, it is just that—the officer's testimony—and it does not stand alone. Starcher denies that Coil reacted violently or attempted to flee. From his vantage point, Coil never hit the officer and only walked away—“ ‘the opposite’ of flight.” Id. at 695 (quoting Wardlow, 528 U.S. at 125, 120 S.Ct. 673 ). Whether we believe Starcher or not makes no difference because a jury reasonably could believe him. “At this phase of the case, we need not choose whom to believe; the summary judgment standard picks the appropriate viewpoint for us.” Greco, 774 F.3d at 1062.

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