Barton v. Martin, 020720 FED6, 18-1614

Docket Nº:18-1614
Opinion Judge:JULIA SMITH GIBBONS, CIRCUIT JUDGE.
Party Name:Dwain David Barton, Plaintiff-Appellant, v. Officer Martin, et al., Defendants, Officer Dean Vann, Defendant-Appellee.
Attorney:Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellant. Julie McCann O'Connor, O'CONNOR, DEGRAZIA, TAMM & O'CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee. Hugh M. Davis, Cynthia Heenan, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, fo...
Judge Panel:Before: SILER, GIBBONS and DONALD, Circuit Judges.
Case Date:February 07, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Dwain David Barton, Plaintiff-Appellant,

v.

Officer Martin, et al., Defendants,

Officer Dean Vann, Defendant-Appellee.

No. 18-1614

United States Court of Appeals, Sixth Circuit

February 7, 2020

Argued: May 8, 2019

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-13898-George Caram Steeh, III, District Judge.

ARGUED:

Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellant.

Julie McCann O'Connor, O'CONNOR, DEGRAZIA, TAMM & O'CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee.

ON BRIEF:

Hugh M. Davis, Cynthia Heenan, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellant.

Julie McCann O'Connor, O'CONNOR, DEGRAZIA, TAMM & O'CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee.

Before: SILER, GIBBONS and DONALD, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, CIRCUIT JUDGE.

Dwain Barton's neighbor, Jill Porter, falsely reported to police that Barton had shot a stray cat in his backyard in Lincoln Park, Michigan. Shortly thereafter, police officers, without a warrant for entry or arrest, forcibly entered Barton's home and arrested him for animal cruelty. Barton was brought to the police station, booked, and then released on a $500 cash bond three hours later. Barton subsequently sued the officers under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment for illegal entry into his home, arrest and prosecution without probable cause, and excessive force, as well as First Amendment retaliation. The district court granted summary judgment for Officer Dean Vann, one of the officers at the scene. The court held that Vann was entitled to qualified immunity on the illegal entry, wrongful arrest, and retaliatory arrest claim, and that Barton failed to raise a genuine issue of material fact on the excessive force claim (presumably entitling Vann to judgment as a matter of law). Barton challenges the district court's grant of summary judgment in favor of Vann on the illegal entry, wrongful arrest, and excessive force claims. We reverse.

I.

On November 3, 2014, Dwain Barton fixed his backyard door while his wife washed dishes and his daughter jumped on the trampoline in the backyard of their Lincoln Park, Michigan home. Around noon, Barton's wife yelled to him "Hey, babe, [our daughter] is being attacked in the backyard by a cat. It's clawing her." DE 28-3, Barton Dep. Tr., PageID 178. Barton opened the door and saw a "huge" cat, "sitting there[, ] clawing, and biting at [his] daughter." Id. Intending to "make a loud noise and to scare it away," Barton grabbed a nearby BB gun and shot at one of the trampoline's legs, about five feet away from the cat. Id. Still holding the BB gun in his own backyard, Barton yelled to his neighbor, Jill Porter, who stood in her backyard three doors down.

Porter routinely fed stray cats. She habitually left food scraps outside, which, according to Barton, resulted in forty to fifty stray cats "invading the entire block." Id. at 177. As a result, Barton had complained to the Lincoln Park animal control in the past. On the day in question, Barton said, "Hey, Jill, the next cat that I see in my yard will be a dead one." Id. at 178. Barton then put the BB gun away, made sure his daughter was okay, and returned to fixing his door.

Porter called 911. She provided her name and address, and said that Barton had told her that "just to inform you, your grey cat just peed on my furniture and he got shot in the head." DE 28-2, Mot. for Summ. J., 911 Audio, 0:40-1:05. She said she did not "know if it was with a BB gun or what." Id. When the dispatcher asked whether Porter had seen the injured cat, she said she had not. The dispatcher then said that since Porter had "no proof" that Barton had shot a cat, there was nothing for the police to do. Id. at 2:09-2:16. In response, Porter repeated that Barton told her that he "just shot [her] grey cat because he peed on [his] furniture." Id. at 2:17- 2:34. She then clarified, however, that the cat could not have actually been hers, because she had just seen her cat, so it must have been a different cat. Porter described Barton as a bald, white male with glasses, who was about thirty-four years old. The dispatcher ended the call by saying she would send someone to talk to Porter.

The dispatcher then relayed the following information over radio: a woman had called to say that her neighbor was "shooting cats," that she wanted to speak to someone about this, and that she was not sure what type of weapon was used. The dispatcher also reported that the woman had not seen any injured or wounded animals.

About forty minutes after the initial BB gun incident, Animal Control Officer Adam Manchester arrived at Barton's door; they spoke to each other through a screen. Manchester identified himself and asked Barton to come outside to speak with him. When Barton asked whether he was suspected of committing a crime, Manchester responded, "No, you are not." DE 28-3, Barton Dep. Tr., PageID 180; DE 28-15, Jennifer Barton Dep. Tr., PageID 278. Barton refused to come outside or provide identification. He denied shooting at a cat and instead relayed that he had shot only at a trampoline pole with a BB gun to scare the cat away. In his written report following the incident, however, Manchester, stated that Barton told him that he "shot [a cat] in the head with a BB[] gun." DE 28-6, Reporting Officer Narrative, PageID 221. Manchester nonetheless testified that he saw neither weapons on or near Barton nor injured cats at the scene.

Manchester retreated to his car and radioed the police department. He relayed that "the [suspect] [was] not giving [him] information" and that he "admitted to shooting animals." DE 28-2, Mot. for Summ. J., Dispatch Radio 10.36.04, 0:08-0:22. About ten minutes later, four police cars, with two officers in each car, showed up at Barton's home. The officers pulled "what looked like assault rifles" out of their trunks and "surrounded" Barton's house. DE 28-3, Barton Dep. Tr., PageID 182. While the officers surrounded Barton's home, Manchester again asked Barton for his identification. Barton passed his identification through the screen door to his mother-in-law, 1 who was on his porch, to hand to the officers.

Moments later, "fearing that [Barton] was grabbing a gun," DE 28-7, Vann Dep. Tr., PageID 228, Vann[2] "ripped [their] screen door off [and barged] into [their] house." DE 28-15, Jennifer Barton Dep. Tr., PageID 282. Vann testified that when he entered Barton's home, he saw Barton "standing in the kitchen" and "at that point," did not perceive a threat from him because Barton did not have "anything in his hands" and was not "in control of any type of a weapon." DE 28-7, Vann Dep. Tr., PageID 229. Nonetheless, Vann "threw [Barton] up against the counter like a linebacker." DE 28-15, Jennifer Barton Dep. Tr., PageID 282. Barton explained that Vann "lifted [him] up with his elbows underneath [his] body and [his] arm and literally picked [him] up and slammed [him] up against [the] kitchen cupboards, at which point all of the other officers, like ants, followed in, and at which point they all surrounded [him]." DE 28-3, Barton Dep. Tr., PageID 186.

Although both Barton and his wife testified that Barton never resisted arrest, Vann then told Barton to "stop resisting" and to place his hands behind his back because he was under arrest. DE 28-3, Barton Dep. Tr., PageID 187; DE 28-7, Vann Dep. Tr., PageID 229. In response, Barton stated that he could not put his hands or shoulders behind his back due to a previous shoulder injury. Vann responded, "Oh, we'll make it fit." DE 28-3, Barton Dep. Tr., PageID 187. Vann then "grabbed both of [Barton's] wrists and took them both behind [his] back[, ] . . . shoved them both together[, ] and put the handcuffs on [him] as tight as he possibly could." Id. None of the officers involved had a warrant to enter Barton's home or to arrest him.

Vann then "shoved" Barton outside his home, down his porch steps, and into a patrol car. DE 28-3, Barton Dep. Tr., PageID 189. During the drive to the police station, Barton complained that Vann had injured his shoulder when he slammed him against the kitchen cabinets. Id. at 190. Upon arriving at the station, Barton was strip searched with one hand handcuffed to the wall, about three feet above his head. Id. He continued to tell officers that his shoulder hurt and "that [Officer Vann] had injured [him]," to which Barton was told to "shut the f*** up unless [he] want[ed] to spend the night there." Id. at 191. Officers told him that he was being charged with animal cruelty and issued a citation. Approximately three hours after his arrest, Barton was released on a $500 cash bond...

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