Bey v. Falk, s. 18-1285/1376

Citation946 F.3d 304
Decision Date31 December 2019
Docket NumberNos. 18-1285/1376,s. 18-1285/1376
Parties Christopher Lee-Murray BEY, Plaintiff-Appellee, v. Adam FALK and Charter Township of Canton, Michigan (18-1376); Andrew McKinley, Eric Eisenbeis, and Megan McAteer (18-1285), Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

LARSEN, Circuit Judge.

Christopher Lee-Murray Bey filed a lawsuit under 42 U.S.C. § 1983, alleging that: (1) several police officers stopped him without reasonable suspicion of criminal activity, in violation of the Fourth Amendment; and (2) they investigated and ultimately stopped him because of his race, in violation of the Fourteenth Amendment. The officers moved for summary judgment based on qualified immunity; the court below denied the motion. We DISMISS in part, AFFIRM in part, REVERSE in part, and REMAND.

I.

"[A] defendant challenging the denial of summary judgment on qualified immunity grounds must be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal." Hopper v. Plummer , 887 F.3d 744, 757 (6th Cir. 2018). Accordingly, we present the facts in that light.

At approximately 2:30 a.m. on March 16, 2013, Bey and two friends went out in Bey's minivan to purchase space heaters for their apartment. Bey had purchased the older minivan just a few days before, so it had a temporary registration tag but no license plate. The three first went to a Meijer store in Livonia, Michigan, a western suburb of Detroit, but came away empty-handed. So they drove across the street and sat in the parking lot of a closed Livonia Walmart while they tried to locate a nearby store that would be open at that time of night. They then drove to a Walmart in neighboring Canton, where they found and purchased the space heaters they wanted. Just as they were about to drive home, they were surrounded and stopped by Canton police officers.

Unbeknownst to Bey and his friends, while en route to the Livonia Meijer the minivan they were driving had caught the eye of an undercover Livonia police officer, Sergeant Andrew McKinley. McKinley led an undercover team of Livonia police officers called the Special Operations Unit (SOU), which conducted surveillance in the interest of crime prevention. Livonia had recently experienced an unusual number of break-ins at cellphone stores, so the SOU officers on duty that night—McKinley, Megan McAteer, and Eric Eisenbeis, each driving a separate unmarked vehicle—were paying particular attention to possible retail crimes.

When Sergeant McKinley observed Bey's "beat-up" minivan at the early morning hour, he started to follow it on "a hunch"; according to his training and experience, criminals often use stolen, older vehicles for retail crimes so that police cannot trace the vehicles back to them. At some point before Bey and his friends entered Meijer, the officers noted that the minivan's passengers were black. While Bey and his friends were in Meijer, McKinley approached the minivan and observed a paper temporary registration taped to the window. McKinley later testified that one of the SOU officers ran the registration through the Michigan state database but found no matching records.1 Eisenbeis, on the other hand, recalled that McKinley said over the radio that the problem with the temporary license plate was that "it was unreadable." According to Bey, the temporary license plate was valid and clearly visible.

The officers continued to follow Bey's minivan from a distance as it drove from the Livonia Meijer to the Livonia Walmart parking lot, and then finally to the Canton Walmart. At one point, the minivan got on a northbound freeway, took the first exit, and then immediately reentered the southbound freeway. To the SOU officers this resembled a "cleaning move," a tactic used to draw out or shake off officers who might be following.

When the minivan arrived at the Canton Walmart and its occupants (Bey and his friends) entered the store, Officer McAteer followed them in on foot, at McKinley's direction, to observe them. She passed information to McKinley via cell phone as she followed them through various areas inside Walmart, and McKinley then passed some of the information along to the rest of the SOU team via radio. McAteer told McKinley that she watched the young men separate, with one of the three going into the hunting section and looking at guns. The three then proceeded to the electronics section, where McAteer saw nothing unusual. Though at one point she might have relayed that she thought the three were contemplating a "pushout," she never saw the three leave or attempt to leave Walmart without paying for the merchandise in the shopping cart. To the contrary, she relayed to McKinley that Bey and his friends stood in line at the cash register, "flipped[ ] through some [credit] cards to ... pick a card," and paid for the items in their shopping cart using the card.

Meanwhile, the SOU officers outside had called the Canton Police Department and requested that uniformed Canton officers be nearby; the SOU officers did not want to contact Bey and his friends, if possible, because they were in plain clothes and protocol generally dictates that uniformed officers approach suspects. The Canton Police Department dispatched several uniformed officers to Walmart, including Adam Falk. When Falk arrived at Walmart, he spoke briefly with Eisenbeis, who told him that McAteer and the suspects were in the store. Eisenbeis gave him a "prep radio" so he could hear McKinley's instructions, and Eisenbeis told Falk to wait nearby so he could make contact with Bey and his friends when they came out of the store.

Falk waited outside Walmart for fewer than six minutes before McKinley notified Falk that Bey and his friends had exited the store and directed him to stop them. Falk and the other Canton police officers surrounded Bey's van and ordered him out of the vehicle. Since Bey was carrying a concealed weapon, he properly notified Falk that he was armed and pointed to his holster so Falk could remove the weapon; Bey also produced a concealed weapon license. Falk asked to see Bey's receipts for the space heaters, which showed no signs of fraud. However, Falk discovered that Bey's concealed weapon license had expired and so arrested him.

Bey was charged in Michigan state court with the felony offense of unlawfully carrying a concealed weapon. He moved to suppress the evidence against him, asserting that the stop was unreasonable under the Fourth Amendment. For unknown reasons, the county prosecutor presented only Falk's testimony (and not McKinley's) at the suppression hearing, even though Falk had stopped Bey at McKinley's direction. Falk truthfully testified that he personally had seen no suspicious activity. The state court found the stop unconstitutional and suppressed the evidence; the case was later dismissed with prejudice.

Bey then filed this civil rights action against McKinley, Eisenbeis, McAteer, and Falk, alleging violations of his Fourth Amendment and equal protection rights. The officers moved for summary judgment based on qualified immunity; the district court denied that motion as well as the officers' subsequent reconsideration motions. The officers timely appealed.

II.

We review the district court's summary judgment decision de novo, applying the same standards the district court used. Franklin Am. Mortg. Co. v. Univ. Nat'l Bank of Lawrence , 910 F.3d 270, 275 (6th Cir. 2018). "[S]ummary judgment is warranted only if ‘there is no genuine issue as to any material fact’ and ‘the movant is entitled to judgment as a matter of law.’ " Id. (quoting Fed. R. Civ. P. 56(a) and Villegas v. Metro. Gov't of Nashville , 709 F.3d 563, 568 (6th Cir. 2013) ). We also review de novo the grant or denial of qualified immunity. Klein v. Long , 275 F.3d 544, 550 (6th Cir. 2001).

"Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kisela v. Hughes , ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam) (citation omitted). When an officer raises a qualified immunity defense, we determine "(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established." Harris v. Klare , 902 F.3d 630, 637 (6th Cir. 2018) (quotation marks omitted). We may grant qualified immunity on either basis and may address the prongs in any order. Pearson v. Callahan , 555 U.S. 223, 241–42, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

This case's interlocutory posture limits our appellate jurisdiction. The Supreme Court has interpreted 28 U.S.C. § 1291's grant of appellate jurisdiction over "final decisions" to include some summary judgment orders denying qualified immunity. See Mitchell v. Forsyth , 472 U.S. 511, 524–30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ; Harrison v. Ash , 539 F.3d 510, 516–17 (6th Cir. 2008). The general rule is that we do not have statutory jurisdiction to entertain interlocutory challenges to a district court's factual findings and may only address "neat abstract issues of law." Johnson v. Jones , 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (citation omitted). For this reason, "a defendant challenging the denial of summary judgment on qualified immunity grounds must be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal." Hopper , 887 F.3d at 757 (alteration omitted). Taking the facts in that light, we assess whether Bey has carried his burden of showing that the officers are not entitled to qualified immunity as a matter of law. Hayden v. Green , 640 F.3d 150, 152–53 (6th Cir. 2011).

III.

We first address the Fourth Amendment claims arising out of the allegedly unlawful stop. For the reasons that follow, we conclude...

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