Boone v. Spurgess

• Citation: 385 F.3d 923
• Decision Date: 04 October 2004
• Docket Number: No. 03-3841.,03-3841.
• Parties: Anthony BOONE, Plaintiff-Appellant, v. Phillip SPURGESS a/k/a Philip Spurgus et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 923

385 F.3d 923

Anthony BOONE, Plaintiff-Appellant, v. Phillip SPURGESS a/k/a Philip Spurgus et al., Defendants-Appellees.

No. 03-3841.

United States Court of Appeals, Sixth Circuit.

Argued: August 11, 2004.

Decided and Filed: October 4, 2004.

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Appeal from the United States District Court for the Southern District of Ohio, Algenon L. Marbley, J.

Lisa T. Meeks (argued and briefed), Newman & Meeks Co., Cincinnati, OH, for Appellant.

John T. McLandrich (argued and briefed), Mazanec, Raskin & Ryder Co., Cleveland, OH, Gordon Bradley Hummel (briefed), Columbus City Attorney's Office, Columbus, OH, for Appellees.

Before: SILER, MOORE, and COLE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which COLE, J., joined. SILER, J. (p. 935), delivered a separate opinion concurring in part and dissenting in part.

MOORE, Circuit Judge.

Plaintiff-Appellant Anthony Boone ("Boone") appeals from the district court's grant of summary judgment on his Fourth and Fourteenth Amendment claims against Defendants-Appellees Philip Spurgus¹ ("Spurgus"), Scott Moyer ("Moyer") and Jerome Darfus ("Darfus").² Boone was involved in a minor traffic accident with Spurgus, an off-duty police officer; responding to the scene, Moyer and Darfus placed Boone in the back of their squad car and then found a gun on the floor of Boone's vehicle. Boone was then arrested and taken to the county jail, where he either refused or was not given medical care. He filed suit against Spurgus, Moyer, and Darfus, alleging violations of his Fourth and Fourteenth Amendment rights. The district court granted summary judgment on the merits for defendants on Boone's three claims: unlawful search of Boone's car; preferential treatment for Spurgus in violation of equal protection; and unlawful denial of medical attention. While the two latter claims fail, a material issue of fact remains as to whether the search of Boone's car was unlawful. The decision below is therefore REVERSED with respect to the Fourth Amendment search claim and AFFIRMED in all other respects.

I. BACKGROUND

As the non-moving party, it is Boone's version of the facts we must follow. On the morning of September 17, 1999, Boone was driving northbound on Cherry Street in Lancaster, Ohio, and pulled up behind Spurgus, an off-duty Columbus police officer, at a stoplight at an intersection. When the light turned green, Boone and Spurgus both accelerated; without warning, Spurgus stopped short, and Boone's car struck his pickup truck. Boone maintained that at no time did Spurgus's turn signals or brake lights come on. Spurgus then exited his car, yelling obscenities at Boone and indicating that he was upset because his children were in the car. Boone had put his car in park, and opened his glove compartment in anticipation of an accident report. As he did that, he glanced down to ensure that the .45-semi-automatic weapon that he had secured in a well underneath the driver's seat was still in the well, concealed from view by a flap hanging down from the back of the seat. Boone testified that he "remember[s] ... clearly" that the .45 was not exposed at that time. Joint Appendix ("J.A.") at 136 (Dep. of Anthony Boone). Stretched across the front passenger compartment, Boone looked up to see Spurgus at the driver's door; Spurgus then "cracked [Boone] on the left side of [his] head." J.A. at 125. Boone then momentarily lost consciousness, and drifted in and out of consciousness for the next several minutes. Spurgus continued beating Boone, pinning him to the ground; while Boone at one point in his deposition states that "next thing I remember, I was in the back seat of the cop car with handcuffs on," he later describes in much more detail subsequent events. J.A. at 126.

Boone stated unequivocally that he did not move his car after the accident; instead, he describes being picked up off the ground by the first officer arriving from the Lancaster Police Department, then handcuffed behind his back against the car, and then placed in the backseat of the police cruiser. Boone also testified that Spurgus identified himself as an off-duty Columbus police officer "[w]hen the police very first arrived on the scene." J.A. at 130-31. While in the back of the police car, Boone saw Spurgus talking to Lancaster Police officers Darfus and Moyer, and then Boone saw his car being searched by Darfus and Moyer. At some point, Boone's car had been moved off the street into a driveway, but Boone stated that he "can say with absolute certainty that [he] didn't move [his] car." J.A at 126. After the discovery of the .45- semi-automatic weapon and the subsequent full search of Boone's car, which additionally revealed a .32-revolver in a storage compartment in the driver's door, Moyer came up to the side of the cruiser and said to Boone, "You sure know how to pick them." J.A. at 140. Boone had stolen the .45 from his former employer; both guns were fully loaded at the time of the accident. Boone complained to the officers that "it was just an accident, and [Spurgus] had no right to beat the s* * * out of me the way he did." J.A. at 141. Boone also asked for medical attention. When Boone asked why Spurgus was not being arrested, Moyer said that Boone would "have to look into that after [he] ... went to jail or something like that." J.A. at 142.

Boone was taken to the county lockup, where he was placed in a cell, and where he claims he did not receive medical attention. As part of Boone's response to the defendants' motions for summary judgment, he submitted an affidavit from Margaret Evans, a resident of Cherry Street, who saw the altercation but not the initial accident from her window. She saw "a large man walking to the car behind his blue truck," presumably Spurgus, who "threw his fist in the window and hit the little guy," presumably Boone, "as soon as he got near the window." J.A. at 118. Then, Spurgus "pulled the little guy out of the car and started beating on him." J.A. at 118. A bystander asked Evans to call the police; when they arrived "the big guy was sitting on the little guy, still beating on the little guy." J.A. at 119.

Boone was charged with two counts of carrying a concealed weapon and one count of felony theft. He pleaded guilty to the theft charge, and the other charges were dismissed; he was sentenced to six months in prison.

The key differences between Boone's account and that of the other parties is that: 1) Spurgus claims that Boone moved his own car subsequent to the time Boone claims that he ensured his gun was out of sight; 2) Moyer claims that he put Boone in the backseat of the police car because Boone was yelling during Moyer's attempts to interview Spurgus, that he didn't pat Boone down, and that he didn't place Boone in handcuffs initially; and 3) Moyer, Darfus, and Spurgus all claim that Boone's weapon was in plain view on the floor of his car, thus giving the police license to search his vehicle.

Boone filed an action in the United States District Court for the Southern District of Ohio on September 12, 2001, against Spurgus, Moyer, and Darfus. All three defendants, Moyer and Darfus together and Spurgus separately, moved for summary judgment. They moved for summary judgment both on the merits and on the basis of qualified immunity; the motions for summary judgment on the merits were granted.

II. ANALYSIS

A. Standard of Review

This court reviews the grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party. Shamaeizadeh v. Cunigan, 338 F.3d 535, 543-44 (6th Cir.2003).

B. Fourth Amendment Claim: Illegal Search³

Boone argues that the search of his automobile resulting in the discovery of the .45 was in violation of the Fourth Amendment, and that his subsequent arrest was illegal as a result. Automobiles, while generally exempt from the warrant requirement, are usually not searchable except upon probable cause that evidence will be discovered therein. Two justifications are offered by Moyer and Darfus for the search.⁴ First, they claim that the gun was in plain view, the reasoning relied upon by the district court. The plain-view exception permits a warrantless seizure where "(1) the officer is lawfully positioned in a place from which the object can be plainly viewed; (2) the incriminating character of the object is immediately apparent; and (3) the officer has a lawful right of access to the object itself." United States v. Bishop, 338 F.3d 623, 626 (6th Cir.2003). They also argued both in the district court and in this court that Moyer had authority to conduct a limited search of Boone's car for weapons under the authority of Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), which allows such a search during a traffic stop.

The plain-view exception would apply if, as Moyer and Spurgus testified, Darfus could see from the passenger window the .45 peeking out from beneath the driver's seat. The other elements of the exception are satisfied: Darfus was lawfully positioned outside of Boone's car, and the incriminating character of the gun was immediately apparent because under Ohio law at the time of the offense, it was illegal to transport a loaded firearm in a car "in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle," or an unloaded firearm that was not "[i]n a closed package, box or case," "a compartment that can be reached only by leaving the vehicle," "[i]n plain sight and secured in a rack or holder made for the purpose," or "[i]n plain sight with the action open or the weapon stripped." Ohio Revised Code Ann. §2923.16(B), (C) (Anderson 1999). Under everyone's version of the facts, Boone was attempting to conceal the.45 under the driver's seat, and the position of the gun when it was allegedly seen by Darfus and Moyer — "peeking out" from underneath the seat — made the attempted concealment...