Burley v. Gagacki

• Decision Date: 22 August 2016
• Docket Number: Nos. 14-2482/2542,s. 14-2482/2542
• Citation: 834 F.3d 606
• Parties: Geraldine Burley; Caroline Burley, Plaintiffs–Appellants/Cross–Appellees, v. Jeffery Gagacki; Shawn Reed, Defendants–Appellees/Cross–Appellants, Brian Woloski; Patrick Browne, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

834 F.3d 606

Geraldine Burley; Caroline Burley, Plaintiffs–Appellants/Cross–Appellees,

v.Jeffery Gagacki; Shawn Reed, Defendants–Appellees/Cross–Appellants,Brian Woloski; Patrick Browne, Defendants–Appellees.

Nos. 14-2482/2542

United States Court of Appeals, Sixth Circuit.

Argued: August 4, 2016

Decided and Filed: August 22, 2016

Rehearing En Banc Denied September 27, 2016.

ARGUED: David G. Blake, Romano Law, P.L.L.C., Pleasant Ridge, Michigan, for Appellants/Cross–Appellees. Anne McClorey McLaughlin, Johnson, Rosati, Schultz & Joppich, P.C., Farmington Hills, Michigan, for Appellees/Cross–Appellants. G. Gus Morris, McGraw Morris P.C., Troy, Michigan, for Appellee Woloski. Julie Quiland Dufrane, City of Troy, Troy, Michigan, for Appellee Browne. ON BRIEF: Stanley I. Okoli, Romano Law, P.L.L.C., Pleasant Ridge, Michigan, for Appellants/Cross–Appellees. Anne McClorey McLaughlin, Johnson, Rosati, Schultz & Joppich, P.C., Farmington Hills, Michigan, for Appellees/Cross–Appellants. G. Gus Morris, McGraw Morris P.C., Troy, Michigan, for Appellee Woloski. Julie Quiland Dufrane, City of Troy, Troy, Michigan, for Appellee Browne.

Before: SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN

, Circuit Judge

Following a remand for a new trial, Burley v. Gagacki , 729 F.3d 610 (6th Cir. 2013)

, the jury found that defendants did not participate in the police raid that resulted in plaintiffs' claims of excessive force. Plaintiffs appeal several of the district court's pre-trial rulings regarding the new trial. Finding none of the issues meritorious, we affirm.

I.

Plaintiffs contend that the law enforcement personnel who executed a search warrant at their house used excessive force upon them when securing the house. In our prior opinion, we described plaintiffs' allegations as follows:

[Plaintiffs] were inside their home located at 20400 Greeley Street in the City of Detroit on June 13, 2007, when they heard a loud boom. When Geraldine Burley came upstairs from the basement, an officer put a gun to her face and said “[g]et on the floor.” She explained that she needed to ease herself to the floor because she had undergone two knee replacements. At that point, another officer appeared, ordered Geraldine to the floor, and shoved her into the table. She hit her head, shoulder, neck, and back against the table as she fell to the ground. Another officer walked on top of her body. When Geraldine's adult daughter, Caroline, heard the loud boom and entered the living room, an officer allegedly put a gun to her face and told her, “[s]top, put your hands up.” The officer threw her against the wall and onto the floor. When he placed his foot on her back, Caroline hollered, “[g]et your feet out [of] my back. I've had back surgeries.” Sometime thereafter, another officer placed his foot on her back, and Caroline again explained that she had undergone back surgeries.

Id. at 614

.

The offending officers exacerbated the situation by intentionally concealing their identities. Specifically, “the officers were dressed in black clothing with their faces covered except for their eyes, concealing their identities. When Geraldine Burley asked for the officers' names, one of the officers was about to write them down when another officer stopped him and said, ‘No, just put Team 11.’ ” Id.

Subsequently, plaintiffs learned that “Team 11” was part of a vast multi-law enforcement operation involving Wayne County, and federal, state, and municipal law enforcement agents. Id. at 613, 614–15

. In this regard, it took over two years for Wayne County to disclose an investigation report that purportedly revealed the identities of the officers who executed the search warrant. Id. at 614–15. Moreover, the present federal defendants “did not affirmatively assert their lack of involvement in the raid” during “the initial stages of discovery.” Id. at 615. “It was only in their depositions, after the limitations period had run, that the[y] ... alleged that they did not participate in the raid of plaintiffs' home but were instead executing a search warrant” nearby. Id.

In plaintiffs' previous appeal, we reversed the district court's entry of a directed verdict. Id. at 617, 622

. In so doing, we expressed our dismay regarding the manner in which the alleged perpetrators concealed their identities to plaintiffs' detriment: “[W]e are not inclined to shield the federal defendants from liability as a reward for their unethical refusal to identify themselves by name and badge number.” Id. at 622. To this end, we considered, but did not decide, whether this court should adopt a burden-shifting approach similar to the approach taken by the Ninth Circuit in Dubner v. City & Cty. of San Francisco , 266 F.3d 959 (9th Cir. 2001), whereby once a plaintiff in an unlawful arrest case meets her burden on the issue of unlawful arrest, the burden of production then shifts to officers to produce evidence of probable cause. This burden-shifting approach, reasoned Dubner, “prevent[s] this exact scenario where police officers can hide behind a shield of anonymity and force plaintiffs to produce evidence they cannot possibly acquire.” Id. at 965 (footnote omitted).

On remand, the district judge declined to apply Dubner

's burden-shifting paradigm, reasoning that Dubner does not extend beyond false arrest claims. He also refused to disqualify himself from the case, assessed juror expenses related to one of the plaintiffs' non-forthcoming trial delay, and entered several in limine orders. At trial, the jury heard testimony from plaintiffs and the defendant federal officers, and thereafter returned a verdict finding that defendants did not “participate in the raid of plaintiffs' home.” Plaintiffs filed a timely notice of appeal, appealing six orders: the burden-shifting order; the disqualification order; and four orders regarding in limine motions.¹

II.

First, we turn to plaintiffs' primary issue on appeal—the district court's decision not to apply Dubner

's burden-shifting regime. After remand, the Burleys significantly broadened our suggestion, asking the district court not to “shift[ ] the burden of production onto the federal agents to establish their lack of involvement,” Burley , 729 F.3d at 613, but rather that the district court “impose the burden of which amongst the Defendants personally inflicted the harm complained of by the Plaintiffs upon the Defendants themselves.” The district court declined, finding Dubner inapplicable to excessive force claims. As a result, plaintiffs contend, the subsequent trial was “toothless.” Plaintiffs' motion addressed the jury instructions—i.e., who bears the burden of persuasion regarding defendants' involvement and the force used; because the correctness of jury instructions is a question of law, we review this issue de novo. Gibson v. City of Louisville , 336 F.3d 511, 512 (6th Cir. 2003)

.

In Dubner

, the plaintiff claimed San Francisco police officers falsely arrested her at a demonstration. 266 F.3d at 962–64. Because she was unable to identify the officers who arrested her, she filed § 1983 false arrest claims against all the officers listed on her arrest report. Id. at 963–64. Apparently, the City of San Francisco had a practice of listing officers who arrived first on scene as arresting officers—even if they did not participate in the arrest—in order to “deliberately ... frustrate the efforts of potential plaintiffs in false arrest cases to establish lack of probable cause.” Id. at 964–65. After a bench trial, the district court found that the plaintiff could not prove her arrest's unlawfulness based upon her inability to conclusively identify her arresting officers. Id. at 964.

The Ninth Circuit reversed, relying upon cases that shift the burden of production regarding the existence of probable cause to a defendant upon the showing of a warrantless arrest. Id. at 965

. In such instances, the Ninth Circuit reasoned, “[i]f the defendant is unable or refuses to come forward with any evidence that the arresting officers had probable cause and the plaintiff's own testimony does not establish it, the court should presume the arrest was unlawful.” Id. “This minimal burden shifting forces the police department, which is in the better position to gather information about the arrest, to come forward with some evidence of probable cause. ... By shifting the burden of production to the defendants, we prevent this exact scenario where police officers can hide behind a shield of anonymity and force plaintiffs to produce evidence that they cannot possibly acquire.” Id. (footnote omitted).

On appeal, plaintiffs present an expansion and variation on Dubner

. Specifically, plaintiffs claim that the district court erred in refusing to shift the burden of persuasion to defendants regarding who amongst them committed excessive force during the raid, and thus erred when it instructed the jury that plaintiffs “must prove by a preponderance of the evidence that each of the defendants was personally involved in the conduct that the plaintiffs complain about.” Plaintiffs contend that the jury instructions “impose[d] an insurmountable burden.” Accordingly, they argue equity dictates that defendants bear the burden of persuasion in order to give meaning to the principle that “no man may take advantage of his own wrong.”² We disagree.

First, Dubner

's burden-shifting paradigm, while not unique to the Ninth Circuit,³ is contrary to our approach to false arrest claims. “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford , 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). We have consistently held that “[i]n order for a wrongful arrest claim to succeed ..., a plaintiff must prove that the police lacked probable cause .” Fridley v. Horrighs , 291 F.3d 867, 872 (6th Cir. 2002)

(emphasis added). Indeed, we have upheld the...