Danese v. Asman

• Decision Date: 18 August 1989
• Docket Number: No. 87-2039,87-2039
• Citation: 875 F.2d 1239
• Parties: Janet M. DANESE, Personal Representative of the estate of David Danese, deceased; Louis Danese; Daniel Danese; Pamela Danese; Margaret Danese; Thomas Danese; Frances Danese; and Louis Danese, individually, Plaintiffs-Appellees, v. Thomas A. ASMAN, individually and as Chief of Police for the City of Roseville; Howard Hill, individually and as Sergeant and Shift Commander for the City of Roseville Police Department; Frederick Stein, individually and as Sergeant for the City of Roseville Police Department; Robert Peters, individually and as Inspector for the City of Roseville Police Department; Gowsoski, R. Churchran, Cardinal, Kenyon, individually and as Police Officers for the City of Roseville Police Department, Jointly and Severally, Defendants-Appellants. Keith Pelt, et al., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1239

875 F.2d 1239

Janet M. DANESE, Personal Representative of the estate of David Danese, deceased; Louis Danese; Daniel Danese Pamela Danese; Margaret Danese; Thomas Danese; Frances Danese; and Louis Danese, individually, Plaintiffs-Appellees, v. Thomas A. ASMAN, individually and as Chief of Police for the City of Roseville; Howard Hill, individually and as Sergeant and Shift Commander for the City of Roseville Police Department; Frederick Stein, individually and as Sergeant for the City of Roseville Police Department Robert Peters, individually and as Inspector for the City of Roseville Police Department; Gowsoski, R. Churchran Cardinal, Kenyon, individually and as Police Officers for the City of Roseville Police Department, Jointly and Severally, Defendants-Appellants Keith Pelt, et al., Defendants.

No. 87-2039.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 18, 1988.

Decided May 26, 1989.

Rehearing and Rehearing En Banc Denied Aug. 18, 1989.

Thomas E. Spencer (argued), Grand Rapids, Mich., J. Russell LaBarge, Jr. (argued), Roseville, Mich., for defendants-appellants.

William Povlitz (argued), Petz & Povlitz, P.C., Grosse Pointe Woods, Mich., for plaintiffs-appellees.

Joanne D. Stafford, City of Detroit Law Dept., Asst. Corp. Counsel, Detroit, Mich., amicus curiae, for defendants-appellants.

Before NELSON and BOGGS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

BOGGS, Circuit Judge.

The defendants/appellants are Roseville, Michigan, police officers and police officials who appeal the district court's denial of their motion for summary judgment in the plaintiffs' suit under 42 U.S.C. Sec. 1983. The plaintiffs seek to hold the defendants liable for the suicide, in a Roseville jail, of David Danese. The defendants contend that they should be dismissed as individual defendants on the grounds of qualified immunity. We hold that the defendants are entitled to qualified immunity and therefore reverse.

I

This case arose out of events in Roseville, Michigan in the early morning hours of November 9, 1982. The Roseville police department received a report of a suspicious car parked in a residential area. Roseville police officers (and defendants) Gowsoski and Chuchran, out on patrol, investigated the report. They discovered a car sitting out in the middle of a side street. The officers knocked on the window and woke up a man they later found out was David Danese. The officers described Danese as obviously intoxicated. The officers moved the car to the side of the road, put the keys on the floor of the car, and told Danese not to drive.

At about 2:50 a.m., the officers observed Danese driving the same car they had seen earlier. The officer pulled the car over and gave Danese some field sobriety tests. They found that Danese could not walk a straight line or name the alphabet. They arrested Danese for driving while intoxicated, handcuffed him, and took him to the Roseville police station.

When Danese arrived at the station, he was given a breathalyzer test by police officer Cardinal. He was found to have a blood alcohol content of .13%, a reading over the legal limit of .10%. The plaintiffs allege that, after his arrest, Danese cried intermittently and made repeated remarks to Gowsoski, Chuchran, and Cardinal that he wished he were dead. (The officers have stated that they do not recall Danese crying or making such remarks.) The officers searched Danese and found three black and green capsules. Danese stated that the pills were for pain he suffered due to an injury to his face. The officers confiscated the drugs. They also removed Danese's belt and shoes.

Both parties agree that Danese told a fellow prisoner that they, meaning the police, take a prisoner's shoelaces because they do not want the prisoner to commit suicide. ¹ The plaintiffs claim that Danese discussed ways of committing suicide and said that he would commit suicide. (The officers deny that he said he would commit suicide.) The officers state that Danese was 'jovial.' At one point, though, Danese told Cardinal that he was $13,000 in debt and said "I wish I wasn't here." Danese called his mother, and one of the officers noticed that Danese cried toward the end of the call. Danese was then placed in a cell. The cell was not a special detoxification cell, and it had horizontal bars in the caging. The television monitor used to watch the prisoners was inoperative.

Between 5:15 and 5:25 a.m., officer Cardinal heard screaming and banging coming from one of the cells. He discovered that Danese was causing the noise. Danese told Cardinal that he wanted a cigarette. Cardinal told him he could not give him one due to the jail rules. Danese then said he would hang himself if he did not get one. Cardinal said he was sorry and left. He then went to his superior, Sergeant Hill, and told him what happened. Hill told Cardinal to watch Danese.

At 5:56 a.m., Cardinal went to check on the prisoners. He found Danese hanging by his shirt from a bar in his cell. Cardinal called Sergeant Stein, who had just come on duty. The two officers, along with officer Kenyon, cut Danese down and called for an ambulance. An ambulance from the fire house next door arrived a couple of minutes later, but Danese was pronounced dead within an hour.

The plaintiffs, consisting of the representative of Danese's estate and members of his family, have sued, among others, all the police officers (Officers) mentioned here, including Gowsoski, Chuchran, Cardinal, and Kenyon, and their supervisors (Officials), including Hill, Stein, police chief Asman, and police inspector Peters. The plaintiffs sued under 42 U.S.C. Sec. 1983, alleging numerous violations of Danese's constitutional rights.

In August 1986, these defendants filed motions to dismiss the suits against themselves as individual defendants on the grounds of qualified immunity. In May 1987, the district court denied most of these motions, allowing, however, the plaintiffs to amend one of their claims before deciding on qualified immunity. After the amendment, the defendants moved for summary judgment on the qualified immunity issue. In September 1987, the district court again found for the plaintiffs, denying that the defendants had qualified immunity. See Danese v. Asman, 670 F.Supp. 709 (E.D.Mich.1987) and 670 F.Supp. 729 (E.D.Mich.1987). The defendants then availed themselves of their right, pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), to file this interlocutory appeal on the immunity issue. ²

II

The Supreme Court, following its decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), recently clarified its analysis of qualified immunity claims in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Court made clear that "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Id., 107 S.Ct. at 3038. (citations omitted) Thus, the plaintiff must show that the constitutional right alleged to have been violated was a clearly established right at the time of the challenged action. Poe v. Haydon, 853 F.2d 418, 425 (6th Cir.1988).

The right in question, however, cannot be simply a generalized right, like the right to due process. Anderson, 107 S.Ct. at 3038. It must be clearly established in a "particularized" sense, so that "the contours of the right" are clear enough for any reasonable official in the defendants' position to know that what the official is doing violates that right. Id. at 3039. This particularity requirement does not mean that the very action in question has been held unlawful; it does mean, though, that in the light of the preexisting law, the illegality of the action must be apparent. Ibid.

In Anderson, for example, the court of appeals disallowed qualified immunity, holding that the established right was the right to be free from warrantless searches unless the officers have probable cause and there are exigent circumstances. Ibid. The Supreme Court reversed, holding that this right was not sufficiently particularized. It must be clear that the search was illegal under the particular circumstances faced by the police, for there are many cases where the police reasonably believe that a search is legal. Police officers should not be personally liable if they act in ways they reasonably believe are lawful. Ibid. The relevant, fact-specific question in qualified immunity cases is whether any official could have, in light of the preexisting law, reasonably believed that his action was lawful. Id. at 3040; Poe, 853 F.2d at 423 ("The relevant inquiry focuses on whether a reasonable official in the defendant's position could have believed his conduct to be lawful, considering the state of the law as it existed when the defendant took his challenged actions.")

III

The district court held that the plaintiffs stated two causes of action against the individual officers. The first was an action for the deprivation of Danese's fourteenth amendment due process right not to be punished while in pretrial detention. The second was for the deprivation of a fourteenth amendment due process right to be free from unsafe confinement.

The plaintiffs base their first action on the Supreme Court decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In Bell, the Court held that, under due process of law, pretrial detainees may not be punished because they have not yet been judged guilty. Id., 441 U.S. at 535, 99 S.Ct. at 1872. One of the forms that this punishment can take is the denial of medical care. This court, as well as other circuits, have held that the Eighth Amendment cruel and unusual punishment analysis used by the Court...