Estate of Dietrich v. Burrows

• Decision Date: 23 April 1999
• Docket Number: No. 97-3644,97-3644
• Citation: 167 F.3d 1007
• Parties: ESTATE OF Kenneth G. DIETRICH, et al., Plaintiffs-Appellees, v. Richard W. BURROWS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1007

167 F.3d 1007

ESTATE OF Kenneth G. DIETRICH, et al., Plaintiffs-Appellees, v. Richard W. BURROWS, et al., Defendants-Appellants.

No. 97-3644.

United States Court of Appeals Sixth Circuit.

Argued Oct. 29, 1998.

Decided Feb. 12, 1999.

Rehearing and Suggestion for Rehearing En Banc Denied April 23, 1999.

Nick Tomino (argued and briefed), Ronald A. Mingus (briefed), Reminger & Reminger, Cleveland, Ohio, for Appellants.

Edward G. Kramer (argued and briefed), Kramer & Associates, Cleveland, Ohio, for Appellees.

Before: DAUGHTREY and MOORE, Circuit Judges; COHN, ^* District Judge.

DAUGHTREY, Circuit Judge.

This appeal is from the district court's order denying summary judgment to the defendants on the basis of qualified immunity. Citing their 1991 arrests for carrying concealed weapons, the plaintiffs, Kenneth Dietrich and Brian Timothy Dietrich, advanced federal constitutional and Ohio state tort claims against the defendants, Richard Burrows, Lloyd Barcus, James Lang, and James Jenkins, all of whom served at relevant times in law enforcement capacities for Perkins Township, Ohio. The defendants moved for summary judgment on those causes of action and the district court granted the motion in part and denied it in part. For the reasons set out below, we affirm the judgment of the district court in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

Kenneth Dietrich, a former police chief of Perkins Township, owned Firelands Investigative Agency, Inc., a private company engaged in investigative and security work. In the fall of 1990, Dietrich contacted defendant Richard Burrows, then the police chief of Perkins Township, to inform the chief of Dietrich's intention to begin offering armed money courier service to area businesses to ensure the safe transfer of cash from Firelands customers to intended destinations. At that time, Dietrich was aware that township police officers already offered similar courier services, both during and after work hours. Dietrich thus began communicating with Marie Hildebrandt, a township trustee, about liability issues presented by township employees' use of township vehicles and uniforms in the performance of jobs for personal gain.

In response to Dietrich's inquiries, Hildebrandt requested the opinion of the local prosecutor's office concerning the financial exposure of the township should an officer performing courier services be injured, injure another person, or misappropriate funds entrusted to that officer for delivery. The assistant prosecuting attorney responded by letter opining that the township's general liability insurance policy would most likely not cover township employees engaged in "side jobs." Furthermore, local newspapers began reporting on the police department's practices, increasing the pressure on the township to reconsider its position regarding the additional activities of its officers. Finally, Chief Burrows issued an order, effective August 13, 1991, mandating that police vehicles no longer be used for personal purposes.

During the summer of 1991, Officer Gregory Van Richardson of the Perkins Township Police Department informed Burrows that Firelands provided money courier service from a particular bank at three specific times every business day. On September 4, 1991, Van Richardson also left a message for Burrows that Dietrich himself would be providing courier service from that same bank the following day and "that maybe the person who normally does this run for Firelands was on vacation."

The next day, September 5, 1991, Dietrich and his son, Brian Timothy Dietrich, visited the bank branch to collect $1,275 in coins to be delivered to a pharmacy that had contracted with Firelands for courier services. As they were driving toward the pharmacy, the Dietrichs noticed they were being followed by a Perkins Township police officer in a marked car and, therefore, pulled off the road. Defendant Barcus approached Kenneth Dietrich and asked whether the plaintiff was carrying a concealed weapon. After Dietrich admitted that he was carrying a firearm, and after defendants Burrows and Lang also stopped at the scene, the plaintiff was arrested and taken to police headquarters. Similarly, defendant Jenkins, yet a fourth officer at the scene, approached Brian Timothy Dietrich, who was seated in the passenger seat of the company van, and inquired whether he, too, was in possession of a concealed weapon. At that time, Brian Timothy Dietrich showed the officer a briefcase near his seat that contained a loaded handgun and was arrested also. Although both plaintiffs were taken into custody on weapons charges, the police did not frisk either individual, nor did they search the Dietrichs' van for other weapons. Moreover, the local prosecutor subsequently dropped the charges lodged against the plaintiffs.

The Dietrichs then filed suit pursuant to the provisions of 42 U.S.C. § 1983 against Burrows and against the police officers who participated in the plaintiffs' arrests, alleging that they violated the Dietrichs' constitutional rights to substantive due process and to be free from false arrests. The federal court complaint also included claims for damages for the state law torts of false arrest and infliction of emotional distress.

During the course of the litigation, the plaintiffs sought leave of the court to amend their complaint to allege an additional § 1983 claim for retaliation for the exercise of First Amendment freedoms. That motion was granted, but an amended complaint was never actually filed with the district court. Nevertheless, all defendants proceeded as if the amended complaint had indeed been filed and moved for summary judgment on all claims raised by the Dietrichs, in part based upon the allegation that the doctrine of qualified immunity insulated the defendants from liability in this matter.

In addressing the summary judgment motion, the district court concluded that the police officer defendants had no probable cause to believe the plaintiffs were committing or had committed a crime at the time they were arrested. The defendants were, therefore, denied summary judgment in their favor on the plaintiffs' Fourth Amendment claim, denied summary judgment on the plaintiffs' state law claims, and denied the protections of a qualified immunity defense. The court also denied summary judgment based on qualified immunity to the defendants on any First Amendment claims. Because the plaintiffs' substantive due process claim was subsumed into the false arrest allegation, the court did, however, grant summary judgment to the defendants on the Dietrichs' Fourteenth Amendment cause of action. From these rulings, the defendants now appeal.

DISCUSSION

I. Standard of Review

This court evaluates a grant of summary judgment de novo using the same legal standard employed by the district court. Wiley v. United States, 20 F.3d 222, 224 (6th Cir.1994). Consequently, such a decision will be found proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

A decision to deny a motion for summary judgment is generally not appealable until after the conclusion of a trial on the merits. See Ward v. Dyke, 58 F.3d 271, 273 (6th Cir.1995). "Denial of summary judgment on the basis of qualified immunity is, however, appealable immediately as a final judgment under the collateral order doctrine." Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Rodgers v. Jabe, 43 F.3d 1082, 1085 (6th Cir.1995)). This court reviews "the district court's denial of a qualified immunity claim de novo." Id.

II. Fourth Amendment Claim

A. Probable Cause Determination

The defendants first contend that the district court's denial of their summary judgment request relating to the Dietrichs' Fourth Amendment claim was in error because Chief Burrows and the other township police officers had probable cause to arrest the plaintiffs for carrying concealed weapons. As the Supreme Court has stated, "It is not disputed that the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense." Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Probable cause justifying an arrest "means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Id. at 37, 99 S.Ct. 2627. See also Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir.1988).

Pursuant to the provisions of O.R.C. § 2923.12(A), "[n]o person shall knowingly carry or have, concealed on his or her person or concealed ready at hand, any deadly weapon or dangerous ordnance." Because both Kenneth and Brian Timothy Dietrich undisputedly did have such concealed weapons either on their person or "ready at hand" when stopped by township police of September 5, 1991, the defendants maintain that those facts alone provided them with the requisite probable cause to make the arrests challenged in this proceeding. The Dietrichs argue, however, that the affirmative defense provisions of O.R.C. § 2923.12(C) make clear that the officers did not, in fact, have probable cause to believe an offense had been committed, was underway, or was about to be committed. Subsection (C)(1) of the statute allows a weapon to be "carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in or was going to or from the actor's lawful business or occupation, which business or occupation was of such character or was necessarily carried on in such manner or at...