Germaine Bomar v. City of Pontiac

• Decision Date: 01 July 2011
• Docket Number: No. 10–2161.,10–2161.
• Citation: 643 F.3d 458
• Parties: Germaine BOMAR, individually, Plaintiff–Appellee,Germaine Bomar, and as Next Friend to her minor children, K.M. and K.B.; K.B., a minor; K.M., a minor, Plaintiffs,v.CITY OF PONTIAC; John Doe, 1–2, Pontiac Police Officers, David Wheatcroft; Brian Wood, Defendants,Daniel Main, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

643 F.3d 458

Germaine BOMAR, individually, Plaintiff–Appellee,Germaine Bomar, and as Next Friend to her minor children, K.M. and K.B.; K.B., a minor; K.M., a minor, Plaintiffs,

v.CITY OF PONTIAC; John Doe, 1–2, Pontiac Police Officers, David Wheatcroft; Brian Wood, Defendants,Daniel Main, Defendant–Appellant.

No. 10–2161.

United States Court of Appeals, Sixth Circuit.

Argued: June 2, 2011.Decided and Filed: July 1, 2011.

ARGUED: Eric S. Goldstein, Johnston, Sztykiel, Hunt, Goldstein, Fitzgibbons & Clifford, P.C., Troy, Michigan, for Appellant. Paul M. Hughes, Detroit, Michigan, for Appellees. ON BRIEF: Eric S. Goldstein, Johnston, Sztykiel, Hunt, Goldstein, Fitzgibbons & Clifford, P.C., Troy, Michigan, for Appellant. Paul M. Hughes, Detroit, Michigan, for Appellees.Before: BOGGS and SILER, Circuit Judges; VAN TATENHOVE, District Judge.^*

OPINION

BOGGS, Circuit Judge.

In this action brought under 42 U.S.C. § 1983, Plaintiff Germaine Bomar alleges that Officer Daniel Main, the sole remaining defendant, violated her clearly established right not to be subjected to excessive force. Bomar claims that Main pepper-sprayed her in the eye and punched her in the jaw—both after she had been successfully restrained and handcuffed. In the proceedings below, Defendants denied that Main took those actions and moved for summary judgment based on qualified immunity. The district court held that a genuine issue of material fact existed for trial and denied the motion. Main now appeals that order, and we dismiss his appeal for lack of jurisdiction.

I

On September 11, 2007, police officers conducted an evening drug raid at a house in Pontiac, Michigan. Officer Main was one of the officers in charge. During the course of the raid, the officers learned that a vehicle containing drugs and weapons, including AK–47 assault rifles, was scheduled to arrive shortly. Approximately 15 minutes later, at around 9:20 p.m., a vehicle described as a tan or pewter sedan showed up at the house. The vehicle reversed and fled at high speed when officers attempted to secure it. The officers noted that the vehicle was driven by a black male, possibly in his twenties.

The vehicle fled down a street that had only one forward path of egress—Bomar's street. Officer Main immediately hopped into an unmarked police car with two other officers and entered Bomar's street from the other direction, hoping to intercept the fleeing suspect. When the officers arrived, however, the suspect sedan was nowhere to be found. Main slowly drove up the street, observing driveways to determine whether the suspect had pulled up to a house to hide. The officers stopped to observe a vehicle that looked similar to the one they were chasing, and a young black male—later identified as K.M., Bomar's twelve-year-old son—stood up from behind the car, as though he had been crouching.¹ The officers jumped out of their unmarked car and, guns drawn, commanded K.M. to stay put. K.M. did not do so, but rather ran inside the house, with the officers in pursuit on foot.

Officer Main followed K.M. into the house. Once inside, Main grabbed K.M., who had moments earlier told Bomar that he was being chased. Chaos ensued. Not realizing that Main was an officer,² Bomar began striking him in an effort to protect her son. Main quickly handed K.M. off to another officer and physically restrained Bomar. Both K.M. and Bomar were removed from the house, restrained on the ground in the yard, and handcuffed. Main testified that he had no difficulty handcuffing Bomar and that, after being cuffed, she was only talking, “probably a little bit” louder than conversational level. Another officer at the scene testified that Main handcuffed Bomar without any problems, and that she remained only verbally combative after that point.

The parties dispute how Main responded to Bomar's verbal combativeness. Bomar testified that, after she had been restrained on the ground and handcuffed, Main sprayed her in the eye with pepper spray and punched her in the jaw. K.M. testified to the same, that after Main handcuffed Bomar, he pepper-sprayed and punched her.³ K.B., Bomar's ten-year-old daughter who was watching from the window, similarly testified that her mother was lying on her back on the ground when Main pepper-sprayed her, but her testimony differed as to the timing of the punch—K.B. testified that Main punched Bomar before she was handcuffed. Defendants deny that Bomar was punched in the jaw or pepper-sprayed at any time, but for purposes of this appeal only, Main concedes that, after he handcuffed Bomar, he pepper-sprayed her and punched her in the jaw. However, Main argues that Bomar continued to pose a threat, even after being handcuffed.

The officers promptly concluded that twelve-year-old K.M. was not the assault-rifle-toting suspect they had been pursuing and released both him and his mother from handcuffs. Soon after the officers departed, K.M. complained of a headache,⁴ and both Bomar and K.M. went to the Pontiac Osteopathic Hospital to have their injuries examined. They arrived at 11:15 p.m., and the hospital observed some apparent swelling on Bomar's jaw and forehead and some tenderness on K.M.'s neck. Months later, Bomar was diagnosed with TMJ syndrome and post-traumatic stress disorder.

Bomar, individually and on behalf of K.M. and K.B., filed a six-count complaint on June 20, 2008, asserting both federal and state-law claims against Main, several other police officers, and the City of Pontiac.⁵ On April 13, 2010, the City of Pontiac was, by agreement of both parties, dismissed with prejudice as a defendant. The remaining defendants asserted qualified immunity and moved for summary judgment. On August 17, 2010, the district court granted summary judgment in Defendants' favor on all claims except for two: first, Bomar's excessive-force claim, under 42 U.S.C. § 1983, against Officer Main; and second, Bomar's related state-law battery claim.

Main appeals the district court's denial of qualified immunity and argues that this court has jurisdiction to review the denial under 28 U.S.C. § 1291.

II

A

In general, denials of summary judgment are not appealable final orders. However, certain summary judgment orders denying qualified immunity may be appealable pursuant to the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 525–27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir.2006).

Significantly, not all summary judgment orders denying qualified immunity are appealable. The Supreme Court has distinguished between denials of qualified immunity at the summary judgment stage that are based on the district court's “determination about pre-existing clearly established law” and, on the other hand, those that are based on the district court's “determination about genuine issues of fact for trial.” Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (internal punctuation omitted). In short, the former are appealable final orders; the latter are not. Id. at 313, 115 S.Ct. 2151.

Pursuant to Johnson, this circuit has held that interlocutory jurisdiction is conferred only where the defendant's appeal “involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law.” Gregory, 444 F.3d at 742 (quoting Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir.1998)). Accordingly, if the defendant disputes the plaintiff's version of the facts and wishes to file an interlocutory appeal of the district court's denial of qualified immunity at the summary judgment stage, “the defendant must ... be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal.” Berryman, 150 F.3d at 563. The underlying principle is that, in the qualified-immunity context, this court may entertain interlocutory appeals of denials of summary judgment in order to resolve legal disputes, not factual ones.⁶ Id. at 564–65 (“Once a defendant's argument drifts from the purely legal into the factual realm and begins contesting what really happened, our jurisdiction ends and the case should proceed to trial.”).

B

The district court denied Main's motion for summary judgment because it found “a genuine issue of material fact regarding whether Ms. Bomar was sufficiently restrained, and thus, whether Defendant Main's presumed use of force after Ms. Bomar was handcuffed was excessive and requires that he be denied qualified immunity.” The district court specifically pointed to the deposition testimony of Main and other officers at the scene, which suggested that, once Bomar was handcuffed, the situation was under control. On appeal, although Main concedes that he punched and pepper-sprayed Bomar after handcuffing her, he contests the district court's determination that a genuine issue exists as to whether Bomar was under control after being handcuffed and, in doing so, deprives this court of jurisdiction.⁷

Main fights this conclusion with a novel jurisdictional theory. Main latches onto language used in prior decisions of this circuit to argue that this court can review a district court's denial of summary judgment for factual reasons if it considers only the facts alleged by the plaintiffs. Reply Br. at 10–11 (quoting Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.1999) (“[I]n order for an interlocutory appeal to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case.”)). Significantly, Main interprets “the facts as alleged by the plaintiff[s]” to include plaintiffs' deposition testimonies and nothing else. Here, and although he concedes that the officers' testimony indicates otherwise, Main maintains that we may consider only the depositions of Bomar and her children, which he interprets to reveal that Bomar continued to struggle after...