Greene v. Barber

• Decision Date: 08 November 2002
• Docket Number: No. 01-1247.,01-1247.
• Parties: Anthony C. GREENE, Plaintiff-Appellant, v. Jack BARBER, Edward Hillyer, Victor Gillis, William Hegarty, and the City of Grand Rapids, Michigan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

310 F.3d 889 Anthony C. GREENE, Plaintiff-Appellant,
v.
Jack BARBER, Edward Hillyer, Victor Gillis, William Hegarty, and the City of Grand Rapids, Michigan, Defendants-Appellees. No. 01-1247. United States Court of Appeals, Sixth Circuit. Argued: August 1, 2002. Decided and Filed: November 8, 2002.

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Michael O. Nelson (argued and briefed), Grand Rapids, MI, for Plaintiff-Appellant.

Janice F. Bailey (argued and briefed), G. Douglas Walton, Dep. City Attorney, City Attorney's Office for the City of Grand Rapids, Grand Rapids, MI, for Defendants-Appellees.

Before: NELSON, BOGGS, and NORRIS, Circuit Judges.

OPINION

DAVID A. NELSON, Circuit Judge.

This is a civil rights action in which the plaintiff claims that three police officers employed by the City of Grand Rapids, Michigan, arrested him without probable cause and in retaliation for his having insulted one of the officers. He further claims that the officers used excessive force. The district court entered summary judgment in favor of both the officers and the remaining defendants, the Grand Rapids chief of police and the city itself.

We shall affirm the judgment except insofar as qualified immunity for the arrest was granted to the officer at whom the insult was directed. That portion of the judgment will be vacated, and the case will be remanded for further proceedings as to this officer only.

I

On the afternoon of March 12, 1997, the plaintiff — Anthony Greene, a six-foot, 300-pound lawyer — went to the Grand Rapids Police Department to retrieve his automobile after it had been towed from a no-parking zone. The police department is located in the hall of justice, a building that houses, in addition to the police department, several courtrooms, the prosecutor's office, and the city traffic division. An information counter, staffed by interns, is situated in the lobby of the building.

Mr. Greene spoke to an intern named John Lind about fees that were being demanded for the return of the car. Using an "animated expressive voice" rather than his "normal conversation voice," Greene asked Lind why he was being required to pay storage fees for a period before he had received notice that his car was in storage.

Unable to answer the question, Lind directed Greene to his supervisor, Lieutenant Jack Barber. Greene repeated his question to Barber.

The exchange that followed was subsequently described thus by Mr. Greene:

"Well, Lt. Barber became very arrogant, you know, very very arrogant with me, like, look I don't have to answer your questions, this is the way we do it. You don't like it, you know, that's just like too bad. So I responded to him, you know, you're really being [an] asshole. And he took great exception to that.

* * * * * * *

He said to me, `You can't talk to me like that in my building.'

* * * * * * *

I said to him — I responded, I said, `What do you mean I can't talk to you like this in your building.' I said, `This is ...' — this is — `I'm exercising my freedom of speech.' I said, `This is the United States of America and we have freedom of speech here and if you don't like it you should move to another country.'

* * * * * * *

[He answered], `Well, not in my building,' again, very adamantly. `Not in my building,' just like that. And that's

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when I told him, I said, `Well, if that's how you feel you're really stupid.' And that's when he turned to me and said, `You're under arrest.'"

Intern Lind testified that there were approximately 20 to 30 people in the lobby during his discourse with the plaintiff. Lind claimed that by the end of their conversation the bystanders, including those 50 to 60 feet away, had all taken notice of them. He further maintained that the interns answering telephones at the information counter had to place their callers on hold. Mark O'Farrell, another intern, confirmed that the noise was interfering with the operation of the counter.

A third intern, Jenell Strobridge, testified that Mr. Greene could be heard throughout the hall of justice lobby and that Greene engaged the attention of the 25 to 30 people she thought present there. When Mr. Greene called Lieutenant Barber an "asshole," she said, he was not "screaming or anything, but [his voice] was loud enough to attract the attention of other people in the lobby." Based on the record as a whole, and accepting Mr. Greene's testimony as true, it is fair to conclude that Mr. Greene was not speaking sotto voce.

On being told he was under arrest, Mr. Greene demanded to know why. Greene testified that Lt. Barber did not answer, but ordered him to place his hands on the counter. Greene refused and started yelling at this point, telling Barber that there was no basis for the arrest and that it was illegal. He also shouted for Grand Rapids Chief of Police William Hegarty (whom he knew) to stop the arrest.

Officer Edward Hillyer was entering the lobby from an adjacent part of the building when he heard Barber tell Greene he was under arrest. Hillyer undertook to help Barber with the arrest, he explained, because it appeared that Greene was not cooperating. Hillyer caught Greene's arm and attempted to steer him toward the information counter, from which Greene was backing away.

Captain Victor Gillis, whose office was located near the information counter, came out at about the same time. He too heard Lt. Barber tell Mr. Greene he was under arrest, and he too assisted in the effort to restrain Greene.

When one of the officers took his arm, Mr. Greene testified, "things just went ballistic." The upshot was that he was sprayed with oleoresin capsicum (commonly known as pepper spray) while both of his arms were being held by the officers. Blinded by the chemical agent, he began stumbling across the lobby.

It took the police officers several moments to handcuff Mr. Greene, even after he had been sprayed. Chief Hegarty finally appeared on the scene and told Greene, "just cooperate and we'll get through this."

Mr. Greene was charged with creating a disturbance, in violation of Grand Rapids Code Section 9.137, and with hindering and opposing a police officer. A Michigan jury ultimately acquitted him of both charges.

Following his acquittal in state court, Mr. Greene brought the present civil rights action in federal district court. The complaint alleged that he had been subjected to an unreasonable arrest without probable cause and solely in retaliation for exercising his First Amendment right of free speech. The complaint further alleged that he was the victim of excessive force. The district court granted a defense motion for summary judgment, and this appeal followed.

II

A. Standard of Review

Summary judgments are reviewed in this court de novo. See United Nat. Ins.

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Co. v. SST Fitness Corp., 182 F.3d 447, 449 (6th Cir.1999). The Federal Rules of Civil Procedure provide that a motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When deciding if summary judgment is proper, we must view the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Qualified Immunity for the Arrest

Mr. Greene contends that the granting of summary judgment was improper because a reasonable jury could have found that he was arrested without probable cause and as a result of his protected speech. The police officers respond that they were entitled to qualified immunity.

1.

In civil damage actions arising out of government officials' performance of discretionary functions, the officials are generally entitled to qualified immunity from suit "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). To determine if qualified immunity attaches, we employ the sequential analysis prescribed by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First we must determine whether, taken in the light most favorable to the party asserting the injury, the facts alleged are sufficient to make out a violation of the Constitution. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." If, however, "a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id.

The determination as to whether the right was "clearly established" is a determination that "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. In other words, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (citing Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).

A police officer may be entitled to qualified immunity, obviously, even though he has in fact violated the plaintiff's rights; "reasonable mistakes can be made as to the legal constraints on particular police conduct." Saucier, 533 U.S. at 205, 121 S.Ct. 2151. It is sometimes difficult for an officer to determine how the relevant legal doctrine will apply...