Howse v. Hodous

• Decision Date: 18 March 2020
• Docket Number: No. 19-3418,19-3418
• Citation: 953 F.3d 402
• Parties: Shase HOWSE, Plaintiff-Appellant, v. Thomas HODOUS and Brian Middaugh, individually and in their official capacities as employees of the City of Cleveland, Ohio; City of Cleveland, Ohio, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

953 F.3d 402

Shase HOWSE, Plaintiff-Appellant,

v.Thomas HODOUS and Brian Middaugh, individually and in their official capacities as employees of the City of Cleveland, Ohio; City of Cleveland, Ohio, Defendants-Appellees.

No. 19-3418

United States Court of Appeals, Sixth Circuit.

Argued: January 29, 2020

Decided and Filed: March 18, 2020

THAPAR, Circuit Judge.

Shase Howse sued several police officers and the City of Cleveland for alleged violations of the Fourth Amendment. The district court dismissed the suit, concluding that neither the officers nor the City did anything wrong. We affirm.

I.

One summer night in 2016, Howse was walking home from a convenience store. Along the way, Howse says an unidentified Cleveland Police officer approached and asked whether he had any weapons. Howse said no. The John Doe officer then patted him down and searched his pockets. After finding no contraband, the officer told Howse that he could leave.

When Howse got home, he began climbing the steps on his front porch. The parties dispute what happened next.

As Howse tells it, several men (two of whom he later identified as Officers Thomas Hodous and Brian Middaugh) pulled up in an unmarked vehicle. Middaugh asked Howse if he lived at the house. Howse replied that he did. Middaugh asked Howse if he was sure that he lived there. Howse said something like "yes, what the f---" in response. R. 33-1, Pg. ID 810. That prompted Middaugh to comment that Howse had a smart mouth and a bad attitude. Middaugh then got out of the car, walked toward the porch, and asked Howse (yet again) if he was sure that he lived there. Again, Howse responded yes.

Things escalated from there. Middaugh told Howse to put his hands behind his back and that he was going to jail. Howse disobeyed Middaugh’s command to put his hands behind his back. Instead, Howse yelled that he hadn’t done anything wrong and that he lived at the house. Middaugh ran onto the porch, grabbed Howse (who at that point was screaming at the top of his lungs), and threw him down. When Middaugh was on top of him, Howse realized that Middaugh was a police officer. Middaugh, with help from Hodous, then tried to handcuff Howse. But Howse, in his own words, was resisting arrest by screaming and "stiffening up" his body. R. 25-3, Pg. ID 414, 415. Howse says he never tried to hit, push, or fight with the officers. And he claims that he "didn’t do anything that would be considered offensive" to the officers. Id. at 416.

At this point, Howse’s mother (who owned the house) showed up. She had heard some commotion and rushed to the front porch. When she arrived, she saw a "chaotic" scene: a man in dark clothing straddled Howse and another man struck Howse with a closed fist, which caused Howse’s head to strike the porch. R. 29-4, Pg. ID 735. She asked the men (who she later realized were police officers) to stop beating her son—she kept explaining that he lived at the house. After things settled down, the officers put Howse in a police car and took him to jail.

The officers tell a different story. That night, Hodous and Middaugh (along with another officer) were patrolling the area where Howse lived—an area known for violence, drugs, and gang activity. While driving in an unmarked vehicle, they saw Howse lingering suspiciously on the front porch of a house. Howse looked nervous when he saw the unmarked vehicle. Middaugh thought the house was vacant because it appeared to be boarded up and there were bars on the doors.

Based on his training and experience, Middaugh suspected that Howse might be engaged in criminal activity. So Middaugh asked Howse whether he lived there. Howse said he did. Middaugh wanted to investigate more, so he got out of the car, walked toward Howse, and asked him if he was trying to break in. Middaugh doesn’t remember exactly what Howse said in response, but he does remember that Howse said "f---" along with some other words. R. 25-1, Pg. ID 176. (Hodous, for what it’s worth, recalls Howse saying "f--- you" and "leave me the f---alone." R. 25-2, Pg. ID 303.)

When Middaugh reached the front porch, Howse clenched his fists and "squared up" into a fighting stance. R. 25-1, Pg. ID 177. Middaugh, afraid that Howse wanted to fight, told Howse to put his hands in the air. Howse ignored that instruction and instead motioned towards his pockets, which prompted Middaugh to grab Howse’s arm. Hodous joined Middaugh and tried to restrain Howse, who was grabbing at the officers and flailing around. Howse struck Hodous in the chest. Howse also tried to rip off Middaugh’s flashlight and handcuff case. So Middaugh used a leg sweep to take Howse to the ground. Even while on the ground, Howse resisted the officers by burying his hands underneath his chest. The officers eventually handcuffed him and put him in a police vehicle. It wasn’t until Howse’s mother showed up, the officers claim, that they found out that Howse did in fact live at the house.

(While the parties have offered two vastly different accounts of what happened, we must view the facts in the light most favorable to Howse. Bletz v. Gribble , 641 F.3d 743, 757 (6th Cir. 2011). That means we ignore what the officers allege happened to the extent that it conflicts with what Howse alleges happened that night. So while we tell both sides for the sense of completeness, we accept the plaintiff’s version when deciding whether the officers are entitled to qualified immunity.)

Keeping that principle in mind, we can continue with some undisputed facts. After Howse was booked into jail, Middaugh signed a complaint charging Howse with assaulting a police officer. Hodous and Middaugh then wrote up "Use of Force" reports detailing what happened on the front porch. These reports said that Howse resisted arrest and struck the officers. After a few days, Howse posted bond and was released. Later, a grand jury indicted him on two counts of assault along with one count of obstruction of official business. But the State eventually dismissed the charges.

Howse then sued Hodous and Middaugh under 42 U.S.C. § 1983 for violating his Fourth Amendment rights and for committing assault and battery under Ohio law. He also sued the City of Cleveland, claiming that the City was responsible for the Fourth Amendment violations. The district court granted summary judgment for the defendants. This appeal followed.

II.

Howse brought three claims against Hodous and Middaugh: (1) a claim for excessive force under the Fourth Amendment, (2) a claim for malicious prosecution under the Fourth Amendment, and (3) a claim for assault and battery under Ohio law. We address each claim in turn.

Fourth Amendment—Excessive Force . Howse first argues that Hodous and Middaugh violated the Fourth Amendment when they stopped him without reasonable suspicion and used excessive force during his arrest. In response, the officers ask for qualified immunity.

Qualified immunity shields law enforcement officers from civil liability unless the officers (1) violated a statutory or constitutional right and (2) the unlawfulness of their conduct was clearly established at the time. District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018). Howse must show that both prongs are met here. Maben v. Thelen , 887 F.3d 252, 269 (6th Cir. 2018).

We begin our analysis with the second prong—by asking whether the unlawfulness of the officers’ conduct was clearly established at the time they approached and arrested Howse. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). "Clearly established" means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct. Wesby , 138 S. Ct. at 589. That’s a deferential rule. And for good reason: officers often find themselves in positions where they must make split-second decisions in dangerous situations. In those crucial seconds, officers don’t have the time to pull out law books and analyze the fine points of judicial precedent. To avoid "paralysis by analysis," qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law. Rudolph v. Babinec , 939 F.3d 742, 756 (6th Cir. 2019) (Thapar, J., concurring in part and dissenting in part).

With all this in mind, we consider Howse’s claim. Howse argues that the officers violated his clearly established right to be free from "unreasonable government intrusions." Appellant Br. at 18. But that frames the "clearly established" test at too high a level of generality. The law must be specific enough to put a reasonable officer on clear notice that his conduct is unlawful. See Wesby , 138 S. Ct. at 590. The right to be free from "unreasonable government intrusions" is much too vague to do that.

Instead, we must examine the particular situation that Hodous and Middaugh confronted and ask whether the law clearly established that their conduct was unlawful. To answer this question, we must ask whether every reasonable officer would know that law enforcement cannot tackle someone who disobeyed an order and then use additional force if they resist being handcuffed. Importantly, this question asks about the lawfulness of conduct under the Fourth Amendment. And in that context, the Supreme Court has stressed "the need to identify a case where an officer acting under similar circumstances" was found "to have violated the Fourth Amendment." Id. (cleaned up). Without such a case, the plaintiff will almost always lose. See id.

Howse hasn’t identified any case that addresses the conduct at issue here (and we aren’t aware of any either). Instead, Howse cites a single case in support: Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). But that case does him no good. Terry held that a search did not violate the Fourth Amendment because the law enforcement officer reasonably believed that the suspects were engaged in criminal activity and might be armed and dangerous....