Phillips v. Blair, 090319 FED6, 18-4043

Docket Nº:18-4043
Opinion Judge:COOK, Circuit Judge.
Party Name:DALE K. PHILLIPS, II, Plaintiff-Appellee, v. KAREN BLAIR, Individually and in her official capacity as a police officer for the City of Columbus; ADAM GROVES, Individually and in his official capacity as a police officer for the City of Columbus; JEAN BYRNE, Individually and in her official capacity as a police officer for the City of Columbus;...
Judge Panel:BEFORE: COOK, McKEAGUE, and WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
Case Date:September 03, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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DALE K. PHILLIPS, II, Plaintiff-Appellee,

v.

KAREN BLAIR, Individually and in her official capacity as a police officer for the City of Columbus; ADAM GROVES, Individually and in his official capacity as a police officer for the City of Columbus; JEAN BYRNE, Individually and in her official capacity as a police officer for the City of Columbus; DOUGLAS K. MCCLAIN, JR., Individually and in his official capacity as a police officer for the City of Columbus; CHAD CAZAN, Individually and in his official capacity as a police officer for the City of Columbus; LOWELL F. RECTOR, Individually and in his official capacity as a police sergeant for the City of Columbus; CITY OF COLUMBUS, OHIO, Defendants-Appellants.

No. 18-4043

United States Court of Appeals, Sixth Circuit

September 3, 2019

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: COOK, McKEAGUE, and WHITE, Circuit Judges.

COOK, Circuit Judge.

In a classic case of finding oneself in the wrong place at the wrong time, Dale K. Phillips stopped his truck late at night outside a building that police believed three suspects were in the process of burglarizing. After officers responding to the burglary detained Phillips, they forcefully removed him from his vehicle and eventually arrested him for obstructing their investigation. Following his acquittal in a criminal trial on the obstruction charge, Phillips brought this 42 U.S.C. § 1983 action against individual officers and the City of Columbus, alleging state law and First and Fourth Amendment violations. On a motion for partial summary judgment, the district court, save one exception, denied the officers qualified immunity and they now appeal that decision. For the reasons stated below, we REVERSE the district court's denial of qualified immunity on each of Phillips's claims, acknowledging that Officer Groves did not seek immunity with respect to the use-of-mace portion of Phillips's excessive force claim.

I.

At nearly 11:00 p.m. on a late summer night in 2014, a caller reported to a 911 dispatcher that he witnessed three individuals-two white males and one black female-carrying items out of a shuttered bar and loading them into a vehicle. The caller noted that the woman wore an orange head wrap and one of the men wore a gray coat. Cruising less than a block away when she heard the dispatch, Officer Karen Blair responded. Blair testified that she observed Phillips's truck parked outside of the target building when she arrived, but Phillips maintains that his truck was in motion when he first saw Blair, and that the two nearly collided. Both accounts reflect that Blair then exited her police cruiser and approached Phillips's vehicle. Knowing the suspects reportedly loaded items into an unknown vehicle, and noting several general, if imprecise, consistencies between the suspected burglars and Phillips and his female passenger, Blair decided to question Phillips in his truck.

Phillips, himself a former state patrolman, resisted Blair's questioning. He initially avoided handing over his driver's license, surrendering it only after Blair told him about the burglary investigation. Meanwhile, other officers began arriving on the scene. Officer Jean Byrne, the second officer to respond, approached the truck's passenger side, removed Phillips's female rider from the vehicle, and questioned her. Officer Adam Groves arrived next and assisted Blair in coaxing Phillips out of the truck. Around this time, Officers Chad Cazan and Douglas McClain pulled up in a prisoner transport van. As the officers escorted Phillips out of his truck, Groves grabbed Phillips's arm.

The narrative splits here. According to Phillips, Groves pulled on his arm and repeatedly commanded him to stop resisting before a group of officers-despite his attempts to comply- violently took him to the ground, cuffed him, and sprayed mace directly into his eyes. According to the officers, Phillips "tensed up" at Groves's touch, attempted to reenter the truck, and after struggling with the officers for several moments, was subdued using practiced police techniques. All agree that the officers then placed Phillips in a police cruiser to treat his eyes and question him.

After consulting with Sergeant Lowell Rector, who arrived following the scuffle, Blair charged Phillips with obstructing official business, arresting and jailing him for the night. See Columbus City Code § 2321.31. Following a successful appeal from a conviction on the obstruction charge, a second jury acquitted Phillips.

Phillips then brought this 42 U.S.C. § 1983 action against Officers Blair, Byrne, Groves, Cazan, McClain, Rector, and the City of Columbus for Fourth Amendment violations; against Blair, Rector, and the City of Columbus for malicious prosecution; and against Blair for First Amendment retaliation. The officers moved for partial summary judgment, asserting qualified immunity. The district court, except as to the excessive force claim against Byrne and the malicious prosecution claim against the city, denied the motion, and the individual officers filed this interlocutory appeal.

II.

We face the threshold question of our jurisdiction over the officers' interlocutory appeal. The "collateral order" doctrine provides for a public official's immediate appeal of an order denying qualified immunity "based on a pure issue of law." Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006). Excepting Phillips's unreasonable seizure claim, the district court denied qualified immunity on each issue because it found genuine disputes of material fact underlying the legal analysis. We may exercise jurisdiction over an appeal from a denial of qualified immunity even when the district court found genuine disputes "if the defendant does not dispute the facts alleged by the plaintiff for purposes of the appeal." Bishop v. Hackel, 636 F.3d 757, 764 (6th Cir. 2011); see Pollard v. City of Columbus, 780 F.3d 395, 401 (6th Cir. 2015). Because the officers-ostensibly, at least-do not dispute Phillips's factual evidence here, see Appellant Br. at 30, we entertain this appeal, see Pollard, 780 F.3d at 401; Bishop, 636 F.3d at 765; Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc).

III.

We review de novo a district court's denial of qualified immunity. Pollard, 780 F.3d at 402. Qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law," Malley v. Briggs, 475 U.S. 335, 341 (1986), shielding the discretionary actions of government officials so long 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 (1982). The qualified immunity analysis proceeds in two familiar steps, the first asking whether the plaintiff pointed to facts that make out a constitutional violation and the second asking whether existing precedent "clearly established" the right at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Qualified immunity protects an official if the plaintiff fails to satisfy either step. See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir. 2016).

A. Unreasonable seizure

The district court held that, drawing all inferences in favor of Phillips, the officers violated clearly established law by detaining Phillips in connection with the reported burglary and therefore denied them qualified immunity on the unreasonable seizure claim. We see it differently. Finding the officers' actions objectively reasonable, we reverse the district court on this issue and grant the officers qualified immunity.

The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Thus, warrantless seizures fail constitutional muster unless they qualify under one of several well-defined exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). One such exception, an investigatory detention or "Terry stop," allows authorities to detain a suspect when "specific and articulable facts which, taken together with rational inferences from those facts," Terry v. Ohio, 392 U.S. 1, 21 (1968), support a reasonable suspicion that the individual "has been or is about to be involved in criminal activity," United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993). Though more than a "hunch," reasonable suspicion "is considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Hurst, 228 F.3d 751, 757 (6th Cir. 2000). "Reviewing courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective...

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