Romo v. Largen

• Decision Date: 23 July 2013
• Docket Number: No. 12–1870.,12–1870.
• Citation: 723 F.3d 670
• Parties: Candido ROMO, Plaintiff–Appellee, v. Jeff LARGEN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

723 F.3d 670

Candido ROMO, Plaintiff–Appellee,

v.Jeff LARGEN, Defendant–Appellant.

No. 12–1870.

United States Court of Appeals,Sixth Circuit.

Argued: April 23, 2013.

Decided and Filed: July 23, 2013.

ARGUED:Mary Massaron Ross, Plunkett Cooney, Detroit, Michigan, for Appellant. William F. Piper, William F. Piper, PLC, Portage, Michigan, for Appellee. ON BRIEF:Mary Massaron Ross, Plunkett Cooney, Detroit, Michigan, for Appellant. William F. Piper, William F. Piper, PLC, Portage, Michigan, for Appellee.

Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.

ROGERS, J., delivered the opinion of the court in which, GILMAN, J., joined and SUTTON, J., joined in part. SUTTON, J. (pp. 677–87), delivered a separate opinion concurring in part and in the judgment.

OPINION

ROGERS, Circuit Judge.

Plaintiff Candido Romo was sitting in the driver's seat of a parked car, intoxicated, when he was approached by defendant Officer Jeff Largen. Largen arrested Romo for operating a vehicle while intoxicated, assertedly based on Largen's observation of Romo's having driven the car minutes earlier. Romo contends that he had not been driving. Romo filed a § 1983 suit claiming that Largen violated his constitutional rights and committed several intentional torts. The district court denied Largen's qualified-immunity motion for summary judgment, finding among other things that a jury could disbelieve Largen's claim that he had previously seen a very similar car being driven in violation of traffic laws. Without such prior observation, Largen lacked probable cause to arrest Romo. Because this is an interlocutory appeal, we are bound by the district court's finding that a genuine dispute of material fact existed as to whether Largen had observed such activity, in the absence of objectively incontrovertible evidence that he had. We therefore affirm the district court's denial of qualified immunity on Romo's § 1983 claim. The district court also properly permitted some of Largen's state-law claims to proceed.

On November 6, 2010, Candido Romo was supposed to meet his brother and brother-in-law at a bar. However, because the bar's parking lot was full, he left his vehicle, a silver Dodge Ram pickup, at a restaurant across the street. Romo and his brother-in-law began drinking, while his brother served as the designated driver. They drove in Romo's brother's truck to several bars, and Romo consumed approximately nine beers over the course of the night. At the end of the night, Romo's brother left Romo back at his vehicle. Although it was 35 degrees outside, Romo insisted on spending the night in his truck, instead of staying with his relatives or being driven home, because he was afraid the truck would be vandalized. To ensure that Romo would not drive drunk, his brother took Romo's keys, planning to return them in the morning when the three met up again for breakfast. Romo sat in his truck, leaned on his center console, and fell asleep.

Approximately forty-five minutes later, Romo awoke to a tapping on his window. Because Romo's car had power windows and he did not have the keys, he opened the door to see Officer Jeff Largen standing outside. Largen asked Romo what he was doing, and Romo responded that he was “waiting this out.” Over the next ten minutes, Largen asked Romo about his night, how he was doing, and whether and how much he had been drinking. Finally, Largen asked “do you know why I pulled you over?” Romo responded by stating that the officer did not pull him over because he was not driving. Largen asked Romo if he had passed a semi tanker by the railroad tracks, and Romo responded that he had “been here for a while.” Romo also told Largen that his brother had taken his keys some time before. At this point, Largen activated his microphone and offered to “start this conversation over” because “the more you lie to me, the more you're likely to go to jail.” Largen then continued to accuse Romo of passing a semi tanker at a railroad crossing and Romo repeatedly answered “I don't know what you're talking about.”

After this line of questioning proved unfruitful, Largen asked Romo to step out of the truck and administered sobriety tests. Romo responded by stating again that he was not driving, saying “my keys aren't even in the trunk.” ¹ Largen did not respond to this statement. Largen took Romo through several sobriety tests and, after Romo failed, Largen arrested Romo for operating a vehicle while intoxicated. They then had the following exchange:

ROMO: ... Why'd you pull me over?

OFFICER: For about the fifth time, because you passed that semi when you were in the crossing area.

ROMO: I wasn't driving.

OFFICER: Okay. That's your story, sir. You can keep that story. My story's gonna be something different though, okay?

ROMO: I was sitting back there just relaxing.

After putting Romo in his car, Largen asked if Romo wanted his wallet or his phone from the truck, and Romo declined. Largen then stated: “Okay. Do you have—you don't have the keys on you. Are they in the vehicle?” Romo responded: “Umm, yeah. I've been sitting there for a while.”

As Largen explained why he was arresting Romo, Romo continued to protest his innocence. Largen responded by telling Romo to “[s]ave it for the Judge.” Romo promised to do so and asked Largen, who had been rifling through the car, if he had found the keys. Largen responded that Romo had said that he did not want the car locked, and Romo stated that he had given the keys to his brother over an hour previously. Largen then waved his hand over the car's hood without touching it and said “I'm sure. That's why the engine's still warm to the touch.” Largen then drove Romo to the jail. All charges against Romo were later dismissed.

Largen filed a police report that described the incident. In the police report, Largen claimed to have seen in his rear-view mirror “a tan Dodge Ram pass a semi tanker in the railroad crossing no passing zone.” He stated that he “turned on the truck and then pulled behind it” and that the “truck had pulled into the parking lot behind Big T and stopped.” The police report noted that Romo had denied driving and had stated “I wasn't driving my kids aren't even in the car.” In the police report, Largen claimed that he “placed [his] hand on the hood of the truck and it was warm” although since it was “less than 35 degrees ... the hood would have been cold [had Romo not recently driven the truck.]” Largen would later clarify that he did not follow the Dodge Ram into the Big T parking lot. Instead, he “pulled a U-turn and lost sight of it for a second, couple seconds, whatever.” He then did another U-turn, to face the direction the Dodge was going, but it was nowhere in sight. At that point, he decided that it likely headed west down a different street, and turned down that street. It was only at that point that he saw Romo's vehicle.

Romo filed suit under 42 U.S.C. § 1983 and Michigan law. His complaint included federal claims of false arrest and malicious prosecution. The complaint also stated, without elaboration, that Largen “violated [Romo]'s right to equal protection.” Romo also claimed that Largen committed the intentional torts of false arrest, false imprisonment, and malicious prosecution. Largen claimed qualified and governmental immunity and moved for summary judgment.

The district court determined that there were “at least three basic narratives possible from what's going on here.” The first is that Largen fabricated the background story.

That he never really did see a truck pass a semi on the right over the railroad track no matter what color it was. That he simply happened upon this truck in a parking lot, seen somebody sleeping in there, and then the rest unfolds into the arrest, and that he made up the whole story.

...

In that case, the district court noted that “a reasonable fact-finder could conclude no reasonable officer, mistaken or otherwise, could conclude there's probable cause on that. And that's, I think, on a record like this, enough to send the case to the jury.” The district court later noted that “a jury conceivably could discount” Largen's story.

The second possible narrative is that Largen's story, including the warm hood, is entirely correct. In that case, the district court noted that probable cause may have existed. However “that's not a story [the court] can accept for purposes of evaluating a defense motion for summary judgment.”

The court, like the parties, spent the most time on the third possible narrative. In that version of the story, Largen “ma[d]e up the part about the warm hood and the warm engine, but then he really did see a Dodge truck pull alongside the semi on the railroad tracks, saw it in his rear-view mirror, ... [but] didn't have continuous contact, [and] the colors [of the trucks] were different.” Id. “[E]ven if that's the scenario,” the court determined, “summary judgment would be inappropriate.”

The district court stated that while a jury may “ultimately agree with the officer on the defense theory, ... it's one of those cases that should be the jury's call as opposed to my call” and denied summary judgment on the federal false-arrest claim. The court also denied summary judgment on the state-law claims because they are similar, albeit with a malice requirement that the court determined was fact oriented. Finally, the district court denied summary judgment on the federal malicious-prosecution claim, finding that bond conditions may be enough of an additional deprivation of liberty to fulfill the requirements for that claim.

Largen now appeals. He argues that he is entitled to qualified immunity for his “reasonable but mistaken belief that Romo was driving the pickup truck [he] observed commit a traffic violation.” He also argues that the state-law claims should have been dismissed because he acted in good faith, that the federal malicious-prosecution claim should have been dismissed because the charges against Romo...