Thomas v. Plummer
| Decision Date | 17 July 2012 |
| Docket Number | No. 11-3181,No. 11-3165,11-3165,11-3181 |
| Parties | CELESTE THOMAS, Plaintiff-Appellee, v. ANTHONY PLUMMER and JENNIFER MYERS, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0770n.06
On Appeal from the United States
District Court for the Southern
District of Ohio
Before: BOGGS and GRIFFIN, Circuit Judges; and BARZILAY, Judge.*
BOGGS, Circuit Judge. Officers Jennifer Myers and Anthony Plummer appeal an order denying their respective motions for qualified immunity. Each argues that the district court erred by answering "yes" to two questions: (1) did each, or both, of them do something unconstitutional? and (2) would every reasonable officer have understood, on the date of the challenged conduct, that what each, or both, did violated the Constitution? In Officer Myers's case, the district court should have answered "no" to the second question. In Officer Plummer's case, the district court correctly answered "yes" to both. For reasons that we discuss below, we reverse in part, affirm in part, and remand for proceedings consistent with this opinion.
Demetri Washington, driving Celeste Thomas's car, rear-ended a garbage truck on August 23, 2009. Instead of stopping, he drove away.1 Seeing this, Cincinnati Police Officers Stephanie Glueck and Jennifer Myers initiated a traffic stop. Officer Glueck approached the driver's side of Thomas's car; Officer Myers approached the passenger's side. Officer Glueck asked Washington for his driver's license and proof of insurance. Because Washington could produce neither, Officer Glueck ordered him out of the car. Eventually, Officer Myers retrieved an identification card from one of Washington's pockets. Officer Glueck returned to her patrol car to check Washington's records. Officer Myers and Washington stood side-by-side, talking on the sidewalk. Officer Glueck got out of her car, walked to the sidewalk where Officer Myers and Washington were standing, and immediately put Washington in handcuffs. Washington asked what was happening. Officer Glueck told him: "You have a felony warrant, sir."2
Washington vehemently denied having a warrant and started to struggle. The officers attempted to secure Washington, now quite agitated, against the hood of the patrol car. As he shouted: Thomas opened the door of the car. Officers Glueck and Myers immediately yelled: Washington, meanwhile, continued to struggle, attempting to lift himself off of the hood and protesting: 3
At this point, Officer Plummer arrived. He approached Washington and said: "Sir, shut the hell up." Officer Glueck instructed Officer Plummer: "Get her back in that car." Officer Plummer approached the car with his gun drawn and his finger on the trigger. He screamed at Thomas: Thomas responded: "Do you know my dad is a city councilman?" Officer Glueck joined Officer Plummer. Officer Plummer holstered his gun and took out his taser. Both officers repeatedly ordered Thomas to "get down on the ground." Thomas, still standing and facing the officers, put her arms in the air, then held them out to her side. Officer Plummer began to repeat: Thomas asked: Officer Plummer continued: Thomas sank to her knees and held her hands above her head. Officer Plummer screamed: walked behind Thomas, who was still kneeling with her hands above her head, and discharged his taser into her back.
Thomas screamed. She fell forward, sobbing: Officers Plummer, Myers, and Glueck stood over her, yelling: "Put your hands behind your back." The officers handcuffed Thomas who, still crying, said: The officers took her into custody and put her in a police cruiser. After patting Washington down, the officers put him in the back seat of the other patrol car on the scene. Officer Myers then searched Thomas's car and found an open container of alcohol. Officer Plummer cited Thomas for Obstructing Official Business, and Officer Myers cited Thomas for Possession of an Open Flask. The officers also cited Washington for Operating a Vehicle under the Influence of Alcohol or Drugs.
An Ohio court suppressed the container of alcohol that Officer Myers found, and the City dismissed the Possession-of-an-Open-Flask charge. After a bench trial, a Hamilton County Municipal Court judge acquitted Thomas of Obstructing Official Business. The Cincinnati Police Department investigated the incident, found that Officer Plummer violated Department policy, and fired him.
Thomas later filed this action under 42 U.S.C. § 1983, alleging that Officers Plummer and Myers both violated her Fourth Amendment rights, under color of state law.4 Officer Myers, she alleged, violated her right to be free from unreasonable searches and seizures by searching the car after taking her and Washington into custody. Officer Plummer, she claimed, used excessive forcewhen he tased her in the back, as she knelt with her hands above her head. Both Officers moved to dismiss on the basis of qualified immunity.
The district court denied both motions. Officer Myers, the court reasoned, was not entitled to qualified immunity because her search of Thomas's car violated the rule, established in Arizona v. Gant, 556 U.S. 332, 343 (2009), that police may not search a vehicle, incident to arrest, unless either: "the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" or "it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." That rule, the district court held, was clearly established at the time of Thomas's arrest, since the Supreme Court decided Gant "several months before this incident."
The district court also denied Officer Plummer's motion to dismiss. It began: "The Court has little trouble here finding that a hypothetical reasonable officer would have known that tasing a suspect who is on her knees with her hands in the air is objectively unreasonable." "[T]he critical fact," it noted, "is that Plummer waited until Plaintiff had actually complied, until any reason for concern had been eliminated, and she was actually on the ground, hands in the air, before he, in a clearly calculated way, moved to stand behind her and fired his taser in her back." The district court "similarly [had] little trouble finding that Plummer had fair notice that his conduct was unlawful." First, the court reasoned that the Cincinnati Police Department's use-of-force policy, which Officer Plummer violated, should have provided fair warning that his act was unconstitutional. Further, it held, in light of analogous cases dealing with the gratuitous use of other law-enforcement tools, such as batons and pepper spray, "Plummer simply could not reasonably have believed that his use of ataser on a non-resistant subject was lawful." The district court, therefore, also denied Officer Plummer's motion to dismiss. Officers Myers and Plummer appeal.
"Every person who, under color of . . . [state law], subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. "Qualified immunity," however, "shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). This doctrine "balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Qualified immunity is an affirmative defense. Accordingly, the defendant bears the burden of pleading it in the first instance. Lanman v. Hinson, 529 F.3d 673, 683 (6th Cir. 2008); Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002). Once the defendant raises qualified immunity, however, the burden shifts to the plaintiff, who must demonstrate both that the official violated a constitutional or statutory right, and that the right was so clearly established at the time of the alleged violation "that every reasonable official would have understood that what he [was] doing violate[d] that right." al-Kidd, 131 S.Ct. at 2083 (quotation marks omitted). "If the plaintiff fails to carry this burden as to either element of the analysis, qualified immunity applies and the state official is proof against theplaintiff's suit." Cockrell v. City of Cincinnati, No. 10-4605, 2012 WL 573972, at *3 (6th Cir. Feb. 23, 2012).
"When a defendant appeals the denial of a motion to dismiss based on qualified immunity, we...
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