UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
MICHIGAN, SOUTHERN DIVISION
DINA JOHNSON, as Next Friend
of HOLLIS DeANGELO SMITH, III,
Plaintiff,
vs.
CITY OF LINCOLN PARK, et
al., Defendants.
434 F. Supp. 2d 467; 2006
U.S. Dist. Lexis 37593
June 8, 2006, Decided
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
At a session of said Court, held in the U.S. Courthouse,
Detroit, Michigan on June 8, 2006
PRESENT: Honorable Gerald E. Rosen United States District Judge
I. INTRODUCTION
This Section 1983 police excessive force case is presently
before the Court on the Motion of the City of Lincoln Park and four Lincoln
Park Police Officers, Paul Cochran, Michael Kroll, Robert McFarland and Adam
Ruffner. n1 Plaintiff has [*469] responded to Defendants' Motion and Defendants
have replied. Having reviewed and considered the parties' briefs and supporting
evidence, and having discussed this matter with counsel for the parties on June
1, 2006, the Court determined that oral argument is not necessary. Therefore,
pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), this matter will
be decided on the briefs. This Opinion and Order sets forth the Court's ruling.
II. PERTINENT FACTS
This case arises out of events that occurred at Lincoln Park
High School on November 18, 2004. In November 2004, Plaintiff Hollis DeAngelo
Smith ("Smith") was 14 years old and a ninth grader at Lincoln Park
High School. Smith had a history of disruptive and violent behavior throughout
his educational career n2 and had been classified when he was in Middle School
as "emotionally impaired" or "EI." He was, accordingly,
serviced by the Lincoln Park Public Schools Department of Special Education.
(See Defendants' Ex. 4(d).) Pursuant to the IEP conducted at the end of his
eighth grade, Smith was placed in general education classes at Lincoln Park
High School and received Resource Room support services. Id.
On November 18, 2004, Smith brought a Nintendo Gameboy hand-held
video game to school. Smith admitted in his deposition that he knew that
Gameboys were not permitted in school. (Smith Dep., p. 25.) When his science
teacher, Mr. Seluck, discovered that Smith had the Gameboy, he told Smith to
surrender the game to him. Id. p. 29. When Smith refused to do so, Mr. Seluck
sent him to the Assistant Principal's office. Id. pp. 25-27.
Assistant Principal Larry Phillips directed Smith to turn over
the Gameboy to him and told him that he could have it back at the end of the
day. Smith refused to relinquish the game. n3 Mr. Phillips then tried to reach
Smith's mother by phone. (He testified that he had hoped that Smith's mother
could reason with her son and if not, he intended to tell the mother to come to
the school and take her son home for the day.) Ms. Johnson, however, did not
answer her phone. n4 Phillips, therefore, repeated his request to Smith to
surrender his Gameboy. Smith again refused. Phillips repeated the directive to
surrender the Gameboy three or four more times. Each time, Smith loudly refused
to do so. Finally, Mr. Phillips called Paul Cochran, the liaison officer
assigned to the high school by the Lincoln Park Police Department, to come to
the office to assist him.
Cochran, who was dressed in plain clothes, came to the office.
After being informed by Mr. Phillips as to the nature of the problem, Officer
Cochran requested Hollis Smith to turn the Gameboy over to Mr. Phillips. Hollis
again refused, this time even more loudly and more forcefully than when he
spoke to Mr. Phillips. Officer Cochran asked Smith at least three [*470] times
to turn over the Gameboy and each time Smith refused.
At this point, Officer Cochran told Smith that he would have to
search him. n5 According to Mr. Phillips, Cochran told Smith that he was going
to give him until the count of five to decide whether he wanted Cochran to
search his pockets. See Phillips Dep., p. 41.) Cochran stood in front of Smith,
counted to five and then said, "Hollis, are you going to hand over what
you have?" Id. Hollis again said no, this time "more cocky" and
"more forcefully," at which point, Officer Cochran assisted Smith to
stand up, turned him around, and had Smith put his hands upon the office
window-wall. Id. When Smith was about
to be patted down, Smith took a swing at Officer Cochran. Id. at 45. See also
Smith Dep., p.38. n6 Officer Cochran was able to block the swing and took Smith
to the ground. Id. Smith continued to struggle and kick. Id. See also Cochran
Affidavit, Defendants' Ex. B, P 14. As Cochran was attempting to gain control
over Smith, Smith bit him -- twice on his left wrist and once on his left
forearm. Id., P 15. See also, Smith Dep. p. 40. n7 At that point, Officer
Cochran requested that the school secretary call the Lincoln Park Police
Department for additional assistance. Id. P 16.
Officers Michael Kroll, Robert McFarland and Adam Ruffner
responded to the call. After the officers arrived on the scene, Officer Cochran
was able to handcuff Hollis Smith, and once he was handcuffed, Cochran assisted
Hollis to his feet and again attempted to check his coat pocket. Id. at P 21.
At this point, Smith again became violent and attempted to head but Cochran.
Id. at P 22. Cochran, therefore, again took Smith to the ground. Id. at P 23.
Smith's continued kicking and thrashing caused Officer McFarland to threaten to
use his taser on Smith. Id. at P 24. See also McFarland Dep., Plaintiff's Ex.
B, pp. 22-23. McFarland testified:
I said this is a Taser, it
has 50,000 volts of electricity that runs through it and if I touch you with
it, you're going to get an electrical shock. You need to calm down, let us do
what we have to do and we'll get out of here. If you don't calm down, I'm going
to tase you and at that point, I did a try fire which shows the electrical
charge and I shut it off as soon as the charge went through. And [Smith] said
okay. We go back to try to lift him up and as soon as we lifted him up, he
started thrashing about again and I said Paul, just step back, I'm going to
tase him.
Id.
McFarland testified that he gave Smith one more warning to stop
fighting, and when Smith did not heed the warning, McFarland tased him lightly
on his lower back area.
McFarland explained that with a "dry stun" it depends
on how much clothing the person has on and amount of force used in applying the
stun. He had decided just to give Smith a light application so he would get the
feeling of it and hoped that that would be enough to get Smith to calm down.
However, because Smith had a jacket on and another shirt underneath, Smith had
no reaction to the stun. Id. at p. 25. Instead, he continued to struggle [*471]
and thrash and kick, so Officer Cochran again took Smith to the ground. Id. at
p. 27. As Smith continued to struggle with Officer Cochran, McFarland made the
decision to tase him a second time. This time, Officer McFarland applied the
taser to Smith's bare skin on his lower torso which had become exposed when his
shirt came loose from his pants as he struggled. Id. at 28. Finally, Smith
stopped struggling. Officer McFarland testified that Smith did not scream or
yell, "never made a sound of ouch, never verbalized anything. He just
stopped [struggling]." Id. n8
Smith admitted that the only injuries he suffered as a result of
his struggle with Officer Cochran was a rug burn on his forehead and a small
mark on his back where he was tased. He did not seek medical treatment for
either injury and has no lasting scars. Smith further admitted that neither of
the other two officers who came to the school with Officer McFarland, i.e.,
Officers Kroll and Ruffner, ever touched him. See Smith Dep., p. 58.
Smith was then taken into custody. He was transported to the
Lincoln Park Police Department where he sat in a room for about 30 minutes
until his mother arrived. Smith admitted that no one touched him while he was
at the police station. Id. at p. 59.
Smith was ultimately charged in the Wayne County Juvenile Court
with Assaulting a Police Officer and Resisting Arrest. n9 He was also suspended
from school for 10 days. Smith admitted in his deposition that if he had agreed
to voluntarily relinquish the Gameboy when Assistant Principal Phillips first
made the request, none of the events of November 18, 2004 would have occurred.
See Smith Dep., p. 62.
On March 15, 2005, Dina Johnson, Hollis Smith's mother, filed a
Complaint on behalf of her son in Wayne County Circuit Court against the
Lincoln Park Public Schools, Assistant Principal Phillips, the City of Lincoln
Park, and Lincoln Park Police Officers Cochran, McFarland, Kroll and Ruffner.
Defendants timely removed the action to this Court on federal question grounds
under 42 U.S.C. § 1983. In his Complaint, Plaintiff alleges a Section 1983
claim of violation of his federal constitutional rights under the First, Second,
Fourth, Fifth, Eighth and Fourteenth Amendments; a claim of violation of the
Michigan Constitution; state law common law claims of assault and battery,
false arrest and imprisonment, malicious prosecution, intentional infliction of
emotional distress, defamation, and a claim captioned "violation of
ministerial duties."
As noted above, on April 12, 2006, by stipulation of the
parties, all claims against the Lincoln Park Public Schools and Assistant
Principal Phillips were dismissed, with prejudice. Additionally, Plaintiff has
stipulated in his Response Brief to the dismissal of his claims under the First,
Second, Fifth, Eighth and Fourteenth Amendments as well as his claims of
violation of the Michigan Constitution. See Plaintiff's Response Brief, pp.
11-12, 16. Therefore, the only claims remaining for adjudication are
Plaintiff's Section 1983 claim for violation of his Fourth Amendment rights and
his state law claims of assault and battery, false arrest/false imprisonment,
malicious prosecution, intentional infliction of emotional distress,
defamation, and "violation of ministerial duties" [*472] against the
City of Lincoln Park and Lincoln Park Police Officers Cochran, McFarland, Kroll
and Ruffner. These Defendants now seek entry of summary judgment in their favor
on all of Plaintiff's claims.
III. DISCUSSION
A. STANDARDS APPLICABLE TO
MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is proper "'if the pleadings,
depositions, answer to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of
law.'" Fed. R. Civ. P. 56(c).
Three 1986 Supreme Court cases -- Matsushita Electrical
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986) -- ushered in a "new era" in the
standards of review for a summary judgment motion. These cases, in the
aggregate, lowered the movant's burden on
a summary judgment motion. n10 According to the Celotex Court,
In our view, the plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party
will bear the burden of proof.
Celotex, 477 U.S. at 322.
After reviewing the above trilogy, the Sixth Circuit established
a series of principles to be applied to motions for summary judgment. They are
summarized as follows:
* The movant must meet the initial burden of showing "the
absence of a genuine issue of material fact" as to an essential element of
the non-movant's case. This burden may be met by pointing out to the court that
the respondent, having had sufficient opportunity for discovery, has no evidence
to support an essential element of his or her case.
* The respondent cannot rely
on the hope that the trier of fact will disbelieve the movant's denial of a
disputed fact, but must "present affirmative evidence in order to defeat a
properly supported motion for summary judgment."
* The trial court no longer
has the duty to search the entire record to establish that it is bereft of a
genuine issue of material fact.
* The trial court has more
discretion than in the "old era" in evaluating the respondent's
evidence. The respondent must "do more than simply show that there is some
metaphysical doubt as to the material facts." Further, "where the
record taken as a whole could not lead a rational trier of fact to find"
for the respondent, the motion should be granted. The trial court has at least
some discretion to determine whether the respondent's claim is plausible.
Betkerur v. Aultman Hospital Association, 78 F.3d 1079, 1087 (6th
Cir. 1996). See also, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80
[*473] (6th Cir. 1989). The Court will apply the foregoing standards in
deciding Defendant's Motion for Summary Judgment in this case.
II. PLAINTIFF'S
CONSTITUTIONAL RIGHTS WERE NOT VIOLATED
Plaintiff Smith makes three claims of violation of his Fourth
Amendment rights. First, he claims that there was no justification for Officer
Cochran to conduct a search of his person. Next, Plaintiff contends that his
arrest was unreasonable and without probable cause. Third, Plaintiff argues
that he was subjected to excessive force by Officer Cochran. The Court will
address each of these claims seriatim.
A. QUALIFIED IMMUNITY
PROTECTS DEFENDANT COCHRAN FROM SUIT BASED UPON THE SEARCH OF PLAINTIFF'S
PERSON
Qualified immunity shields public officials who perform
discretionary functions from the necessity of defending against tort liability
so long as their conduct does not violate clearly established rights of which a
reasonable official would have known. See Fisher v. Harden, 398 F.3d 837, 842
(6th Cir. 2005), cert. denied, 126 S. Ct. 828, 163 L. Ed. 2d 706 (2005). The
doctrine is designed to "avoid excessive disruption of government and
permit the resolution of many insubstantial claims on summary judgment." Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). It
protects "all but the plainly incompetent or those who knowingly violate
the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed.
2d 271 (1986). Qualified immunity is an affirmative defense; once asserted, the
"burden of proof is on the plaintiff to show that the defendants [are] not
entitled to qualified immunity." Armstrong v. City of Melvindale, 432 F.3d
695 (6th Cir. 2006) (citing Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.
2002)).
Whether qualified immunity applies turns on the "objective
legal reasonableness" of the official's action, viewed on a fact-specific,
case-by-case basis. Id. (citing O'Brien v. City of Grand Rapids, 23 F.3d 990,
999 (6th Cir. 1994)). To analyze claims of qualified immunity, the court uses a
two-part test "(1) whether, considering the allegations in a light most
favorable to the party injured, a constitutional right has been violated, and
(2) whether that right was clearly established." Estate of Carter v. City
of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533
U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). n11 "The
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). If the
controlling law is not clearly established, an official cannot be liable,
because "a reasonable person would not be expected [*474] to know how to
structure his conduct to avoid liability." Mendoza v. Block, 27 F.3d 1357,
1361 (9th Cir. 1994).
In determining whether the facts demonstrate a constitutional
violation, the Court's first task is to determine what Fourth Amendment
standard governs Officer Cochran's conduct.
The Fourth Amendment protects "the rights of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls,
536 U.S. 822, 828, 122 S. Ct. 2559, 2564, 153 L. Ed. 2d 735 (2002) (internal
quotations omitted). As a general rule, the reasonableness requirement of the Fourth
Amendment obligates law enforcement officials to obtain a judicial warrant,
issued only on a showing of probable cause, before conducting a search. Skinner
v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S. Ct. 1402, 103 L. Ed.
2d 639 (1989). Even in those situations were the Court has found it permissible
for officers to conduct a search without a warrant, an officer may, as a
general rule, search an individual only when there is "probable cause to
believe that the person to be searched has violated the law." Id. at 629.
But neither the warrant nor the probable cause requirement is a
constitutional prerequisite to a valid search when the government has
"special needs" beyond normal law enforcement that render the
requirements impracticable. Id. at 619. On three separate occasions, the
Supreme Court has recognized that "special needs" exist in the public
school setting, thereby permitting school officials to search a student without
a warrant and without probable cause to believe that the student violated the
law. See Earls, supra, 536 U.S. at 838, 122 S. Ct. at 2569. (upholding the constitutionality of school's
policy to randomly drug test students participating in extracurricular activities);
Vernonia Sc. Dist. 47J v. Acton, 515 U.S. 646, 664-65, 115 S. Ct. 2386, 132 L.
Ed. 2d 564 (1995) (rejecting Fourth Amendment challenge to random drug testing
of student-athletes); New Jersey v. T.L.O., 469 U.S. 325, 340-41, 105 S. Ct.
733, 83 L. Ed. 2d 720 (1985) (concluding that the probable cause and warrant
requirements are unsuited to the public school setting).
These three decisions teach that students retain a privacy interest while at school but explain
that the probable cause and warrant requirements are ill-suited in the school
setting because the requirements would overbear school administrators' and
teachers' ability to maintain order and insure an environment conducive to
learning. The Fourth Amendment's reasonableness inquiry, therefore, must
account for "the schools' custodial and tutelary responsibility" over
the students entrusted to their care. Vernonia, supra, 515 U.S. at 656.
New Jersey v. T.L.O., supra, remains the preeminent Supreme
Court case discussing fourth amendment rights of school students within the
confines of the educational environment and the right of school officials to
search an individual student based on a belief that the student violated a
school rule. In T.L.O., the Court upheld a vice principal's search of a female
student's purse for cigarettes based upon the observations of a teacher. T.L.O.,
469 U.S. at 326-29, 105 S. Ct. at 735-36. In formulating a Fourth Amendment
standard applicable in such circumstances, the Court concluded:
The accommodation of the privacy interests of schoolchildren with
the substantial need of teacher and administrators for freedom to maintain
order in the schools does not require strict adherence to the requirement that
searches be based on probable cause to [*475] believe that the subject of the
search has violated or is violating the law.
469 U.S. at 341, 105 S. Ct.
at 742.
The Supreme Court specifically indicated a certain deference to
the school's interest in an orderly learning environment by adopting a two-part
"reasonableness" inquiry. Id. In such a case, the Court explained
that the lawfulness of the search first depends on whether the official's
search was "justified in its inception." Id. (quoting Terry v. Ohio,
392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). If so, the second
inquiry is whether the search was reasonable in scope. Id. n12
A search is justified at its inception "when there are
reasonable grounds for suspecting that the search will turn up evidence that
the student has violated or is violating either the law or the rules of the
school." T.L.O, 469 U.S. at 341, 105 S. Ct. at 743. A search is reasonable
in its scope "when the measures
adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the nature
of the infraction." Id.
In this case, there is no dispute that Hollis Smith admitted
violating school rule by his possession of the Gameboy in school. Smith
testified that he had the Gameboy in his pocket when he was in the Assistant
Principal's office and when Officer Cochran gave him to the count of five to
turn it over to Mr. Phillips. His admitted violation of school rules and his refusal
to comply with Officer Cochran's directive to turn the Gameboy over justified
the Officer's search of Smith at its inception.
The search was also reasonable in its scope. Officer Cochran
only sought to search Smith's pockets. Due to the nature of item fitting in
Smith's pocket, such a search was not excessively intrusive in light of the age
and sex of the student and the nature of the infraction.
Plaintiff argues that because Defendant Cochran was a police
officer, and not a school administrator or teacher, the more stringent probable
cause standard should apply. While it is true that in T.L.O., the Court did not
address the question of what standard would apply when a search is conducted by
school officials in conjunction with or at the behest of law enforcement
agencies and expressed no opinion on that subject, see 469 U.S. at 341 n. 7,
105 S. Ct. at 744 n. 7, the Sixth
Circuit and other courts that have considered this issue, have found that the
T.L.O. standard is the appropriate standard to apply to school searches done by
police officers, as well as school officials. See e.g. Beard v. Whitmore Lake
School Dist., supra; Tarter v. Raybuck, 742 F.2d 977 (6th Cir. 1984), cert.
denied, 470 U.S. 1051, 84 L. Ed. 2d 814, 105 S. Ct. 1749 (1985); n13 see also, Cason
v. Cook, 810 F.2d 188 (8th Cir. 1987), cert. denied, 482 U.S. 930, 96 L. Ed. 2d
704, 107 S. Ct. 3217 (1987); Wofford v. Evans, 390 F.3d 318, 325-26 [*476] (4th
Cir. 2004); Martens v. District No. 220, 620 F. Supp. 29 (N.D. Ill. 1985).
As the Eighth Circuit reasoned in Cason v. Cook, a case
involving a pat-down search of an individual student by a police officer done
at the request and in the presence of a school administrator after the
administrator questioned the student concerning her suspected involvement in
locker break-ins,
. . . The uncontradicted evidence showed that Ms. Cook, the
school official, conducted the investigation of the thefts that had been
reported to her. Ms. Jones [the police liaison officer]'s involvement was limited
to a pat-down search conducted after a coin purse matching the description of the one stolen was found
and to briefly interviewing [the plaintiff]. . . .
. . . The imposition of a
probable cause warrant requirement based on the limited involvement of Ms.
Jones would not serve the interest of preserving swift and informal
disciplinary procedures in schools. Ms. Jones did not conduct any of the
initial interviews of the students and participated in a pat-down search only
after evidence was discovered. . . .
It is clear that the correct standard to apply under the
circumstances presented in this case is the standard enunciated by the Court in
T.L.O.: Whether the search was reasonable under all of the circumstances.
810 F.2d at 191-92 (emphasis
added).
Based on the foregoing, the Court finds that Hollis Smith's Fourth
Amendment rights were not violated when Officer Cochran conducted a pat-down
search of Smith's person.
Even assuming that the search of Smith's person was arguably
constitutionally impermissible, Officer
Cochran is nevertheless protected from civil liability if his actions did 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). In order for the law to be "clearly established,"
the law must "truly compel (not just suggest or allow or raise a question
about), the conclusion. . . that what the defendant is doing violates federal
law in the circumstances." Beard v. Whitmore Lake School Dist., supra, 402
F.3d at 607 (quoting Saylor v. Bd. of Educ., 118 F.3d 507, 515-16 (6th Cir.
1997) and Lassiter v. Ala. A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1150
(11th Cir. 1994)).
The Supreme Court has instructed that for purposes of the
"clearly established" inquiry, the analysis "must be undertaken
in the specific context of the case, not as a broad general proposition." Brosseau
v. Haugen, 543 U.S. 194, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583 (2004).
Accordingly, cases "cast at a high level of generality," will only be
sufficient to clearly establish the unlawfulness of a defendant's actions where
the conduct at issue is "obviously" a violation based on the prior
cases. Id. This is not such an "obvious" case.
As the Sixth Circuit observed in Beard v. Whitmore Lake School
Dist., supra, although in T.L.O., the Supreme Court set forth a two-pronged,
multi-factor test for school searches that weighs the student's interest in
privacy against the school's interest in maintaining a safe learning
environment, it
did little to explain how
the factors should be applied in the wide variety of factual circumstances
facing school officials today. Accordingly, T.L.O. is useful in "guiding
us in determining the law in many different kinds of circumstances"; but
is not "the kind of clear law" necessary to have clearly established the unlawfulness of the
[defendant's] [*477] actions. . . . In fact, this court has previously
recognized that "the reasonableness standard articulated in New Jersey v.
T.L.O., has left courts later confronted with the issue either reluctant or
unable to define what type of official conduct would be subject to a 42 U.S.C.
§ 1983 case of action." Williams v. Ellington, 936 F.2d 881, 886 (6th Cir.
1991).
402 F.3d at 607-608.
Given the lack of a factual context substantially similar to
this case -- i.e., where a police liaison officer is summoned by a school
administrator to assist in persuading a student to turn over to the school
officials an item that is prohibited by school rule, and conducts a pat down
search of a student to secure the prohibited item -- neither T.L.O, nor
Vernonia, nor Earls, nor any Sixth Circuit case "truly compelled"
Defendant Cochran to realize that he was acting illegally when he attempted to
conduct a search of Plaintiff Smith in this case.
Because the Officer's search of Plaintiff Smith did not violate
clearly established law, Officer Cochran is entitled to qualified immunity.
Defendants' motion for summary judgment on Plaintiff's Section 1983 based on a
constitutionally impermissible search of his person will be granted.
B. DEFENDANTS HAD PROBABLE
CAUSE TO ARREST HOLLIS SMITH
Plaintiff also claims that Defendants violated his Fourth
Amendment right to be free from an unlawful arrest/seizure. The Fourth Amendment requires that probable
cause support an arrest. Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001),
cert. denied, 537 U.S. 819, 154 L. Ed. 2d 26, 123 S. Ct. 95 (2002). Thus,
"for a wrongful arrest claim to succeed under § 1983, a plaintiff must
prove that the police lacked probable cause." Fridley v. Horrighs, 291
F.3d 867, 872 (6th Cir. 2002), cert. denied, 537 U.S. 1191, 154 L. Ed. 2d 1024,
123 S. Ct. 1262 (2003) (citing Painter v. Robertson, 185 F.3d 557, 569 (6th
Cir. 1999). "Probable cause exists where there is a fair probability that
the individual to be arrested has either committed or intends to commit a
crime." Id., 291 F.3d at 872. "Probable cause is assessed from the
perspective of a reasonable officer on the scene rather than the 20/20
hindsight, and thus, probable cause determinations involve an examination of
all facts and circumstances within an officer's knowledge at the time of the
arrest." Klein, supra, 275 F.3d at 550 (citing Kostrzewa v. City of Troy,
247 F.3d 633, 639 (6th cir. 2001)).
Plaintiff in this case was arrested and charged with assaulting
a police officer and resisting arrest. See Defendants' Ex. F. Probable cause
existed to arrest Smith for both of these crimes.
M.C.L. § 750.81(d)(1) provides that an individual who assaults,
batters, wounds, resists, obstructs, opposes, or endangers a person who the
individual knows or has reason to know is performing his or her duties is
guilty of a felony. M.C.L. § 750.81(d)(2) provides that an individual who
assaults, batters, wounds, resists, obstructs, opposes, or endangers a person
who the individual knows or has reason to know is performing his or her legal
duties causing a bodily injury requiring medical attention or medical care
to that person is also guilty of a
felony. As used in § 750.81, "person" means a "police officer of
the state or of a political subdivision of the state." The term
"obstruct" is defined in M.C.L. § 750.81(d)(7)(a) as "the use or
threatened use of physical interference or force or a knowing failure to comply
with a lawful command." In People v. Nichols, 262 Mich. App. 408, 686
N.W.2d 502 (2004) , the Michigan Court of Appeals held that [*478] evidence
that the defendant kicked, bit, pushed and punched police officers during their
attempt to arrest him was sufficient to support a conviction for resisting
arrest under the statute.
Plaintiff Smith admitted in his deposition that he bit Officer
Cochran while Cochran was attempting to subdue him after blocking the punch
that Smith threw at the officer in an attempt to resist the pat-down search.
Cochran's Affidavit testimony and Affidavit exhibits establishes that Cochran
required medical treatment as a result of the bites as well as scratches he
sustained during the encounter with Smith. Hollis Smith further testified at
deposition that he struggled with Officer Cochran throughout this incident.
That testimony is consistent with that of both Officers Cochran and McFarland.
"If an officer had probable cause to believe that an
individual has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender." Atwater
v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549
(2001). The foregoing evidence of Plaintiff's conduct -- which was committed in
Defendants' presence -- establishes that the officers had probable cause to
arrest Plaintiff for violation of M.C.L. § 750.81(d) and, pursuant to Atwater,
no constitutional violation upon for unlawful arrest/seizure occurred.
C. PLAINTIFF HAS FAILED TO
ESTABLISH THE USE OF EXCESSIVE FORCE
Plaintiff also contends that the officers are liable to him for
damages pursuant to § 1983 because he claims the officers used excessive force
in subduing him and effectuating his arrest. The parties are in agreement as to
the force that was actually used in this case: Plaintiff was taken to the floor
in the assistant principal's office twice as he struggled and fought with
Officer Cochran. After he was taken to the floor the second time, and after
ignoring warnings to cease resisting, he was tasered by Officer McFarland. By
his own admission, Plaintiff suffered no injuries as a result of being tasered,
(Plaintiff's own description of the taser was that "it tickled."
Plaintiff's Dep., p. 58), and his only other "injury" was a rug burn
as a result of being taken to the floor. n14
In Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed.
2d 443 (1989), the Supreme Court
established a number of guidelines to be followed by lower courts in evaluating
claims alleging excessive force in the course of an arrest. First, because
these questions involve seizures, the Fourth Amendment
"reasonableness" test is the appropriate standard by which such
claims are to be judged. 109 S. Ct. at 1871. The Court continued:
Determining whether the
force used to effect a particular seizure is "unreasonable" under the
Fourth Amendment requires a careful balancing of "'the nature and quality
of the intrusion on the individual's Fourth Amendment interests'" against
the counterveiling governmental interests at stake. . . . Our Fourth Amendment
jurisprudence has long recognized that the right to make [*479]an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.
109 S. Ct. at 1871-72. The
Court added:
The
"reasonableness" of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. . . . The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-second
judgments - in circumstances that are often tense, uncertain, and rapidly
evolving - about the amount of force that is necessary in a particular
situation.
109 S. Ct. at 1872. See also
Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993); Leber v. Smith,
773 F.2d 101, 105 (6th Cir. 1985) ("The issue we must address, then, is
whether [the police officer's] actions were reasonable under the Fourth
Amendment. . . . considering [all] factual circumstances surrounding the
incident in question . . . .") cert. denied, 475 U.S. 1084, 106 S. Ct.
1466, 89 L. Ed. 2d 722 (1986); Damron v. Pfannes, 785 F. Supp. 644, 647 (E.D.
Mich. 1992).
In Graham, the Supreme Court suggested a number of factors that
a court may consider in evaluating excessive force claims, including "the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.
This list, however, is not exhaustive, as the ultimate question is
"whether the totality of the circumstances justifies a particular sort of
seizure." Id. The Court, however, made clear that "not every push or
shove, even if it may later seem
unnecessary in the peace of the judge's chambers, violates the Fourth Amendment."
Id. As the Sixth Circuit observed in Burchett v. Kiefer, 310 F.3d 937 (6th Cir.
2002), the Fourth Amendment's reasonableness standard "contains a built-in
measure of deference to the officer's on-the-spot judgment about the level of
force necessary in light of the circumstances of the particular case." Id.
at 944.
Finally, as the Graham court explained, the state of mind of the officers at the
time of arrest has no bearing on the reasonableness of their actions at the
time of the arrest and, as such, it is reversible error for a lower court to
inquire into the officers' subjective state of mind in deciding the
reasonableness issue:
We do not agree with the
Court of Appeals' suggestion that the "malicious and sadistic"
inquiry is merely another way of describing conduct that is objectively
unreasonable under the circumstances. Whatever the empirical correlations
between "malicious and sadistic" behavior and objective unreasonableness
may be, the fact remains that the "malicious and sadistic" factor
puts in issue the subjective motivations of the individual officers, which our
prior cases make clear has no bearing on whether a particular seizure is
"unreasonable" under the Fourth Amendment. * * * The Fourth Amendment
inquiry is one of "objective reasonableness" under the circumstances,
and subjective concepts like "malice" and "sadism" have no
proper place in that inquiry.
109 S. Ct. at 1872
(citations omitted). See also, Branham v. City of Dearborn Heights, 830 F.
Supp. 399, 401 (E.D. Mich. 1993).
Applying the foregoing principles to the evidence of record in
this case, there is no genuine issue of material fact whether Defendants used
objectively reasonable force under the circumstances to subdue Plaintiff and
effectuate his arrest. The evidence of record is undisputed -- indeed [*480]
Plaintiff himself admits as much -- he continuously struggled and resisted the
officers and bit Officer Cochran. He admitted that he was warned to stop struggling
but refused to do so. He further acknowledged that if had simply turned over
the Gameboy when Assistant Principal Phillips had demanded it, none of this
would have happened.
Under these circumstances, it is simply impossible to say that
the amount of force employed by Officers Cochran and McFarland was
unreasonable. To the contrary, the Court concludes that the amount of force was
reasonable under the Fourth Amendment.
In sum, the Court finds that Plaintiff's Section 1983 claims
against Officers Cochran, McFarland, Kroll and Ruffner for violation of his Fourth
Amendment rights fail as a matter of law. n15
D. AS THE INDIVIDUAL OFFICERS'
CONDUCT DID NOT VIOLATE
PLAINTIFF'S CONSTITUTIONAL
RIGHTS, PLAINTIFF'S CLAIM OF MUNICIPAL LIABILITY ALSO FAILS
Having concluded that Plaintiff has not established a violation
of his constitutional rights, Plaintiff's municipal liability claim also must
be dismissed. See Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir.
2002). It is well-settled that where a municipality's liability is alleged on
the basis of the unconstitutional actions of its employees, it is necessary to
show that the employees inflicted a constitutional harm. City of Los
Angeles v. Heller, 475 U.S. 796, 799,
[*481] 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (""Neither Monell [v.
Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978)]. . . nor any other of our cases authorizes the
award of damages against a municipal corporation based on the actions of one of
its officers when in fact the jury has concluded that the officer inflicted no
constitutional harm.") Because no such constitutional violation has been
shown, summary judgment will also be granted in favor of the City of Lincoln
Park on Plaintiff's Section 1983 claims.
E. SUMMARY JUDGMENT WILL
ALSO BE GRANTED IN FAVOR OF DEFENDANTS ON PLAINTIFF'S STATE LAW CLAIMS
Plaintiff has also asserted state law claims of assault and
battery, false arrest/false imprisonment, malicious prosecution, intentional
infliction of emotional distress, defamation, and "violation of
ministerial duties."
1. ASSAULT AND BATTERY
To recover for an assault, a plaintiff must show an
"intentional unlawful offer of corporal injury to another person by force,
or force unlawfully directed toward the person of another, under circumstances
which create a well-founded apprehension of imminent contact, coupled with the
apparent present ability to accomplish the contact." VanVorous v.
Burmeister, 262 Mich. App. 467, 482-483, 687 N.W.2d 132 (2004). To recover for battery, a plaintiff must
show a "wilful and harmful or offensive touching of another which results
from an act intended to cause such contact." Id.
However, where
defendants used reasonable force to effect the lawful arrest of the plaintiff,
the plaintiff's assault and battery claims cannot withstand summary judgment. See, Kahlich v. City of Grosse Pointe Farms, 120 Fed. Appx. 580, 586
(6th Cir. 2005) (citing Brewer v. Perrin, 132 Mich. App. 520, 349 N.W.2d 198,
202 (1984)).
As set forth above in the discussion of Plaintiff's Section 1983
claims, Defendants in this case used reasonable force under the circumstances
to subdue Plaintiff and effectuate his arrest. Therefore, the Court will
dismiss Plaintiff's assault and battery claim.
2. FALSE ARREST/FALSE
IMPRISONMENT AND MALICIOUS PROSECUTION
False imprisonment is the "unlawful restraint on a
person's liberty or freedom of movement." Peterson Novelties, Inc. v. City
of Berkley, 259 Mich. App. 1, 17, 672 N.W.2d 351, 352 (2003). False arrest is
an "illegal or unjustified arrest, and the guilt or innocence of the
person arrested is irrelevant." Id. To prevail on a false arrest and/or
false imprisonment claim, the plaintiff must show that the arrest was illegal,
meaning it was not based on probable cause. Peterson, supra, 259 Mich. App. at
18. Lack of probable cause is also a necessary element of a claim of malicious
prosecution. Walsh v. Taylor, 263 Mich. App. 618, 689 N.W.2d 506 (2004); Peterson,
supra. Thus, if the defendants had probable cause to arrest the plaintiff, his
false arrest/false imprisonment and malicious prosecution claims must be
dismissed. See Kahlich, supra, 120 Fed. Appx. at 586; Lewis v. Farmer Jack,
Inc., 415 Mich. 212, 327 N.W.2d 893, 894 (1982).
As set forth above, the defendant-officers in this case had
probable cause to arrest Plaintiff for
assaulting a police officer and resisting arrest. The fact that these charges
were ultimately dismissed is irrelevant. See Peterson, supra. Because there was
probable cause to arrest Plaintiff, [*482] his false arrest/false imprisonment
claim fails as a matter of law.
3. INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
The Michigan Supreme Court has never adopted the tort of
intentional infliction of emotional distress into Michigan jurisprudence. See Smith
v. Calvary Christian Church, 462 Mich. 679, 686 n. 7, 614 N.W.2d 590, 593 n. 7
(2000); Roberts v. Auto Owners Ins. Co., 422 Mich. 594, 602, 374 N.W.2d 905,
907 (1985); Khalifa v. Henry Ford Hospital, 156 Mich. App. 485, 499, 401 N.W.2d
884, 890 (1987); Andrews v. Prudential Securities, Inc., 160 F.3d 304, 309 (6th
Cir.1998). However, the Michigan Court has described the standards that would
have to be met for satisfaction of such a claim:
The cases thus far decided have found liability only where the
defendant's conduct had been extreme and outrageous. It has not been enough
that the defendant acted with an intent which is tortious or even criminal, or
that he had intended to inflict emotional distress, or even that his conduct
has been characterized by "malice", or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. Liability has been
found only where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the
case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, "Outrageous!"
The liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions or other trivialities. The
rough edges of our society are still in need of a good deal of filing down, and
in the meantime, plaintiffs must necessarily be expected and required to be
hardened to a certain amount of rough language, and to occasional acts that are
definitely inconsiderate and unkind. There is no occasion for the law to
intervene in every case where someone's feelings are hurt. There must still be
freedom to express an unflattering opinion, and some safety valve must be left
through which irascible tempers may blow off relatively harmless steam.
Roberts v. Auto Owners,
supra, 422 Mich. at 602-603, quoting Restatement 2d of Torts, § 46, comment d.
Applying these standards in this case, the evidence does not
show that Defendants' conduct was "so outrageous in character, and so
extreme in degree, as to go beyond all bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community" so as to
allow Plaintiff to recover under this theory.
4. DEFAMATION
Plaintiff also claims that Defendants defamed him. That is,
Plaintiff contends that by causing him to be arrested, and communicating that
fact to (unknown) third parties, the Defendants defamed him. This claim fails
as a matter of law. Since probable cause existed to arrest Plaintiff, there
is nothing defamatory about publishing
the fact of his arrest to a third party. Stated differently, there can be no
defamation by stating the truth: Plaintiff was legally arrested. See Rouch v.
Enquirer and News of Battle Creek, 427 Mich. 157, 398 N.W.2d 245 (1986) (truth
is an absolute defense to a claim of defamation).
5. VIOLATION OF MINISTERIAL
DUTIES
Finally, with regard to Plaintiff's claim in Count II
denominated as "violation of ministerial [*483] duties," there is no
such cause of action in Michigan. Indeed, Plaintiff appears to understand this
as he has not briefed or otherwise argued this claim in his Response Brief. Therefore,
this claim will also be dismissed.
CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendants' Motion for Summary
Judgment is GRANTED. Accordingly,
IT IS FURTHER ORDERED that Plaintiff's Complaint be DISMISSED in
its entirety, with prejudice.
Let Judgment be entered accordingly.
s/Gerald E. Rosen
United States District Judge
Dated: June 8, 2006
FOOTNOTES:
n1 The
Lincoln Park Public Schools and Lincoln Park High School Assistant Principal
Larry Phillips were also originally named as defendants in this action.
However, the parties agreed to a settlement and, by stipulation, on April 12,
2006, the claims against these two defendants were dismissed with prejudice and
without costs.
n2 Smith
testified in his deposition that he had been suspended more than 10 times, and
perhaps even more than 20 times "as many arguments and fights as I got
into." See Smith Dep., Defendants' Ex. A, pp. 68, 71.
n3 Smith
testified that he had the Gameboy in his either his jacket or pants pocket.
Smith Dep. pp. 25, 33.
n4 Mr.
Phillips testified that the only contact number the school had for Hollis's
mother was a cell phone and that when he tried to call her, there was no answer
and no voice mail prompt.
n5 The
testimony was uniform that Smith had on a short-waisted jacket with pockets at
the time.
n6 Mr.
Phillips testified that Smith just went off -- "He became like superman. I
have never seen a kid all of a sudden that size (Smith was at the time about
5'6" tall and weighed about 130 pounds) [who] could get that strong."
Id.
n7
Officer Cochran required medical treatment for bites and scratches he received
in the struggle with Smith. See Defendants' Ex. B.
n8 Smith
admitted in his deposition that he was not hurt by the taser, "It
tickled." Smith Dep., p. 58.
n9
According to Plaintiff, none of the complaining parties appeared at the
Juvenile Court hearing and the charges against Smith were dismissed.
n10
Taken together the three cases signal to the lower courts that summary judgment
can be relied upon more so than in the past to weed out frivolous lawsuits and
avoid wasteful trials." 10A C. Wright, A. Miller, M. Kane, Federal
Practice & Procedure, § 2727, at 35 (1996 Supp.).
n11 In
some Sixth Circuit cases, the Court of Appeals occasionally has employed a
three-step qualified immunity analysis, adding a third step to the inquiry "whether the plaintiff has
offered sufficient evidence 'to indicate what the official allegedly did was
objectively unreasonable in light of the clearly established constitutional
rights.'" See e.g., Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901
(6th Cir. 2004), cert. denied, 544 U.S. 975, 125 S. Ct. 1837, 161 L. Ed. 2d 725
(2005); Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003). However, in cases
subsequent to Saucier, the Supreme Court has not formally broken up the two
steps prescribed by Saucier into three steps, see e.g., Brosseau v. Haugen, 543
U.S. 194, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004) ; Groh v. Ramirez, 540 U.S.
551, 563, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) , and since the two-step
approach comports with the Supreme Court's most recent qualified immunity
cases, it is this approach that the Court will apply here.
n12 In
subsequent cases, in the context of suspicionless drug testing, the Court has
employed a three-factor balancing approach to assess the reasonableness of a
school's drug-testing policy that implicates Fourth Amendment concerns. See Vernonia,
supra; Earls, supra. Despite the intervening two cases, T.L.O.'s two-part
inquiry remains the appropriate standard governing the search of an individual
student based on a perceived school rule violation. See Williams by Williams v.
Ellington, 936 F.2d 881, 885-87 (6th Cir. 1991); Beard v. Whitmore Lake School
Dist., 402 F.3d 598 (6th Cir. 2005); Shade v. City of Farmington, 309 F.3d
1054,1059-60 (8th Cir. 2002).
n13
Although Tartar predated T.L.O., the Sixth Circuit applied the same reasonable
cause standard when addressed the question of a search by a police officer at
the behest of a school official. Tartar is cited with approval by the Supreme
Court in T.L.O. T.L.O., 469 U.S. at 332 n. 2, 341 n. 6, 105 S. Ct. at 738-39 n.
2, 743 n. 6.
n14 It
is undisputed that Officers Kroll and Ruffner, the other two officers who
arrived on the scene with Officer McFarland as "backup," had no
physical involvement with Plaintiff. Plaintiff, nonetheless, seeks to hold
these two officers liable for failing to intercede when their colleagues were
depriving him of his Fourth Amendment right to be free from unreasonable and
excessive force. However, as set forth below, the Court finds no merit in
Plaintiff's claim of excessive force. Therefore, there is no legally cognizable
basis for Plaintiff's claim of liability on the part of Officers Kroll and Ruffner
for failure to intervene.
n15 As noted above, Plaintiff settled with
Assistant Principal Phillips and the
Lincoln Park Public Schools and the claims against these defendants were
dismissed, with prejudice, prior to the Court's consideration of the parties'
motions for summary judgment. In the Court's view, the School Defendants'
agreement to settle with the Plaintiff was a wise decision because had the
assistant principal and school system still been parties to this lawsuit at the
summary judgment stage, it would have been highly unlikely that the Court would
have found in their favor, even under the deferential standard established
under T.L.O. and its progeny. The Court believes that this entire incident --
which arose out of Hollis Smith's possession of a "Game Boy" -- could
have easily been avoided had Assistant Principal Phillips not escalated the
incident by inflaming a student known by the school system to have serious
emotional issues and to react angrily and violently when confronted by adult
authority. [See IEP Report, Defendants' Ex. 4(d).] Clearly, had Hollis
possessed a firearm or other weapon -- or anything else which could have posed
imminent harm to Hollis himself or others in the school -- the school
administrators would have been fully justified in taking measures to attempt to
have Hollis immediately surrender the contraband. However, to escalate this
matter over a student's possession of a Game Boy -- with the attendant
potential for danger to Hollis and others -- hardly seems a prudent exercise of
authority or common sense.
As indicated, Hollis was IEP'ed and the
school system was well-aware of his behavioral problems and the appropriate
protocols for dealing with those problems. To the extent that Mr. Phillips did
not know or was not advised of Hollis' condition and his IEP status as
"emotionally impaired," as Mr. Phillips indicated in his deposition
testimony, this is clearly a failure on the part of the school, and one that
could have had very serious repercussions. In the Court's view, those who are
to be involved with student disciplinary matters should be fully informed about
students who the school system itself has specifically designated as meriting
special attention and handling. While the police officers involved could not
have been expected to know of Hollis' special needs or have been required to
tailor their procedures to those particular needs, the school system and its
teachers and administrators certainly knew, or should have known, what was
called for under the circumstances. In this instance, the Court believes that,
inasmuch as T.L.O. calls for a reasonableness assessment under a totality of
the circumstances, the School Defendants acted inappropriately in their
handling of this matter.