Opinion
Case No. 4:01-CV-115
August 8, 2002
OPINION
This matter is before the Court on Defendants' Motion for Summary Judgment. The Court will grant in part and deny in part Defendants' Motion for Summary Judgment.
I. Facts
On December 6, 1998, Plaintiff was driving with his son on Interstate 94 between 5:00 and 5:30 a.m. (Moore, Jr. Dep. at 10.) At the time, Plaintiff was sixty-five years old, 6'2" tall and weighed 260 pounds, and Plaintiffs son was about 6'4" tall and weighed anywhere from 260 to 280 pounds. (Moore, Jr. Dep. at 33, 34.) After Plaintiffs son indicated he needed to use a restroom, Plaintiff exited the highway and turned onto Westnedge Avenue in Portage. (Moore, Jr. Dep. at 10, 11.) Plaintiff asserts he drove between five and twenty miles per hour while looking for a place to stop. (Moore, Jr. Dep. at 12, 15, 17.) As Plaintiff drove down Westnedge, a City of Portage police officer, initially driving his cruiser in the opposite direction, made a U-turn and began following Plaintiff. (Moore, Jr. Dep. at 15, 16.)
There is no indication in the record of Plaintiffs son's age.
After driving two to three miles down the road, Plaintiff noticed and passed an open shopping center. (Moore, Jr. Dep. at 18.) Plaintiff quickly turned right into a nearby driveway in order to turn around and head back to the store. (Moore, Jr. Dep. at 18.) Prior to the turn, Plaintiff claims he activated his turning signal, which "could not have gone more than once or twice" due to the close proximity of the driveway. (Moore, Jr. Dep. at 18.) The police car followed Plaintiff into the parking lot, where they passed and looked at each other. (Moore, Jr. Dep. at 19.)
Prior to turning back onto Westnedge, the police officer, Officer Scott Motson of the City of Portage Police Department, activated his flashers and Plaintiff stopped his vehicle. (Moore, Jr. Dep. at 19, 20.) Officer Motson claims he stopped Plaintiff because Plaintiff failed to use a turn signal. (Motson Dep. at 13.) Officer Motson asserts he also made the stop because he suspected Plaintiff was intoxicated due to his unusually slow speed and intermittent braking. (Motson Dep. at 11, 12, 18.) Officer Motson remained in his patrol car for some time, so Plaintiff exited his car. (Moore, Jr. Dep. at 21.) When Officer Motson requested Plaintiff get back into his vehicle, Plaintiff asserts he complied. (Moore, Jr. Dep. at 21.)
Officer Motson approached the car window and asked for Plaintiffs driver's license and registration. (Moore, Jr. Dep. at 22.) Plaintiff then explained why he was driving slowly and asked why he was stopped. (Moore, Jr. Dep. at 22.) Officer Motson informed Plaintiff that he made an improper turn, and Plaintiff verbally disagreed. (Moore, Jr. Dep. at 22, 25.) There is no proof that Plaintiff failed to signal other than Officer Motson's account. (McDonnell Dep. at 20.) Officer Motson claims he did not intend to issue Plaintiff a ticket for failure to signal, as he only wanted to investigate whether Plaintiff was a drunk driver. (Motson Dep. at 22.)
Plaintiff is a judge in Wayne County, Michigan in the Third Judicial Circuit Court. (Moore, Jr. Dep. at 24.) Plaintiff produced his circuit court badge that indicated he was a judge, and requested Officer Motson call his supervisor. (Moore, Jr. Dep. at 23.) Plaintiff further requested to continue the investigation at the police station. (Moore, Jr. Dep. at 24.) Plaintiff claims he tends to speak in an elevated voice, as he was at the time of his arrest, but he was not screaming. (Moore, Jr. Dep. at 97.)
After Officer Motson's supervisor, Sergeant Joseph McDonnell, arrived at the scene, Plaintiff conversed with Sergeant McDonnell and did not speak with Officer Motson again. (Moore, Jr. Dep. at 24, 32.) Sergeant McDonnell asked for Plaintiffs driver's license, but Plaintiff refused to produce it. (Moore, Jr. Dep. at 39.) Plaintiff told Sergeant McDonnell he would not surrender his driver's license because he committed no driving infractions and the traffic stop was illegal. (Moore, Jr. Dep. at 28.) Plaintiff showed Sergeant McDonnell his judiciary badge and again requested to go to the police station. (Moore, Jr. Dep. at 29.) Plaintiff explained that he would show the officers anything they wanted to see at the station. (Moore, Jr. Dep. at 38.) Although Sergeant McDonnell does not remember that Plaintiff made this request, he does not deny that it may have happened. (McDonnell Dep. at 18.)
Sergeant McDonnell denied Plaintiffs request to go to the police station. (Moore, Jr. Dep. at 30, 38.) Sergeant McDonnell claims that it is inconsistent with past training and police practice to allow a lawfully stopped, suspected drunk driver to get back behind the wheel without verifying the driver's identification and level of sobriety. (McDonnell Dep. at 18, 19.) Officer Motson admits there were no signs, other than the strange driving observations, indicating possible alcohol use. (Motson Dep. at 39.) Sergeant McDonnell also explained that, if Plaintiff did signal, there was no legal reason to initiate a traffic stop. (McDonnell Dep. at 23.)
Sergeant McDonnell informed Plaintiff he would be arrested for resisting and obstructing if he did not provide his driver's license. (Moore, Jr. Dep. at 39.) Plaintiff was subsequently arrested. (Moore, Jr. Dep. at 39.) Plaintiff was standing outside his car, while his son remained seated inside the vehicle, at the time of the arrest. (Moore, Jr. Dep. at 34.) Plaintiff admits he exited his vehicle without being asked to do so, but claims he was not ordered to get back into his car at any time. (Moore, Jr. Dep. at 34.)
Plaintiff believes about six police cars and possibly six officers were present at the scene. (Moore. Jr. Dep. at 30, 62; Motson Dep. at 28.) Plaintiff claims that Officers Motson, Wolfe, Whisman, Fugate, and Clark, and Sergeant McDonnell used unnecessary force when physically effecting the arrest. (Moore, Jr. Dep. at 39, 64.) Plaintiff contends he was slammed against the hood of the car while the officers placed him in handcuffs "in a kind of rough and tumble way." (Moore, Jr. Dep. at 41, 42, 61.) Plaintiff was placed in two sets of handcuffs "due to his stature." (Wolfe Dep. at 12; McDonnell Dep. at 26, 27.) Although the officers claim Plaintiff physically resisted the arrest, Plaintiff alleges he was merely trying to place his wallet, which he was holding in his hand throughout the incident, back into his pocket. (McDonnell Dep. at 26, 34; Wolfe Dep. at 10; Moore, Jr. Dep. at 42.)
In the process of the arrest, Plaintiff received a cut on his right arm near the wrist and an injured, swollen left knee. (Moore, Jr. Dep. at 43-45.) Plaintiff claims he asked the officers to loosen the "double-cuffs," as they were causing him pain, but no one acknowledged his request. (Moore, Jr. Dep. at 46, 47.) Plaintiff did not seek medical treatment for the injuries. (Moore, Jr. Dep. at 69, 70.)
While enroute to the station, Plaintiff alleges that Officer Motson told another officer over the radio that he smelled "a faint odor." (Moore, Jr. Dep. at 52, 53.) The police audio tape revealed that an officer said "let's take him to the station and we can fuck him." (Moore, Jr. Dep. at 52.) However, the officers claim that these words were spoken in a private conversation and merely indicated the officers' intention to administer a blood test at the police station in response to Plaintiffs lack of cooperation. (McDonnell Dep. at 28, Wolfe Dep. at 14; Motson Dep. at 37, 38.)
Upon arrival at the station, Plaintiff requested to use the restroom and was allowed to remove his handcuffs. (Moore, Jr. Dep. at 55.) Plaintiff submitted to a Preliminary Breath Test, which showed a zero blood alcohol level. (Moore, Jr. Dep. at 69; Motson Dep. at 42; Wolfe Dep. at 15.) The arrest, from the time of the initial stop until the actual detention, took about twenty to twenty-five minutes. (Moore, Jr. Dep. at 51.) A video of part of the incident exists, which was apparently shot from a camera installed in one of the police vehicles. The police camera was not activated by Officer Motson, as the filming appears to be initiated from the second responding officer. (Plaintiffs Response to Defendants' Motion for Summary Judgment, Ex. A.) The filming began after the initial traffic stop. (Plaintiffs Response to Defendants' Motion for Summary Judgment, Ex. A.)
Plaintiff asserts that he and his son are fairly light-skinned, black males. (Moore, Jr. Dep. at 66, 69, 93.) Plaintiff admits that, without close inspection, it would be difficult to determine in the middle of the night that they are black. (Moore, Jr. Dep. at 69.) Although Plaintiff and his son strongly believe the arrest was racially motivated, there were no racial slurs directly spoken by any officer during the arrest. (Moore, Jr. Dep. at 66, 93; Moore III Dep. at 13.) The officers involved claim Plaintiff said, at the time of the initial traffic stop, that he believed he was stopped because he is black. (Motson Dep. at 19; Wolfe Dep. at 7, 10; McDonnell Dep. at 14, 15.) While in the booking room at the police station, Officer Motson claims Plaintiff said something like "you can't be black and be in Portage" or "[Plaintiff] knows how it works out here, where [the Portage police] arrest people because they're black." (Motson Dep. at 40.)
However, Plaintiff denies these accusations and claims the only remarks involving race were spoken at the police station and were not initiated by him. (Moore, Jr. Dep. at 66, 93, 98.) Plaintiff alleges that Sergeant McDonnell generally said, "[y]ou wouldn't have done this to me if I was a black officer in Detroit." (Moore, Jr. Dep. at 57, 58, 66, 94.) Plaintiff further claims he responded by saying "[i]f I was white, you wouldn't have treated me this way." (Moore, Jr. Dep. at 66, 67, 94.) Plaintiff maintains that he would have acted similarly if any police officer, regardless of race, treated him the way the Portage police officers treated him. (Moore, Jr. Dep. at 58.) Plaintiffs son also believes the arrest was racially motivated because the traffic stop was unnecessary and an excessive number of officers physically participated in the arrest. (Moore III. Dep. at 14.)
On December 16, 1999, the Honorable Robert C. Kropf of the 8th District Court in Portage, Michigan dismissed the criminal charge against Plaintiff for resisting and obstructing. (Hearing of Defendants' Motion to Dismiss, Defendants' Motion for Summary Judgment, Ex. C.) The Court found Plaintiff could have been arrested for failing to produce a driver's license, which was an offense with which Plaintiff was not charged. (Defendants' Motion for Summary Judgment, Ex. C.) However, Judge Kropf found Plaintiffs actions did not warrant being arrested for "resisting a police officer." (Defendants' Motion for Summary Judgment, Ex. C.)
II. Standard of Review
Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). It is the function of the Court to decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The question is "whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented." Id. at 252.
Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 255). The facts are to be considered in a light most favorable to the non-moving party, and" . . . all justifiable inferences are to be drawn in his favor." Schaffer v. A. O. Smith Harvestore Prod., Inc., 74 F.3d 722, 727 (6th Cir. 1996) (quoting Anderson, 477 U.S. at 255) (other citations omitted).
The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 322. The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson, 477 U.S. at 248. If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
III. Analysis of Defendants' Motion for Summary Judgment
Warfield Moore III's claims (Plaintiff Warfield Moore, Jr.'s son) have been voluntarily dismissed and are no longer a part of this litigation. In addition, Plaintiff does not oppose the dismissal of the Portage Police Department, as it is not a legal entity. See Michonski v. City of Detroit, 413 N.W.2d 438, 441 (Mich.App. 1987). Furthermore, Plaintiff does not dispute Defendants' Motion to Dismiss with regard to Officer Whisman, Fugate and Clark, as these officers only appeared at the scene and were not involved in Plaintiffs arrest. The remaining defendants are the City of Portage, Sergeant McDonnell, Officer Motson and Officer Wolfe.
A. Constitutional Claims
Plaintiff brings a cause of action against Defendants under 42 U.S.C. § 1983, claiming violation of his constitutional rights which are guaranteed by the Fourth, Fifth and Fourteenth Amendments. The Complaint states, "[t]hese actions of Defendant Officers violated Plaintiffs Constitutional Rights to be free from unlawful siege; to be free from the use of excess force; and in general violated the Fourth, Fifth and Fourteenth Amendment of the United States Constitution." (Second Amended Complaint, at 4.)
1. Fifth and Fourteenth Amendments
The complaint is not explicit regarding the Fifth and Fourteenth Amendment claims. Accordingly, the Court assumes Plaintiff wishes to allege substantive due process and equal protection violations. The Court finds that analysis under the Fifth Amendment is not necessary because: (1) Defendants are state actors and not federal officials; and (2) the Fifth Amendment due process and equal protection guarantees have been incorporated into the Fourteenth Amendment to apply to state actors. Therefore, the Fifth Amendment claim is dismissed.
The Fourteenth Amendment forbids state actors from depriving individuals of life, liberty, or property without due process of law. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972); Joelson v. United States, 86 F.3d 1413, 1420 (6th Cir. 1996). However, if a constitutional claim is covered by a specific constitutional provision, such as the Fourth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process. United States v. Lanier, 520 U.S. 259, 272 (1997). Because Plaintiff only alleges "excessive force" and "illegal seizure" claims, both analyzed under the Fourth Amendment, a substantive due process analysis is not appropriate.
Even if the Court considered the Fourteenth Amendment substantive due process claim, a substantially higher hurdle must be surpassed to make a showing of excessive force under the Fourteenth Amendment than under the objective reasonableness test of the Fourth Amendment. Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001). The Fourth Amendment test establishes that excessive force can be found if the officer's actions, in light of the totality of the circumstances, were not objectively reasonable. Graham v. Conner, 490 U.S. 386, 396-97 (1986); County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). In comparison, when asserting a substantive due process claim under the Fourteenth Amendment, a plaintiff must show the challenged action was so egregious that it was arbitrary in the constitutional sense, meaning that the abuse of power "shocks the conscience." Lewis, 523 U.S. at 846.
Given that this is Defendants' Motion for Summary Judgment, the Court will conduct the constitutional liability analysis pursuant to the Fourth Amendment's less stringent test. Moreover, the Court finds that Plaintiffs allegations cannot rise to the exceedingly high "shock the conscience" standard. Accordingly, the Fourteenth Amendment substantive due process claim is dismissed.
To state a Fourteenth Amendment equal protection violation, a party must claim that the government treated similarly situated persons differently. Silver v. Franklin Township Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992). Although the complaint does not mention the phrase "equal protection," it does state "[d]efendant's actions violate 42 U.S.C. § 1983 in that they discriminated against Plaintiff because of his race." (Second Amended Complaint, at 4.) However, the Court finds that Plaintiff has failed to introduce sufficient allegations and evidence in support of an equal protection claim.
Although the Complaint here refers to defendant in the singular, the Court assumes this was a typographical error and Plaintiff meant to refer to all Defendants.
Plaintiff stated that he and his son have fairly light black skin. Plaintiff admits that, when dark outside, someone passing quickly might not be able to ascertain his race without close inspection. Hence, there is very little evidence that the initial traffic stop was racially motivated, as Defendant Motson was likely unaware of Plaintiffs race. Moreover, Defendants have a plausible and legal explanation for the stop, particularly given Plaintiffs own account. While Plaintiff may strongly and genuinely believe the stop was racially motivated, his belief, under these circumstances, is not enough upon which to proceed to trial.
In addition, there is insufficient evidence showing Plaintiff was arrested or showing that any of Defendants' other actions were based on racial discrimination. Plaintiff does not allege that Defendants made racial comments prior to or during the arrest, nor has he alleged any other evidence which might lead a reasonable jury to infer the arrest was impermissibly motivated by race. The comment allegedly made by Defendant McDonnell, that Plaintiff would not have reacted as he did were Defendant McDonnell a black officer, cannot alone establish a constitutional violation. No reasonable jury could infer a racially-based arrest on that comment alone.
Finally, Plaintiffs allegation that the Portage Police Department employs no African American officers lends insufficient legal support to his argument. In light of the lack of evidence supporting a racial discrimination claim, the Court will grant summary judgment to Defendants on the Fourteenth Amendment equal protection claim.
2. Fourth Amendment
It is clear from the complaint that Plaintiff asserts a violation of his Fourth Amendment rights. The Fourth Amendment guarantees the right of people to be secure against unreasonable searches and seizures. Whren v. United States, 517 U.S. 806, 810 (1996); United States v. Obasa, 15 F.3d 603, 606 (6th Cir. 1994) (emphasis added). In addition, an excessive use of force claim arising out of an arrest must be analyzed under the Fourth Amendment, rather than the Fifth or Fourteenth Amendments. Bass v. Robinson, 167 F.3d 1041, 1045 (6th Cir. 1999).
a. Unreasonable Seizure
An officer may briefly stop a moving vehicle to investigate a reasonable suspicion that its occupants are involved in criminal activity. United States v. Hensley, 469 U.S. 221, 226 (1985). The Supreme Court has also held:
Temporary detention of individuals during the stop of an automobile by the police constitutes a "seizure" of "persons" within the meaning of the Fourth Amendment. An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
Whren, 517 U.S. at 810. Moreover, whether the traffic stop is reasonable does not depend upon the motivation of the officer. Id. at 813. An officer may stop a vehicle for a traffic violation even though his true motivation is to investigate another crime as long as the officer had probable cause to initially stop the vehicle. Id.
The Sixth Circuit has similarly held that a stop is reasonable if there was probable cause, and it is irrelevant what else the officer knew or suspected about the traffic violator at the time of the stop. United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). It is irrelevant whether the stop is sufficiently ordinary or routine according to the general practice of the police department or the particular police officer making the stop. Id. If the officer had probable cause to believe a traffic violation occurred, a reviewing court may not look at the officer's conduct or conversations that occurred before or after the stop to invalidate the stop as pretextual. Id.
Whether the officer had reasonable suspicion during a traffic stop is determined under the "totality of the circumstances" analysis. United States v. Smith, 263 F.3d 571, 588 (6th Cir. 2001); see also United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998), cert. den., 525 U.S. 1123 (1999). The court must determine whether the individual factors, taken as a whole, give rise to reasonable suspicion, even if each individual factor is entirely consistent with innocent behavior when examined separately. Smith, 263 F.3d at 588; see also United States v. Solokow, 490 U.S. 1, 9 (1989). The evidence offered as grounds for reasonable suspicion is to be viewed using a common sense approach, as understood by those in the field of law enforcement. Smith, 263 F.3d at 588; see also United States v. Cortez, 449 U.S. 411, 417-18 (1981).
Although allowing police officers to stop vehicles for petty traffic violations regrettably curtails citizens' Fourth Amendment rights, it is clear that there is sufficient evidence of reasonable suspicion for Plaintiffs stop when the details of the initial traffic stop are examined under the totality of the circumstances analysis. While it is disputed whether Plaintiff failed to use his turn signal, the initial traffic stop was still legal. As previously stated, there is insufficient evidence that the stop involved racial discrimination. Defendant Motson asserts he suspected Plaintiff was a drunk driver. Defendant Motson further testified that drunk drivers are often on the road after leaving a bar or party during the early hours of the morning. Common sense would instruct that this opinion is generally shared by law enforcement officers, as well as the general public, and is legitimately based upon experience.
Although the Constitution prohibits selective enforcement of the law based on considerations such as race, the constitutional basis for objecting to intentionally discriminatory application of the law is the Equal Protection Clause and not the Fourth Amendment. Whren, 517 U.S at 813.
In addition, Plaintiff admits he was driving unusually slow during the early morning. The Sixth Circuit recently adopted a holding of the Third Circuit in Watkins v. City of Southfield, 221 F.3d 883, 888 (6th Cir. 2000.) In the Watkins case, the Sixth Circuit upheld the lower court's finding that an officer's reasonable suspicion of driver intoxication and/or criminal activity can be based on suspiciously slow driving speed and other unusual behavior. Watkins, 221 F.3d at 888-89.
The Third Circuit case, United States v. Rickus, 737 F.2d 360 (3d Cir. 1984), involved defendants who were driving through a closed business district at 3:30 a.m. at a speed of 15-20 miles per hour below the posted speed limit. Rickus, 737 F.2d at 365. The Rickus court found that the vehicle's inordinately slow rate of speed could have legitimately aroused the suspicions of an experienced police officer. Id. (citing United States v. Holland, 510 F.2d 453, 456 (9th Cir. 1975)).
In Watkins, 221 F.3d at 888, the Sixth Circuit quoted with approval the holding of Leaper v. State of Oklahoma, 753 P.2d 914, 915 (Okla.App. 1988) (appellant's driving at an extremely low rate of speed during the early morning hours on residential streets constituted unusual or suspicious behavior which was probable sufficient cause for [the defendant officer] to stop appellant's automobile). The Sixth Circuit also noted the holding in West Virginia v. Stuart, 452 S.E.2d 886 (W.Va. 1994) (officer's stop of vehicle upheld for unusual slow speed in early morning hours based upon this "detection clue" of behavior of drunk drivers), cited in Watkins, 221 F.3d at 888.
While Plaintiff was driving straight ahead in the right lane, Defendant Motson claims Plaintiff was braking intermittently. Plaintiff does not admit or deny this. However, it is not beyond reason to assume Plaintiff could have been applying the brakes while looking for an open business. Application of brakes in this manner could reasonably be seen as erratic driving, which is also justification for initiating a traffic stop. See United States v. Roberts, 986 F.2d 1026, 1030 (6th Cir. 1993); see also United States v. White, 892 F.2d 1044, at *3 (6th Cir. Dec. 29, 1989). The Court finds that Plaintiffs likely intermittent braking, combined with the slow driving speed, could reasonably have been construed as "erratic driving." See Gaddis v. Redford Township, 188 F. Supp.2d 762, 769 (E.D. Mich. 2002). This is true even though there is a perfectly reasonable explanation for this driving.
The Gaddis Court held that the "not terribly agitated" weaving of a vehicle within a lane was enough to constitute reasonable suspicion of drunk driving. Gaddis, 188 F. Supp.2d at 768-69. The Gaddis Court favorably cited Babers v. City of Tallassee, 152 F. Supp.2d 1298, 1305 (M.D. Ala 2001), which held that Plaintiffs erratic braking provided reasonable suspicion to stop the driver for driving under the influence.
Plaintiff contends that, even if the initial traffic stop was supported by reasonable suspicion, his subsequent detention violated the Fourth Amendment. Plaintiff argues that his arrest was not based upon the requisite probable cause. Probable cause generally exists when police have reasonably trustworthy information sufficient to warrant a prudent man in believing that an individual committed or was committing an offense. Gardenshire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000). Probable cause determinations involve an examination of all facts and circumstances within an officer's knowledge at the time of an arrest. Id. If an officer has probable cause to believe that a person has committed even a very minor crime in his presence, he may arrest the offender without violating the Fourth Amendment. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
The problem in this case is that Plaintiff was arrested for resisting an officer, rather than the crime of failing to produce a driver's license. Judge Kropf dismissed the case and stated that:
[T]he defendant could have been arrested for failing to produce a driver's license. If he had resisted by struggling or anything of that sort, presumably he could have been arrested for resisting a police officer. But failing to produce a driver's license, which in and of itself, is a crime, is not resisting a police officer.
(Hearing of Defendants' Motion to Dismiss, Defendants' Motion for Summary Judgment, Ex. C.) Both parties agree that Plaintiff refused to show his driver's license to Defendants upon request. If Plaintiff had been arrested for this misdemeanor, probable cause would clearly exist. But that is not the scenario here.
When a police officer arrests a person for a charge for which there is no probable cause, the existence of probable cause for a related offense excuses the lack of probable cause for the offense charged. Simpson v. White, 52 F.3d 326, 1995 WL 216927 at *5 (6th Cir. April 11, 1995). A police officer need not actually have the specific crime for which probable cause existed in mind at the time of the arrest, so long as the crimes were related in some fashion. Avery v. King, 110 F.3d 12, 14 (6th Cir. 1997).
The Simpson Court took the proposition of law from Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990) (even if there was not probable cause to arrest the plaintiff for the crime charged, proof of probable cause to arrest the plaintiff for a related offense is also a defense). The Simpson Court also quoted Biddle v. Martin, 992 F.2d 673, 676 (7th Cir. 1993) ("While an arresting officer's subjective knowledge of the facts sufficient to constitute probable cause is central to the evaluation of the propriety of an arrest, we do not believe that the officer's view of the legal basis for the arrest is important.").
In general, the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible. Gardenshire, 205 F.3d at 315. As addressed above, the Court must view the evidence in a light most favorable to the Plaintiff. Even when viewed in that light, however, reasonable minds would have to conclude the officers had probable cause because Plaintiff admits to failing to produce a driver's license upon request after a traffic stop.
b. Excessive Use of Force
Plaintiff also claims that Defendants used excessive force during the arrest when they "unnecessarily grabbed and twisted [his] right and left arm behind his back and seriously injured Plaintiffs arm and shoulder and engaged in other unlawful and excess use of force as well." (Second Amended Complaint, at 3.) The Fourth Amendment requires arrests to be conducted in a reasonable manner. Tennessee v. Garner, 471 U.S. 1, 7-8 (1984). The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight. Terry v. Ohio, 392 U.S. 1, 20-22 (1968).
Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. Graham v. Conner, 490 U.S. 386, 396 (1989). 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 tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation. Graham, 490 U.S. at 397. The reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id.
Some injuries incurred during arrest do not rise to the level of a constitutional violation. Collins v. Nagle, 892 F.2d 489, 496 (6th Cir. 1989). Plaintiff arguably did not acquire serious injury from the incident, as he suffered only bruises and did not seek medical assistance. However, lack of serious injury does not necessarily mean that Defendants' actions were reasonable.
The police video does not reveal how many officers effected the arrest, the amount of force used against Plaintiff, or whether Plaintiff was physically resisting. When viewed in a light most favorable to Plaintiff, a reasonable juror could conclude that Defendants exerted unreasonable force during the arrest. Although Plaintiff is considerably large in stature, he was sixty-five years old at the time of the arrest. While one sixty-five year old man can differ in physical capacity from another, Plaintiffs physical abilities are most likely quite different from the abilities of a twenty-five year old man of similar stature.
Plaintiff claims that two or three officers slammed him on the hood of the police car while placing him in handcuffs. Plaintiff alleges that the number of officers involved and the amount of force used was excessive, as Plaintiff was not physically struggling. Plaintiff also claims the two sets of handcuffs used caused unnecessary pain because they were intentionally secured too tight.
The Court finds that a factual question exists as to whether reasonable force was used in effecting Plaintiffs arrest. The questions of whether a reasonable officer could believe Plaintiff was physically struggling, whether the situation warranted participation of more than one officer, and whether the handcuffs were intentionally fastened too tight are properly put to a jury. Accordingly, summary judgment regarding Plaintiffs Fourth Amendment excessive force claim is not appropriate and will not be granted.
3. Municipal Liability
The municipal liability analysis will only address Plaintiffs excessive force claim because it is the only remaining constitutional issue. Plaintiff makes extensive allegations regarding the City of Portage's unconstitutional conduct. Plaintiff claims that the City of Portage's "customs, policies and/or practices, constituting intentional, deliberately indifferent, wilful, wanton, reckless and/or grossly negligent and/or omissions, which resulted in unconstitutional conduct of their agents and employees, result[ed] in a deliberate indifference to the rights of the Plaintiff." (Second Amended Complaint, at 7.)
A municipality may be held liable under § 1983 if the municipality itself caused the constitutional deprivation. Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994) (quoting Monell v. Dept. of Social Services, 436 U.S. 658, 690 (1978)). However, a municipality is not liable under § 1983 for an injury solely inflicted by its employees or agents; the doctrine of respondeat superior is inapplicable. Searcy, 38 F.3d at 286 (quoting Monell, 436 U.S. at 691-95). It is only when the execution of a government policy or custom inflicts the injury that the municipality may be held liable under § 1983. Searcy, 38 F.3d at 286 (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
Liability is not imposed on a municipality unless deliberate action attributable to the municipality itself is the "moving force" behind the plaintiffs deprivation of constitutional rights. Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 400 (1997). The Brown Court further stated:
Proof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.
Id. at 405. The Brown Court went on to find that "where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Id. at 405.
Plaintiff claims that the police department had no official policy against biased stops. However, as stated above, Plaintiff offers insufficient evidence that the stop was based on bias or racial discrimination. Plaintiffs argument that racial bias is present within the City of Portage because all commanding positions within the police department are occupied by Caucasian officers also offers little legal support. The fact that no African American officers are employed in Portage does not create a factual question whether the traffic stop and arrest were motivated by city authorized racial discrimination.
Plaintiff alleges that it is the custom of the police department to perform traffic stops for lesser cause after midnight. This claim was taken from a statement made by Defendant Motson:
[I]t's common to have drunk drivers on the mad, and you tend to look for small violations, which you would not normally pull people over for, as a justification for stopping the vehicle so you can get a better observation of the driver to see if he is under the influence of alcohol or not.
(Motson Dep. at 43-44.) The statement, alone, does not necessarily represent Portage police department policy or custom. Without further agreement by other officers or additional indication that the "policy" is followed by other officers, Defendant Motson's statement can only accurately represent his personal policy. Moreover, even if the Portage police department encouraged this custom, it is not unconstitutional. As discussed above, the decision to stop Plaintiffs vehicle was reasonable because Defendant Motson had probable cause to believe a traffic violation had occurred. The law does not say a police officer may only stop a vehicle for significant traffic violations. So long as an officer has probable cause to execute a traffic stop, it is legal. Whren, 517 U.S. at 810.
Plaintiff also claims that the City of Portage "breached its duty of constitutional care by failing to train the [officers] in the constitutional use of force and siege." (Second Amended Complaint, at 7.) inadequate training of police officers can be characterized as the cause of a constitutional tort if the failure to train amounted to deliberate indifference to the rights of persons with whom the police came into contact. City of Canton, 489 U.S. at 388. The Canton Court stated "[o]nly where a municipality's failure to train its employees in a relevant respect evidences deliberate indifference to the rights of its inhabitants can such a shortcoming be properly thought of as a city's policy or custom that is actionable under § 1983." Id. at 389 (internal quotations omitted).
Plaintiff simply has not offered enough evidence to indicate the City's "deliberate indifference" to his constitutional rights. To elaborate, Plaintiff has failed to show the existence of inadequate training, the existence of police department policy which encouraged or condoned rights violations, or that the City was deliberately indifferent to an obvious need for better training.
The only relevant evidence on which Plaintiff relies are Defendants Motson's and Wolfe's employee evaluations. Defendant Motson' s evaluations indicate he is an "aggressive officer" who produces a large amount of arrests and tickets. Defendant Wolfe's evaluations describe him as being "abrasive to the public" and others. However, the Court finds that these evaluations, in themselves, could merely suggest that the police department closely monitors its employees and identifies their weaknesses in order to improve law enforcement quality. Moreover, having an "aggressive" or "abrasive" officer does not indicate a high likelihood that such an officer will act outside the bounds of the law, such that a reasonable jury could only find a failure to train.
Although the city's failure to punish the officers suggests the municipality's authorization and approval of the officers' actions, this assumption alone does not rise to the level of deliberate indifference. Plaintiff has failed to show that Officers Motson and Wolfe have committed any acts in the past warranting "punishment." The language used in the evaluations is such that it likely only constituted observation or criticism intended to spur improvement. Plaintiff has offered no evidence of Portage discipline policy. Plaintiff has provided no information regarding the methods or extent of training offered by the police department, or lack thereof. Furthermore, Plaintiff has furnished no evidence of Portage police policy that would indicate how officers are trained to execute their duties.
In light of the lack of evidence establishing municipal liability, analysis of Plaintiffs "failure to train" claim needs to go no further. Accordingly, the City of Portage will be granted summary judgment regarding Plaintiffs Fourth Amendment excessive use of force claim.
4. Qualified Immunity
Defendants McDonnell, Motson and Wolfe claim they are entitled to qualified immunity, even if Plaintiffs constitutional rights were violated. Government officials performing discretionary functions generally are granted qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Wilson v. Layne, 526 U.S. 603, 609 (1999). Clearly established for purposes of qualified immunity means the contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right. Id. at 614.
When a motion for summary judgment is brought claiming qualified immunity, a plaintiff must state a claim of the violation of clearly established law and must present evidence sufficient to create a genuine issue as to whether the defendant committed the acts that violated the law. Adams, 31 F.3d at 386. Plaintiffs right to be free from excessive force under the Fourth Amendment was a clearly established right at the time of the arrest in question. See Scott v. Clay County, Tenn., 205 F.3d 867, 881 (6th Cir. 2000.) However, the Court has already determined that the question of whether excessive force was employed against Plaintiff is appropriate for jury deliberation because it depends upon a determination of various witness accounts. In addition, the Sixth Circuit has held that the defense of qualified immunity ordinarily may not be raised against a claim of excessive force. Holt v. Artis, 843 F.2d 242, 246 (6th Cir. 1988); Devine v. Pickering, 959 F.2d 234, at *4 n. 5 (6th Cir. April 8, 1992).
In light of these considerations, the Court will not grant Defendants McDonnell's, Motson's and Wolfe's motion for summary judgment based on the defense of qualified immunity.
B. State Tort Claims
Both parties agree that the City is immune from tort liability, as Plaintiff has not alleged his claims fall within one of the narrow exceptions to governmental immunity. See Wade v. Dept. of Corrections, 483 N.W.2d 26, 28 (Mich. 1992). Therefore, the tort liability analysis will only address claims against Defendants McDonnell, Motson and Wolfe.
1. Intentional Infliction of Emotional Distress
The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Duran v. Detroit News, Inc., 504 N.W.2d 715, 720 (Mich.App. 1993). The Court finds that no rational trier of fact would conclude Plaintiff has proven either "extreme and outrageous conduct" or "severe emotional distress."
Liability for this claim will be found only where the conduct alleged has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Linebaugh v. Sheraton Michigan Corp., 497 N.W.2d 585, 588 (Mich.App. 1993). Plaintiff states in the complaint that Defendants "did falsely, unlawfully and wrongfully arrest and detain Plaintiff, Warfield Moore, Jr. with force and against his will." In light of the discussion above regarding Defendant Motson's reasonable suspicion, the initial decision to execute a traffic stop was not unlawful. As such, Plaintiff must show extreme and outrageous conduct occurred during Plaintiffs initial encounter with Defendant Motson or thereafter.
In Michigan, the failure to produce a driver's license upon request by a police officer is a misdemeanor. People v. Boykin, 188 N.W.2d 100, 101 (Mich.App. 1971); see also Mich. Comp. Laws § 257.311 (2001). Although Plaintiff was not charged with this crime, he has testified that he repeatedly refused the officers' requests for his driver's license. Michigan law suggests that the failure to produce proper identification can increase an officer's suspicion of criminal activity and justify continued detention. See People v. Burrell, 339 N.W.2d 403, 456-59 (Mich. 1983); People v. Mackey, 1998 WL 1991259, at *1 (Mich.App. June 16, 1998.)
Plaintiff was not intoxicated. He contends that the arrest was racially motivated, as he committed no crime. The violation of Plaintiffs constitutional rights as to his excessive force claim is still at issue. However, despite the factual controversies and possible constitutional violations, the officers' conduct does not rise to the level of outrageous in light of Plaintiffs admitted actions and the undisputed facts. Therefore, the Court finds that no reasonable juror could classify the officers' conduct as extreme and utterly intolerable in a civilized society.
Even if Plaintiffs subsequent detention was unlawful, Plaintiff has still failed to prove he suffered severe emotional distress. Michigan courts have held that:
[Emotional distress] includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.
Roberts v. Auto-Owners Ins. Co., 374 N.W.2d 905, 911 (Mich. 1985); see also Restatement Torts, 2d § 46, comment j, at 77. The intensity and the duration of the distress are factors to be considered in determining its severity. Dickerson v. Nichols, 409 N.W.2d 741, 743 (Mich.App. 1987).
Plaintiff states in his complaint that he was "disgraced and humiliated and injured in his good name and reputation which cause[d] [him] undue emotional distress." In addition, the complaint states that "[t]he arrest and incarceration of the Plaintiff, Warfield Moore, Jr. caused him damage in that the psychological trauma and the stress of his defense to the charge of resisting and obstructing a police officer before the exoneration resulted in, among other things, sleepless nights, shortness of temper, anxiety, induced depression, in addition to such damage as would ordinarily accrue from intentional infliction of emotional distress." The Court finds that the Plaintiffs alleged mental ailments, while not pleasant and certainly understandable, could not be found by any reasonable jury as "so severe that no reasonable man could be expected to endure" them. As stated above, without a showing of extreme intensity or duration, Plaintiffs humiliation, anger and worry do not rise to the level of severe emotional distress.
Further, Plaintiff was officially exonerated in state court and has not offered proof demonstrating any persisting damage to his reputation or physical self. Therefore, the Court finds that no reasonable juror could conclude that Plaintiff has suffered severe emotional distress. Accordingly, Defendants will be granted summary judgment on the Intentional Infliction of Emotional Distress claim.
2. Malicious Prosecution
To sustain a successful malicious prosecution tort claim, a plaintiff must prove four elements: (1) the institution or continuation of judicial proceedings by or at the insistence of the defendant; (2) a termination of the proceedings in the plaintiffs favor; (3) malice on the part of the defendant; and (4) lack of probable cause for the prior proceedings. Rivers v. Ex-Cell-O-Corp., 300 N.W.2d 420, 424 (Mich.App. 1980); Diminnie v. United States, 522 F. Supp. 1192, 1194 (E.D. Mich. 1981). The only elements of malicious prosecution at issue are the existence of malice and probable cause, as Defendants instigated the prior criminal proceeding that was decided in Plaintiffs favor.
Plaintiff has the burden of proving that probable cause to institute the prior suit did not exist. See Pauley v. Hall, 335 N.W.2d 197, 201 (Mich.App. 1983). Want of probable cause is a question of law to be determined by the court. Matthews v. Blue Cross Blue Shield of Mich., 572 N.W.2d 603, 611 (Mich. 1998). However, when the facts on which the issue turns are in dispute, the question is for the jury. Id. The court determines whether those facts constitute probable cause. Id. In Michigan, to constitute probable cause, there must be reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged. Abdul-Mujeeb v. Sears Roebuck Co., Inc., 397 N.W.2d 193, 196 (Mich.App. 1986).
It has already been decided that, for purposes of the Fourth Amendment, Defendants had probable cause to believe Plaintiff committed a crime. However, probable cause for purposes of this malicious prosecution tort claim must go one step further to analyze whether Defendants believed Plaintiff was guilty of the offense charged. See Abdul-Mujeeb, 397 N.W.2d at 196. Therefore, the element of malice plays a crucial role in the malicious prosecution analysis. Although lack of probable cause may not be inferred from malice, malice may be inferred from lack of probable cause. Pauley v. Hall, 335 N.W.2d 197, 202 (Mich.App. 1983).
Plaintiff alleges that the prosecution against him was initiated and continued without probable cause because Defendants made false statements as to circumstances of the arrest. Defendant Motson alleges he suspected Plaintiff was a drunk driver prior to the traffic stop. Defendants claim Plaintiffs non-cooperation regarding production of a driver's license, combined with his elevated voice, aggravated body language, and his son's need to use a restroom, increased suspicion of intoxication. However, Defendants Motson and McDonnell testified they did not smell alcohol on Plaintiffs breath during the traffic stop and Plaintiff claims he was simply speaking loudly. Defendants contend that Plaintiff physically resisted the officers while being placed in handcuffs. However, Plaintiff claims he did not physically resist the arrest, as he was simply trying to put his wallet back into his pocket while Defendants placed him in handcuffs.
It is well-settled that one who makes full and fair disclosure to the prosecutor is not subject to an action for malicious prosecution. Payton v. City of Detroit, 536 N.W.2d 233, 242 (Mich.App. 1995). A person is liable under Michigan law for malicious prosecution when he or she makes false statements to prosecuting officials or willfully conceals facts from them. Id.; Ahlers v. Schebil, 966 F. Supp. 518, 536 (E.D. Mich. 1997). In addition, the jury determines whether the defendants acted primarily for a purpose other than bringing an offender to justice. Matthews, 572 N.W.2d at 612; see also 3 Restatement Torts 2d § 673, at 448-49.
The question at hand is whether there is evidence in the record which would give rise to the inference that Defendants knowingly included false facts in their incident reports or depositions, without which the prosecutor could not have concluded there was probable cause. Upon analysis, the Court finds that questions of fact remain as to whether Defendants' version of the arrest is true, and if not, whether the untrue or exaggerated statements were maliciously motivated. In light of this finding, as well as controlling Michigan law, the Court concludes that summary judgment regarding the malicious prosecution claim is unwarranted at this time.
3. State Governmental Immunity for Tort Claims
It is recognized that actions by police officers which might normally constitute intentional torts are protected by governmental immunity if those actions are justified. King v. Arbic, 406 N.W.2d 852, 857 (Mich.App. 1987). However, certain intentional acts, where the activity is either not authorized by law or is violative of the state constitution, are not protected by government immunity. Armstead v. Jackson, 473 N.W.2d 69, 70 (Mich. 1991). More specifically, with the exception of intentional torts, an officer is immune from tort liability while in the course of employment if: (1) the officer is acting or reasonably believes he/she is acting within the scope of his or her authority, (2) his or her governmental agency is engaged in the exercise or discharge of a governmental function, and (3) the officer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. Darden v. City of Ann Arbor, 2002 WL 410209, at *2 (Mich.App. March 15, 2002); M.C.L. § 691.1407(2). As used in this subsection, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Id.
The only element at issue here is whether the officers' conduct constituted gross negligence. It is the opinion of the Court that, making false statements to create probable cause constitutes conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Because, as previously stated, questions of fact remain as to whether Defendants' or Plaintiff's version of the arrest is true, governmental immunity does not protect Defendants from this malicious prosecution claim. Accordingly, summary judgment is not appropriate.
IV. Conclusion
Therefore, the Court will grant in part and deny in part Defendants' Motion for Summary Judgment. Defendants Whisman, Fugate, Clark and City of Portage Police Department will be dismissed. Plaintiffs Fifth and Fourteenth Amendment claims will also be dismissed. Defendant City of Portage will be granted summary judgment on all claims. Defendants McDonnell, Motson and Wolfe will be granted summary judgment on Plaintiffs Intentional Infliction of Emotional Distress claim.
Defendants McDonnell, Motson and Wolfe are the only remaining defendants. Plaintiffs Fourth Amendment excessive force claim and the malicious prosecution tort claim remain. A Partial Judgment consistent with this Opinion will be entered.