Opinion
File No. 1:00-CV-168
February 1, 2001
OPINION
Plaintiff Anthony C. Greene filed this 42 U.S.C. § 1983 civil rights action against the City of Grand Rapids, its police chief, and three of its police officers, alleging that Defendants arrested him without probable cause, solely in retaliation for his exercise of his right to free speech, and used excessive force in the course of that seizure, in violation of rights guaranteed by the First, Fourth and Fourteenth Amendments to the United States Constitution. This matter is before the Court on Defendants' motion for summary judgment.
I.
Plaintiff Anthony Greene is a licensed practicing attorney. (Greene, Tr. at 295). He is six feet tall and weighs nearly 300 pounds. (Greene, Tr. at 306). On February 25, 1997, Plaintiff's automobile was lawfully impounded by the Grand Rapids police because it was parked in a no parking zone. (Greene, Tr. at 303). Plaintiff received written notice of the impoundment on or about March 2, 1997. On March 12, 1997, Plaintiff went to the Grand Rapids Police Department to inquire about his automobile. Plaintiff directed his initial inquiry to police intern John Lind who was stationed at the police department's front desk in the lobby of the Hall of Justice Building. Lind explained that the total charges were $299, including $75 for towing and $16 per day for 14 days for storage fees.
For purposes of this motion the Court has relied primarily on the testimony Plaintiff gave at his criminal trial in the 61st Judicial District Court, City of Grand Rapids v. Greene, Dist. Ct. No. 97-GC-0888, and on the unrebutted testimony of the other witnesses. Where there are factual disputes, they are noted. Citations in this opinion are to the speaker, and the page from the criminal trial transcript, e.g. (Greene, Tr. at 312).
Plaintiff asked Lind why he was being charged for storage for the days before he had notice of the impoundment. When Lind explained he was just doing what he had been instructed to do, Plaintiff asked to speak to someone who would know the answer. (Greene, Tr. at 310). Lind sought the assistance of his supervisor, Defendant Lieutenant Jack Barber.
Plaintiff told Barber that he should not be charged storage for the days before he received written notice of the impoundment. When Barber told him that was just the way things were done, Plaintiff called him an asshole. (Greene, Tr. at 312-13). There is some dispute as to the exact words that were used and how the argument escalated, but there is no dispute that when Barber objected to the manner in which Plaintiff was expressing himself, Plaintiff told him he was exercising his constitutional right to free speech, that if Barber did not like it he should move to another country, and that Barber was stupid. (Greene, Tr. at 311-314). Plaintiff stands alone in his contention that this argument was carried out in a conversational tone of voice. All of the other witnesses to the episode testified that Plaintiff was being extremely loud, and attracting the attention of everyone in the lobby. (Lind, Tr. at 37-38; Strobridge, Tr. at 80; Albert Lemcool, Tr. at 104; Mark O'Farrell, Tr. at 117; Barber, Tr. at 148).
Barber told Plaintiff he was under arrest. (Greene, Tr. at 318). Barber came around the desk, faced Plaintiff, and told him to turn around and put his hands on the front desk counter. (Greene, Tr. at 318). There is no dispute that at this point Plaintiff did begin yelling. Plaintiff refused to turn around. (Greene, Tr. at 319-21). Officer Hillyer and Captain Gillis approached and grabbed Plaintiff's arms. (Greene, Tr. at 321). According to Plaintiff, at this point things just went ballistic. (Greene, Tr. at 321). Plaintiff ignored the officers and continued yelling at Barber. (Greene, Tr. at 320). Barber sprayed him with one shot of pepper spray. (Greene, Tr. at 321). Plaintiff was blinded, and stumbled toward the concession stand. (Greene, Tr. at 321). When the officers brought Plaintiff back toward the counter Plaintiff grabbed onto the counter and refused to be handcuffed. (Greene, Tr. at 322). Plaintiff was yelling for Chief Hegarty at the top of his lungs. (Greene, Tr. at 322).
When Chief Hegarty appeared he told Plaintiff to cooperate. Plaintiff told Chief Hegarty that if he ended it now, he would avoid a lawsuit. (Greene, Tr. at 323).
Plaintiff was brought to the record room. His eyes were burning, he was coughing, and he had trouble breathing. (Greene, Tr. at 323). The officers uncuffed him so that he could remove his contact lenses. (Greene, Tr. at 323). An ambulance was called and Plaintiff was taken to the hospital where he was evaluated and released.
Plaintiff was charged with creating a disturbance and resisting arrest. A jury trial was held in the 61st Judicial District Court on January 6-7, 1999, which resulted in a verdict of not guilty on both counts. Plaintiff filed this action.
II.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If Defendants carry their burden of showing there is an absence of evidence to support a claim then Plaintiff must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).
"On summary judgment, all reasonable inferences drawn from the evidence must be viewed in the light most favorable to the parties opposing the motion." Hanover Ins. Co. v. American Engineering Co., 33 F.3d 727, 730 (6th Cir. 1994) (citing Matsushita, 475 U.S. at 586-88). Nevertheless, the mere existence of a scintilla of evidence in support of Plaintiff's position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for Plaintiff. Id. See generally, Street v. J.C. Bradford Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
III.
The Court turns first to a discussion of the liability of Chief Hegarty. Defendants contend that Chief Hegarty is entitled to dismissal of the claims against him because he played no role in the events giving rise to Plaintiff's complaint.
Plaintiff concedes that the liability of Chief Hegarty cannot be based upon respondeat superior. Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). A supervisor's liability, if any, must be based upon his own personal conduct. Id. Even though an official is not directly involved in alleged unconstitutional acts, the official may be held liable for failure to supervise and control his subordinates if he "either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993) (quoting Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982). See also Rizzo v. Goode, 423 U.S. 362 (1976).
Plaintiff alleges in his First Amended Complaint that Chief Hegarty personally watched the events described in the complaint and declined to order the officers to stop their actions despite pleas from Plaintiff to do so, and that by his presence and acquiescence, Defendant Hegarty supported the violation of Plaintiff's constitutional rights by the other officers. (First Amended Complaint ¶¶ 15, 24-25).
Because Plaintiff's allegations against Chief Hegarty are based upon his acquiescence in the acts of the other officers, for purposes of this summary judgment motion the Court must determine what the record shows Chief Hegarty knew regarding the officers' behavior toward Plaintiff.
Plaintiff testified that he shook hands with Chief Hegarty when he first entered the Hall of Justice Building. The evidence is undisputed that Chief Hegarty did not appear again in the lobby until after Plaintiff had been told he was under arrest, sprayed with pepper spray, and was hanging onto the counter. (Greene, Tr. at 322-23; Strobridge, Tr. at 98; Gillis, Tr. at 183; Hillyer, Tr. at 203). Plaintiff has produced no evidence that Chief Hegarty heard Plaintiff's conversation with Barber, that he witnessed the arrest, or that he witnessed the use of the pepper spray. All he has produced is evidence that Chief Hegarty came upon the scene while the officers were trying to restrain Plaintiff and that he did nothing to stop the officers. (Greene, Tr. at 322).
Chief Hegarty cannot be held personally liable for failing to stop the arrest or for the use of the pepper spray where there is no evidence that he was a witness to those events or that he even had knowledge of those events as they were occurring. Accordingly, summary judgment will be entered in favor of Defendant Chief Hegarty.
IV.
To prevail on his § 1983 claim against the City of Grand Rapids, Plaintiff must show that the City itself caused the constitutional violation at issue. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694-95 (1978). A municipality's liability may be premised on an unconstitutional policy that was the moving force behind the constitutional violation, id., or on a failure to train, where such failure amounts to deliberate indifference to the rights of persons with whom the police come into contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).
Plaintiff's only allegation against the City of Grand Rapids in this case arises from his allegations against Chief Hegarty. Plaintiff alleges that because Defendant Hegarty was chief of police and head policy maker for the Grand Rapids Police Department, his actions are fairly attributable to the City of Grand Rapids. (First Amended Complaint, ¶ 25). Because Plaintiff has failed to make out a case against Chief Hegarty, his claims against the City of Grand Rapids fail as well.
Accordingly, summary judgment will be entered in favor of Defendant City of Grand Rapids.
V.
The Court now turns to Plaintiff's allegations against the remaining defendants, Defendants Barber, Hillyer and Gillis. Plaintiff alleges that Defendants Barber, Hillyer and Gillis violated his constitutional rights by arresting him without probable cause and solely in retaliation for his exercise of his right to free speech, and by using excessive force against him. These Defendants have moved for summary judgment on the basis of qualified immunity.
Under the doctrine of qualified immunity, government officials who perform discretionary functions are generally 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether qualified immunity is applicable to an official's actions is a question of law. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). "The central purpose of affording public officials qualified immunity from suit is to protect them `from undue interference with their duties and from potentially disabling threats of liability.'" Elder v. Holloway, 510 U.S. 510, 514 (1994) (quoting Harlow, 457 U.S. at 806). Because qualified immunity is an immunity from suit rather than a mere defense to liability, it is important to resolve immunity questions at the earliest possible stage in litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991). Claims of qualified immunity are evaluated under a three-part test:
First, we determine whether a constitutional violation occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.) (en banc) (citation omitted), cert. denied, 121 S.Ct. 179 (2000).
Police officers are entitled to qualified immunity unless, "on an objective basis, it is obvious that no reasonably competent officer would have concluded that [the conduct was lawful]; but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "The insulation from federal civil rights litigation bestowed upon state governmental personnel by qualified immunity sweeps broadly, affording them ample room for mistaken judgments' by protecting all but the plainly incompetent or those who knowingly violate the law." Scott v. Clay County, Tenn., 205 F.3d 867, 874 (6th Cir. 2000) (citing Hunter v. Bryant, 502 U.S. 224, 229 (1991); Sova v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998) (internal quotations omitted)). "This accommodation for reasonable error exists because `officials should not err always on the side of caution' because they fear being sued." Hunter, 502 U.S. at 229 (quoting Davis v. Scherer, 468 U.S. 183, 196 (1984)).
A. The Arrest — Defendants Hillyer and Gillis
Plaintiff claims that his arrest was without probable cause and solely in retaliation for his exercise of his First Amendment rights. The Court analyzes this claim first as it applies to Defendants Hillyer and Gillis.
There is no evidence that Hillyer and Gillis entered the lobby until after Barber told Plaintiff he was under arrest. In fact, Plaintiff testified that when Barber said he was under arrest, there were no other police officers around. (Greene, Tr. at 319). Hillyer testified that when he stepped out in the hallway from the Special Services Unit he heard a loud male voice from the lobby area, but could not understand what was being said. (Hillyer, Tr. at 195). As he approached he observed Barber speaking to Plaintiff, and heard him tell him he was under arrest. (Hillyer, Tr. at 196). Plaintiff was backing away and telling Barber, "This is not going to happen." (Hillyer, Tr. at 198). Because Plaintiff was not cooperating with the arrest, Hillyer decided to assist. (Hillyer, Tr. at 198). Captain Gillis testified that he heard loud, angry voices, and came out of his office to investigate the commotion. (Gillis, Tr. at 172-73). When he got to the front desk, Barber was approaching Plaintiff and advising him that he was under arrest for creating a disturbance. (Gillis, Tr. at 173). Plaintiff was resisting arrest, both orally and by pushing and pulling away. (Gillis, Tr. at 174-76). There is no evidence that either Hillyer or Gillis knew what precipitated the arrest. They witnessed a subject resisting arrest, so they came to the assistance of their fellow officer in effectuating that arrest.
It is not objectively unreasonable for police officers to assist a 29 year veteran police officer in the arrest of a person who was clearly not cooperating, even though they do not know the circumstances leading up to that arrest. Officers Hillyer and Gillis are accordingly entitled to qualified immunity from liability for arresting Plaintiff without probable cause, or for arresting him in retaliation for his exercise of his First Amendment rights.
B. The Arrest — Defendant Barber
Defendant Barber is the individual who placed Plaintiff under arrest. Plaintiff alleges that Barber arrested him without probable cause and in retaliation for his protected speech. Barber contends that the arrest was protected by qualified immunity.
At the jury trial the jury found that the City had failed to prove, beyond a reasonable doubt, that Plaintiff violated the public disturbance ordinance. An acquittal on criminal charges, however, does not in and of itself negate the existence of probable cause. Moreover, because we are judging probable cause under the rubric of qualified immunity, it is not actual probable cause, but arguable probable cause that is at issue. Defendant Barber is entitled to qualified immunity unless, on an objective basis, it is obvious that no reasonably competent officer would have concluded that there was probable cause to arrest Plaintiff for violating the public disturbance ordinance. See Russo, 953 F.2d at 1042.
The City of Grand Rapids Ordinance provides that it is a breach of the peace for a person to "[c]reate or engage in any disturbance, fight or quarrel in a public place." 9.137(1).
Plaintiff contends that prior to being placed under arrest he did not raise or elevate his voice. It stayed constant. He states that he never yelled at Lind or Barber. (Greene, Tr. at 319). Greene admits he called Barber an asshole and stupid. (Greene, Tr. 312, 314, 324). However, he denies yelling before he was told he was under arrest.
Despite Plaintiff's denial that he raised his voice, his own characterization of his confrontation with Barber belies that assertion. It is telling to look at Plaintiff's own description of what occurred when Barber came out to speak with him:
Then I put the same question to him. I pointed to the letter, actually handed him the copy of the letter and showed where it was dated the 28th, you know, the car was impounded on the 25th, and that where I lived in the southeast I got it I told him either the 2nd or 3rd of March and that that's a period of time where there is no notice and, therefore, my storage fee should not include a time when I have no notice of the fact that my car is in storage.
Well, Lt. Barber became very arrogant, you know, very very arrogant with me, like, look I don't have to answer your questions, this is the way we do it. You don't like it, you know, that's just like too bad.
And I said to him, you're being an asshole. And he took great exception.
He said to me, "You can't talk to me like that in my building."
I said to him — I responded, I said, "What do you mean I can't talk to you like this in your building." I said, "This is . . ." this is — "I'm exercising my freedom of speech." I said, "This is the United States of America and we have freedom of speech here and if you don't like it you should move to another country."
He says, "Well, not in my building," again, very adamantly. "Not in my building," just like that. And that's when I told him, I said, "Well, if that's how you feel you're really stupid." And that's when he turned to me and said,
"You're under arrest."
(Greene, Tr. at 311-14).
Based upon Plaintiff's own characterization of his conversation with Barber, his assertion that he did not raise his voice is implausible. One does not carry on the conversation outlined above in a normal conversational voice. Moreover, this testimony must be read in conjunction with Plaintiff's admission that he might talk loudly. (Greene, Tr. at 309). He said he talked to Lind in what he would consider a normal conversation voice, but acknowledged that that was subjective. (Greene, Tr. at 337). He then clarified that he carried on his conversation with Lind in his "animated expressive voice." (Greene, Tr. at 337). Furthermore, the evidence is uncontradicted that during his conversation with Barber, as he was calling him asshole and stupid, he was pointing and jabbing his finger at Barber. (Lind, Tr. at 41-42; Barber, Tr. at 148).
Plaintiff's reluctant admission that he has a loud voice and was using his "animated expressive voice" is more consistent with the testimony of all the other witnesses. Intern Lind testified that when Barber told Plaintiff the fees would not be reduced, Plaintiff got very loud, almost screaming. (Lind, Tr. at 41). Albert Lemcool, operator of the concession stand, testified that Plaintiff was extremely loud — the loudest person he had heard in the lobby in the 20 years he had been there. (Lemcool, Tr. at 104). All of the other witnesses testified that Plaintiff was speaking in a loud and aggressive manner, and that the noise interfered with the operation of the police counter. (Strobridge, Tr. at 80-81; Barber, Tr. at 148; O'Farrell, Tr. at 120).
Even if there is a question of fact as to the exact volume of Plaintiff's conversation, volume is not an element of the breach of the peace ordinance. The ordinance focuses on "disturbance." The record is replete with unrefuted evidence that Plaintiff's conduct, even before his arrest, was attracting the attention of all the other people in the lobby. Lind testified that there were between 20 and 30 people in the lobby at the time, and everybody turned around and looked at Plaintiff while he was talking to Lind, including people who were as far away as 50 or 60 feet from Plaintiff. (Lind, Tr. at 38-39, 55). Intern Jenell Strobridge testified that people began to look over to see what was going on. (Strobridge, Tr. at 78). Barber testified that Plaintiff was attracting the attention of all the people in the lobby. (Barber, Tr. at 148).
On summary judgment the Court must assess "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." Liberty Lobby, 477 U.S. at 251-52. As previously noted, all reasonable inferences drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. See Matsushita, 475 U.S. at 586-88. The existence of a mere scintilla of evidence in support of the nonmovant's position is insufficient; there must be evidence on which the jury could reasonably find for the nonmovant. Liberty Lobby, 477 U.S. at 252.
Plaintiff's mere assertion that he did not raise his voice prior to being arrested is not sufficient to create a material issue of fact for trial as to whether Barber could reasonably conclude that Plaintiff's conduct gave him probable cause to arrest Plaintiff for causing a public disturbance. The precise volume of Plaintiff's voice is not material to the issue of whether Barber had arguable probable cause. Regardless of whether Plaintiff was yelling or whether Plaintiff was speaking in his "animated expressive voice," the totality of the evidence was sufficient to enable a reasonable police officer to believe he had probable cause to arrest Plaintiff for causing a public disturbance.
While there is no dispute that the use of even coarse or offensive language is constitutionally protected, see, Cohen v. California, 403 U.S. 15, 26 (1971); Sandul v. Larion, 119 F.3d 1250, 1254 (6th Cir. 1997), the use of such abusive language does not immunize one from arrest if one's words are likely to cause a breach of the peace, or if one's conduct as a whole constitutes disorderly conduct. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942); People v. Chatfield, 143 Mich. App. 542, 548 (1985).
In Gold v. City of Miami, 121 F.3d 1442 (11th Cir. 1997), the plaintiff was arrested for disorderly conduct after he loudly remarked "Miami police don't do shit." The plaintiff sued the officers for false arrest. The Eleventh Circuit held that although the officers did not have actual probable cause, the officers had arguable probable cause to arrest and as a result were protected by qualified immunity. Id. at 1444. The Court noted that while the First Amendment protects one who merely directs profane language at a police officer, it does not protect one who directs profanities at a police officer in a loud voice and in the presence of others:
Given that what constitutes legally proscribed disorderly conduct is subject to great subjective interpretation of specific facts — for example, the words used, the tone used, the decibels used, and the reaction of onlookers — we are constrained to conclude that a reasonable officer in the same circumstances and possessing the same knowledge as the officers in this case could have reasonably believed that probable cause existed to arrest Gold for disorderly conduct. The evidence, viewed in the light most favorable to Gold, reflects that Gold twice used profanities in a loud voice, in a public place, and in the presence of others. At the time, no cases clearly established that those actions did not constitute legally proscribed disorderly conduct.Id. at 1446.
"Although the Fourth Amendment `reasonableness' inquiry is largely fact-driven, summary judgment for defendant public servants founded in qualified immunity is nonetheless appropriate when the undisputed material facts, or the plaintiff's version of disputed material facts, demonstrate that a hypothetical reasonable officer would not have known that his actions, under the circumstances, were objectively unreasonable." Scott v. Clay County, Tenn., 205 F.3d 867, 877 (6th Cir. 2000). The transcript of the State district court trial, even when construed most favorably for Plaintiff, demonstrates that Defendant Barber's decision to arrest Plaintiff for disturbing the peace was not objectively unreasonable.
The evidence in this case, viewed in the light most favorable to Plaintiff, reflects that Plaintiff's tone of voice was loud enough to draw the attention of all the people in the lobby. Although there are some factual issues in dispute, resolution of those issues is not essential to the qualified immunity defense. What it takes to cause a public disturbance may differ depending on the location. This was not the street or a driveway or Plaintiff's home. It was a public place where police conduct business. When a person enters the lobby of the police department and in a voice loud enough to draw the attention of all who are doing business there calls police officers stupid and asshole and announces that he has a constitutional right to do so, and then refuses to quiet down or leave, a reasonable basis exists to believe that the person is disturbing the peace. Officers of reasonable competence could at least disagree on whether Plaintiff's use of abusive language, in a loud voice, in a public business place, in the presence of others, amounted to a disturbance, fight or quarrel in a public place in violation of the ordinance. Accordingly, Barber is entitled to qualified immunity on his decision to arrest Plaintiff for disturbing the peace. See Russo, 953 F.2d at 1042 (immunity should be recognized if officers of reasonable competence could disagree on whether the conduct was lawful).
C. Excessive Force — Defendants Hillyer and Gillis
The Fourth Amendment prohibits the use of excessive force during an arrest. Monday v. Oullette, 118 F.3d 1099, 1104 (6th Cir. 1997). Claims that law enforcement officers have used excessive force in the course of an arrest or other "seizure" are analyzed under the Fourth Amendment and its "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The proper application of this reasonableness standard "requires a careful attention to the facts and circumstances of each particular case, 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." Id. at 396. The question is whether the totality of the circumstances justifies a particular sort of seizure, and the question must be answered "without regard to [the officer's] underlying intent or motivation." Id. at 397. "The `reasonableness' must be judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight." Id. at 396. 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. Id. at 396-97. See also, Ingram v. City of Columbus, 185 F.3d 579, 596 (6th Cir. 1999); Bass v. Robinson, 167 F.3d 1041, 1045-46 (6th Cir. 1999).
Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes "reasonable" action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992).
Plaintiff admits that when Barber told him he was under arrest and directed him to turn around and put his hands on the counter, he refused to obey the command, and he started yelling. (Greene, Tr. at 319-21). Plaintiff backed away from Barber, with his fists clenched. (Lind, Tr. at 43). Plaintiff admits he ignored the first officer who grabbed his arm because he was still asking Barber why he was being arrested. (Greene, Tr. at 320). Plaintiff pulled his arm away. (Intern Mark O'Farrell, Tr. at 119). Then a second officer grabbed his other arm and, according to Plaintiff, "things just went ballistic." (Greene, Tr. at 321). Plaintiff struggled with the officers all the way over to the concession stand. (Lind, Tr. at 44).
Plaintiff's only allegations regarding the force used by Hillyer and Gillis involve their grabbing Plaintiff by his arms and chest and bending Plaintiff's arms behind him. There is no dispute that Plaintiff was not cooperating with his arrest when these officers appeared. Most officers would agree that under the circumstances the grabbing of Plaintiff's arms in an attempt to hold him and to direct him out of the public area of the lobby was not excessive. Accordingly, Hillyer and Gillis are entitled to qualified immunity for the force used in their attempts to restrain Plaintiff.
With respect to the pepper spray, Plaintiff alleges that Hillyer and Gillis held him while Barber sprayed him with pepper spray. There is no evidence in the record that either Hillyer or Gillis participated in Barber's decision to use the pepper spray or that they held Plaintiff in anticipation of Barber spraying him. Hillyer testified that as he was attempting to restrain Plaintiff, who was pulling them to the concession stand, Barber said "Watch it, Ed." Hillyer kind of let go for a second, and Barber sprayed Plaintiff with the pepper spray. (Hillyer, Tr. at 200). The use of pepper spray cannot be attributed to Hillyer or Gillis. Accordingly, Officers Hillyer and Gillis are entitled to summary judgment on all of the claims against them.
D. Excessive Force — Defendant Barber
The only force allegedly used by Barber other than attempting to hold the Plaintiff was the use of pepper or OC spray. The Grand Rapids Police manual permits the use of OC spray to prevent serious personal injury, to control violent conduct, to defend against physical assault, or consistent with the Use of Force Continuum. Grand Rapids Police Department Manual of Procedures, Section 8-3(II)(C), p. 1. The Department's Use of Force Continuum provides that OC is a proper officer response to a suspect who is aggressively resisting, or who verbally or physically attempts to prevent arrest.
According to Section 8-3(IV)(A) of the Grand Rapids Police Department Manual of Procedures, Oleoresin Capsicum ("OC") is a biodegradable, oily resin that is derived from the pepper plant. It is an inflammatory agent that causes swelling of the eyes and breathing passages, together with labored, restricted breathing.
There is no definitive constitutional ruling on when the use of pepper spray constitutes excessive force. The constitutionality of the use of pepper spray must be measured under the same test that applies to all excessive force claims — whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 397 (1989).
The parties have cited two Sixth Circuit cases that have addressed the use of pepper spray. In Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997), the Sixth Circuit held that the police officer's decision to use a single burst of pepper spray rather than risk injury through a physical confrontation with a large and intoxicated person, did not constitute excessive force. Id. at 1104-05.
In Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994), the Sixth Circuit reversed the district court's entry of summary judgment in favor of the arresting officer on the basis that there were material issues of fact going to the reasonableness of the force used. Specifically, the court noted that the officer may have lacked probable cause to detain or arrest the plaintiff; the officer may have not told the plaintiff that he was under arrest; and the officer continued to spray the pepper spray even after the plaintiff was detained in the police cruiser. Id. at 384-85.
Plaintiff contends that Adams is "on all fours" with the present case. This Court disagrees. Unlike Adams, in this case the evidence was sufficient to enable an officer of reasonable competence to believe he had probable cause to arrest Plaintiff. There is no dispute in this case that Barber told Plaintiff he was under arrest and that Plaintiff accordingly had an opportunity to cooperate. There is also no dispute that in this case, as in Oullette, the officer used only a single burst of pepper spray. See Oulette, 118 F.3d at 1105.
Most importantly, in this case there can be no real dispute that Plaintiff was resisting arrest. Although Plaintiff characterizes his efforts as passive resistance, the record does not support this characterization. Plaintiff managed to pull three officers across the lobby in his efforts at avoiding being handcuffed. This is not passive resistance.
Plaintiff refused to cooperate with Barber when he was told he was under arrest. When officers Hillyer and Gillis approached, Plaintiff's voice escalated further, he continued to refuse to follow the officers' directives, and he actively resisted their attempts to restrain him. Given Plaintiff's emotionally charged reaction to being placed under arrest, his refusal to cooperate even while being held by three officers, and Plaintiff's large size, it is clear that officers of reasonable competence could at least disagree as to whether Barber's use of pepper spray under the totality of the circumstances was reasonable. An officer of reasonable competence could reasonably conclude that a single burst of pepper spray would pose less risk of physical injury to Plaintiff and the officers than would an attempt at physically bringing Plaintiff to the ground.
"The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within a range of conduct which is objectively `reasonable' under the Fourth Amendment." Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995). Where three officers were unable to subdue a suspect and effectuate an arrest through the use of words and holding onto his arms, they were left with a choice to bring him to the ground or to use the pepper spray. Under the totality of the circumstances of this case the Court finds that the single shot of pepper spray was objectively reasonable. Barber's actions were not plainly incompetent, nor were they clearly proscribed. His use of the pepper spray is accordingly entitled to qualified immunity. See Malley, 475 U.S. at 341.
Upon careful consideration of the briefs and the evidence, this Court concludes that all of the defendants are entitled to summary judgment on all of Plaintiff's claims against them.
An order and judgment consistent with this opinion will be entered.
ORDER AND JUDGMENT
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendants' motion for summary judgment (Docket # 23) is GRANTED.
IT IS FURTHER ORDERED that JUDGMENT is entered in favor of Defendants and Plaintiff's complaint is DISMISSED in its entirety.