Abdul-Khaliq v. City of Newark , 275 F. App'x 517 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0222n.06
Filed: April 24, 2008
No. 07-3485
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OMRAN ABDUL-KHALIQ, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CITY OF NEWARK, ERIC COOK, ) SOUTHERN DISTRICT OF OHIO
ARTHUR MINTON, and KYLE GROSS, )
)
Defendants-Appellees.
Before: BOGGS, Chief Circuit Judge; ROGERS, Circuit Judge; SHADUR, District Judge.*
ROGERS, Circuit Judge. Plaintiff-Appellant Omran Abdul-Khaliq appeals the district
court’s grant of summary judgment in favor of the defendants in this § 1983 action against the City
of Newark and three individual police officers for selective prosecution, unreasonable seizure,
malicious prosecution, and excessive use of force. Khaliq’s claims arise out of an incident during
which three officers arrested Khaliq outside of his home for disorderly conduct after he yelled and
cursed at the officers and either opened or raised his coat in a potentially threatening manner.
Because Khaliq has presented no genuine issue of material fact as to any of his federal claims, we
affirm the district court’s grant of summary judgment.
*
The Honorable Milton I. Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
No. 07-3485
Abdul-Khaliq v. Newark, et al.
Abdul-Khaliq is an African-American Muslim who lives with his white girlfriend, Melinda
Fairburn. In March 2003, upon returning home and discovering four armed men demanding money
from his girlfriend, Khaliq dialed 911. According to Khaliq, he informed the Newark Police
Dispatch that “[a] guy just had my kid and girlfriend held by gunpoint.” The dispatch interpreted
this as a child abduction report, and sent Officers Kyle Gross, Arthur Minton, and Eric Cook to
respond. Meanwhile, Khaliq drove off in pursuit of the invaders.
Upon arriving at the scene, Officer Gross observed Khaliq’s neighbor, Naomi Wilder,
standing in the street. He asked if she had witnessed a child abduction. Ms. Wilder stated that she
had not, but that she had overheard Ms. Fairburn ask Khaliq if he wanted to take something with him
as he chased the intruders. According to Ms. Wilder, Khaliq replied: “No, because it does not have
any bullets in it anyway.” Khaliq says that he does not remember Fairburn saying anything as he left
to pursue the invaders.
Officers Cook and Gross then questioned Fairburn, who explained that four armed males had
entered the home, but that her child had not been abducted. Officer Cook then inquired about a gun.
Fairburn initially denied having a gun or offering Khaliq a gun. Officer Gross claims that Fairburn
then changed her story, stating that she had tried to hand Khaliq a toy gun. Fairburn acknowledges
discussing her son’s toy gun with the officers, but claims that she did not handle the gun until after
Khaliq left.
-2-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
After Khaliq lost track of the invaders, he came home, “flying in” to his driveway and found
Officers Cook and Gross in the front yard. Khaliq admits that he was angry and frustrated,
approached the officers, and asked the officers why they were not “chasing after the criminals.”
Khaliq admits that when he first started talking to the officers, he was “kind of loud.” Officer Gross
claims that both officers repeatedly advised Khaliq that they needed to pat him down, and that they
instructed Khaliq to put his hands on his car. When asked during his February 23, 2005, deposition
whether he had been instructed to put his hands on his car or to submit to a pat-down, Khaliq denied
recollection:
Q: Did Officer Cook then ask to pat you down?
A: I can’t recall him asking me that.
Q: Did either of the officers ask you to put your hands on the car so you could be
patted down?
A: No, I can’t recall that.
Q: Now, you just can’t recall today because you’re not sure if it happened, or you
don’t believe that happened?
A: I just—I can’t recall them saying turn around, put your hands on the car . . .
...
Q: Do either of the officers order you to put your hands on the car?
A: I can’t recall. I just recall them just saying where’s the gun. . . .
...
Q: How’s your anger level at this time? You said you were frustrated before when
you were in the car and talking on the cell phone and now you get [home]. What’s
going through your mind at this point?
A: Just basically I was just, like I said, I was upset that the cop had called back in the
manner in which he was talking to me on the phone. I had lost contact with [the
intruders]. Then I get back home and there’s two cops asking me about a gun, you
-3-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
know, that I didn’t have. And everything went—like I said, the time, it just seemed
like everything went so fast, it just—you’re asking me did they ask to pat me down,
it just—the next thing I knew, as soon as I said no and a couple words are going back
and forth, I’m getting sprayed with mace.
Q: So the officers did not give you several, three, four direct orders to place your
hands on the car to be patted down?
A: I can’t recall.
Later, Khaliq gained recollection in his July 22, 2006, affidavit: “I never refused to submit to a pat
down search, to place my hands on a car, or to spread my legs. I am certain that no police officer
either repeatedly asked or ordered me to put my hands on the car or to be patted down . . . .” Khaliq
claims that he never refused to do anything the officers requested of him.
At some point during the course of events, all agree that Officer Cook asked Khaliq where
his gun was, at which point Khaliq became angry and admits to arguing with the officers about
whether or not he had a gun: “before I know it, I’m yelling back and forth, they’re yelling back at
me, where’s the gun, where’s the gun.” Khaliq also admits to cursing at the officers, saying “this
is fucking crazy” and that he “didn’t have a fucking gun.” After debating with the officers about
whether or not he was carrying a gun, Khaliq reached for his jacket. Khaliq claims that he opened
his coat as a non-threatening gesture to show the officers that he was not carrying a gun. Officer
Gross, however, claims that Khaliq quickly stepped back and began to lift his jacket, which action
the officers interpreted as an aggressive gesture. In response, the officers sprayed Khaliq with pepper
spray, shoved him to the ground, and handcuffed him. Khaliq was arrested for disorderly conduct.
-4-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
Officer Minton did not arrive on the scene until after Khaliq had been sprayed and was on the
ground.
Following these events, Khaliq filed suit under 42 U.S.C. § 1983 against Officers Gross,
Cook, and Minton, and against the City of Newark. Khaliq brought an Equal Protection selective-
prosecution claim on the ground that he was treated differently than his similarly situated white
girlfriend; a Fourth Amendment unreasonable-seizure claim on the ground that there was not
probable cause for his arrest; a malicious-prosecution claim under the Fourth and Fourteenth
Amendments; and arguably a Fourth Amendment claim for excessive use of force. Khaliq argues
that the City of Newark is liable because the constitutional violations he alleges were caused by
unconstitutional policies and customs of the City; namely, a failure to train and supervise its officers
adequately, and a failure to discipline or investigate officers following past instances of
discrimination. Khaliq also brought a number of state-law claims, seeking to take advantage of the
court’s supplemental jurisdiction.
In response, the defendants filed a motion for summary judgment on all of Khaliq’s claims
except that for excessive use of force. Khaliq filed a motion in opposition, additionally noting his
observation that the defendants had not moved for summary judgment on his excessive-force claim.
In reply, the defendants argued that if Khaliq had intended to plead excessive force, summary
judgment in their favor was appropriate on that claim as well. Khaliq subsequently moved to strike
this portion of the defendants’ reply, or, in the alternative, to file a sur-reply to oppose summary
judgment on his excessive-force claim.
-5-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
The district court denied Khaliq’s motion to strike and granted the defendants’ motion for
summary judgment. The court concluded that Khaliq had failed adequately to plead a claim for
excessive use of force, and alternatively concluded that Khaliq’s excessive-force claim could not
survive summary judgment. The court also granted the defendants summary judgment on Khaliq’s
selective-prosecution claim, finding that Khaliq and Fairburn were not similarly situated and,
alternatively, that Khaliq could not establish a discriminatory purpose because the officers had
questioned both Khaliq and Fairburn about the gun and only focused on Khaliq after he had become
difficult.
The court also granted summary judgment on Khaliq’s unreasonable-seizure claim, finding
that, relying solely on Khaliq’s account of what happened, the officers had probable cause to arrest.
The court noted that Khaliq had admitted to yelling and cursing at the officers when they questioned
him about the gun, and to opening his coat to show the officers that he was not carrying a firearm.
The court reasoned that the officers had probable cause to arrest Khaliq for disorderly conduct based
on his disregard for the law because they “had a reasonable belief that Plaintiff was acting disorderly,
which consists of recklessly causing inconvenience, annoyance, or alarm to another by: (1) engaging
in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.” The
court also granted summary judgment on Khaliq’s malicious-prosecution claim, based on its finding
that the officers had probable cause to arrest.
Finally, the district court granted summary judgment in favor of the City of Newark on the
ground that Khaliq had failed to demonstrate that his alleged injuries were caused by an
-6-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
unconstitutional City custom or policy. The court concluded that Khaliq had failed to demonstrate
a clear pattern of unconstitutional activity in citing apparently isolated and responded-to instances
of discrimination by individual police officers, and rejected Khaliq’s arguments that the City failed
to train, supervise, investigate, and discipline its officers adequately. The court also concluded that
Khaliq had failed to show that the officers’ actions represent any City policy.
On appeal, Khaliq argues that the district court did not correctly apply the standard for
summary judgment; that the district court erred in holding that he had not adequately pled a claim
for excessive use of force; that he has presented genuine issues of material fact as to all of his federal
claims and that summary judgment was improper; and that the district court erred in declining to
exercise supplemental jurisdiction over his remaining state-law claims.
Because we conclude that Khaliq has presented no genuine issue of material fact regarding
his federal claims,1 we affirm the district court’s grant of summary judgment. The police had
probable cause to arrest Khaliq for disorderly conduct. Although Khaliq claims that he was not
hostile or uncooperative toward the officers, it is clear from Khaliq’s deposition testimony that he
was being argumentative and uncooperative inasmuch as he admits to angry yelling and cursing at
the officers while carrying on a prolonged debate about whether or not he had a gun. Moreover,
Khaliq admits that he opened his coat in a vigorous gesture toward the police officers. These
circumstances are sufficient to “warrant a prudent man in believing that the [arrestee] had committed
1
We reach no conclusions regarding the merits of Khaliq’s state-law claims.
-7-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
or was committing an offense.” Diamond v. Howd, 288 F.3d 932, 936-37 (6th Cir. 2002); see also
Ohio Rev. Code § 2917.11 (“No person shall recklessly cause inconvenience, annoyance, or alarm
to another by . . . : (1) Engaging in fighting, in threatening harm to persons or property, or in violent
or turbulent behavior.”). Under Ohio law, vulgar language accompanied by aggressive behavior can
be sufficient to support a disorderly conduct conviction based on “turbulent behavior.” See
Middletown v. Carpenter, No. CA2006-01-004, 2006 WL 1972061, at *3 (Ohio Ct. App. 2006); see
also Thacker v. Lawrence County, 182 F. App’x 464, 469-70 (6th Cir. 2006) (concluding that
officers had probable cause to arrest for “turbulent behavior” in light of arrestee’s admissions that
he had “raised his voice . . . was swearing loudly and did not cease this behavior after the deputies
requested that he do so.”). Given Khaliq’s behavior, the officers had probable cause to arrest him
for disorderly conduct, and his arrest was therefore not an unreasonable seizure in violation of the
Fourth Amendment.
Because the district court correctly concluded that the officers had probable cause to arrest,
Khaliq’s claim for malicious prosecution necessarily fails. See Thacker v. City of Columbus, 328
F.3d 244, 259 (6th Cir. 2003) (“Although this Court has yet to resolve the elements of a federal
malicious prosecution claim, it is clear that a plaintiff must show, at a minimum, ‘that there was no
probable cause to justify [his] arrest and prosecution.’” (citing Darrah v. City of Oak Park, 255 F.3d
301, 312 (6th Cir. 2001))).
-8-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
Khaliq has also failed to present a genuine issue of material fact regarding whether or not the
officers used excessive force in his arrest.2 As explained above, Khaliq admits to angry yelling and
cursing at the officers, carrying on a prolonged and heated debate about whether or not he had a gun,
and vigorously opening his coat in a gesture toward the police officers. Khaliq suffered a brief dose
of pepper spray, was knocked to the ground, and was handcuffed. He does not claim that he was
maced for an excessively long amount of time, as the plaintiff alleged in Adams v. Metiva, 31 F.3d
375, 384-85 (6th Cir. 1994), on which case Khaliq relies. Based on the version of events admitted
by Khaliq, and construing the evidence in his favor, the officers’ use of force was objectively
reasonable under the circumstances. See Graham v. Connor, 490 U.S. 386, 395-96 (1989).
There is also no genuine issue of material fact regarding whether Khaliq was subjected to
selective enforcement in violation of the Equal Protection Clause. Most importantly, Khaliq cannot
demonstrate that he was treated differently than someone to whom he was similarly situated, as is
required for a selective-enforcement claim based on race. See Farm Labor Org. Comm. v. Ohio
State Highway Patrol, 308 F.3d 523, 533-34 (6th Cir. 2002). A claimant alleging selective
enforcement of facially neutral criminal laws must demonstrate that the challenged law enforcement
practice “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Id.
(citing Wayte v. United States, 470 U.S. 598, 608 (1985)). “To establish a discriminatory effect in
a race case, the claimant must show that similarly situated individuals of a different race were not
2
Consequently, whether or not the district court erred in concluding that Khaliq failed to
adequately plead an excessive-force claim is immaterial.
-9-
No. 07-3485
Abdul-Khaliq v. Newark, et al.
prosecuted.” Id. (citing United States v. Armstrong, 517 U.S. 456, 465 (1996)); see also Boone v.
Spurgess, 385 F.3d 923, 932 (6th Cir. 2004) (“In order to make out an equal protection claim on the
basis of selective enforcement, a plaintiff must demonstrate that someone similarly situated but for
the illegitimate classification used by the government actor was treated differently.”). Although
Khaliq argues that he was similarly situated to his white girlfriend, who was not arrested, Khaliq was
yelling, cursing, and making gestures perceived to be threatening, while his girlfriend was not.
Because Khaliq has failed to demonstrate a constitutional violation, his § 1983 claims against
the City necessarily fail. To succeed on a municipal liability claim, Khaliq must demonstrate both:
(1) the deprivation of a constitutional right, and (2) that the City is responsible for that violation. See
Doe v. Clairborne County, 103 F.3d 495, 505-06 (6th Cir. 1996) (citing Collins v. City of Harker
Heights, 503 U.S. 115, 120 (1992)). His failure to demonstrate a constitutional violation dooms his
claim at step one.
Finally, because Khaliq’s federal claims cannot survive summary judgment, it was proper
for the district court to decline to exercise supplemental jurisdiction over his state-law claims. See
28 U.S.C § 1367(c)(3); Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 233 (6th Cir. 1997) (citing
United Mine Workers v. Gibbs, 282 U.S. 715, 726 (1966)).
For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor
of the defendant City and officers.
- 10 -