Dwain Barton v. Officer Martin ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0039p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DWAIN DAVID BARTON, ┐
Plaintiff-Appellant, │
│
│
v. > No. 18-1614
│
│
OFFICER MARTIN, et al., │
Defendants, │
│
OFFICER DEAN VANN, │
│
Defendant-Appellee.
│
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:16-cv-13898—George Caram Steeh, III, District Judge.
Argued: May 8, 2019
Decided and Filed: February 7, 2020
Before: SILER, GIBBONS and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit,
Michigan, for Appellant. Julie McCann O’Connor, O’CONNOR, DEGRAZIA, TAMM &
O’CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee. ON BRIEF: Hugh M. Davis,
Cynthia Heenan, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan,
for Appellant. Julie McCann O’Connor, O’CONNOR, DEGRAZIA, TAMM & O’CONNOR,
P.C., Bloomfield Hills, Michigan, for Appellee.
No. 18-1614 Barton v. Martin, et al. Page 2
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Dwain Barton’s neighbor, Jill Porter, falsely
reported to police that Barton had shot a stray cat in his backyard in Lincoln Park, Michigan.
Shortly thereafter, police officers, without a warrant for entry or arrest, forcibly entered Barton’s
home and arrested him for animal cruelty. Barton was brought to the police station, booked, and
then released on a $500 cash bond three hours later. Barton subsequently sued the officers under
42 U.S.C. § 1983, alleging violations of the Fourth Amendment for illegal entry into his home,
arrest and prosecution without probable cause, and excessive force, as well as First Amendment
retaliation. The district court granted summary judgment for Officer Dean Vann, one of the
officers at the scene. The court held that Vann was entitled to qualified immunity on the illegal
entry, wrongful arrest, and retaliatory arrest claim, and that Barton failed to raise a genuine issue
of material fact on the excessive force claim (presumably entitling Vann to judgment as a matter
of law). Barton challenges the district court’s grant of summary judgment in favor of Vann on
the illegal entry, wrongful arrest, and excessive force claims. We reverse.
I.
On November 3, 2014, Dwain Barton fixed his backyard door while his wife washed
dishes and his daughter jumped on the trampoline in the backyard of their Lincoln Park,
Michigan home. Around noon, Barton’s wife yelled to him “Hey, babe, [our daughter] is being
attacked in the backyard by a cat. It’s clawing her.” DE 28-3, Barton Dep. Tr., PageID 178.
Barton opened the door and saw a “huge” cat, “sitting there[,] clawing, and biting at [his]
daughter.” Id. Intending to “make a loud noise and to scare it away,” Barton grabbed a nearby
BB gun and shot at one of the trampoline’s legs, about five feet away from the cat. Id. Still
holding the BB gun in his own backyard, Barton yelled to his neighbor, Jill Porter, who stood in
her backyard three doors down.
Porter routinely fed stray cats. She habitually left food scraps outside, which, according
to Barton, resulted in forty to fifty stray cats “invading the entire block.” Id. at 177. As a result,
No. 18-1614 Barton v. Martin, et al. Page 3
Barton had complained to the Lincoln Park animal control in the past. On the day in question,
Barton said, “Hey, Jill, the next cat that I see in my yard will be a dead one.” Id. at 178. Barton
then put the BB gun away, made sure his daughter was okay, and returned to fixing his door.
Porter called 911. She provided her name and address, and said that Barton had told her
that “just to inform you, your grey cat just peed on my furniture and he got shot in the head.”
DE 28-2, Mot. for Summ. J., 911 Audio, 0:40–1:05. She said she did not “know if it was with a
BB gun or what.” Id. When the dispatcher asked whether Porter had seen the injured cat, she
said she had not. The dispatcher then said that since Porter had “no proof” that Barton had shot a
cat, there was nothing for the police to do. Id. at 2:09–2:16. In response, Porter repeated that
Barton told her that he “just shot [her] grey cat because he peed on [his] furniture.” Id. at 2:17–
2:34. She then clarified, however, that the cat could not have actually been hers, because she had
just seen her cat, so it must have been a different cat. Porter described Barton as a bald, white
male with glasses, who was about thirty-four years old. The dispatcher ended the call by saying
she would send someone to talk to Porter.
The dispatcher then relayed the following information over radio: a woman had called to
say that her neighbor was “shooting cats,” that she wanted to speak to someone about this, and
that she was not sure what type of weapon was used. The dispatcher also reported that the
woman had not seen any injured or wounded animals.
About forty minutes after the initial BB gun incident, Animal Control Officer Adam
Manchester arrived at Barton’s door; they spoke to each other through a screen. Manchester
identified himself and asked Barton to come outside to speak with him. When Barton asked
whether he was suspected of committing a crime, Manchester responded, “No, you are not.” DE
28-3, Barton Dep. Tr., PageID 180; DE 28-15, Jennifer Barton Dep. Tr., PageID 278. Barton
refused to come outside or provide identification. He denied shooting at a cat and instead
relayed that he had shot only at a trampoline pole with a BB gun to scare the cat away. In his
written report following the incident, however, Manchester, stated that Barton told him that he
“shot [a cat] in the head with a BB[] gun.” DE 28-6, Reporting Officer Narrative, PageID 221.
Manchester nonetheless testified that he saw neither weapons on or near Barton nor injured cats
at the scene.
No. 18-1614 Barton v. Martin, et al. Page 4
Manchester retreated to his car and radioed the police department. He relayed that “the
[suspect] [was] not giving [him] information” and that he “admitted to shooting animals.” DE
28-2, Mot. for Summ. J., Dispatch Radio 10.36.04, 0:08–0:22. About ten minutes later, four
police cars, with two officers in each car, showed up at Barton’s home. The officers pulled
“what looked like assault rifles” out of their trunks and “surrounded” Barton’s house. DE 28-3,
Barton Dep. Tr., PageID 182. While the officers surrounded Barton’s home, Manchester again
asked Barton for his identification. Barton passed his identification through the screen door to
his mother-in-law,1 who was on his porch, to hand to the officers.
Moments later, “fearing that [Barton] was grabbing a gun,” DE 28-7, Vann Dep. Tr.,
PageID 228, Vann2 “ripped [their] screen door off [and barged] into [their] house.” DE 28-15,
Jennifer Barton Dep. Tr., PageID 282. Vann testified that when he entered Barton’s home, he
saw Barton “standing in the kitchen” and “at that point,” did not perceive a threat from him
because Barton did not have “anything in his hands” and was not “in control of any type of a
weapon.” DE 28-7, Vann Dep. Tr., PageID 229. Nonetheless, Vann “threw [Barton] up against
the counter like a linebacker.” DE 28-15, Jennifer Barton Dep. Tr., PageID 282. Barton
explained that Vann “lifted [him] up with his elbows underneath [his] body and [his] arm and
literally picked [him] up and slammed [him] up against [the] kitchen cupboards, at which point
all of the other officers, like ants, followed in, and at which point they all surrounded [him].” DE
28-3, Barton Dep. Tr., PageID 186.
Although both Barton and his wife testified that Barton never resisted arrest, Vann then
told Barton to “stop resisting” and to place his hands behind his back because he was under
arrest. DE 28-3, Barton Dep. Tr., PageID 187; DE 28-7, Vann Dep. Tr., PageID 229. In
response, Barton stated that he could not put his hands or shoulders behind his back due to a
previous shoulder injury. Vann responded, “Oh, we’ll make it fit.” DE 28-3, Barton Dep. Tr.,
PageID 187. Vann then “grabbed both of [Barton’s] wrists and took them both behind [his]
1It is unclear exactly who was at Barton’s home on the day in question. But Vann testified that there were
multiple family members on the porch, creating “a very animated scene.” DE 28-7, Vann Dep. Tr., PageID 228.
2Throughout Dwain and his wife Jennifer Barton’s depositions, they refer to Vann as “Dino.” This
nickname presumably refers to Vann’s large stature. See DE 28-15, Jennifer Barton Dep. Tr., PageID 282 (“[T]he
gentleman that we like to call Dino . . . the big one that looks like a steroid freak.”).
No. 18-1614 Barton v. Martin, et al. Page 5
back[,] . . . shoved them both together[,] and put the handcuffs on [him] as tight as he possibly
could.” Id. None of the officers involved had a warrant to enter Barton’s home or to arrest him.
Vann then “shoved” Barton outside his home, down his porch steps, and into a patrol car.
DE 28-3, Barton Dep. Tr., PageID 189. During the drive to the police station, Barton
complained that Vann had injured his shoulder when he slammed him against the kitchen
cabinets. Id. at 190. Upon arriving at the station, Barton was strip searched with one hand
handcuffed to the wall, about three feet above his head. Id. He continued to tell officers that his
shoulder hurt and “that [Officer Vann] had injured [him],” to which Barton was told to “shut the
f*** up unless [he] want[ed] to spend the night there.” Id. at 191. Officers told him that he was
being charged with animal cruelty and issued a citation. Approximately three hours after his
arrest, Barton was released on a $500 cash bond. The charge against him was later dismissed.
In November 2017, Barton filed his first amended complaint against Officers
Manchester,3 Martin, and Vann in the Eastern District of Michigan. Under 42 U.S.C. § 1983,
Barton alleged violations of the Fourth Amendment for illegal entry into his home, unreasonable
arrest and prosecution without probable cause, and excessive force, as well as First Amendment
retaliation. He also brought Michigan state law claims for illegal search and seizure, assault and
battery, false arrest and imprisonment, and malicious prosecution.
In January 2018, Vann filed a motion for summary judgment. Vann argued both that
there were no constitutional violations and that, even if there were, he was entitled to qualified
immunity. In response, Barton challenged the summary judgment motion and argued that Vann
was not entitled to qualified immunity.
The district court granted Vann’s motion for summary judgment on Barton’s federal
claims for illegal entry, wrongful arrest, excessive force, and retaliatory arrest. The court held
that Vann was entitled to qualified immunity with respect to the illegal entry, wrongful arrest,
and retaliatory arrest claims, and that Barton failed to raise a genuine issue of material fact on the
excessive force claim (presumably entitling Vann to judgment as a matter of law). Declining to
exercise supplemental jurisdiction, the district court then dismissed the remaining state law
3In January 2018, the district court dismissed Manchester from the lawsuit.
No. 18-1614 Barton v. Martin, et al. Page 6
claims. Barton timely appealed the district court’s grant of summary judgment on the illegal
entry, wrongful arrest, and excessive force claims.
II.
This court reviews a district court’s grant of summary judgment on grounds of qualified
immunity de novo. Baynes v. Cleland, 799 F.3d 600, 606 (6th Cir. 2015). Summary judgment is
only appropriate when there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (citing
Fed. R. Civ. P. 56(c)). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986), and a fact is “deemed material only if it might affect the outcome of the lawsuit under the
governing substantive law.” Baynes, 799 F.3d at 607. In reviewing a motion for summary
judgment, this court must view the evidence in the light most favorable to the nonmoving party.
Anderson, 477 U.S. at 248. In the qualified immunity context, if the facts alleged and evidence
produced, viewed in the light most favorable to the plaintiff, would permit a reasonable juror to
find that the officer violated a clearly established constitutional right, dismissal by summary
judgment is inappropriate. Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir.
2009).
III.
We reverse the district court’s grant of summary judgment in favor of Vann based on
qualified immunity. Based on the facts alleged and the evidence produced, viewed in the light
most favorable to Barton, a reasonable juror could find that Vann violated Barton’s Fourth
Amendment rights to freedom from warrantless entry into his home, use of excessive force, and
arrest without probable cause. These violations were of clearly established law. Vann, therefore,
is not entitled to qualified immunity for all three federal claims.
Qualified immunity shields government officials performing discretionary functions
“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). Created to protect government officials from interference
No. 18-1614 Barton v. Martin, et al. Page 7
with their official duties, qualified immunity “is an immunity from suit rather than a mere defense
to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It allows police officers “breathing
room to make reasonable but mistaken judgments and protects all but the plainly incompetent or
those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)) (internal quotation marks omitted).
After a defending officer initially raises qualified immunity, the plaintiff bears the burden of
showing that the officer is not entitled to qualified immunity. Burgess v. Fischer, 735 F.3d 462,
472 (6th Cir. 2013).
Qualified immunity involves a two-step inquiry, and courts exercise discretion in
deciding in what order to address the questions. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
First, viewing the facts in the light most favorable to the plaintiff, the court must determine
whether the officer committed a constitutional violation. Burchett v. Kiefer, 310 F.3d 937, 942
(6th Cir. 2002). Second, if there is a constitutional violation, the court must determine whether
that constitutional right was clearly established at the time of the incident. Id. A right is clearly
established when the “contours of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Morrison v. Bd. of Trs. of Green
Twp., 583 F.3d 394, 400 (6th Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). While there need not be “a case directly on point” for the law to be clearly established,
“existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft, 563 U.S. at 741.
A.
Barton argues that the district court erred when it granted summary judgment on the basis
of qualified immunity to Vann on the Fourth Amendment illegal entry claim. Vann is entitled to
qualified immunity unless Barton has shown that a reasonable jury could find that Vann violated
his Fourth Amendment right against warrantless entry and that the right was clearly established
at the time of the violation. We hold that a reasonable jury could find that Vann’s warrantless
entry violated the Fourth Amendment, and that the right was clearly established. We therefore
reverse the district court’s grant of summary judgment on the basis of qualified immunity on the
illegal entry claim.
No. 18-1614 Barton v. Martin, et al. Page 8
“A police officer’s entry into a home without a warrant is presumptively unconstitutional
under the Fourth Amendment.” Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002).
Indeed, warrantless entry of one’s home is the “chief evil” against which the Amendment is
designed to guard. United States v. U.S. District Court, 407 U.S. 297, 313 (1972). When
“exigent circumstances” exist, however, warrantless entries are permissible. Hancock v. Dodson,
958 F.2d 1367, 1375 (6th Cir. 1992). Exigent circumstances exist when a reasonable officer
could believe that there are “‘real immediate and serious consequences’ that would certainly
occur were a police officer to ‘postpone action to get a warrant.’” Ewolski, 287 F.3d at 501
(quoting O’Brien v. City of Grand Rapids, 23 F.3d 990, 997 (6th Cir. 1994)). Thus, exigent
circumstances may exist when “the suspect represent[s] an immediate threat to the arresting
officers and public.” Hancock, 958 F.2d at 1375.
Here, Barton argues that “under [his] version [of the facts], there was no exigency that
could excuse the officers from obtaining a warrant before entering his home.” CA6 R. 20,
Barton Br., at 23. We agree. Barton does not dispute that Vann arrived at his home under the
(false) belief that Barton had shot a stray cat. Barton also does not dispute that he declined to
come out of his house or that the presence of multiple family members on the porch created “a
very animated scene.” DE 28-7, Vann Dep. Tr., PageID 228. But according to Barton, by the
time Vann entered his home, Barton had told Manchester that he had only shot at a trampoline
pole with a BB gun. Barton also testified that he had complied with Manchester’s directions by
passing his identification through the screen door. Thus, the relevant inquiry is whether a
suspect who possibly shot a stray cat, but has denied doing so, and is inside his home but
cooperating with police, “represent[s] an immediate threat to the arresting officers and public,”
Hancock, 958 F.2d at 1375, such that there are “‘real immediate and serious consequences’ that
would certainly occur were a police officer to ‘postpone [] action to get a warrant.’” Ewolski,
287 F.3d at 501 (quoting O’Brien, 23 F.3d at 997).
Viewing these facts from a reasonable officer’s perspective at the time of the incident,
and drawing all inferences in favor of Barton, see id. at 500–02, the facts fall short of showing
that exigent circumstances precluded the officers from seeking a warrant before entering
Barton’s home as a matter of law. “Evidence that firearms are within a residence, by itself, is not
No. 18-1614 Barton v. Martin, et al. Page 9
sufficient to create an exigency . . . .” United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996).
Rather, the government must show that the police “possessed information that the suspect was
armed and likely to use a weapon or become violent.” Id. Thus, officers responding to a shots-
fired report must have additional evidence of an immediate threat before entering a home without
a warrant. See, e.g., Hancock, 958 F.2d at 1375.
Without additional evidence of a threat against the police or bystanders, a report of an
armed suspect inside his home does not justify warrantless entry. See O’Brien, 23 F.3d at 997–
98 (finding no immediate threat of danger where armed suspect retreated to his home and did not
make any verbal threats toward officers or point gun at anyone outside home); United States v.
Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984) (finding no immediate threat of danger where
police received report of suspect shooting into a clay bank at park, heard gunshots, saw suspect
load guns into car, saw suspect bring guns into home, and suspect later raised gun before
complying with police’s order to put it down); cf. Causey v. City of Bay City, 442 F.3d 524, 529–
31 (6th Cir. 2006) (finding immediate threat of danger when officers relied on information that
gunshots were fired from residence, that no one had left or entered since the gunshots, and that
no one answered the door); Dickerson v. McClellan, 101 F.3d 1151, 1159–60 (6th Cir. 1996)
(finding immediate threat of danger to potential victims inside house where police received
report of nine shots fired at residence at 1:00 a.m. and heard male voice screaming when they
approached front door).
Here, the only threat Barton made was that “the next time [he saw] a cat in [his] yard
attacking [his] children, it [would] be a dead one.” DE 28-3, Barton Dep. Tr., PageID 177. And
when Manchester questioned Barton about the incident, prior to Vann’s warrantless entry, Barton
told Manchester that he had shot at a trampoline pole with a BB gun, not the marauding cat.
Vann never heard Barton threaten the officers or any neighbors. See O’Brien, 23 F.3d at 997.
Vann never observed Barton with a weapon. Cf. Morgan, 743 F.2d at 1163. Vann never
suspected that someone inside the house was in peril. Cf. Causey, 442 F.3d at 524. And Vann
did not see any evidence of an injured animal.
As the police must have more than just a shots-fired report to justify warrantless entry
into one’s home, Vann’s belief that Barton had shot at a stray cat did not indicate “‘real
No. 18-1614 Barton v. Martin, et al. Page 10
immediate and serious consequences’ that would certainly occur were a police officer to
‘postpone action to get a warrant.’” Ewolski, 287 F.3d at 501 (quoting O’Brien, 23 F.3d at 997).
Evidence that someone has shot at a stray cat does not indicate willingness to shoot at a human
being, and there was no indication that Barton was shooting at strays inside his home; thus,
Vann’s belief that there was an exigency that precluded procuring a warrant before entering
Barton’s home was unreasonable. Taking all inferences in Barton’s favor, a reasonable jury
could therefore find that Vann’s warrantless entry into Barton’s home violated the Fourth
Amendment’s prohibition against unreasonable searches.
Moreover, it was clearly established that warrantless entry into a home without an
exception to the warrant requirement violated clearly established law. See Armstrong v. City of
Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (“Having determined that there was a
constitutional violation, the question now becomes whether the Fourth Amendment right violated
by Defendants was clearly established.”). “[I]f there can be reasonable disagreement” about
whether the officer’s conduct was unlawful based on the law at the time of the incident, “then the
right cannot be considered ‘clearly established.’” Id. at 701. The plaintiff bears the burden of
showing that a right was clearly established at the time of an alleged injury. T.S. v. Doe, 742
F.3d 632, 635 (6th Cir. 2014). Here, Barton has met that burden.
Existing precedent has placed the constitutional question at issue “beyond debate.”
Ashcroft, 536 U.S. at 741. It has long been established that an officer may not enter a home
absent a warrant or an exception to the warrant requirement. See Welsh v. Wisconsin, 466 U.S.
740, 748 (1984); Payton v. New York, 445 U.S. 573, 585–86 (1980); Coffey v. Carroll, 933 F.3d
577, 587 (6th Cir. 2019); Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005);
Ewolski, 287 F.3d at 501. Barton’s retreat into his home was not an exigent circumstance posing
a risk to the safety of the officers or bystanders. See O’Brien, 23 F.3d at 997–98. The bedrock
Fourth Amendment principles announced in Payton and Welsh demonstrate that Vann’s forced
warrantless entry into Barton’s home was presumptively unreasonable, and Vann had no
objectively reasonable basis for believing the warrantless entry was supported by exigent
circumstances. Therefore, Vann is not entitled to qualified immunity on the unlawful entry
claim.
No. 18-1614 Barton v. Martin, et al. Page 11
B.
Barton’s next § 1983 claim is that Vann arrested him without probable cause. Whether or
not the district court properly granted summary judgment to Vann on the basis of qualified
immunity turns on whether a reasonable jury could find that Vann violated Barton’s Fourth
Amendment right to freedom from arrest without probable cause, and if so, whether it could find
that the violation was of clearly established law at the time of the incident. We conclude that a
reasonable jury could find that Vann lacked probable cause to arrest Barton and that the right to
be free from arrest without probable cause was clearly established. We therefore reverse the
district court’s grant of summary judgment on the basis of qualified immunity with respect to the
wrongful arrest claim.
A warrantless arrest is reasonable under the Fourth Amendment if the arresting officer
has probable cause for the arrest. See District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018).
“In general, the existence of probable cause in a § 1983 action presents a jury question, unless
there is only one reasonable determination possible.” Fridley v. Horrighs, 291 F.3d 867, 872
(6th Cir. 2002) (quoting Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995)). But under § 1983,
an officer “is entitled to qualified immunity if he or she could reasonably (even if erroneously)
have believed that the arrest was lawful, in light of . . . the information possessed at the time by
the arresting agent.” Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir. 2008) (citing Hunter v.
Bryant, 502 U.S. 224, 227 (1991)). Thus, “even if a factual dispute exists about the objective
reasonableness of the officer’s actions, a court should grant the officer qualified immunity if,
viewing the facts favorably to the plaintiff, an officer reasonably could have believed that the
arrest was lawful.” Kennedy v. City of Villa Hills, 635 F.3d 210, 214 (6th Cir. 2011).
An officer has probable cause “when, at the moment the officer seeks the arrest, ‘the facts
and circumstances within [the officer’s] knowledge and of which [he] had reasonably
trustworthy information [are] sufficient to warrant a prudent man in believing that the [plaintiff]
had committed or was committing an offense.’” Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir.
2015) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Under a totality-of-the-circumstances
analysis, “probable cause exists only when the police officer ‘discovers reasonably reliable
information that the suspect has committed a crime.’” Courtright v. City of Battle Creek, 839
No. 18-1614 Barton v. Martin, et al. Page 12
F.3d 513, 521 (6th Cir. 2016) (quoting Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir.
2000)). “A probable cause determination . . . must take account of ‘both the inculpatory and
exculpatory evidence’ then within the knowledge of the arresting officer” at the time of the
arrest. Id. (quoting Wesley, 779 F.3d at 429). An officer “cannot simply turn a blind eye toward
potentially exculpatory evidence.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (quoting
Ahlers v. Schebil, 188 F.3d 365, 372 (6th Cir. 1999)).
A phone call reporting criminal activity, without any corroborating information, does not
provide probable cause for an arrest. Courtright, 839 F.3d at 522; see also Wesley, 779 F.3d
at 429–30; United States v. McClain, 444 F.3d 556, 563 (6th Cir. 2005); Logsdon, 492 F.3d at
341–42. Information from a caller that is not an eyewitness to the events lacks indicia of
trustworthiness and reliability. Courtright, 839 F.3d at 522.
Here, taking all factual inferences in favor of Barton and viewing the information
possessed by Vann at the time of the arrest, a reasonable jury could find that Vann lacked
probable cause to arrest Barton for animal cruelty under Michigan law.4 Barton’s neighbor
called to report Barton was shooting at cats. Barton’s neighbor was not an eyewitness to the
attack on Barton’s daughter or Barton’s shooting his BB gun at the cat; rather, she called 911
after her confrontation with Barton. Manchester responded to the 911 call and, after speaking
with Barton, relayed over police radio that Barton admitted to shooting animals. Upon arriving
at Barton’s home, Vann did not see a weapon or an injured cat. Nor did any other officer at the
scene see any physical evidence of wrongdoing. Additionally, Vann’s interaction with Barton
did not lead to further corroboration of the neighbor’s call prior to the arrest. And, taking
Barton’s story as true, before Barton was arrested, he denied the allegation that he was shooting
at cats and instead told Vann that he had only shot his BB gun at a trampoline pole. Viewing the
evidence in Barton’s favor, the neighbor’s call, by itself without further corroborating evidence,
was not enough to establish probable cause for arrest. Based on the information Vann had at the
time, including the exculpatory statement offered by Barton, no reasonable officer would have
concluded that there was probable cause for arrest.
4Michigan law prohibits someone from knowingly or recklessly “kill[ing], tortur[ing], mutilat[ing],
maim[ing] or disfigur[ing] an animal” without “just cause.” Mich. Comp. Laws § 750.50b(2).
No. 18-1614 Barton v. Martin, et al. Page 13
Vann’s conduct also violated clearly established law. It is well settled that the Fourth and
Fourteenth Amendments require probable cause to justify arresting an individual. See, e.g., Beck
v. Ohio, 379 U.S. 89, 91 (1964); Courtright, 839 F.3d at 520 (“The constitutional right to
‘freedom from arrest in the absence of probable cause’ is clearly established within our circuit.”);
Parsons v. City of Pontiac, 533 F.3d 492, 504 (6th Cir. 2008) (“The law was therefore clearly
established that arrests without probable cause violated the Constitution at the time of [the
plaintiff’s] arrest in 2004.”); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 310 (6th Cir.
2005) (“It is beyond doubt that in 2001 ‘the law was clearly established that,
absent probable cause to believe that an offense had been committed, was being committed, or
was about to be committed, officers may not arrest an individual.”). More specifically, it was
clearly established that a non-eyewitness neighbor’s call reporting criminal activity without
further corroborating information does not provide probable cause for an arrest. Courtright, 839
F.3d at 521; McClain, 444 F.3d at 562–63. We therefore reverse the district court’s grant of
summary judgment on the basis that Vann is not entitled to qualified immunity on the wrongful
arrest claim.
C.
Barton argues that the district court erred in granting summary judgment to Vann on the
excessive force claim. To find Vann entitled to qualified immunity, we must find that Vann’s
use of force under the circumstances was objectively reasonable. The district court granted
summary judgment for Vann because it found that Barton failed to raise a genuine issue of
material fact (presumably entitling Vann to judgment as a matter of law). Although the district
court analyzed the excessive force claim under the broader umbrella of qualified immunity, see
DE 39, Order, PageID 491–92 (“The court considers each claim below [with respect to qualified
immunity].”), it did not reach an explicit holding regarding whether, in light of finding no
genuine issues of material fact, Vann was entitled to summary judgment on the basis of qualified
immunity as a matter of law.
Looking to the facts and circumstances of the present case, Barton has presented
sufficient evidence to create a genuine issue of material fact as to whether Vann’s use of force
was reasonable. “A reviewing court analyzes the subject event in segments when assessing the
No. 18-1614 Barton v. Martin, et al. Page 14
reasonableness of a police officer’s actions.” Morrison, 583 F.3d at 401. Thus, we make
separate qualified immunity determinations for each of the two grounds offered by Barton for
excessive force: (1) Vann’s picking up Barton and slamming him against the kitchen cupboard
and wrenching his arms behind his back to handcuff him; and (2) Vann’s throwing Barton down
the front porch steps while he was handcuffed. Vann is not entitled to qualified immunity on
either excessive force claim.
1.
The Fourth Amendment prohibits the use of excessive force during arrest. Getz v.
Swoap, 833 F.3d 646, 652 (6th Cir. 2016). Barton contends that Vann “lifted [him] up with his
elbows underneath [his] body and [his] arm and literally picked [him] up and slammed [him]
against [their] kitchen cupboards.” DE 28-3, Barton Dep. Tr., PageID 186. He also claims that
Vann “wrenched [his] arms behind his back to handcuff him in response to [his] complaint that
he wasn’t able to put his arms behind his back,” CA6 R. 20, Barton Br., at 39. Barton alleges
that he “suffered physical injuries to his wrist from overly tight handcuffs.” DE 22, Am. Compl.,
PageID 90. He testified that Vann “grabbed both of [his] wrists and took them both behind [his]
back and literally just shoved them both together and put the handcuffs on [him] as tight as he
possibly could” and that, as a result, he was “cut around both of [his] wrists for several days
after.” DE 28-3, Barton Dep. Tr., PageID 187.
Whether an officer exerts excessive force is determined under an “objective
reasonableness” standard. Morrison, 583 F.3d at 401 (quoting Kostrzewa v. City of Troy, 247
F.3d 633, 639 (6th Cir. 2001)). In analyzing objective reasonableness, “courts must balance the
consequences to the individual against the government’s interests in effecting the seizure,” Getz,
833 F.3d at 652 (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)), and consider the
“facts and circumstance of each case viewed from the perspective of a reasonable officer on the
scene and not with 20/20 hindsight.” Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2007). To
determine the objective reasonableness of an officer’s use of force, we “pay particular attention
to ‘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.’” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 174 (6th Cir. 2004) (quoting
No. 18-1614 Barton v. Martin, et al. Page 15
Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)) (finding that throwing the plaintiff into a
wall and forcibly handcuffing her was unreasonable where the crime was a minor offense, the
plaintiff posed no apparent threat, and the plaintiff complied with the officers’ instructions). In
applying these considerations to the facts at hand, it would be clear to a reasonable officer that
the amount of force used by Vann against Barton was unlawful.
First, Barton was being arrested for animal cruelty, not a crime that would justify the
amount of force used here. It was contested as to whether Barton shot the cat, and even if he did,
whether he would have been justified in doing so given the attack on his daughter. There was no
threat to human safety from Barton’s actions.
Second, Barton did not pose an immediate threat to the safety of the officers or others.
Vann testified that although he was unsure whether Barton was armed when he initially arrived
at the scene, when he entered Barton’s home, he saw Barton “standing in the kitchen” and “at
that point,” did not perceive a threat from him because Barton did not have “anything in his
hands” and was not “in control of any type of a weapon.” DE 28-7, Vann Dep. Tr., PageID 229.
Thus, Vann testified that he realized, at least upon entering Barton’s home, that Barton was not
armed. Hence, while some use of force may have been reasonable when Vann was unsure
whether Barton had a weapon, see Dunn v. Matatall, 549 F.3d 348, 354 (6th Cir. 2008) (noting
that when officer is unsure whether suspect is armed, suspect poses greater threat to officer’s
safety), slamming Barton against the cabinet was no longer reasonable once Vann realized that
Barton was not holding anything in his hands. See Wells v. City of Dearborn Heights, 538 F.
App’x 631, 638 (6th Cir. 2013) (explaining that how much force is reasonable may evolve as an
incident progresses and an officer learns new information).
Third, the facts do not suggest that Barton was resisting arrest or attempting to flee. Both
Barton and Vann testified that Barton did not resist or evade arrest. Rather, when Vann told
Barton to put his hands behind his back, Barton “complied and was placed under arrest” and
“there was no struggle.” DE 28-7, Vann Dep. Tr., PageID 229. That Barton did not attempt to
evade arrest or flee is corroborated by the fact that he passed his identification through the screen
door to his mother-in-law, who was on his porch, to hand to the officers before Vann crashed
through the door.
No. 18-1614 Barton v. Martin, et al. Page 16
Viewed in the light most favorable to Barton, a reasonable jury could find that Vann’s
actions violated Barton’s right to be free from excessive force during the arrest. A reasonable
jury could find that by the time Vann “threw [Barton] up against the counter like a linebacker,”
DE 28-15, Jennifer Barton Dep. Tr., PageID 282, Vann knew, or should have known, that Barton
was not in control of any weapon and was not attempting to evade arrest or flee. There was no
reasonable basis to believe that Barton was armed, posed an immediate threat, or was resisting
arrest. Vann’s observations after entry into the home confirmed any concern about Barton being
armed was unfounded. Barton’s allegation that Vann “lifted [him] up with his elbows underneath
[his] body and [his] arm and literally picked [him] up and slammed [him] against [their] kitchen
cupboards,” plausibly makes out an excessive force violation. DE 28-3, Barton Dep. Tr., PageID
186.
“Having determined that there was a constitutional violation, the question now becomes
whether the Fourth Amendment right violated by Defendants was clearly established.”
Armstrong, 432 F.3d at 700. “If there can be reasonable disagreement” about whether the
officer’s conduct was unlawful based on the law at the time of the incident, “then the right
cannot be considered ‘clearly established.’” Id. at 701. The plaintiff bears “the burden of
showing that a right was clearly established at the time of an alleged injury.” T.S., 742 F.3d at
635. Qualified immunity thus “protects actions in the ‘hazy border between excessive and
acceptable force.’” Mullenix, 136 S. Ct. at 312 (quoting Brosseau, 543 U.S. at 198).
The right to be free from excessive force was clearly established in 2014. The Supreme
Court has held that use of force that is not objectively reasonable violates the Fourth
Amendment. Graham v. Connor, 490 U.S. 386, 396 (1989). A compliant, non-threatening
individual’s right to be free from excessive force during arrest was also clearly established in this
circuit. See Baker v. City of Hamilton, 471 F.3d 601, 607–08 (6th Cir. 2006); Solomon, 389 F.3d
at 173; Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681, 688 (6th Cir. 2006). The facts here
do not present one of the hazy cases where an officer should be entitled to qualified immunity for
making an objectively reasonable mistake as to the amount of force that was necessary. Vann’s
use of force occurred after he saw that Barton was unarmed, non-threatening, and compliant.
No. 18-1614 Barton v. Martin, et al. Page 17
We conclude that no reasonable officer would find that the circumstances surrounding the arrest
of Barton required the level of force used here.
2.
A reasonable jury could also conclude that Vann used excessive force after arresting
Barton. Once he was handcuffed, Barton claims that Vann “tossed [him] down” his front porch,
elevated about three feet from the sidewalk, to Manchester. DE 28-3, Barton Depo Tr., PageID
188–89. This was after Barton told Vann of a prior shoulder injury. Id. The court has “held
repeatedly that the use of force after a suspect has been incapacitated or neutralized is excessive
as a matter of law.” Baker, 471 F.3d at 608. “The reason for this is that once the detainee ceases
to pose a threat to the safety of the officers or others, the legitimate government interest in the
application of significant force dissipates.” Morrison, 583 F.3d at 404–05. “‘Gratuitous
violence’ inflicted upon an incapacitated detainee constitutes an excessive use of force, even
when the injuries suffered are not substantial.” Id. at 407. As Barton was incapacitated after
being handcuffed, Vann tossing Barton down his front porch stairs was unreasonable. There
were no officer safety concerns or other legitimate government interests justifying this use of
force. This circuit’s case law has long recognized the unconstitutionality of using gratuitous
force against an incapacitated suspect. See, e.g., Coley v. Lucas County, 799 F.3d 530, 540 (6th
Cir. 2015); Phelps v. Coy, 286 F.3d 295, 302 (6th Cir. 2002). Vann was on notice that his
conduct was a violation of Barton’s constitutional right to be free from excessive use of force as
it was obvious that Vann could not shove a handcuffed detainee off a front porch about three feet
off the ground when there was no threat to the safety of the officers or others. Accordingly,
Vann is not entitled to qualified immunity on Barton’s excessive force claims.
IV.
For the reasons stated, we reverse the district court’s grant of summary judgment on the
basis of qualified immunity for the illegal entry, wrongful arrest, and excessive force claims
against Vann.