Corey Bauman v. Scott Millisor

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0005n.06
Case No. 21-1527
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 04, 2022
COREY BAUMAN, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) MICHIGAN
SCOTT MILLISOR, THOMAS ZAHINA, )
DAVID BERTI, and MICHAEL TAVTIGIAN, )
) OPINION
Defendants-Appellees. )
)
Before: GILMAN, KETHLEDGE, and LARSEN, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. In November 2016, Corey Bauman flew to
Tampa, Florida to pick up his children from his ex-wife and accompany them back to his home in
Michigan. An incident occurred after their landing at the Detroit airport that culminated in Bauman
being arrested for disorderly conduct. He later filed a lawsuit against the individual officers
involved in his arrest, arguing that they lacked probable cause to arrest him and therefore violated
his Fourth Amendment rights. The district court rejected his argument and granted summary
judgment in favor of the officers. For the reasons set forth below, we AFFIRM the judgment of
the district court.
Case No. 21-1527, Bauman v. Millisor et al.
I. BACKGROUND
Bauman is a police officer and divorced father of three who resides in Michigan. His three
children are Kelsey, Cassidy, and Cody, who were 16, 12, and 11 years old, respectively, at the
time of the incident. The children live in Florida with Bauman’s ex-wife, but under the terms of
his divorce agreement, the children would come stay with Bauman for the week of Thanksgiving
every year.
On November 19, 2016, Bauman flew to Tampa, Florida to pick up his children and bring
them back to Michigan. He consumed either one or two liquor beverages on the flight to Tampa.
After landing in Tampa, he met his children at the airport’s ticketing counter, then immediately
returned to the gate for their return flight. He had two more liquor beverages on the flight back to
Michigan.
Once back at the Detroit airport, Bauman accompanied his children to the baggage claim
area to collect their luggage. The airport’s video system captured nearly all of their movements as
they proceeded through the airport. A fellow passenger on their flight, William Bertrand, noticed
that Bauman was “stumbling and having difficulty maintaining his balance” and “appeared to be
visibly drunk.” According to Bertrand, Kelsey “was visibly frightened and scared,” and she told
Bertrand that she was afraid to go home with her father because he had been drinking alcohol.
Bertrand relayed this information to Carla Chupac, an employee at the airport’s information desk.
Chupac approached Kelsey—who, according to Chupac, was “crying and visibly
frightened”—and told her to “tell your dad you’re going to the bathroom,” and then to come back
to the information desk. Kelsey followed Chupac’s advice. Once back at the desk, Kelsey told
Chupac that her father was drunk and that she did not want to drive home with him. Chupac then
contacted the Airport Police and asked that they “send someone down immediately” because “there
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is a very drunk man trying to leave with three children.” She then provided a description of
Bauman. At the behest of the responding officers, the dispatcher asked Chupac: “what was he
doing that makes you think he is intoxicated?” Chupac responded: “I had a customer come and
tell me that he was . . . swaying back and forth. His oldest daughter, who is down here, is crying.
She does not want to get in the car with him.” The dispatcher then relayed that information to the
responding officers.
Corporal David Berti was the first officer to encounter Bauman, who was leaning against
a railing on the ticketing level of the airport when Berti approached him. Berti asked Bauman to
have a seat on a bench about 100 feet away. According to Berti, Bauman “seemed unsteady when
he was walking” and was staggering so much that Berti was concerned that Bauman would fall
over. Berti also testified that Bauman’s eyes were glassy and that Bauman struggled to retrieve
his identification from his wallet when asked.
Investigator Scott Millisor also responded to the dispatch call. He first spoke briefly to
Kelsey, who stated that Bauman was intoxicated when he picked the children up in Tampa and
had continued to drink on the flight back to Detroit. Berti then asked Millisor to assist Berti in his
discussion with Bauman. Millisor testified that he could smell alcohol on Bauman’s breath or
clothes and that Bauman was slurring his words and had difficulty retrieving his driver's license.
When Millisor asked Bauman how much he had to drink, he replied: “a couple shots.” Millisor
also asked Bauman how he planned on getting home from the airport, and Bauman told him that
Kelsey was going to drive because she had a learner’s permit.
Sergeant Thomas Zahina was the third officer who responded to the dispatch call. He
found Kelsey hiding and crying behind the information desk, and he spoke with her and Chupac
to find out more about the situation. Shortly thereafter, Zahina went to join in Berti’s and
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Millisor’s conversation with Bauman. He was informed that Bauman was not cooperating with
their investigation and had refused a Preliminary Breath Test (PBT). Zahina concluded that
Bauman was intoxicated based on his glassy eyes, the strong odor of alcohol emanating from his
breath, his lack of coordination when trying to walk straight, and his inability to find his
identification in his wallet.
After consulting with Millisor, Zahina decided that Bauman should be arrested for
disorderly conduct because his alcoholic state rendered him unable to take care of himself or his
children. Berti and Millisor then escorted Bauman out of the airport, where they handcuffed him,
placed him in a police vehicle, and transported him to a nearby police station. Lieutenant Michael
Tavtigian encountered Bauman for the first time during the booking process at the police station,
where he could smell intoxicants on Bauman’s person. Tavtigian asked Bauman to take a PBT
several times, but Bauman refused, so Tavtigian made the decision to detain Bauman overnight.
Bauman was released from custody at 9:15 A.M the next morning. After originally being charged
with disorderly conduct, Bauman later pleaded guilty to the reduced charge of double parking.
Bauman filed this lawsuit in November 2019, seeking damages under 42 U.S.C. § 1983against each of the four officers involved in his arrest and detention. Specifically, he alleges that
the defendants violated his Fourth Amendment right to be free from unreasonable seizure because
they lacked probable cause to arrest and detain him for disorderly conduct. The district court,
however, found that the defendants did have probable cause for Bauman’s arrest and therefore
granted their motion for summary judgment. This timely appeal followed.
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II. ANALYSIS
A. Standard of review
We review the district court’s grant of summary judgment de novo. Keith v. County of
Oakland, 703 F.3d 918, 923 (6th Cir. 2013). “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “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).
B. Qualified immunity
The four officers invoked the defense of qualified immunity, which “protects government
officials 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.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation and internal quotation marks omitted).
When such a defense is raised, the plaintiff bears the burden of showing that the defendants are
not entitled to qualified immunity. Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020). This
court has generally “use[d] a two-step analysis: (1) viewing the facts in the light most favorable
to the plaintiff, we determine whether the allegations give rise to a constitutional violation; and
(2) we assess whether the right was clearly established at the time of the incident.” Burgess v.
Fischer, 735 F.3d 462, 472 (6th Cir. 2013). We can consider these steps in either order, so “[i]f
the court concludes that no constitutional violation has occurred, there is no need to address
whether the alleged right was clearly established.” Kinlin v. Kline, 749 F.3d 573, 577 (6th
Cir. 2014).
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C. Probable cause
The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. In interpreting
the Amendment, the Supreme Court has held that “a warrantless arrest by a law officer is
reasonable under the Fourth Amendment where there is probable cause to believe that a criminal
offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The
determination of probable cause in any given situation does not lend itself to a formulaic recitation,
but this court has elaborated on the rules and considerations that guide our analysis:
The inquiry “depends upon the reasonable conclusion to be drawn from the
facts known to the arresting officer at the time of the arrest,” [id.] at 152,
125 S.Ct. 588, where supported by “reasonably trustworthy information.”
Beck [v. Ohio, 379 U.S. 89, 91 (1964)]. No overly-burdensome duty to
investigate applies to officers faced with the prospect of a warrantless arrest.
In initially formulating probable cause, they need not “investigate
independently every claim of innocence.” Gardenhire v. Schubert, 205
F.3d 303, 318 (6th Cir. 2000). And after the officer determines, on the basis
of the facts and circumstances known to him, that probable cause exists, the
officer has no further duty to investigate or to search for exculpatory
evidence. Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999); Criss v. City
of Kent, 867 F.2d 259, 263 (6th Cir. 1988). However, the initial probable
cause determination must be founded on “both the inculpatory and
exculpatory evidence” known to the arresting officer, Gardenhire, 205 F.3d
at 318 (emphasis in original); Estate of Dietrich v. Burrows, 167 F.3d 1007,
1012 (6th Cir. 1999), and the officer “cannot simply turn a blind eye toward
potentially exculpatory evidence.” Ahlers, 188 F.3d at 372.
Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007). “Through it all, this fluid concept looks for
a probability that the suspect violated a criminal statute, keeping in mind that probable cause does
not establish a high bar.” Barrera v. City of Mount Pleasant, 12 F.4th 617, 620 (6th Cir. 2021)
(internal citations and quotation marks omitted).
Police officers, in their assessment of probable cause, need not rely solely on the
information that they witness first-hand. Instead, “[t]he collective-knowledge doctrine permits an
officer to conduct a stop based on information obtained from fellow officers.” Bey v. Falk, 946
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F.3d 304, 316 (6th Cir. 2019) (citation and internal quotation marks omitted). The rationale behind
the doctrine is that “police officers must often act swiftly and cannot be expected to cross-examine
their fellow officers about the foundation of transmitted information, [so] we impute collective
knowledge among multiple law enforcement agencies.” Id. (alterations, citations, and internal
quotation marks omitted). We thus look to the “collective knowledge of [officers] working as a
team . . . in determining probable cause,” so long as there is evidence that the officers
communicated the relevant information among themselves. United States v. Duval, 742 F.3d 246,
253 (6th Cir. 2014) (citation omitted).
Each defendant’s actions must be analyzed separately to determine whether Bauman “has
stated a plausible constitutional violation by each individual defendant.” See Heyne v. Metro.
Nashville Pub. Schs., 655 F.3d 556, 564 (6th Cir. 2011). We therefore analyze the actions of Berti,
Millisor, and Zahina—who were involved in the decision to arrest Bauman—separately from the
actions of Tavtigian, who made the separate decision to detain Bauman overnight.
1. Berti, Millisor, and Zahina
Under Michigan’s disorderly-conduct statute, Mich. Comp. Laws § 750.167(e), a person
commits the misdemeanor of disorderly conduct if he or she “is intoxicated in a public place
and . . . is either endangering directly the safety of another person or of property or is acting in a
manner that causes a public disturbance.” See also People v. Gagnon, 341 N.W.2d 867, 870 (Mich.
Ct. App. 1983) (construing “the public disturbance provision of the disorderly person statute to
require a finding that an accused, while intoxicated, directly endangered the safety of another
person or of property”).
We first look to the record to determine whether the officers had a reasonable basis to
believe that Bauman was intoxicated in a public place. There is no dispute that the Detroit airport
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is a public place, and there was sufficient evidence giving rise to the probability that Bauman was
intoxicated. The dispatcher relayed that there was a report of an intoxicated male in the airport
who matched Bauman’s description. Kelsey relayed to Millisor that Bauman was intoxicated from
having consumed multiple drinks on the flights to and from Tampa. And when the officers
approached Bauman, they smelled alcohol on his breath and noticed that he had glassy eyes. They
also observed Bauman having trouble standing or walking straight, and he struggled to produce
his identification from his wallet when asked to do so by the officers. When the officers asked
Bauman how much he had to drink, he replied: “a couple shots.” Bauman also refused one of the
officer’s request to take a PBT.
Because the officers communicated this information among themselves before placing
Bauman under arrest, we are able to look at the entire situation. See Duval, 742 F.3d at 253. The
cumulation of these undisputed facts was more than sufficient for the officers to reasonably infer
that Bauman was intoxicated. An officer can reasonably conclude that a suspect is intoxicated
from his “refusal to submit to a field sobriety test, combined with evidence of alcohol
consumption.” Kinlin v. Kline, 749 F.3d 573, 580 (6th Cir. 2014). This court in Kinlin held that
probable cause existed to arrest the suspect driver for driving under the influence of alcohol where
the suspect driver “(1) made a lane change with only two feet of clearance, (2) smelled of alcohol,
(3) admitted to consuming alcohol, and (4) thrice refused a field sobriety test.” Id. For the
purposes of being an indicator of intoxication, Bauman’s difficulty standing and walking is akin
to a driver not following the rules of the road, and Bauman exhibited all of the other indicia of
intoxication delineated in Kinlin. See also Cain v. Irvin, 286 F. App’x 920, 925 (6th Cir. 2008)
(finding that the officers had probable cause to arrest the suspect for public intoxication “[b]ased
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on plaintiff’s admitted use . . . of [prescription medication], her difficulty standing, slurred speech,
and non-reactive pupil dilation”).
Bauman nevertheless contends that “the admissible evidence demonstrates he was not
intoxicated” because he allegedly had only “three drinks in a more than six hour period,” and
therefore his blood alcohol content could have been “at most .03.” But that argument is unavailing
because he repeatedly refused to take a PBT that would have estimated his blood alcohol content,
and that refusal was itself one indicator of drunkenness. See Kinlin, 749 F.3d at 580. Moreover,
“our inquiry is not to determine the veracity of the charge, i.e., [whether Bauman was] actually
intoxicated, but rather whether [the officers] had probable cause to believe that [Bauman] was
intoxicated.” Cain, 286 F. App’x at 925 (emphasis in original).
Bauman also argues that the video evidence directly contradicts the officers’ testimony that
he was staggering. “When videotape footage exists, the reviewing court need not credit the version
of a party who asserts facts ‘blatantly contradicted’ by the videotape; rather[,] it should view the
facts in the light depicted by the videotape.” Cunningham v. Shelby County, 994 F.3d 761, 763
(6th Cir. 2021) (quoting Scott v. Harris, 550 U.S. 372, 380–81 (2007)). Here, both sides oversell
what the video evidence demonstrates because the footage captures only quick glimpses of
Bauman up-close. What is shown, however, does not blatantly contradict the version of events
laid out by the officers’ testimony. Bauman is seen walking unevenly at a very slow pace several
steps behind his children, repeatedly correcting his trajectory—behavior that is consistent with the
officers’ description. Although he does not appear to be on the verge of falling over in any of the
videos, that does not blatantly contradict the officers’ testimony that he was “unsteady” and
“staggering.” The video evidence is ultimately as consistent with a drowsy person as one who is
intoxicated, but that does nothing to prevent us from relying on the officers’ testimony that several
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factors—not just the unsteady walking—reasonably led them to conclude that Bauman was
intoxicated.
The second element of a disorderly-conduct charge is that the person is “either endangering
directly the safety of another person or is acting in a manner that causes a public disturbance.”
Mich. Comp. Laws § 750.167(e). Here, the evidence supports a reasonable inference that
Bauman’s intoxication endangered the safety of his children. The officers were told on the
dispatch call that Kelsey was crying and did not want to get in the car with her father. Upon
arriving at the scene, the officers encountered Kelsey crying and hiding behind the information
desk. They then determined, based on all that they observed, that Bauman was intoxicated. At
that point, they could reasonably conclude that Bauman posed a threat to Kelsey’s safety and that
the danger was imminent because Bauman and the children had already gathered their luggage.
Bauman, moreover, was apparently aware that he was unfit to drive due to his intoxication,
which is why he intended for Kelsey to drive because she had a Florida learner’s permit. Florida
law requires individuals with a learner’s permit to drive under the supervision of a licensed driver
in the car. Fla. Stat. § 322.1615(2). Allowing a teenage driver with a learner’s permit—who was
in a distressed emotional state—to drive a car while being supervised by an intoxicated parent
would have endangered the safety of everyone in the car. Although Zahina testified that Bauman
was not arrested for indicating that his daughter would drive the group home, that does not prevent
us from considering this fact in the probable-cause analysis. See Devenpeck v. Alford, 543 U.S.
146, 153 (2004) (explaining that an officer’s “subjective reason for making the arrest need not be
the criminal offense as to which the known facts provide probable cause”).
In sum, the totality of the circumstances allowed officers Berti, Millisor, and Zahina to
reasonably conclude that Bauman was intoxicated in a public place and was endangering the safety
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of his children. These officers therefore had probable cause to arrest Bauman for disorderly
conduct, meaning that summary judgment was properly granted in their favor.
2. Tavtigian
We now turn to Bauman’s contention that Tavtigian wrongfully detained him overnight in
the police station without probable cause. Tavtigian testified that Bauman appeared intoxicated
and that he did not know how much alcohol was in Bauman’s system. Custodial officers, Tavtigian
explained, “were told to hold someone for twenty-four hours to make sure there’s no alcohol in
the system.” This policy is required by Michigan law, which states, in the context of an arrest
without a warrant:
If, in the opinion of the arresting officer or department, the arrested person
is under the influence of intoxicating liquor or a controlled substance, or a
combination of intoxicating liquor and a controlled substance, . . . or it is
otherwise unsafe to release him or her, the arrested person shall be
held . . . until he or she is in a proper condition to be released . . . .
Mich. Comp. Laws § 780.581(3).
Bauman argues that the video evidence belies Tavtigian’s determination that Bauman was
intoxicated at the police station and unable to stand, and therefore contends that Tavtigian should
have released him. But the video does not negate the fact that Tavtigian was informed by his
fellow officers that Bauman was intoxicated, and Tavtigian himself smelled alcohol on Bauman’s
person at the police station. Bauman also repeatedly refused to take a PBT while detained.
Tavtigian therefore had a reasonable basis to believe that Bauman was still intoxicated. Detaining
Bauman overnight to ensure that he would be sober when released was thus in compliance with
Mich. Comp. Laws § 780.581(3) and not a violation of the Fourth Amendment.
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III. CONCLUSION
We conclude that Bauman has failed to raise a genuine dispute of material fact as to
whether he was unlawfully detained without probable cause. We therefore AFFIRM the district
court’s grant of summary judgment in favor of the four officers.
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