Willis v. Neal

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0668n.06
Filed: September 7, 2007
No. 06-5695
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDREA WILLIS, )
)
Plaintiff-Appellant, )
)
v. )
)
MIKE NEAL, Individually and as Sheriff of ) ON APPEAL FROM THE UNITED
Rhea County, Tennessee; JOHN ARGO, ) STATES DISTRICT COURT FOR THE
Individually and as a Member of the Rhea ) EASTERN DISTRICT OF TENNESSEE
County Sheriff’s Department; RONNIE )
HITCHCOCK, Individually and as Sheriff of )
Sequatchie County, Tennessee; CLINT )
HUTH, Individually and as Police Chief of )
Dunlap, Tennessee; JAMES OLLIE )
McMILLON, also known as James Ollie )
McMilian, also known as James Ollie )
McMillion, Individually and as a Member of )
and Agent for Rhea County, Tennessee, )
Member of Dunlap City Police Force & )
Sequatchie County, Tennessee Sheriff’s )
Department; RHEA COUNTY, TENNESSEE; )
CITY OF DUNLAP, TENNESSEE; )
SEQUATCHIE COUNTY, TENNESSEE, )
)
Defendants-Appellees. )
)
Before: ROGERS and COOK, Circuit Judges; and DOWD, District Judge.*
*
The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 06-5695
Willis v. Neal, et al.
Rogers, Circuit Judge. Andrea Willis appeals the grant of summary judgment to defendant
law enforcement officers and their respective municipal employers on her § 1983 claim based on
allegations that Willis was arrested without probable cause and on her state law claims of outrageous
conduct and false arrest. Willis’s arrest was supported by probable cause, thus shielding the officers
and municipalities from liability. The district court also properly considered Willis’s claims of
outrageous conduct and false arrest. Therefore, the grant of summary judgment was proper.
I. Background
In 2003, Andrea Willis was a pilot working in Florida and attempting to accumulate enough
flying hours to become a commercial airline pilot. It was through her job at the airport that Willis
met Jack Marshall, another pilot. Willis often flew with Jack Marshall. On October 6, 2003, Jack
asked Willis to accompany him on a flight to Dayton, Tennessee, scheduled for the next day. Willis,
needing additional hours, agreed. The next morning, October 7, 2003, Willis boarded the plane with
Jack Marshall, Jack’s son John Marshall, and Danny Robertson. According to Willis, she
understood the purpose of the trip to be related to John’s involvement in setting up a pawn shop.
Unfortunately for Willis, however, John was actually traveling to Tennessee for what he thought was
a money laundering deal, but that was really an undercover operation of the 12th Judicial District
Drug Task Force involving police informant James McMillon. McMillon had the role of bringing
cases to the attention of the Task Force and he received 20% of whatever was seized as a “referral
fee.” While working as a informant for the Task Force, McMillon and John Marshall had concocted
a money laundering scheme in which John Marshall would provide jewelry in exchange for
-2-
No. 06-5695
Willis v. Neal, et al.
$287,000. This exchange was arranged to take place at the Dayton, Tennessee airport on October
7, 2003. John Marshall told McMillon that Robertson and his father, Jack Marshall, would
accompany him and that his father’s girlfriend might also be on the plane. When McMillon
attempted to get more information from John about who would be on the plane, John said that
everyone on the plane knew to keep their mouths shut. John Marshall also indicated that he would
be armed.
Ricky Smith and Roy Sain, the Director and Assistant Director, respectively, of the Task
Force, enlisted law enforcement officers from the City of Dunlap, Sequatchie County, and Rhea
County, to assist them in the “takedown” at the airport. On October 5 or 6, Smith requested
assistance from Dunlap Police Chief Clint Huth. Chief Huth was unable to enlist other officers, but
agreed to assist the Task Force. Smith also called to request assistance from Sequatchie County
Sheriff Ronnie Hitchcock. Sheriff Hitchcock assembled a group of four Sequatchie County deputies
to assist the Task Force operation. On October 5, Smith contacted Rhea County Sheriff Mike Neal,
who in turn contacted Chief Deputy John Argo. Argo assembled a team of several Rhea County
deputies to assist the Task Force.
On October 7, 2003, the morning of the takedown, Smith conducted a briefing for the Task
Force participants, telling the attendees that a plane would be flying into the Dayton airport and
telling them about the money laundering scheme. Smith told the participants that several people
would be on the plane, and that one of the suspects on the plane might be armed. The participants
were divided into two teams. One team was to secure the individuals getting off the plane, while the
-3-
No. 06-5695
Willis v. Neal, et al.
other team was to provide back-up assistance and secure the plane. Chief Huth was assigned to the
second team, along with Chief Deputy Argo and several deputies from Rhea County and Sequatchie
County. Sheriff Hitchcock was assigned to the first team, along with several Sequatchie and Rhea
County deputies.
When the plane arrived at the airport, Willis, Jack Marshall, and Robertson got off the plane
and went into the airport building while John Marshall remained on the plane. Willis and the others
were directed to the lounge area of the airport and were followed by two Sequatchie county deputies.
When Willis attempted to use the restroom, one of the deputies, without identifying himself, told her
to sit down, and Willis complied. According to Willis, after about thirty minutes, Sheriff Hitchcock
entered the room and asked Willis and the others to remove their personal belongings. Fifteen
minutes later, a law enforcement officer entered the room pointing a gun and yelled for everyone to
get down. Willis and the others were handcuffed and left lying on the ground for several minutes
until they were assisted back into chairs; Sheriff Hitchcock assisted Willis. Neither Willis nor her
companions asked why they were being held and that information was not offered. Willis and the
others were then placed in marked Rhea County Sheriff cars and transported to the Rhea County jail.
Rhea County Sheriff Mike Neal did not arrive at the airport until after Willis and the others
had been taken away. Chief Deputy Argo was assigned to the team that was supposed to secure the
plane and did not participate in Willis’s arrest, but following the arrest of the passengers he called
for transport vehicles. Chief Huth’s team left the conference room, where they were waiting, in order
-4-
No. 06-5695
Willis v. Neal, et al.
to secure the plane. Chief Huth looked into the room where Willis and the others had been
handcuffed but did not enter the room.
Upon arriving at the Rhea County jail, officers removed Willis’s handcuffs and placed her
in ankle shackles. Willis asked to use the restroom, but did not receive a response. Willis was then
placed in a visitation room and, sometime later, an officer came into the room and told her that the
police wanted to interview her. When Willis again asked to use the restroom, the officer responded
that Willis would have to ask the interviewer. Once with the interviewer, Willis again asked to use
the restroom, but was told she would have to wait until the interview was over. Willis was informed
during the interview that she was being arrested for money laundering. After the interview, Willis
was allowed to use the restroom and made to change into a black and white jail suit. Willis asked
to use the phone, but was denied. She was held in a jail cell for several hours and the charges against
Willis were dismissed on January 13, 2004.
Willis filed suit against Neal, Argo, Hitchcock, Huth, and McMillon, all in their individual
and official capacities, and against Rhea County, Sequatchie County, and the City of Dunlap. Willis
sued all of the defendants under § 1983, alleging that they violated her Fourth Amendment rights,
and also alleged that the defendants committed the state law torts of false arrest, malicious
harassment, assault and battery, slander and libel, intentional and negligent infliction of emotional
distress, malicious prosecution, abuse of process, and outrageous conduct.
Following discovery, the defendants filed motions for summary judgment. The district court
construed Willis’s complaint as alleging a Terry stop that escalated into an arrest and proceeded to
-5-
No. 06-5695
Willis v. Neal, et al.
assess each individual’s actions to determine if any of the individuals participated in Willis’s arrest.
The district court concluded that Sheriff Hitchcock was the only individual defendant that
participated in Willis’s arrest. Concluding that there was insufficient information to determine that
probable cause did or did not exist as a matter of law, the court assumed arguendo that probable
cause did not support Willis’s arrest, but held that Hitchcock was entitled to qualified immunity
because it was not objectively unreasonable for Hitchcock to rely on the instructions of Smith and
Sain.
The district court also granted the defendant municipalities’ motion for summary judgment.
The district court dismissed the City of Dunlap because Chief Huth did not arrest Willis and,
therefore, had not established a constitutional violation that could be imputed to the city. The § 1983
claim against Rhea County was dismissed because neither Neal nor Argo participated in or directed
Willis’s arrest; although Rhea County deputies participated in the arrest, the district court concluded
that Willis had not established that the actions of the deputies were pursuant to an official policy set
by Sheriff Neal or Chief Deputy Argo. Finally, the § 1983 claim against Sequatchie County was
dismissed because, although Sheriff Hitchcock participated in Willis’s arrest, the district court
concluded that Willis had not presented evidence sufficient to raise a genuine issue of material fact
regarding deliberate indifference on the part of Hitchcock. The dismissal of the claims against the
municipalities resulted in the dismissal of Willis’s claims against the defendants in their official
capacities.
-6-
No. 06-5695
Willis v. Neal, et al.
Finally, the district court dismissed the state law claims against the defendants. The court
concluded that the defendants’ conduct did not rise to the level necessary to deem their actions
outrageous, resulting in the dismissal of Willis’s outrageous conduct and intentional infliction of
emotional distress claims.1 The district court also dismissed the false arrest claims against Sheriff
Neal, Chief Deputy Argo, and Chief Huth because none of them participated in Willis’s arrest.
Although summary judgment was initially denied to Sheriff Hitchcock on the false arrest claim, the
district court granted summary judgment on a motion to reconsider, concluding that because Sheriff
Hitchcock was entitled to qualified immunity on Willis’s § 1983 claim alleging arrest without
probable cause in violation of the Fourth Amendment, he was also entitled to immunity on Willis’s
state law false arrest claim.2 Willis timely appeals the district court’s grant of summary judgment.
II. Analysis
The court reviews de novo the district court’s grant of summary judgment. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). Summary judgment is proper if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
1
The district court held that the Tennessee Governmental Tort Liability Act precluded Willis
from proceeding with her state law claims against the municipalities and Willis concedes this point
in her brief.
2
Willis does not appeal the district court’s dismissal of her claims against the defendants in
their official capacities as members of the 12th Judicial District Drug Task Force or the dismissal
of her state law claims of malicious harassment, assault and battery, slander and libel, intentional and
negligent infliction of emotional distress, malicious prosecution, or abuse of process. Nor does
Willis appear to appeal the grant of summary judgment in favor of McMillon.
-7-
No. 06-5695
Willis v. Neal, et al.
judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether there are genuine issues
of material fact, the evidence of the nonmovant is to be believed and all justifiable inferences are to
be drawn in its favor. Anderson, 477 U.S. at 248.
A. § 1983 Claim
We affirm the judgment of the district court but we affirm on the ground that Willis’s arrest
was supported by probable cause. Because Willis’s arrest was supported by probable cause, her
§ 1983 necessarily fails. In order to prevail on her § 1983 claim, Willis “must establish that a person
acting under color of state law deprived [her] of a right secured by the Constitution or laws of the
United States.” Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001). Willis also
bears the burden of establishing that the defendants are not entitled to qualified immunity. Smoak
v. Hall, 460 F.3d 768, 778 (6th Cir. 2006).
There does not appear to be a dispute about the fact that Willis was arrested at the airport,
at least at the point that officers pointed guns at her, ordered her down on the ground, and handcuffed
her. However, Willis has not met her burden of establishing that the arrest was without probable
cause. Fridley v. Hughes, 291 F.3d 867, 872 (6th Cir. 2002). Willis’s primary argument on appeal
is that the arresting officers had to know personally of the facts supporting a probable cause
determination. However, it is well established that the arresting officer need not personally be aware
of all of the facts amounting to probable cause and that probable cause can be established by the
collective knowledge of the officers on the scene. Many circuits, including our own, have
determined that probable cause may be established from the collective knowledge of the police rather
-8-
No. 06-5695
Willis v. Neal, et al.
than solely from the officer who made the arrest. Collins v. Nagle, 892 F.2d 489, 495 (6th Cir.
1989). See also United States v. Killebrew, 594 F.2d 1103, 1105 (6th Cir. 1979). Thus, the fact that
the officers assisting the Task Force may not have had information sufficient to support a probable
cause determination does not establish that Willis’s arrest was without probable cause.
Willis maintains that “[a]n officer cannot rely upon another officer’s probable cause
determination when no such determination was in fact made.” Presumably, Willis is arguing that
Smith and Sain, the officers on whose instructions the defendants were acting, did not have probable
cause to arrest her. If Smith and Sain did not have probable cause, then the arrest was in violation
of the Fourth Amendment. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568
(1971), for instance, held that although officers were entitled to rely on a bulletin claiming that an
arrest warrant had been issued for the defendant, the arrest was in violation of the Fourth
Amendment because the warrant itself was not supported by probable cause.
Although the evidence is not overwhelming, the record establishes that Smith and Sain had
probable cause to arrest Willis. “The establishment of probable cause requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity. . . . The judicial
determination of probable cause involves evaluating the historical facts leading up to the arrest, and
whether those facts, viewed by an ‘objectively reasonable police officer,’ satisfy the legal standard
of probable cause.” United States v. Moncivais, 401 F.3d 751, 756 (6th Cir. 2005) (quoting Ornelas
v. United States, 517 U.S. 690, 696 (1996)) (internal citation and quotation marks omitted).
-9-
No. 06-5695
Willis v. Neal, et al.
McMillon testified in his deposition that Marshall told him that Marshall would be flying to
the Dayton airport with his partner to participate in a money laundering scheme and that Marshall
indicated that he would be carrying a gun. Marshall said that his father might bring his girlfriend
with him and that anyone on the plane knew to keep their mouth shut. When McMillon, acting upon
Smith’s instructions, attempted to get additional information about who would be on the plane,
Marshall again responded that anyone on the plane would know to keep their mouths shut. Willis
was on a private plane carrying passengers for the sole purpose of engaging in a money laundering
scheme. Given that Marshall had assured McMillon that everyone on the plane knew to keep their
mouths shut, including his dad’s girlfriend, it was entirely reasonable to conclude that Willis was
a participant in the scheme.3
Although Willis refers the court to Ybarra v. Illinois, 444 U.S. 85 (1979), for the proposition
that merely being present at a crime scene is insufficient to support probable cause for an arrest, the
facts of Ybarra are distinguishable from the facts surrounding Willis’s arrest. In Ybarra, the
Supreme Court held that an individual’s presence at a tavern subject to a search warrant was
insufficient to support reasonable suspicion to justify a search of that individual. 444 U.S. at 91.
However, Willis was not merely a patron in a bar, as was the defendant in Ybarra. Although she was
merely the co-pilot of a private plane, given the nature of the trip and the fact that John Marshall had
3
Although there is no evidence that Willis was anyone’s girlfriend, she was the only woman
on the plane and, as long as police had probable cause to arrest the “girlfriend,” they also had
probable cause to arrest Willis as it was reasonable for the officers to conclude that Willis, the only
woman on the plane, was the supposed girlfriend. Hill v. California, 401 U.S. 797, 802-03 (1971).
- 10 -
No. 06-5695
Willis v. Neal, et al.
said that a woman might be on the plane, Smith and Sain were reasonable in concluding that Willis
was a participant in the money laundering scheme. Indeed, in Maryland v. Pringle, 540 U.S. 366,
372-73 (2003), the Supreme Court noted the difference between a passenger in a car and the bar
patron in Ybarra.4
The conclusion that Willis’s arrest was supported by probable cause necessarily means that
her § 1983 claim against all of the defendants fails because she has not established that her
constitutional rights were violated, and the district court properly granted the defendants’ summary
judgment motions.
Because Willis has failed to establish a deprivation of her constitutional rights, she cannot
establish liability against the defendant municipalities. Bukowski v. City of Akron, 326 F.3d 702,
712-13 (6th Cir. 2003).
Our judgment in the case should not be read as condoning either the actions of the Task Force
or the apparent willingness of the defendant municipalities to participate in Task Force operations
based on little information in cases where time is not of the essence. However, Willis has not
presented any argument to this court other than one based on the physical participation of the
individual officers in her arrest.
B. State Law Claims
4
The Supreme Court has repeatedly reasoned that “‘a car passenger—unlike the unwitting
tavern patron in Ybarra—will often be engaged in a common enterprise with the driver, and have
the same interest in concealing the fruits or the evidence of their wrongdoing.’” Pringle, 540 U.S.
at 373 (quoting Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999)). The same is obviously true
of a small plane with four occupants.
- 11 -
No. 06-5695
Willis v. Neal, et al.
Although Willis maintains that the district court failed to address her claim of outrageous
conduct, the district court thoroughly analyzed her claim of intentional infliction of emotional
distress, which is the same cause of action as one for outrageous conduct. Bain v. Wells, 936 S.W.2d
618, 622 n.3 (Tenn. 1997). The district court’s analysis of the claim was appropriate given that
“‘[l]iability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all bounds of decency, and to
be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case
is one in which the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’”’
Id. at 623 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Even if Willis was arrested
without probable cause, nothing so outrageous occurred during the arrest that would support her
claim of outrageous conduct. Although she pointed out in her filings in the district court that the
repeated refusals of her requests to go to the bathroom would support her claim for outrageous
conduct, she hasn’t alleged that any of the individual defendants refused her request to go to the
bathroom. Sheriff Hitchcock was the only defendant that Willis interacted with and she stated that
she never asked him to go to the bathroom. Thus, the district court properly dismissed this claim.
The district court also properly dismissed Willis’s false arrest claims. First, the arrests were
supported by probable cause.5 However, if there was no probable cause for the arrest, the district
court was correct in looking to Tennessee law to determine whether qualified immunity also applies
5
In other contexts, Tennessee state courts have concluded that officers may rely on the
information provided to them by fellow officers. See, e.g., State v. Ash, 12 S.W.3d 800, 805 (Tenn.
Crim. App. 1999) (requirement of being present for misdemeanor arrest); State v. Hopson, 1997 WL
379142, at *3 (Tenn. Crim. App. July 8, 1997) (investigative stop) (citing State v. Seaton, 914
S.W.2d 129, 131 (Tenn. Crim. App. 1995) (investigative stop)).
- 12 -
No. 06-5695
Willis v. Neal, et al.
to the false arrest claim. The district court concluded that the Tennessee Court of Appeals’ decision
in Youngblood v. Clepper, 856 S.W.2d 405, 407-08 (Tenn. Ct. App. 1993), precluded Willis’s false
arrest claim. This court has previously held, as did the district court, that Tennessee law provides
qualified or good faith immunity of government employees for state law torts. Rogers v. Gooding,
84 Fed. Appx. 473, 477 (6th Cir. 2003) (concluding, in reliance on Youngblood, that the plaintiff’s
claim for assault and battery was precluded by qualified immunity). We find no error in the district
court’s dismissal of Willis’s state law claims.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
- 13 -
No. 06-5695
Willis v. Neal, et al.
DAVID D. DOWD, JR., Senior District Judge, dissenting.
I cannot join the majority’s opinion because I am not convinced that the record supports a
conclusion, on summary judgment, that there was probable cause for the arrest of Willis. Even
though I might be able to agree that there is probably no individual liability on the part of the various
officers, where I part company is with the majority’s conclusion regarding the possibility of liability
under Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). To that extent, I
respectfully dissent. I would remand on this issue and allow a jury of Willis’s peers to decide
whether there is any Monell liability for the arrest of Willis.
If the focus is solely on what happened in the Dayton, Tennessee airport on October 7, 2003,
the district court’s conclusions are probably correct; that is, there may be no individual liability on
the part of the individually named officers and deputies. That does not, however, automatically
mean that there can be no municipal liability.
As aptly explained in Epps v. Lauderdale County, Tennessee, 2002 WL 1869434, at *2-3 (6th
Cir. Aug. 13, 2002) (Cole, J., concurring):
. . . I write separately . . . to clarify my understanding of City of Los Angeles v. Heller,
475 U.S. 796, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (per curiam), that a
municipality may still be held liable for a substantive due process violation even
when the individual officer is absolved of liability.
When no constitutional harm has been inflicted upon a victim, damages may
not be awarded against a municipality. Heller, 475 U.S. at 799, 106 S. Ct. 1571. But
a finding that the individual government actor has not committed a constitutional
violation does not require a finding that no constitutional harm has been inflicted
upon the victim, nor that the municipality is not responsible for that constitutional
harm. See City of Canton v. Harris, 489 U.S. 378, 388-89 n. 8, 109 S. Ct. 1197, 103
L. Ed. 2d 412 (1989) (noting that the deliberate indifference standard for municipal
- 14 -
No. 06-5695
Willis v. Neal, et al.
liability is independent from the state of mind standard used to establish the liability
of an individual government actor); see also Collins v. City of Harker Heights, Texas,
503 U.S. 115, 121-22, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) (highlighting the
“separate character of the inquiry into the question of municipal responsibility and
the question whether a constitutional violation occurred.” ). I read Heller to prohibit
municipal liability only when the victim suffers no constitutional injury at all, not
when the victim fails to trace that constitutional injury to an individual police officer.
Cf., e.g., Claybrook v. Birchwell, 199 F.3d 350, 361 (6th Cir. 2000) (citing the
language of Heller to deny a victim’s substantive due process claim, but not
addressing the case where the victim actually did suffer a constitutional injury).
A given constitutional violation may be attributable to a municipality’s acts
alone and not to those of its employees--as when a government actor in good faith
follows a faulty municipal policy. See Pembaur v. City of Cincinnati, 475 U.S. 469,
480, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); Dodd v. City of Norwich, 827 F.2d 1,
9 (2d Cir. 1987) (Pratt, J., dissenting) (noting that the city’s policy could be
unreasonable, “even if [the individual government actor] himself, who was trained
to follow that policy, was found to be not negligent in his own conduct.”). A
municipality also may be liable even when the individual government actor is
exonerated, including where municipal liability is based on the actions of individual
government actors other than those who are named as parties. See Proprotnik v. City
of St. Louis, 798 F.2d 1168 (8th Cir. 1986), rev’d on other grounds, 485 U.S. 112,
108 S. Ct. 915, 99 L. Ed. 2d 107 (1988); de Feliciano v. de Jesus, 873 F.2d 447 (1st
Cir. 1989); Carapellucci v. Town of Winchester, 707 F. Supp. 611 (D.Mass. 1989).
Moreover, it is possible that no one individual government actor may violate a
victim’s constitutional rights, but that the “combined acts or omissions of several
employees acting under a governmental policy or custom may violate an individual’s
constitutional rights.” Garcia v. Salt Lake County, 768 F.2d 303, 310 (10th Cir.
1985).
My concern is focused on what may be the separate official policies of the City of Dunlap,
Sequatchie County, and Rhea County, to permit their law enforcement personnel to participate in
“takedowns” by the Task Force without any attempt to ascertain for themselves whether there is a
factual basis to believe there is probable cause for an arrest.
- 15 -
No. 06-5695
Willis v. Neal, et al.
The majority affirms the judgment of the district court with respect to the § 1983 claim on
the ground that Willis’s arrest was supported by probable cause.6 To reach this conclusion, the
majority cites Collins v. Nagle, 892 F.2d 489, 496 (6th Cir. 1989) for the proposition that probable
cause may be established from the collective knowledge of the police. I do not disagree with this
legal proposition; however, the record does not support the existence of the requisite collective
knowledge.
The majority declares that “John Marshall told McMillon that Robertson and his father, Jack
Marshall, would accompany him [on the plane] and that his father’s girlfriend might also be on the
plane[, ]” that “everyone on the plane knew to keep their mouths shut[,]” and that John Marshall
“indicated that he would be armed.” (Maj.Op. at 2-3). This information was supposedly given to
6
The district court actually improperly characterized this takedown as a Terry stop which
does not require probable cause. As very recently noted by another panel of this circuit:
. . . An officer may permissibly conduct an investigatory stop when he or she can
point to “a particularized and objective basis” that “leads . . . reasonably to [the
conclusion] in light of [the officer’s] experience that criminal activity may be afoot
and that the persons with whom [the officer] is dealing may be armed and presently
dangerous.” Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 813 (6th
Cir.1999). Reasonable suspicion for an investigative stop must be considered under
the totality of the circumstances, considering “all of the information available to law
enforcement officials at the time.” Feathers, 319 F.3d at 849.
Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007). This was not an investigatory stop based
on an officer’s hunch about something he or she had observed in the course of the officer’s duties
or on some sort of information from a dispatcher that required a quick response. This was a planned
takedown and, for that reason, there is little or no justification for allowing any benefit of a doubt.
- 16 -
No. 06-5695
Willis v. Neal, et al.
the Task Force officers by Smith or Sain during the briefing conducted on the morning of October
7, 2003 and forms the “collective knowledge” supporting “probable cause” for the arrest of Willis.
The flaw not acknowledged by the majority is that the record contains no testimony or
affidavit from Smith or Sain regarding what McMillon may or may not have told them and/or what
they, in turn, told the Task Force, and there are only brief excerpts from the deposition of McMillon
himself.7 Both the district court and the majority improperly drew all inferences in favor of the
defendants apparently based on vague testimony from the various defendants (but not from Smith
or Sain) about what impressions the defendants had regarding the underlying facts of the takedown.8
7
I have not relied solely on the Joint Appendix which, as is typical, is quite inadequate. I
went directly to the electronic docket of the district court believing I would find more sworn
testimony by way of depositions and the like. I was sorely disappointed, finding only the same
inadequate excerpts of depositions. It is one thing for the Joint Appendix not to contain the
evidence; it is another thing entirely for the district court record not to contain it.
8
The various defendants’ sworn testimony is too vague to rely on, without a jury finding. For
example, defendant Huth’s affidavit simply acknowledges that he and the others were “brief[ed]
regarding the money laundering operation.” (JA 49 ¶ 9). In Huth’s deposition, he indicates that
Smith called him a few days before October 7, 2003 to enlist his help, but that Smith did not even
indicate how many people would be on the plane (JA 51), other than that “there would be multiple
people on the plane.” (JA 53). Huth’s deposition recollection of the briefing was “that there was
going to be an airplane coming in there in Dayton, and that it was involving this money laundering
operation he [Smith] had been working.” (JA 52-53). Huth states: “And basically, that was pretty
much about it.” (JA 53). Huth knew nothing about the particulars of the investigation. (JA 110).
Defendant Neal testified at his deposition that, after a call from Smith asking for help, Neal
contacted his chief deputy, defendant Argo. Neal told Argo that he “didn’t know what the operation
[at the airport] was[.]” (JA 159). He further testified that the only thing he knew was “that it
involved jewelry and they said money laundering[.]” (JA 160). In fact, Neal did not believe he and
his officers did anything more than “help do the security[ ]” for the operation. (Id.).
Defendant Argo testified at his deposition that “Rick Smith advised that they had an ongoing
investigation involving some jewelry and money laundering, that some people were flying up from
Florida, that they would be flying into the Dayton Airport, and they needed some assistance on
securing the plane and the personnel on the plane.” (JA 165). Argo was not even told whether the
- 17 -
No. 06-5695
Willis v. Neal, et al.
Both the district court and the majority seem to rely on deposition testimony of McMillon as to what
he learned from John Marshall; but -- and this is very important -- there is nothing in McMillon’s
deposition testimony or in the record as a whole that makes clear that he actually passed any of this
particular information on to Smith or Sain. Since there is no testimony from Smith or Sain, we really
do not know for sure what Smith or Sain knew much less what they communicated to the Task Force
members. Without knowing what Smith or Sain knew, we cannot declare on summary judgment
(where all inferences must be drawn in favor of the non-movant) that they had probable cause to
arrest Willis and that, therefore, the other officers were permitted to rely on Smith’s and Sain’s
probable cause determination. These are facts for a jury to find, not for a court to conclude by
drawing unsupported inferences from a vague record.
In my view, because Huth and Hitchcock (acting in their official capacities as agents and
policy-makers for the City of Dunlap and Sequatchie County, respectively), and Argo (acting in his
official capacity as agent of Neal, who is the policy-maker for Rhea County) were all involved in
decision-making capacities during the relevant pre-takedown time frame, if the facts support a
conclusion that they all proceeded to the Dayton, Tennessee airport without even a minimal attempt
people would be male or female. (Id.). He thought he had been told that “one or more could be
armed[.]” (Id.). Argo only knew that he was to wait for a signal from Smith “to take them down.”
(JA 166).
Defendant Hitchcock testified that Smith “just told that they was supposed to be a plane
coming in with some jewels on it, something about some money laundering, and that’s about it.”
(JA 181). Hitchcock also thought that Smith had “ma[d]e a statement that one subject might be
armed.” (Id.).
All the defendants seem to agree that the officers who showed up to help on October 7, 2003
were divided into two teams, one to secure the airplane and one to secure the people coming off the
plane.
- 18 -
No. 06-5695
Willis v. Neal, et al.
to ascertain for themselves whether there was a sufficient basis to support a probable cause
determination that would justify their independent participation in what appears to have been a
warrantless takedown, they were all, to that extent, “involved in” Willis’s arrest.
Since this was not a Terry stop that escalated into an arrest but, rather, simply an outright
arrest, if it was without probable cause and if it resulted from “a faulty municipal policy,” Epps,
supra, at *3, then one or more of the governmental entities may be liable. The district court
dismissed the City of Dunlap, Sequatchie County and Rhea County, concluding that, since none of
the individual officers had violated Willis’s constitutional rights, there was no basis for finding
municipal liability. At the very least, there are material factual disputes which must be sorted out
by a jury before anyone can reach the conclusion that there is no basis for municipal liability. If it
eventually proves true that the policy of these governmental entities was simply to rely blindly on
assertions by Task Force Officers Smith and Sain as to probable cause determinations, in a situation
where urgency is not a factor, then the governmental entities can be held liable.9 See Pembaur v.
9
Even the Interlocal Cooperation and Mutual Aid Agreement, under which the Twelfth
Judicial District Drug Task Force had enlisted the aid of the officers of these various governmental
entities for this takedown, recognizes that officers do not relinquish any responsibility simply by
participating in the Task Force activities. The Agreement provides, in part, as follows:
12. LIABILITIES. Officers Assigned to the Drug Task Force Remain
Employees of Their Hiring Agency. Each law enforcement officer assigned to the
Drug Task Force will remain an employee of the local government by which the
officer was employed prior to the assignment. The conduct and actions of such
officer will remain the responsibility of the local government employing the officer.
Any civil liability arising from the actions of a law enforcement officer engaged in
Drug Task Force activities will be assumed by the employing local government in the
same manner and to the same extent as if the actions were committed within the
jurisdiction of the employing local government during the normal course of the
- 19 -
No. 06-5695
Willis v. Neal, et al.
City of Cincinnati, 475 U.S. 469, 480 (1986) (“it is plain that municipal liability may be imposed for
a single decision by municipal policymakers under appropriate circumstances”) (citing Monell, 436
U.S. at 694, for the proposition that the acts and decisions of certain officials can be found to
represent official policy).
In my view, the problem here is not so much what happened at the airport but what happened
at a policy level before October 7, 2003. As explained above, it is the apparent policy of these
governmental entities to permit their officers and deputies to rather blindly participate in activities
initiated by the Task Force without any independent assurance that there is a factual basis for those
activities. In this case, that apparent policy resulted in an arrest without probable cause for which
the various governmental entities may be liable.
I would affirm the district court as to all but its ruling regarding municipal liability and
remand for further proceedings with respect to this issue alone as it relates to defendants Rhea
County, Sequatchie County, and City of Dunlap.
officer’s employment, independent of the Drug Task Force. . . .
- 20 -