Cherrington v. Skeeter

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Cherrington, et al. v. Skeeter, et al. No. 01-3637
ELECTRONIC CITATION: 2003 FED App. 0342P (6th Cir.)File Name: 03a0342p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Jeffery M. Blosser, KEVIN O’BRIEN &
FOR THE SIXTH CIRCUIT ASSOCIATES, Columbus, Ohio, for Appellants. Brian M.
_________________ Zets, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio,
for Appellees. ON BRIEF: Jeffery M. Blosser, KEVIN
MARY CHERRINGTON and X O’BRIEN & ASSOCIATES, Columbus, Ohio, for
DAIJA KING, a minor, by and - Appellants. Brian M. Zets, Philip K. Hartmann, Stephen
- Jesse Smith, SCHOTTENSTEIN, ZOX & DUNN, Columbus,
through her mother and next Ohio, for Appellees.
- No. 01-3637
friend, Mary Cherrington, -
Plaintiffs-Appellants, > ROSEN, D. J., delivered the opinion of the court, in which
, GILMAN, J., joined. MOORE, J., concurred in the result
- only.
v. -
- _________________
ANDRE SKEETER, JOHN -
KINNEY, and CITY OF - OPINION
- _________________
CIRCLEVILLE, OHIO ,
-
Defendants-Appellees. - ROSEN, District Judge. Plaintiffs/Appellants Mary
N Cherrington and her daughter, Daija King, appeal the District
Appeal from the United States District Court Court’s decision to grant summary judgment in favor of
for the Southern District of Ohio at Columbus. Defendants/Appellees Andre Skeeter, Jon Kinney, and the
No. 99-00462—George C. Smith, District Judge. City of Circleville, Ohio in this action brought under 42
U.S.C. § 1983. For the reasons stated below, we affirm in
Argued: August 7, 2002 part and reverse in part the rulings of the District Court, and
remand this case for further proceedings.
Decided and Filed: September 24, 2003 I. FACTUAL AND PROCEDURAL BACKGROUND
Before: MOORE and GILM AN, Circuit Judges; In the summer of 1996, the Defendant/Appellee City of
ROSEN, District Judge.* Circleville, Ohio commenced an undercover law enforcement
investigation in response to concerns of increased illegal drug
trafficking activities within the City. Because of insufficient
resources and a concern that the City’s traditional police force
* could not conduct an anonymous undercover operation amidst
The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation. Circleville’s small population, the City sought outside
1
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 3 4 Cherrington, et al. v. Skeeter, et al. No. 01-3637
assistance in its investigation. Specifically, Accordingly, on the evening of Friday, August 29, 1997,
Defendant/Appellee Police Chief Jon Kinney contacted a Skeeter arranged for a mutual acquaintance, Leslie Jones, to
private security firm, which in turn referred Chief Kinney to go to Cherrington’s residence and ask her to purchase $100
Defendant/Appellee Andre Skeeter, a private investigator. worth of cocaine. Cherrington agreed, left her home to make
Based on this referral, Chief Kinney met with Skeeter, the purchase, and returned about a half an hour later. A short
reviewed his credentials, conducted a background check, and time later, Cherrington’s friend, Scott Smallwood, arrived at
then decided to hire him. her house and began smoking crack in the kitchen. Skeeter
then arrived at Cherrington’s home, accompanied by another
Skeeter was sworn in as a police officer on September 3, law enforcement agent. Upon witnessing Smallwood
1996, and began his undercover investigation under the direct smoking crack and learning that Cherrington had made the
supervision of Investigator Kevin Clark. Skeeter spoke with requested cocaine purchase, Skeeter placed both Cherrington
Clark on a regular basis, and submitted periodic reports on the and Smallwood under arrest. This arrest apparently occurred
progress of his investigation. Skeeter also met from time to at around 2:30 a.m. on Saturday, August 30, 1997.
time with Chief Kinney. Throughout his investigation,
Skeeter was not told to target any particular individuals, but Cherrington was told to pack a bag, and Skeeter then drove
rather was directed to go out into the Circleville community, her and her two-year-old daughter, Plaintiff/Appellant Daija
befriend people, and determine who to target for further King, to a Travel Lodge motel at the outskirts of Circleville.
investigation. Through these efforts, Skeeter came into At around 3:15 a.m., Cherrington signed a form indicating
contact with Plaintiff/Appellant Mary Cherrington. The two that she had been advised of her Miranda rights by Inspector
became friends, periodically smoking marijuana or snorting Clark, and that she had agreed to waive these rights and
cocaine together.1 voluntarily speak to the police. Cherrington remained at the
motel with her daughter for the next 24 hours, during which
After nearly a year of this investigation, Chief Kinney, time she cooperated with the authorities by arranging a drug
Investigator Clark, Skeeter, and the county prosecutor decided purchase. Cherrington testified at her deposition that she
to conclude the matter by arresting selected individuals and requested permission to contact someone to pick up Daija, but
seeking their cooperation in additional drug purchases. Chief that this request was refused, leading her to surreptitiously
Kinney further determined, in consultation with the county call a friend to come and get her daughter. Before this friend
prosecutor, that these individuals should be taken to a motel could arrive, however, Cherrington and Daija were taken from
rather than the Circleville police department or the county the motel and placed in a police car.
jail, in order to avoid tipping off potential targets of this “buy-
bust” operation. Skeeter chose Cherrington as one of the On Sunday, August 31, 1997 at 3:37 a.m., about 24 hours
individuals to arrest, believing that she might be willing to after her arrest, Cherrington was taken to the Circleville
cooperate with the authorities. police department for processing and placed in a cell. Her
daughter Daija was released to a friend. Over 48 hours later,
at around 8:30 a.m. on Tuesday, September 2, 1997,2
1 2
Skeeter testified at his deposition that he did not actually ingest The local courts were closed on Monday, September 1, 1997 for the
these drugs, but merely pretended to do so. Labor D ay holid ay.
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 5 6 Cherrington, et al. v. Skeeter, et al. No. 01-3637
Cherrington was arraigned on drug trafficking charges. She confer qualified immunity upon the individual Defendants,
subsequently pled guilty to two counts of trafficking in we review this question of law de novo. See Gardenhire v.
cocaine. Schubert, 205 F.3d 303, 310 (6th Cir. 2000).
Based on these incidents, Plaintiffs/Appellants Mary B. The Individual Defendants Are Protected by
Cherrington and Daija King brought this § 1983 suit on Qualified Immunity Against the § 1983 Claims
May 13, 1999, alleging that Defendants/Appellees Skeeter, Asserted by Daija King.
Kinney, and the City of Circleville violated their rights under
the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments Among the grounds advanced in Defendants’ summary
to the U.S. Constitution.3 By Opinion and Order dated judgment motion in the court below, the individual
May 11, 2001, the District Court granted Defendants’ motion Defendants, Andre Skeeter and Chief Kinney, argued that
for summary judgment, denied Plaintiffs’ motion for they were shielded from liability under 42 U.S.C. § 1983 by
summary judgment, and ordered that Plaintiffs’ claims be the doctrine of qualified immunity. In addressing the § 1983
dismissed. Through their present appeal, Plaintiffs challenge claims asserted by Plaintiff Daija King, the District Court did
only certain aspects of the lower court’s decision: (i) the not explicitly conduct a qualified immunity analysis, but
dismissal of Daija King’s claims; (ii) the grant of qualified instead found more generally that the individual Defendants
immunity to the individual Defendants on Mary did not act “objectively unreasonabl[y] under the
Cherrington’s Fourth Amendment claim of an unlawfully circumstances” in electing to keep mother and daughter
prolonged detention without arraignment; and (iii) the together during the arrest and initial detention of Plaintiff
determination that Plaintiffs failed to identify a basis for Mary Cherrington. (District Court Op. at 6, J.A. at 715.)
municipal liability against the Defendant City of Circleville. Upon assessing Defendants’ conduct under the standards of
We affirm the first of these rulings, but reverse and remand qualified immunity, we reach the same conclusion.
on the remaining two points.
The Supreme Court has instructed that a qualified
II. ANALYSIS immunity inquiry generally entails two discrete analytical
steps. As a threshold matter, we must ask whether the record,
A. The Standards Governing This Appeal viewed most favorably to the plaintiff, establishes that “the
officer’s conduct violated a constitutional right.” Saucier v.
This case is on appeal from the District Court’s grant of Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); see
summary judgment to Defendants. Accordingly, we review also Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “If
this District Court ruling de novo. See Holloway v. Brush, no constitutional right would have been violated were the
220 F.3d 767, 772 (6th Cir. 2000). Likewise, to the extent allegations established, there is no necessity for further
that this appeal challenges the District Court’s decision to inquiries concerning qualified immunity.” Saucier, 533 U.S.
at 201, 121 S. Ct. at 2156. “On the other hand, if a violation
could be made out on a favorable view of the parties’
3 submissions, the next, sequential step is to ask whether the
It is not clear whether Plaintiffs also meant to assert state-law claims
in their complaint. In any event, upon determining that Plaintiffs’ federal right was clearly established.” 533 U.S. at 201, 121 S. Ct. at
claims were su bjec t to dismissal, the District Court declined to exercise 2156; see also Burchett, 310 F.3d at 942.
its supp lemental jurisd iction over any remaining state-law claims, and
Plaintiffs do no t challenge this asp ect of the lower court’s ruling.
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 7 8 Cherrington, et al. v. Skeeter, et al. No. 01-3637
To this point, the parties have made little effort to identify that it renders him unable to care for himself, and at the
the constitutional rights of Daija King that might have been same time fails to provide for his basic human needs —
implicated by Defendants’ conduct. Indeed, the record on e.g., food, clothing, shelter, medical care, and reasonable
appeal fails to indicate that the parties even addressed Daija safety — it transgresses the substantive limits on state
King’s claims in their submissions to the District Court. action set by the Eighth Amendment and the Due Process
Plaintiffs’ appellate brief offers only slightly more guidance, Clause. The affirmative duty to protect arises not from
summarily asserting that Daija was “falsely arrested and the State’s knowledge of the individual’s predicament or
illegally detained.” (Plaintiffs/Appellants Br. at 12.) This from its expression of intent to help him, but from the
suggests that Daija’s § 1983 claims rest upon the Fourth limitation which it has imposed on his freedom to act on
Amendment prohibition against unreasonable seizures. And, his own behalf. In the substantive due process analysis,
to be sure, the Supreme Court has recognized that “whenever it is the State’s affirmative act of restraining the
a police officer accosts an individual and restrains his individual’s freedom to act on his own behalf — through
freedom to walk away, he has ‘seized’ that person.” Terry v. incarceration, institutionalization, or other similar
Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877 (1968); see also restraint of personal liberty — which is the “deprivation
Burchett, 310 F.3d at 942. Under this definition, Daija King of liberty” triggering the protections of the Due Process
was “seized” when Defendants insisted that she remain with Clause . . . .
her mother as the latter was arrested and detained in a motel
room. Daija was not free to remain at home or to walk away DeShaney, 489 U.S. at 199-200, 109 S. Ct. at 1005-06
from the motel — to the contrary, the record suggests that (citations and footnote omitted). These principles seemingly
Defendants actively opposed any effort to release Daija from are implicated here, where Defendants restrained Daija’s
their custody into the care of a third party. freedom to act on her own behalf or to secure the assistance
of a substitute caregiver in providing for her basic needs.
Yet, other cases tend to place a different constitutional
gloss upon Daija King’s claims in this case. In Davis v. In the end, however, the outcome is the same whether we
Brady, 143 F.3d 1021, 1024-26 (6th Cir. 1998), for example, analyze Daija King’s allegations under Fourth Amendment or
we held that a Fourteenth Amendment substantive due substantive due process standards. Under the Fourth
process violation can occur when the State takes an individual Amendment, Daija’s seizure must not have been
into its custody and then fails to adequately ensure her safety “unreasonable,” with the proper measure of unreasonableness
and well-being. In so ruling, we relied in part on the decision depending upon the type of seizure. Thus, if Daija was
in DeShaney v. Winnebago County Dep’t of Social Services, arrested, as Plaintiffs argue, Defendants’ action must have
489 U.S. 189, 109 S. Ct. 998 (1989), in which the Supreme been supported by probable cause. See Dunaway v. New
Court explained: York, 442 U.S. 200, 207-08, 99 S. Ct. 2248, 2253-54 (1979).
No one seriously contends that Defendants had probable
[W]hen the State takes a person into custody and holds cause to arrest Daija.
him there against his will, the Constitution imposes upon
it a corresponding duty to assume some responsibility for Yet, not all seizures are tantamount to arrests sustainable
his safety and well-being. The rationale for this principle only upon probable cause. See Michigan v. Summers, 452
is simple enough: when the State by the affirmative U.S. 692, 696-97, 101 S. Ct. 2587, 2590-91 (1981);
exercise of its power so restrains an individual’s liberty Dunaway, 442 U.S. at 208-10, 99 S. Ct. at 2254-55. In cases
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 9 10 Cherrington, et al. v. Skeeter, et al. No. 01-3637
of suspected child abuse or neglect, for example, the courts 2593 (footnote omitted); see also Terry, 392 U.S. at 19, 88
have held that a caseworker may remove a child from her S. Ct. at 1878-79 (describing the “central inquiry under the
home upon a reasonable belief that the child is in imminent Fourth Amendment” as “the reasonableness in all the
danger of harm. See, e.g., Doe v. Texas Dep’t of Protective & circumstances of the particular governmental invasion of a
Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002); citizen’s personal security”).
Brokaw v. Mercer County, 235 F.3d 1000, 1010-11 (7th Cir.
2000). As another example, the police have the limited At least one other court has employed this same
authority to briefly detain those on the scene, even wholly “reasonableness” inquiry under facts similar to those
innocent bystanders, as they execute a search or arrest presented here. In Matheny v. Boatright, 970 F. Supp. 1039,
warrant. See Summers, 452 U.S. at 705, 101 S. Ct. at 2595; 1041 (S.D. Ga. 1997), the defendant police officers brought
Burchett, 310 F.3d at 942-43; see also United States v. Enslin, the plaintiff children along as their mother, Angela Matheny,
327 F.3d 788, 797 n.32 (9th Cir. 2003) (finding that Summers was arrested on drug charges, taken to a detention facility,
applies in the context of arrest as well as search warrants). interrogated, and booked. Matheny alleged that she had
sought permission to contact her children’s aunt and
Unfortunately, the present case does not fit neatly within grandmother to come and take care of the children, but that
any of these recognized analytical frameworks. Plainly, Daija she was not allowed to make such arrangements until nearly
King was not held on suspicion of any criminal activity. Nor, an hour after she arrived at the detention facility. The Court
in contrast to the child abuse and neglect cases, did analyzed these circumstances under Fourth Amendment
Defendants seize Daija out of a belief that she faced an standards, as well as on other grounds, and found that the
imminent danger of harm in her home. Neither can it be said defendant officers had acted reasonably:
that Daija was detained in order to “facilitate[] the orderly
completion of” Mary Cherrington’s arrest and “minimize[] Matheny does not contend that Defendants had any
the risk of harm to officers and others” as they carried out this physical contact with the children. Nor does she claim
arrest. Burchett, 310 F.3d at 943. Rather, Daija King was that the children suffered any physical injury inflicted by
taken along with her mother because the arresting officers Defendants. Matheny also does not claim that
deemed it inappropriate to leave the two-year-old child alone Defendants directed any harsh or abusive language at the
at home, and because they either failed to identify or declined children. In light of the circumstances surrounding
to pursue other options for ensuring Daija’s safety and well- Matheny’s arrest, namely that her three minor children
being following her mother’s arrest. were present without any other adult present to care for
them, Defendants’ actions were reasonable. The facts
Lacking any direct guidance on the legal inquiry that might suggest that rather than putting the children at risk,
govern such a situation, the District Court assessed Defendants undertook to care for the children until
Defendants’ conduct under a general standard of suitable arrangements could be made for their care.
reasonableness. (See District Court Op. at 5-6, J.A. at 715-
16.) This approach comports with the Supreme Court’s
general instruction that, in cases involving seizures short of a
traditional arrest, the courts should be guided by “the ultimate
standard of reasonableness embodied in the Fourth
Amendment.” Summers, 452 U.S. at 699-700, 101 S. Ct. at
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 11 12 Cherrington, et al. v. Skeeter, et al. No. 01-3637
Matheny, 970 F. Supp. at 1046.4 preserving the secrecy of their ongoing undercover operation.
On the other hand, Mary Cherrington testified that the
We agree with the District Courts here and in Matheny that Defendant officers used Daija as a tool to secure her
Fourth Amendment claims of the sort asserted by Daija King cooperation. This testimony, if believed and found to rest
in this case are most appropriately measured against a general upon more than Cherrington’s own speculation,5 would tend
standard of reasonableness. Upon performing this inquiry, to cast doubt on the reasonableness of Daija’s detention.
moreover, we are inclined to agree with the District Court that
the conduct of the individual Defendants was reasonable,
although we are somewhat hesitant to reach this conclusion as
5
a matter of law. On one hand, Daija was just two years old at Although P laintiffs contend in the ir brief on appeal that Defendant
the time, and the officers obviously had to make some sort of Skeeter confirmed this questionable m otive at his deposition, this is not
arrangement for her care as they placed her mother under an accurate characterization of the record. Skeeter testified that
Cherrington was “allo wed . . . to keep Daija” immediately following her
arrest; the child plainly could not have been left alone and arrest while she decided whether to cooperate with the authorities, and
unsupervised at home. The options, then, were either to keep that “[a]ll I was doing” at that point was “transporting [Cherrington and
Daija with her mother or to arrange for Daija to be placed Daija] to the people who were making the decisions” regarding
with a relative, family friend, or a state social service agency Cherrington’s possible cooperation. (Skeeter Dep. at 90, J.A. at 154.) He
— and, given the late hour of Mary Cherrington’s arrest, the further testified that, prior to the night of Cherrington’s arrest, he had
spoken to Chief Kinney regarding what to do with Daija, and that he had
latter might well have proved difficult. So long as Mary expressed a concern during that conversation that it might “jeopardize[]
Cherrington remained in a hotel room rather than a detention the whole investigation, not just getting the cover blown b ut officer sa fety
facility, and generally remained available to care for Daija’s as well,” if Daija were taken to a social services agency or placed in the
needs, we cannot say that one course of action was manifestly care of a friend or relative. (Id. at 90-91, J.A. at 154-55.) Skeeter
preferable to the other. In addition, Defendants note that their reasoned that such an outside party “would have to know or want to know
what was going on,” and that “Circ leville is a close community” in which
chosen course served the law enforcement objective of news of the underco ver investigation would quickly spread. (Id. at 91,
J.A. at 1 55.)
4
Indeed, even C herrington’s own testimony on this po int is less than
To similar effect, the District Court cited the decision in Caplan v. definitive. She testified that while she was still in her apartment
Roseman, 667 F. Supp. 549 (N.D. Ohio 1987), in which a divorced father imme diately following her arrest, Skeeter threatened that she would “lose
complained that his and his son’s constitutional rights were violated when my child . . . [and] lose my home” if she did not cooperate with the
the defendant police officers prevented him from taking his child on an authorities. (Cherrington Dep. at 73, J.A. at 269.) Cherrington further
out-of-state vacation. T he office rs had been told that this out-of-state trip stated that Skeeter repeated this threat after they arrived at the hotel. (Id.
would violate a court-ordered visitation schedule, and the legal d ocuments at 94, J.A. at 29 0.) She then testified that she agreed to coop erate beca use
produced by the father failed to persuade them otherwise. In holding that “[t]hey had my child, and I didn’t want to lose her.” (Id. at 106, J.A. at
the defendant officers were entitled to qualified im munity, the Court 302 .) Thus, while Cherrington might well have drawn a connection in her
reasoned that “police officers in domestic relations situations must make own mind betwe en D aija’s presence at the hotel and her decision to
spontaneous decisions based on incomplete, and sometimes inaccurate, coo perate with the authorities, nothing she was told expressly forged this
information,” and found that “[a]ll § 198 3 req uires in these matters is for link, and the individual Defendants did not acknowledge this motive at
police officers to act reasonably and to do the best job possible under their depositions. Rathe r, from all that appears in the record , and fro m all
difficult circumstances.” Caplan, 667 F. Supp. at 554. Caplan’s analysis, that Cherrington states she was to ld at the time, Skeeter might have
however, does not rest upon grounds of Fourth Amendme nt employed the very same threats even if Daija had not been kept with her
reasonab leness, but rather upon the “objective reasonableness” standard mother, but instead had b een p laced with an agency or taken to the home
incorporated within the qualified immunity doctrine. of a friend or relative.
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 13 14 Cherrington, et al. v. Skeeter, et al. No. 01-3637
Yet, it ultimately is unnecessary for us to decide whether We reach precisely the same conclusion upon evaluating
the individual Defendants did or did not heed the Fourth Daija King’s claims under substantive due process standards.
Amendment command of reasonableness in their conduct Here, we have somewhat more case law to guide us; several
toward Daija King, because they are entitled to qualified cases, including at least one in this Circuit, have considered
immunity in any event. As noted, the second prong of the the substantive due process implications of a police officer’s
qualified immunity inquiry turns upon whether the defendant decision about what to do with children whose parent or
has violated “clearly established constitutional rights of which custodian has been placed under arrest. See, e.g., Walton v.
a reasonable person would have known.” Burchett, 310 F. 3d City of Southfield, 995 F.2d 1331, 1336-39 (6th Cir. 1993);
at 942 (internal quotations and citations omitted). We have Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1354-
explained: 55 (7th Cir. 1985); White v. Rochford, 592 F.2d 381, 383-86
(7th Cir. 1979); Matheny, 970 F. Supp. at 1043-45. Upon
For a right to be clearly established, [t]he contours of the reviewing these cases, we conclude that the allegations and
right must be sufficiently clear that a reasonable official evidence in this case are insufficient to establish either a
would understand that what he is doing violates that substantive due process violation or a violation of a clearly
right. Although it need not be the case that the very established constitutional right.
action in question has been previously held unlawful, . . .
in the light of pre-existing law, the unlawfulness must be In Walton, for example, plaintiff Barbara Walton was
apparent. driving a car in which her fifteen-year-old daughter and two-
year-old granddaughter were passengers. The defendant
Burchett, 310 F.3d at 942 (internal quotations and citations police officers stopped and approached the car to investigate
omitted). why the two-year-old was not riding in a proper child-
restraint seat. Upon determining that Walton was driving
As is evident from our foregoing discussion, the pre- with a suspended license, the officers placed her under arrest.
existing law is silent on the lawfulness of keeping a young When she asked that the children be placed in protective
child with her mother while the latter is placed under arrest custody, the officers responded that they could not do so, but
and held in custody at a location other than a traditional suggested that the children could call someone to pick them
detention facility. If the Defendant officers had scoured the up. The officers then waited while the children entered a
case law at the time (or even to this day), they could not have nearby office building to make a phone call, but did not
located a decision indicating that Daija King’s Fourth remain on the scene to confirm that they had secured a ride
Amendment rights might be violated if she were taken with home. In fact, nearly six hours passed before someone finally
her mother to a hotel for about a 24-hour period while Mary arrived to pick up the children.
Cherrington cooperated with the authorities by attempting to
arrange drug purchases. Rather, the most closely analogous We held that the defendant officers were entitled to
case, Matheny, leads to the opposite conclusion. Under these qualified immunity on the children’s substantive due process
circumstances, the individual Defendants are entitled to claims. We began by noting that the Sixth Circuit had not yet
qualified immunity, because the law did not (and still does addressed the issue of passenger abandonment by state or
not) “clearly proscribe[]” the actions they took. Mitchell v. local law enforcement officials, but that other Circuits had
Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985). done so, reaching somewhat different conclusions. In
addition, while cases such as White, supra, had recognized a
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 15 16 Cherrington, et al. v. Skeeter, et al. No. 01-3637
due process protection against police abandonment of mother as she was placed under arrest, and being held in a
passengers upon arresting the driver of a vehicle, we found hotel room for a 24-hour period, surrounded by police
that White was distinguishable as involving abandonment “in officers, as her mother cooperated with the authorities by
a more dangerous situation.” Walton, 995 F.2d at 1338-39.6 attempting a drug purchase — was not ideal. Yet, given the
Accordingly, despite “an exercise of very poor judgment on early-morning hour of Mary Cherrington’s arrest, it is not
the part of the defendant police officers,” we held that “the clear that there were any available and preferable alternatives
‘contours of the [due process] right,’ if there is such a right, to the course chosen by Defendants. Further, there is no
were not sufficiently clear so that a reasonable officer would evidence that Daija suffered any harm during this period of
have known that leaving the children in the parking lot detention; at worst, Mary Cherrington’s deposition testimony
violated that right.” Walton, 995 F.2d at 1333, 1339. indicates that she and her daughter were fed only once during
their 24-hour stay at the hotel. The most that can be said,
Because Walton did not decide whether such a substantive perhaps, is that the Defendant officers might have been better
due process right exists, it did not reach the issue of the advised to attempt to arrange for Daija to be picked up by a
standard by which to judge alleged violations of such a right. relative or friend, and that they might have sacrificed a degree
We addressed this question in Davis, supra, however, holding of Daija’s comfort and emotional well-being in an effort to
that “where the plaintiff suffered injury as a result of being preserve the secrecy of their still-ongoing undercover
placed in the state’s custody, it has consistently and operation. This, in our view, is not tantamount to gross
uncontroversially been the rule that a constitutional claim negligence or a reckless disregard for Daija’s safety.
arises when the injury occurred as a result of the state’s
deliberate indifference to the risk of such an injury.” Davis, In any event, as with our Fourth Amendment analysis, we
143 F.3d at 1026; see also Bukowski v. City of Akron, 326 conclude that the individual Defendants are entitled to
F.3d 702, 710 (6th Cir. 2003) (applying a deliberate qualified immunity on the “clearly established” prong of our
indifference standard to a substantive due process claim). substantive due process inquiry. Again, we note the utter
Similarly, the other above-cited child abandonment cases absence of any case finding a substantive due process
consider whether the conduct of the defendant police officers violation based upon a police officer’s decision to retain
amounted to “gross negligence” or a “reckless disregard” for custody over a child while her parent or custodian is placed
the safety of the children. See Moore, 754 F.2d at 1355; under arrest. To the contrary, the case law suggests that the
White, 592 F.2d at 385. Defendant officers would more likely have run afoul of
substantive due process concerns if they had left Daija King
Under this standard, we do not believe that the record in at home or otherwise placed her in a situation which failed to
this case can be viewed as establishing a violation of Daija adequately ensure her safety and well-being. Because the pre-
King’s substantive due process rights. Admittedly, the existing law would not have alerted the individual Defendants
situation into which she was placed — being taken with her that their conduct might violate Daija King’s substantive due
process rights, they are entitled to qualified immunity. More
generally, in light of our similar conclusion under a Fourth
6
In particular, the children in Wh ite were abandoned by the side of Amendment analysis, we affirm the District Court’s dismissal
the road in cold weather. “Under exposure of the cold, the children of Daija King’s § 1983 claims against the individual
finally realized that they had no alternative but to leave the car, cross eight Defendants on the ground of qualified immunity.
lanes of traffic and wander on the freeway at night in searc h of a
telephone.” Wh ite, 592 F.2d at 382.
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 17 18 Cherrington, et al. v. Skeeter, et al. No. 01-3637
C. Under the Present Record, the Individual Defendants Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661Are Not Entitled to Qualified Immunity on Mary (1991), provides the basis for her present Fourth Amendment
Cherrington’s Claim that She Was Denied a Prompt claim. The Court previously had recognized in Gerstein v.
Judicial Determination of Probable Cause. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854 (1975), that “the
Fourth Amendment requires a judicial determination of
Of the various § 1983 claims asserted by Mary Cherrington probable cause as a prerequisite to extended restraint of
in the court below, the only one she is pursuing on appeal, liberty following arrest.” In County of Riverside, the Court
against the individual Defendants at least,7 is her claim that considered just how soon such a determination must be made,
she was not provided with a sufficiently prompt judicial and concluded that “judicial determinations of probable cause
determination of probable cause following her warrantless within 48 hours of arrest will, as a general matter, comply
arrest. In the lower court, and again on appeal, Plaintiff with the promptness requirement of Gerstein.” County of
Cherrington has cited Ohio Rule of Criminal Procedure Riverside, 500 U.S. at 56, 111 S. Ct. at 1670. While a delay
4(E)(2) as the source of this claimed right to a prompt of over 48 hours is not per se unlawful, the Government bears
probable cause hearing. 8 The District Court rejected this the burden in such cases to “demonstrate the existence of a
claim, reasoning that a violation of a state rule of criminal bona fide emergency or other extraordinary circumstance”
procedure cannot sustain a federal § 1983 claim. Be that as that led to the delayed probable cause determination. County
it may, and fully acknowledging Plaintiffs’ rather inarticulate of Riverside, 500 U.S. at 57, 111 S. Ct. at 1670.
presentation on this point, we readily conclude that Mary
Cherrington has stated a viable Fourth Amendment claim as In this case, Mary Cherrington was arrested without a
a result of the delay in affording her a probable cause hearing. warrant in the early morning hours of Saturday, August 30,
We further find that the present record fails to establish as a 1997, but she was not brought before a magistrate for a
matter of law that the individual Defendants are entitled to probable cause determination until about 8:30 a.m. on
qualified immunity on this claim. Tuesday, September 2, 1997. This delay of over 72 hours
significantly exceeded the general 48-hour rule announced in
Though Plaintiff Cherrington has mentioned this ruling County of Riverside. Absent some “bona fide emergency or
only in passing, the Supreme Court’s decision in County of other extraordinary circumstance,” then, this delay violated
Cherrington’s Fourth Amendment right to a prompt judicial
determination of probable cause.
7
Plaintiffs’ claims against the Defendant City of Circleville are
addressed below. Neither of Defendants’ two proposed “extraordinary
8
circumstances” take this case outside the usual 48-hour rule.
At the time of Cherringto n’s arrest, this Ohio rule p rovid ed in First, Defendants note that their undercover investigation
relevant part: continued after Cherrington’s arrest, and that she agreed to
W here a person is arrested without a warrant the arresting
cooperate in this ongoing operation by attempting to arrange
officer shall . . . bring the arrested p erson without unnecessary a drug purchase. Defendants reason that this undercover
delay before a court having jurisdiction of the offense, and shall effort would have been jeopardized if Cherrington had been
file or cause to be filed a complaint describing the offense for brought before a magistrate. Yet, this undercover operation
which the person was arrested. surely had concluded by Sunday, August 31, 1997 at 3:37
Ohio Crim. R. 4(E)(2) (199 7).
a.m., when Cherrington was taken from the Travel Lodge
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 19 20 Cherrington, et al. v. Skeeter, et al. No. 01-3637
motel and placed in jail. Even so, Cherrington was made to determination of probable cause within 48 hours of her arrest.
wait more than 48 hours from this point before a magistrate Her claim also survives scrutiny under the second, “clearly
found probable cause to arrest her. Cherrington’s established” prong of the qualified immunity inquiry, because
participation in the ongoing investigation, then, did not County of Riverside itself, a decision which predated
prevent Defendants from complying with County of Cherrington’s arrest by several years, would have alerted a
Riverside’s 48-hour rule.9 reasonable official to (i) the existence of Cherrington’s Fourth
Amendment right to a judicial determination of probable
Next, Defendants point to the intervening weekend and cause within 48 hours, and (ii) the unavailability of any
Labor Day holiday between Mary Cherrington’s arrest and “intervening weekend or holiday” exception to this 48-hour
the magistrate’s probable cause determination. County of rule. Under the present record, therefore, the individual
Riverside itself, however, expressly cautions that intervening Defendants are not entitled to qualified immunity on Plaintiff
weekends and holidays do not qualify as “extraordinary Cherrington’s Fourth Amendment claim of an excessive delay
circumstances” that permit relief from the 48-hour in the magistrate’s determination of probable cause for her
requirement. See County of Riverside, 500 U.S. at 57-58, 111 arrest.
S. Ct. at 1670-71. Accordingly, this Court recently held that
a municipality’s “part-time court” scheme, under which Nonetheless, we hasten to add that the liability of the
“court was never held on weekends or holidays,” would “very individual Defendants is not a foregone conclusion upon
likely run afoul of the forty-eight hour time limit established remand. Because the District Court determined at the
in Riverside” in cases of warrantless arrests on Friday threshold that there had been no constitutional violation, it
evenings or Saturday mornings. Alkire v. Irving, 330 F.3d had no occasion to consider whether the two individual
802, 815 (6th Cir. 2003). Defendants actually named in the complaint, Andre Skeeter
and Chief Kinney, could be held liable for such a violation.
In sum, the undisputed record establishes a violation of City Likewise, the parties have not addressed this issue in their
of Riverside’s 48-hour rule, and Defendants have failed to briefs on appeal, and the record does not disclose all of the
identify any emergency or other extraordinary circumstance pertinent details of the specific roles played by Defendants
that might take this case outside of the general rule. It Skeeter and Kinney in Mary Cherrington’s detention and
follows that Plaintiff Cherrington can withstand the first eventual appearance before a magistrate. Consequently, we
prong of the qualified immunity inquiry by virtue of the are limited to offering only a few general observations that
violation of her Fourth Amendment right to a judicial the District Court might wish to consider in any subsequent
proceedings.
9 It is axiomatic, of course, that § 1983 prohibits actions
W e recognize that an individual’s agreement to cooperate with the “under color of state law” which deprive an individual of a
authorities might well be a relevant factor in determining whether a
delayed probable cause determination violates the Fourth Am endment.
right secured by the U.S. Constitution or a federal statute.
Under the facts of this case, however, we need not decide whether the See, e.g., Cassady v. Tackett, 938 F.2d 693, 695 (6th Cir.
period of Mary Cherrington’s cooperation should be charged against or 1991). “Thus, before a defendant may be held liable under
exempted from the 48-hour lim it, or whether her voluntary participation section 1983, that defendant must first possess power by
in an ongoing undercover operation constituted an “extraordinary virtue of state law, then misuse that power in a way that
circumstance” which would permit a more lengthy delay in securing a
judicial determination of probable cause.
violates federal constitutional rights.” Christian v. Belcher,
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 21 22 Cherrington, et al. v. Skeeter, et al. No. 01-3637
888 F.2d 410, 414 (6th Cir. 1989). In the present context, this City of Pontiac, 41 F.3d 1061, 1066 (6th Cir. 1994)
means that we must look to state law to determine who is (addressing the proximate cause element of a § 1983 claim).
responsible for ensuring that a judicial determination of This matter must be determined upon remand to the District
probable cause is made within 48 hours after an arrest. Court.
Under Ohio law, where an arrest is made without a warrant, D. Under the Present Record, the Defendant City Is Not
it generally falls to the “arresting officer” to “bring the Entitled to Summary Judgment on Plaintiff
arrested person without unnecessary delay before a court Cherrington’s County of Riverside Claim.
having jurisdiction of the offense.” Ohio Crim. R. 4(E)(2).
In this case, the record establishes that Defendant Skeeter was As their final issue on appeal, Plaintiffs challenge the
one of the arresting officers, and there is some evidence of District Court’s award of summary judgment to the Defendant
Defendant Kinney’s involvement in the decisions to arrest City of Circleville on their § 1983 claims. Although this
Mary Cherrington and initially take her to a motel rather than sweeping challenge largely fails to withstand scrutiny, we
the Circleville police station. The record is almost entirely find that this grant of summary judgment must be reversed in
silent, however, as to the roles played by these Defendants or one limited respect — namely, as it relates to Plaintiff
other law enforcement officials in the roughly two-and-a-half- Cherrington’s claim of undue delay in the judicial
day period that Cherrington remained in jail without being determination of probable cause to arrest her. With this lone
brought before a magistrate. exception, we affirm the District Court’s rulings as to the
Defendant City.
Under this record, it is possible that either or both of the
named Defendants had a duty under Ohio law to see that A municipality cannot be held vicariously liable under
Cherrington was promptly brought before a magistrate for a § 1983 for the acts of its employees or agents. See Monell v.
determination of probable cause to arrest her, and that either Department of Soc. Servs. of City of New York, 436 U.S. 658,
or both failed to take the necessary steps to discharge this 694, 98 S. Ct. 2018, 2037-38 (1978); Gregory v. Shelby
obligation. It is equally possible, however, that one or both County, 220 F.3d 433, 441 (6th Cir. 2000). Rather, municipal
of these Defendants took some steps to ensure that there was liability attaches only where a constitutional violation results
a prompt judicial determination of probable cause, but that, from the “execution of a government’s policy or custom.”
through no fault of their own, this did not occur. In other Gregory, 220 F.3d at 441. Beyond having to identify
words, we lack the information necessary to resolve the issue “conduct properly attributable to the municipality” itself, a
of causation — namely, whether the delay in Mary plaintiff
Cherrington’s probable cause determination was attributable
to the actions (or inaction) of one or both of the named must also demonstrate that, through its deliberate
Defendants. See, e.g., Luck v. Rovenstine, 168 F.3d 323, 327 conduct, the municipality was the “moving force” behind
(7th Cir. 1999) (addressing this question of causation in the the injury alleged. That is, a plaintiff must show that the
specific context of a claimed violation of County of municipal action was taken with the requisite degree of
Riverside’s 48-hour rule); Hallstrom v. City of Garden City, culpability and must demonstrate a direct causal link
991 F.2d 1473, 1478-79, 1481-82 (9th Cir. 1993) (same); between the municipal action and the deprivation of
Strepka v. Miller, No. 00-1294, 2001 WL 1475058, at *3 federal rights.
(10th Cir. Nov. 21, 2001) (same). See generally Gazette v.
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 23 24 Cherrington, et al. v. Skeeter, et al. No. 01-3637
Board of County Comm’rs of Bryan County v. Brown, 520 City’s potential liability to the two alleged violations
U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997); see also City of expressly raised on appeal — namely, the allegedly unlawful
Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 detention of Daija King incident to her mother’s arrest, and
(1989) (“[O]ur first inquiry in any case alleging municipal the violation of Mary Cherrington’s right to a prompt judicial
liability under § 1983 is the question whether there is a direct determination of probable cause.
causal link between a municipal policy or custom and the
alleged constitutional deprivation.”). As to Daija King’s constitutional claims, we readily
conclude that the evidence is insufficient as a matter of law to
On appeal, Plaintiffs contend that the requisite municipal forge the requisite causal connection between her allegedly
policy or custom can be found in the Defendant City’s alleged unlawful detention and any inadequacy in the training of the
failure to properly train its officers, and particularly Defendant City’s police officers. To be actionable, a
Defendant Skeeter. The Supreme Court has held that “the municipality’s training must be inadequate to the tasks that its
inadequacy of police training may serve as the basis for officers must perform, this inadequacy must be the product of
§ 1983 liability,” but “only where the failure to train amounts deliberate indifference, and this inadequacy must have been
to deliberate indifference to the rights of persons with whom closely related to or have actually caused the plaintiff’s
the police come into contact.” City of Canton, 489 U.S. at injury. See Russo v. City of Cincinnati, 953 F.2d 1036, 1046
388, 109 S. Ct. at 1204 (footnote omitted). “Only where a (6th Cir. 1992). We have read City of Canton as recognizing
municipality’s failure to train its employees in a relevant at least two situations in which inadequate training could be
respect evidences a ‘deliberate indifference’ to the rights of its found to be the result of deliberate indifference. “One is
inhabitants can such a shortcoming be properly thought of as failure to provide adequate training in light of foreseeable
a city ‘policy or custom’ that is actionable under § 1983.” consequences that could result from the lack of instruction,”
489 U.S. at 389, 109 S. Ct. at 1205. as would be the case, for example, if a municipality failed to
instruct its officers in the use of deadly force. Brown v.
In an effort to establish their “failure to train” theory, Shaner, 172 F.3d 927, 931 (6th Cir. 1999). “A second type
Plaintiffs cite evidence tending to indicate that Defendant of situation justifying a conclusion of deliberate indifference
Skeeter received little or no instruction or guidance regarding is where the city fails to act in response to repeated
Circleville police department policies and procedures. Be that complaints of constitutional violations by its officers.”
as it may, however, Plaintiffs notably fail to specify exactly Brown, 172 F.3d at 931.
which constitutional injuries might have resulted from this
lack of training, nor have they pointed to evidence in the The detention of Daija King incident to her mother’s arrest
record that might tend to establish a direct causal link does not remotely fit into either of these established
between Skeeter’s allegedly deficient training and a particular categories of actionable failures to train. Given the dearth of
constitutional injury suffered by either Daija King or Mary case law addressing the issue, it cannot be said that police
Cherrington. We decline Plaintiffs’ invitation to engage in a officers routinely confront the question of what to do with
generalized, open-ended inquiry whether a lack of proper children upon arresting their parent or guardian. Thus, the
training could have been the “moving force” behind some Defendant City cannot be deemed deliberately indifferent to
constitutional violation that might be gleaned from the record
before us. Rather, absent any specific guidance from
Plaintiffs on this point, we limit our consideration of the
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 25 26 Cherrington, et al. v. Skeeter, et al. No. 01-3637
an obvious need for officer training in this area.10 Likewise, those who come in contact with the Circleville police. Russo,
Plaintiffs have failed to identify any similar incidents or prior 953 F.2d at 1046 (internal quotations and citations omitted).
complaints that might have alerted the Defendant City to the
need to cover this topic in its officer training. Absent some Nonetheless, this still leaves the question whether this
form of notice that its officers might confront such a situation, inadequate training was “closely related to” or “actually
the Defendant City cannot be held liable under a “failure to caused” a violation of Mary Cherrington’s Fourth
train” theory for any alleged deprivation of Daija King’s Amendment right to a prompt judicial determination of
constitutional rights. See Sargi v. Kent City Bd. of Educ., 70 probable cause. Russo, 953 F.2d at 1046 (internal quotation
F.3d 907, 912 (6th Cir. 1995) (citing lack of notice as a basis marks and citations omitted). As noted earlier, we are
for rejecting a claim of inadequate training). severely handicapped in our effort to determine the root cause
of this violation or the principal players involved, because the
Matters are somewhat different with regard to Mary record is nearly silent as to what occurred or who was present
Cherrington’s claim of an unduly delayed judicial during Cherrington’s detention at the Circleville police
determination of probable cause for her arrest. It surely is station. For all we can tell, then, Defendant Skeeter was fully
foreseeable that the Defendant City’s police officers will aware of the need for a prompt probable cause determination,
occasionally make warrantless arrests, and thus will require yet was assured by other officers at the station that they would
instruction on the need to ensure that individuals arrested discharge this duty. Alternatively, given Defendants’ appeal
without a warrant are brought before a magistrate within 48 to the intervening weekend and Labor Day holiday between
hours for a probable cause determination. Moreover, Cherrington’s arrest and her appearance before a magistrate,
Plaintiffs have pointed to Defendant Skeeter’s testimony that it is possible that the Defendant City failed to provide the
he generally did not receive any instruction regarding any necessary resources to ensure that individuals arrested without
Circleville police department policies or procedures. (See a warrant in the early part of a weekend need not wait until
Skeeter Dep. at 49-50, J.A. at 114-15.) Under this record, a the following Monday (or Tuesday) for a probable cause
trier of fact could conclude that the Defendant City’s training hearing. In this event, the City’s liability would rest directly
of Skeeter was “inadequate to the tasks that officers must upon an unconstitutional policy rather than inadequate
perform,” and that this inadequacy reflected the City’s training — even the most extensive training program could
“deliberate indifference” to the Fourth Amendment rights of not overcome the brute fact that a magistrate was not
available on weekends and holidays.11
In light of this evidentiary gap on a material issue, we
10
cannot say as a matter of law that the Defendant City is not
Indeed, in the event that a municipality found it appropriate to offer liable for the deprivation of Plaintiff Cherrington’s Fourth
training on this subject, it would be difficult to glean any general rule Amendment right to a prompt judicial determination of
from the existing precedents — it might be better to place the child with
a social service agency in one case, with a relative in another, or to keep
the child with her parent in still another. Even in the specific case now
before us, we have hesitated to conclude that one course of action would 11
have been co nstitutionally prefera ble to the othe rs. Give n the limited Our discussion on this subject is not meant to exhaust all of the
utility of such nebulous “training,” a municipality could hardly be said to possible factual scenarios that m ight have led to the delayed p robable
be deliberately indifferent to the needs of its citizens if it chose to forgo cause determinatio n in this case. W e merely mean to emphasize that the
this instruction. record tells us nothing about what actually occurred.
No. 01-3637 Cherrington, et al. v. Skeeter, et al. 27
probable cause. Just as we have remanded the matter of the
individual Defendants’ liability under this theory, we invite
the parties to address the City’s liability on remand to the
District Court. Admittedly, to this point, Plaintiffs have done
very little to meet their burden of establishing a factual basis
for holding any of the Defendants liable for this Fourth
Amendment violation. Yet, because the first round of District
Court proceedings focused largely on the wrong issue —
namely, the legal significance of Ohio Rule of Criminal
Procedure 4(E)(2) to Plaintiff Cherrington’s federal
constitutional claim, rather than the Supreme Court’s ruling
in County of Riverside — we believe it appropriate to afford
Plaintiffs a limited opportunity to develop a factual record
supporting the imposition of liability on one or more of the
Defendants, whether individual or municipal, for violating
County of Riverside’s 48-hour rule. At the same time,
Defendants can attempt to identify an “extraordinary
circumstance” that might exempt them from the operation of
this rule.
III. CONCLUSION
For the reasons set forth above, we REVERSE the rulings
of the court below on Plaintiff Mary Cherrington’s Fourth
Amendment claim of undue delay in the judicial
determination of probable cause for her arrest, AFFIRM as to
the remaining issues raised on appeal, and REMAND for
further proceedings consistent with this decision.