Eric Tarter v. Metro. Nashville Airport Authority

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0388n.06
No. 22-5421
FILED
UNITED STATES COURT OF APPEALS Aug 18, 2023
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ERIC TARTER, )
)
Plaintiff-Appellant,
)
)
v.
)
METROPOLITAN NASHVILLE AIRPORT ) ON APPEAL FROM THE
)
AUTHORITY, et al., UNITED STATES DISTRICT
)
Defendants, COURT FOR THE MIDDLE
)
DISTRICT OF TENNESSEE
)
SERGEANT DALTON ENGSTROM; )
OFFICER JERRY LOVELL; OFFICER BRIAN ) OPINION
ROBBINS, )
Defendants-Appellees. )
)
Before: SILER, COLE, and NALBANDIAN, Circuit Judges.
NALBANDIAN, J., delivered the opinion of the court in which SILER, J., joined. COLE,
J. (pp. 14–23), delivered a separate dissenting opinion.
NALBANDIAN, Circuit Judge. Metropolitan Nashville Airport Authority officers
suspected that Eric Tarter presented a fraudulent credit card at the airport’s Hertz rental car kiosk.
Officers investigated. And, for part of that investigation, they handcuffed Tarter in the airport.
But because nothing came of the investigation, they released him. After, Tarter filed suit under 42
U.S.C. § 1983 alleging constitutional violations stemming from the incident. The district court
granted qualified immunity. Because the unlawfulness of the officers’ actions was not clearly
established, we affirm.
No. 22-5421, Tarter v. Metro Nashville Airport Authority
I.
For some time, credit card fraudsters have targeted rental car companies at the Nashville
International Airport. So much so that Hertz now trains its employees to run credit-card checks
when they suspect potential fraud. So when Eric Tarter presented a First Access credit card to
Marlene Fernandez at the airport’s Hertz kiosk, Fernandez ran a bank identification number
(“BIN”) search on the credit card.1 That search showed a “different bank than the one that was on
the credit card.” (R. 66, ¶ 10 (citation omitted).) Concerned, Fernandez notified the Metropolitan
Nashville Airport Authority (“MNAA”) Department of Public Safety (“DPS”).
MNAA Officer Robbins, Officer Lovell, and Sergeant Engstrom (“the Officers”)
responded to Fernandez’s call. Fernandez provided Officer Robbins with Tarter’s First Access
credit card and driver’s license. One of the officers ran a license search in the Pennsylvania DMV
system. No results . Next, Officer Lovell and Sergeant Engstrom ran BIN searches on the First
Access credit card. Again, the results revealed a different bank name from the one listed on the
credit card.
With three BIN searches producing concerning results, the officers enlisted offsite officer
Detective Brian Wolters. Sergeant Engstrom texted Detective Wolters a picture of the results of
his BIN search, followed by pictures of the First Access credit card and six other credit cards that
Tarter voluntarily provided. Detective Wolters ran BIN searches on Tarter’s credit cards and found
an inconsistency with a Macy’s credit card.
1
A BIN search involves inputting the first six digits of a credit card into a database that returns
the name of the financial institution that issued the credit card and the credit card number. The
financial institution that appears in the database should match the name of the institution printed
on the card. If it does not, that’s evidence of potential fraud.
2
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About twenty minutes in, Sergeant Engstrom called dispatch and requested a status update
on Tarter’s license. Still no results. And a few minutes later, Detective Wolters called dispatch
with the same request, to no avail.2 So Wolters then requested a criminal history search. The
search revealed Tarter’s history of fraud crimes, including retail theft, forgery, identity theft, and
providing false identity to law enforcement.
These new discoveries required further investigation. So Detective Wolters recommended
handcuffing Tarter for everyone’s safety. Sergeant Engstrom instructed Officer Lovell to place
Tarter in handcuffs. Officer Lovell did, 42 minutes after the investigation began.
Once handcuffed, Officer Lovell and Sergeant Engstrom led Tarter away from the Hertz
counter to another area in the terminal and placed him on a bench. Ultimately, the Officers verified
the Macy’s card and Tarter’s identity via social media, but they couldn’t verify the First Access
card. At that point, the Officers released Tarter. In all, Tarter sat in handcuffs for about 26 minutes.
Tarter filed a complaint with DPS, challenging the Officers’ use of handcuffs. An
investigation ensued. As part of the investigation, Lieutenant Harding interviewed the Officers
and Detective Wolters. An investigation report states: “Officer Lovell advised that in the past
suspects involved in calls at the rental car counters have fought DPS personnel or ran from them.
Officer Lovell therefore put Mr. Tarter in handcuffs. . . . Sgt. Engstrom further stated that he
personally knows of cases where the fraud suspects would run or fight police when encountered.”
(R. 51-1, PageID 320, 322.) And Officer Robbins said similar things. In the end, the MNAA
report concluded that “[n]o MNAA or DPS policy was violated.” (Id. at PageID 323.)
2
Tarter notes that the officers didn’t receive any results from the Pennsylvania DMV system,
which is different from receiving confirmation that there’s no record of him.
3
No. 22-5421, Tarter v. Metro Nashville Airport Authority
Having no success with DPS, Tarter turned to federal court. He sued the Officers under
42 U.S.C. § 1983 and state law, alleging violations of his Fourth Amendment right against
unreasonable seizures, false imprisonment, and battery.3 Each party submitted motions for
summary judgment. The district court granted the Officers’ motion while denying Tarter’s. The
district court found: “The MNAA officers had a specific reason to believe Mr. Tarter was a flight
risk: he was a fraud suspect based on his criminal history and the inconsistencies in his credit cards,
and a recent MNAA email had warned that fraud suspects ‘may flee’ from law enforcement.” (R.
72, Order, p. 9.) And it held that, “if the officers’ use of handcuffs violated a constitutional right,
that right was not clearly established.” (Id.) Tarter timely appealed.
II.
We review the district court’s grant of summary judgment on qualified-immunity grounds
de novo. Simmonds v. Genesee County, 682 F.3d 438, 444 (6th Cir. 2012). To defeat an assertion
of qualified immunity at the summary judgment stage, a plaintiff “must present evidence sufficient
to create a genuine issue as to whether the defendant committed the acts that violated the law.” Id.(citation omitted).
In determining whether government officials are entitled to qualified immunity, we
conduct a two-step inquiry. “[O]fficers are entitled to qualified immunity under § 1983 unless
(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018) (citation omitted). We can address these requirements in either order. Pearson v. Callahan,
555 U.S. 223, 236 (2009).
3
Other counts were dismissed with prejudice. Tarter also sued Fernandez, but she was voluntarily
dismissed. And he sued the MNAA but does not appeal the grant of summary judgment to the
MNAA.
4
No. 22-5421, Tarter v. Metro Nashville Airport Authority
III.
Tarter makes three arguments on appeal. First, he argues that the district court didn’t
consider all facts and inferences in his favor when granting the Officers’ motion for summary
judgment. Second, he argues that the district court erred in finding that the Officers were entitled
to qualified immunity on his unreasonable-seizure claim. Third, he argues that the district court
erred in granting summary judgment on his state-law claims. We discuss each in turn.
A.
We first address Tarter’s argument that the district court didn’t consider all facts and
inferences in his favor when granting the Officers’ motion for summary judgment. In particular,
he says that the district court inferred too much from an internal email from Lieutenant Harding to
“DPS Supervisors” and Detective Wolters, sent a few days before the incident with Tarter.
Harding wrote: “Det. Wolters and I have been speaking to Hertz/Dollar/Thrifty personnel this
week during their annual fraud training. . . . I expect to see an uptick in calls to [Airport
Communications] about suspicious IDs and suspects.” (R. 58-14, PageID 581.) So Harding told
these supervisors to remind officers in roll call that fraud suspects “may flee if they see a uniformed
officer approaching and [the officers should] treat them accordingly as [they] would any person
suspected of a felony crime.” (Id. (emphasis added).) Tarter argues that it was improper for the
district court to infer from this email that Officer Lovell and Sergeant Engstrom—the handcuffing
officers—had reason to believe that fraud suspects would present a flight risk after an initial
approach. And Tarter argues that it is not clear that the pair read this email, or received word of
its contents.
But recall that Detective Wolters—who received the email and, according to the email, was
involved with the annual fraud training—recommended that Lovell and Engstrom handcuff Tarter.
5
No. 22-5421, Tarter v. Metro Nashville Airport Authority
And even if we agree with Tarter that the district court read too much into this email, there are
other undisputed facts in the record showing that Officer Lovell and Sergeant Engstrom had reason
to believe that fraud suspects may flee at any time during an investigatory stop. The MNAA
Investigation Report contains general statements from both officers that past suspects fled. (R. 51-
1, Exhibit G, p. 3 (“Officer Lovell advised that in the past suspects involved in calls at the rental
car counters have fought DPS personnel or ran from them.”); Id. at p. 5 (“[Sergeant Engstrom]
stated that he personally knows of cases where the fraud suspects would run or fight police when
encountered.”).) And declarations submitted by the two officers contain similar sentiments. (R.
62-3, Lovell Decl., PageID 606 (“[I]n the past, suspects had tried to flee law enforcement during
similar investigations.”); R. 62-4, Engstrom Decl., ¶ 3 (“When dealing with fraud cases, like the
Tarter investigation, prior suspects had tried to flee or fight.”).)4 The district court’s finding that
the handcuffing officers had reason to believe that fraud suspects like Tarter could flee is supported
by the record.
B.
Next, we turn to the district court’s finding that the Officers were entitled to qualified
immunity.
The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const.
amend. IV. Under Terry v. Ohio, 392 U.S. 1 (1968), “an officer may, consistent with the Fourth
4
These statements do not conflict with the officers’ deposition testimony about whether they felt
that Tarter was a safety threat or flight risk. (R. 58-5, Engstrom Dep. Tr.17:3–7; R. 58-8, Lovell
Dep. Tr. 15:8–10, 23:18–19.) And based on the record before us, Tarter’s counsel didn’t question
Officer Lovell or Sergeant Engstrom about their knowledge of or experiences with former fraud
suspects at their depositions. So the statements in these declarations are not barred by the sham
affidavit rule. See Aerel, S.R.L. v. PCC Airfoils, LLC, 448 F.3d 899, 907 (6th Cir. 2006) (allowing
parties to submit affidavits that “fill[] a gap left open by the moving party”). Also, the statements
in the declarations are consistent with the statements the two officers provided during the MNAA
investigation, taken before Officer Lovell and Sergeant Engstrom’s depositions.
6
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Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). But a
Terry stop that is supported by reasonable suspicion at the outset may nonetheless violate the
Fourth Amendment if it is excessively intrusive in scope or manner of execution. United States v.
Garza, 10 F.3d 1241, 1245 (6th Cir. 1993).
Because Tarter concedes that the Officers had a proper basis for the Terry stop, we focus
on the second prong—whether the detention and investigation methods were too intrusive under
the circumstances.5 This inquiry asks “whether the degree of intrusion into the suspect’s personal
security was reasonably related in scope to the situation at hand, which is judged by examining the
reasonableness of the officials’ conduct given their suspicions and the surrounding circumstances.”
Garza, 10 F.3d at 1245 (citation omitted). “If the manner in which an investigatory stop is
conducted is unreasonable, the seizure then ripens into an arrest, which must be supported by
probable cause.” Smoak v. Hall, 460 F.3d 768, 779 (6th Cir. 2006).
Recall that, after 42 minutes of investigating, the Officers made several discoveries. The
Officers suspected that Tarter possessed not just one, but two fraudulent credit cards. The Officers
couldn’t verify Tarter’s driver’s license. And the Officers learned of Tarter’s checkered criminal
history, which included many fraud crimes. The Officers had knowledge of or experience with
past fraud suspects who fled. So as the Officers prepared to confront Tarter with these discoveries
in a heavily-trafficked airport, they handcuffed Tarter and led him away from the Hertz counter to
complete the investigation. Tarter argues that the handcuffs were unnecessary.
5
A claim that investigative methods weren’t reasonable is analytically distinct from an excessive
force claim—which Tarter does not make. (Appellant Br. p. 37, n.3.) Having said that, at least
one of our published cases cited the Graham factors when determining the reasonableness of the
use of force within the framework that we use here. See Dorsey v. Barber, 517 F.3d 389, 399–400
(6th Cir. 2008).
7
No. 22-5421, Tarter v. Metro Nashville Airport Authority
But even if the Officers’ use of handcuffs was unreasonable, Tarter “still can’t recover
unless its unreasonableness was ‘clearly established at the time.’” Ashford v. Raby, 951 F.3d 798,
801 (6th Cir. 2020) (citation omitted). He needs to identify “precedent finding a Fourth
Amendment violation in similar circumstances,” or “failing that,” he must “show that this is the
rare obvious case in which no precedent is needed.” Id. (cleaned up). Our analysis begins and
ends with the clearly-established prong because Tarter hasn’t identified on-point precedent or
demonstrated that precedent wasn’t needed in his case.
Start with the first path for the clearly-established prong—on-point precedent. This
standard is “tough.” Id. “[E]xisting precedent” at the time of the incident must “put the illegality
of [the Officers’] conduct ‘beyond debate.’” Id. (quoting Wesby, 138 S. Ct. at 589). So “existing
precedent” must “‘squarely govern[]’ the specific facts at issue.” Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018) (per curiam) (citation omitted). It is not enough that a rule is merely “suggested
by then-existing precedent.” City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (per curiam).
Specificity is critical; we cannot “define clearly established law at too high a level of generality.”
Id. “Such specificity is especially important in the Fourth Amendment context, where the Court
has recognized that it is sometimes difficult for an officer to determine how the relevant legal
doctrine . . . will apply to the factual situation the officer confronts.” Mullenix v. Luna, 577 U.S.
7, 12 (2015) (per curiam) (cleaned up).
Tarter cannot meet this demanding standard because he hasn’t cited a case that puts the
illegality of the handcuffing beyond debate. We’ll go through the cases he cites to show why.
First, Tarter relies on Humphrey v. Mabry, 482 F.3d 840 (6th Cir. 2007), for the general proposition
that “it is unreasonable for officers to rely on information that has been disproven by their direct
observations.” (Appellant Br. at 22.) For the first 42 minutes of the investigation, he didn’t flee;
8
No. 22-5421, Tarter v. Metro Nashville Airport Authority
so, he argues, it would be unreasonable to expect that he would. Setting aside that he cites from
the dissent in Humphrey, (see id. (citing Humphrey, 482 F.3d at 855 (Clay, J., dissenting))), general
statements do not produce clearly established law. See Kisela, 138 S. Ct. at 1153.
And regardless, this general statement stems from a legal principle that doesn’t apply to
Tarter. That is, officers cannot detain suspects longer than reasonably necessary. Once their
suspicion is dispelled, the detention should end (and force is unjustified). See Brown v. Lewis, 779
F.3d 401, 416 (6th Cir. 2015). So when officers use force after it becomes apparent that a suspect
is not committing a crime, or that officers have the wrong suspect, that use of force is unreasonable.
See id.; Humphrey, 482 F.3d at 847. Here, Tarter agrees that the Officers had reasonable suspicion
throughout the investigation—and the record shows that their suspicions intensified over time.
And for that same reason, our circumstances stand in stark contrast to another one of
Tarter’s cases, Fisher v. Harden. See 398 F.3d 837 (6th Cir. 2005). In Fisher, officers responded
to a false tip that “a man had his feet tied to the railroad tracks” and was possibly suicidal. Id. at
839–40. The tipster stood about 250 yards from Fisher, who was actually a 77-year-old farmer
seated on a folding chair shooting groundhogs. Id. at 839. Two officers, also far away, instructed
Fisher to come toward them, eventually pointing their guns at Fisher when they realized he was
armed. Id. at 840. Fisher dropped his gun and walked toward them. Id. “After he finally reached
them, the officers commanded Fisher, still at gunpoint, to lay face down on the roadway, and
handcuffed him behind his back.” Id. Every action that Fisher took before these detention methods
dispelled the notion that he would commit suicide—and so the officers lost probable cause before
their commands to get on the ground and their use of handcuffs. Id. at 843.6 So the officers’
6
“[O]fficers detaining an individual believed to be suicidal must have ‘probable cause to believe
that the person is dangerous to himself or others.’” Id. (citation omitted).
9
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methods were unreasonable. Also, to state the obvious, Fisher isn’t about flight or fraud, it’s a
probable-cause case, and the officers there used far more intrusive methods than ours did here.
Next, Tarter argues that “the law clearly establishes that a detainee’s own actions must
form the basis for a specific belief that they present a flight risk.” (Appellant Br. at 24 (emphasis
added).) Again, general propositions divined from precedent do not produce clearly established
law. See Kisela, 138 S. Ct. at 1153.7
Even so, Tarter cites cases that establish that suspects can pose a flight risk if their behavior
suggests that they would flee.8 And to put officers on notice, Fourth Amendment violations must
be more than just “suggested by then-existing precedent.” See Bond, 142 S. Ct. at 11.
Tarter’s reliance on Bennett v. City of Eastpointe fares no better. See 410 F.3d 810 (6th
Cir. 2005). Bennett involved several incidents where the Eastpointe Police Department stopped
young bicycle riders. Tarter points to one instance where officers stopped youths who were
double-riding away from a store that they were suspected of “‘casing’ . . . with the intent to
abscond with unattended bicycles.” Id. at 834. The officers patted down and handcuffed the
youths, and placed the youths in the back of a cruiser. Id. at 835. We found the use of handcuffs
(and all investigatory measures) unreasonable because “the officers had no reasonable belief that
7
Tarter also relies on Brown for the related proposition that “[i]ntrusive measures are warranted
to secure a detainee only where specific facts” or “reason[s]” “lead to an inference that the detainee
poses a risk of flight or of violence.” 779 F.3d at 415. But that is also too generalized. See Kisela,
138 S. Ct. at 1153.
8
See United States v. Caruthers, 458 F.3d 459, 468 (6th Cir. 2006) (“Given that [the suspect] had
already demonstrated that he was a flight risk, it was reasonable for [the] Officer . . . to take steps
to avert another attempted escape [by placing the suspect in a police car].”); United States v. Jacob,
377 F.3d 573, 579 (6th Cir. 2004) (holding that it was reasonable for officers to draw their weapons
to prevent an escape when the suspects’ vehicle “lunged forward as if they were attempting to
escape”); Feathers v. Aey, 319 F.3d 843, 846, 852 (6th Cir. 2003) (reasoning that a suspect’s
motions “gave the officers sufficient reason to believe that he was fleeing” so it was reasonable to
“grab[]” him and “pin[] him . . . against a pillar”).
10
No. 22-5421, Tarter v. Metro Nashville Airport Authority
the youths were armed and dangerous . . . [and] they have alleged no facts that would indicate that
the youths attempted to flee or do anything else that would warrant this use of force.” Id. at 837.
Bennett is not like this case. The officers in Bennett used more invasive measures where
there was very little in the way of reasonable suspicion. And the officers in Bennett did not even
try to justify their investigatory methods. They didn’t “attempt to assert that they had any belief,
let alone a reasonable one, that the youths were armed and dangerous,” nor did they “assert that
[flight] was a concern.” Id. at 835, 840. In fact, there wasn’t “one single fact” that supported the
officers’ use of any invasive method of detention—handcuffs or otherwise—based on their stated
concern for “officer safety.” Id. at 835–37, 840. The panel scolded the Eastpointe Police
Department for what amounted to a string of questionable stops with discriminate treatment based
on race. Id. at 835, 841.
Here, the Officers do attempt to justify their belief, tied to several undisputed facts, that
Tarter might flee and present a safety risk. Unlike Bennett, where police concerns were likely
dispelled after a pat-down (at the latest), the Officers here grew increasingly suspicious. They
struggled to identify Tarter, located another troubling credit card, and learned of his past fraud
crimes. The Officers had knowledge of or experience with past fraud suspects who fled. They
thought things could escalate. All agree that a fraud suspect fleeing in an airport would pose a
safety concern. So as the Officers prepared to confront Tarter with these discoveries in a heavily-
trafficked airport, they handcuffed Tarter and led him away from the Hertz counter to complete
the investigation.
We save for another day whether a “degree of intrusion” such as this “was reasonably
related in scope to the situation at hand.” Garza, 10 F.3d at 1245 (citation omitted). Qualified
immunity “protects all but the plainly incompetent or those who knowingly violate the law.”
11
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Wesby, 138 S. Ct. at 589 (citation omitted). And because Tarter did not carry his burden to show
that “existing precedent ‘squarely governs’ the specific facts at issue,” Kisela, 138 S. Ct. at 1153(citation omitted), it protects the Officers here.9
And for the second path—the obvious-case exception—it is far from obvious that the
Officers violated Tarter’s constitutional rights. The Officers handcuffed Tarter and placed him on
a bench for about 26 minutes. He once complained that the handcuffs were tight, and the Officers
explained how he should adjust himself to remove any discomfort. Sure, this encounter may have
9
Tarter cites several out-of-circuit cases. “[A]s a threshold matter, our sister circuits’ precedents
are usually irrelevant to the ‘clearly established’ inquiry.” Ashford, 951 F.3d at 804. “The only
exception is for extraordinary cases where out-of-circuit decisions both point unmistakably to a
holding and are so clearly foreshadowed by applicable direct authority as to leave no doubt
regarding that holding.” Id. (cleaned up). Tarter’s cases do not meet our high standard. In fact,
the cases that Tarter relies on involve circumstances that are “worlds apart from what happened to
[Tarter].” Id.; see Turner v. Driver, 848 F.3d 687, 683, 693–94 (5th Cir. 2017) (finding it
unreasonable to handcuff a person videotaping a police station from a public sidewalk after the
person refused to provide identification); United States v. Bailey, 743 F.3d 322, 339–41 (2d Cir.
2014) (finding it unreasonable to handcuff a drug-trafficking suspect after a pat down revealed no
weapons); El-Ghazzawy v. Berthiaume, 636 F.3d 452, 455, 458 (8th Cir. 2011) (finding it
unreasonable to “immediately place[]” a theft-by-swindle suspect “in handcuffs, without making
any investigation” (emphasis added)); Cortez v. McCauley, 478 F.3d 1108, 1130–31 (10th Cir.
2007) (finding an officer’s methods unreasonable where a plaintiff “was never the target of the
investigation” and an officer “escort[ed] her from her bedroom in the middle of the night and ke[pt]
her in a locked patrol car for nearly an hour”); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295,
1306 (11th Cir. 2006) (finding it unreasonable to handcuff an elementary school student after
“[t]he incident was over” to “impress upon her the serious nature of committing crimes”);
Washington v. Lambert, 98 F.3d 1181, 1184, 1189–90 (9th Cir. 1996) (finding it unreasonable for
officers to “point[] their guns” at two men, handcuff them, and place them in separate police cars
when the “only basis for linking [the suspects] to the supermarket robberies was the purported
general similarity of their physical characteristics to those of the actual suspects”). And Tarter
cites Hatrim v. Las Vegas Metro Police Dep’t, 603 F. App’x 588 (9th Cir. 2013), but “a plaintiff
cannot point to unpublished decisions to meet [the] burden” of showing that a right is clearly
established. Bell v. City of Southfield, 37 F.4th 362, 367 (6th Cir. 2022). That leaves us with
United States v. Acosta-Colon, which is closer to the circumstances before us. 157 F.3d 9 (1st Cir.
1998). But, as Tarter notes, there needs to be a “robust consensus of cases of persuasive authority”
to make a right clearly established. Ortega v. U.S. Immigr. & Customs Enf’t, 737 F.3d 435, 439
(6th Cir. 2013) (citation omitted). One case doesn’t do the trick.
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been embarrassing. But the facts here are far from egregious. Cf. Taylor v. Riojas, 141 S. Ct. 52,
54 (2020).
For these reasons, the district court correctly determined that the Officers are entitled to
qualified immunity.
C.
Finally, Tarter argues that, because the Officers are not entitled to qualified immunity on
his § 1983 claim, “the district court erred in granting summary judgment on [his] related state-law
claims” for false imprisonment and battery (which he characterizes as an unlawful arrest claim).
(Appellant. Br, p. 37, n.3.) But because he doesn’t brief any reason why these claims should
proceed independent of his federal law claims, we find that summary judgment is appropriate.
AFFIRMED.
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No. 22-5421, Tarter v. Metro Nashville Airport Authority
COLE, Circuit Judge, dissenting. The officers violated Eric Tarter’s clearly established
Fourth Amendment rights when they handcuffed him 42 minutes into a Terry stop during which
Tarter was calm, cooperative, and gave the officers no reason to believe he posed a flight or safety
risk. Given this, I would reverse the grant of summary judgment on the grounds of qualified
immunity to Officer Lovell, Officer Robbins, and Sergeant Engstrom and remand for further
proceedings. I respectfully dissent.
I. BACKGROUND
I begin by highlighting a few additional facts from the record. First, the additional BIN
checks performed by Lovell and Engstrom when they arrived at the Hertz counter merely
confirmed the information that prompted Fernandez’s initial call to the Metro Nashville Airport
Authority (MNAA). All three of these BIN checks related only to the First Access card.
Second, the officers attempted to verify Tarter’s identity by running his Pennsylvania
driver’s license number, but the officers did not receive a response from the Pennsylvania DMV
regarding Tarter’s license. To be clear, the officers received no communication at all from the
Pennsylvania DMV during the investigation—in fact, officers believed that the Pennsylvania
system was “probably down during this period.” (Lovell Dep. Excerpt, R. 51-5, PageID 368.)
Third, Tarter voluntarily provided the officers with several pieces of information
throughout the investigation, including six additional credit cards and his social security number
to facilitate the criminal history check. Though the criminal history report returned information
involving fraud-related arrests, most of the charges listed were dismissed. Notably, the report also
included Tarter’s age, weight, height, date of birth, hair color, eye color, and listed a neck tattoo
as an identifying feature. The report’s identifying information, however, was not used to confirm
Tarter’s identity.
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No. 22-5421, Tarter v. Metro Nashville Airport Authority
Finally, when reflecting on the encounter, Robbins agreed that Tarter was cooperative at
all times. Engstrom described Tarter’s demeanor as calm and confirmed that while “anyone can
be a safety threat,” he did not feel that Tarter specifically posed a flight or safety risk. (Engstrom
Dep. Excerpt, R. 58-5, PageID 518–19.) Lovell agreed, indicating that while “[a]ny suspect
potentially poses a safety risk,” Tarter specifically posed neither a safety nor a flight risk. (Lovell
Dep. Excerpt, R. 58-8, PageID 546–47.)
With these additional facts in mind, I proceed to the analysis.
II. ANALYSIS
We review de novo a district court’s grant of summary judgment. Brown v. Lewis, 779
F.3d 401, 410 (6th Cir. 2015). “Summary judgment is appropriate only ‘if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). The court views the evidence in the light most
favorable to the non-moving party and draws all reasonable inferences in their favor. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).1
We also review a qualified immunity determination de novo. Sterling Hotels, LLC v.
McKay, 71 F.4th 463, 466 (6th Cir. 2023). “Qualified immunity protects government officials
performing discretionary functions unless their conduct violates a clearly established statutory or
constitutional right of which a reasonable person in the official’s position would have known.”
Brown, 779 F.3d at 411 (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)).
To overcome an assertion of qualified immunity, a plaintiff must show both (1) that the
1
The majority opinion discusses Tarter’s argument regarding the district court’s interpretation of
the MNAA email separately. Because appellate review of both summary judgment and qualified
immunity is de novo, and inferences must be drawn in Tarter’s favor when considering the officers’
motion for summary judgment, discussion of the evidence occurs in the discussion of the qualified
immunity analysis below.
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government officials violated the plaintiff’s statutory or constitutional rights; and (2) that the rights
were clearly established. Id. at 411–12.
A. Constitutional Violation
Under the Fourth Amendment, “[a]n officer may detain an individual for a short time for
investigatory purposes if, under the totality of the circumstances, he has ‘reasonable suspicion,’
that is, ‘a particularized and objective basis for suspecting the particular person . . . of criminal
activity based on specific and articulable facts.’” Id. at 412 (quoting Hoover v. Walsh, 682 F.3d
481, 494 (6th Cir. 2012)); see also Terry v. Ohio, 392 U.S. 1, 88 (1968). Tarter does not contest
that the officers had reasonable suspicion for the initial stop.
But when conducting a Terry stop, officers’ actions should be no “more intrusive than
necessary to effectuate an investigative detention otherwise authorized by the Terry line of cases,”
meaning that “the investigative methods employed should be the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer,
460 U.S. 491, 500, 504 (1983). “If ‘the length and manner’ of the stop, including any force used,
are not ‘reasonably related to the basis for the initial intrusion,’ then the stop ripens into an arrest,
for which the officers must show probable cause.” Brown, 779 F.3d at 412 (quoting Houston v.
Clark Cnty. Sheriff Deputy John Does 1–5, 174 F.3d 809, 814 (6th Cir. 1999)). Further, “intrusive
measures are warranted to secure a detainee only where specific facts lead to an inference that the
detainee poses a risk of flight or of violence to the officers.” Id. at 415.
The use of handcuffs is one example of an “intrusive measure.” Id.; see also Muehler v.
Mena, 544 U.S. 93, 103 (2005) (Kennedy, J., concurring) (“The use of handcuffs is the use of
force, and such force must be objectively reasonable under the circumstances.”). Though the use
of handcuffs during a Terry stop does not per se transform the stop into an arrest, “the Fourth
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Amendment requires some reasonable belief that the suspect is armed and dangerous or that the
restraints are necessary for some other legitimate purpose, evaluated on the facts of each case.”
Bennett v. City of Eastpointe, 410 F.3d 810, 836 (6th Cir. 2005); Houston, 174 F.3d at 815.
Our circuit has repeatedly addressed the use of handcuffs during a Terry stop. In doing so,
we have determined that the use of handcuffs during a Terry stop is reasonable when a detained
individual (1) admits to having a weapon, O’Malley v. City of Flint, 652 F.3d 662, 670 (6th Cir.
2011); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 309 (6th Cir. 2005); (2) exhibits nervous
or aggressive behavior warranting a belief of dangerousness, United States v. Atchley, 474 F.3d
840, 849 (6th Cir. 2007); (3) attempts to flee, United States v. Jacob, 377 F.3d 573, 579–80 (6th
Cir. 2004); see also Feathers v. Aey, 319 F.3d 843, 851–52 (6th Cir. 2003); United States v.
Caruthers, 458 F.3d 459, 468 (6th Cir. 2006); or (4) is allegedly involved in a crime closely
associated with violence or danger, Radvansky, 395 F.3d at 309; United States v. Foster, 376 F.3d
577, 587–88 (6th Cir. 2004); United States v. Hurst, 228 F.3d 751, 758 n.3 (6th Cir. 2000).
In contrast, we have found that the use of handcuffs was unreasonable when the detained
individuals gave officers no reason to believe they were armed, dangerous, a flight risk, or involved
in a crime generally associated with violence. For example, in Bennett, we found that the officers’
use of handcuffs on detained youths was inappropriate. 410 F.3d at 835–37. We explained that
“[i]n addition to . . . ha[ving] no reasonable belief that the youths were armed and dangerous, [the
officers] . . . alleged no facts that would indicate that the youths attempted to flee or do anything
else that would warrant this use of force.” Id. at 837. While it is true that the officers in Bennett
also conducted an unlawful pat-down prior to their use of handcuffs, the pat-down search was not
the only reason that the use of the handcuffs was unlawful. Rather, we specifically noted the
absence of any indication that the detained individuals posed a flight risk.
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Similarly, in Brown v. Lewis, we determined that the methods used during an investigative
stop, including the use of handcuffs, were unreasonably intrusive. 779 F.3d at 414. In Brown, the
officers pulled over Brown’s car, forced her out of it onto the ground, and handcuffed her for about
ten minutes. Id. In finding these actions unconstitutional, the court explained that Brown “did not
give the officers any reason to believe that she was dangerous or involved in criminal activity;
[and] she was compliant with officer instructions throughout the stop.” Id. The court specifically
noted that “[i]f there is no specific reason for the officers to believe that the detainee poses a risk
of flight or violence, ‘a bare inference’ or speculation . . . is not sufficient to justify the use of
handcuffs.” Id. at 415 (emphasis added).
Tarter’s case is more similar to Brown and Bennett than it is to cases where the use of
handcuffs was deemed reasonable. First, Tarter was detained for suspected credit card fraud and
there is no suggestion in the record that this is a crime generally associated with violence or
weapons. The record also lacks any facts suggesting that the officers believed Tarter was armed
or observed him displaying nervous, erratic, or aggressive behavior. Indeed, the opposite is true:
Robbins described Tarter as cooperative throughout the encounter, and Lovell and Engstrom
confirmed that Tarter was calm, and at no point did they believe him to be a flight or safety risk.
Instead, the officers believed that the use of handcuffs was reasonable based on their past
experience with fraud suspects, the additional inconsistency with Tarter’s Macy’s card, and the
information contained in the criminal history report. As for the officers’ past experiences, none of
our case law permitted officers to rely on a generalized statement based on past experience to
justify the use of handcuffs during a Terry stop, particularly in light of personal observations by
the officers that gave no indication that further force was required to continue the detention.
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As to Tarter’s criminal history, this too was insufficient to warrant the use of handcuffs.
While the report may have contained past fraud-related arrests, most of the charges in the report
were dismissed. Additionally, it is not clear why this information gave the officers reason to
believe that Tarter posed a flight or safety risk in that moment. Finally, it seems incongruous for
the officers to attribute the report’s criminal history to Tarter and use this information as a
justification for the use of more intrusive measures while simultaneously claiming that they
remained unable to confirm his identity (which was a primary reason for his continued detention).
Finally, as for the additional card inconsistency, this is the same concern that precipitated
the initial stop. Tarter remained calm and cooperative as the investigation continued, and the
record contains no facts that permit the inference that Tarter’s behavior might have changed. Even
taking these reasons together, it is difficult to see why the use of handcuffs would be reasonable.
While each piece of information may provide a reason to continue the investigation into Tarter,
there is nothing to suggest that more intrusive measures were required to do so.
Because the officers were not presented with “specific facts lead[ing] to an inference that
[Tarter] pose[d] a risk of flight or of violence to the officers,” the use of handcuffs was
unreasonable under the circumstances and violated Tarter’s Fourth Amendment rights. Brown,
779 F.3d at 415.
B. Clearly Established
To overcome an assertion of qualified immunity, Tarter must also demonstrate that the
right in question was clearly established. Brown, 779 F.3d at 411. Under Supreme Court
precedent, “[c]learly established means that, at the time of the officer’s conduct, the law was
sufficiently clear that every reasonable official would understand that what he is doing is
unlawful.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2019) (cleaned up); Hope v. Pelzer,
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536 U.S. 730, 739 (2002). While this is a demanding standard, the Court has also made clear that
it “does not require a case directly on point” for a right to be clearly established. White v. Pauly,
580 U.S. 73, 79 (2017) (per curiam). In fact, the Court has “firmly rejected the notion that ‘an
official action is protected by qualified immunity unless the very action in question has previously
been held unlawful.’” Brosseau v. Haugen, 543 U.S. 194, 205 (2004) (Stevens, J., dissenting)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Rather, “[b]ecause the focus is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”
Brosseau, 543 U.S. at 198 (per curiam). Generally, “a body of relevant case law” can provide an
answer regarding the reasonableness of an officer’s conduct, and thus whether the right in question
was clearly established. Wesby, 583 U.S. at 64.
Here, this body of case law exists and establishes that the officers’ use of handcuffs on
Tarter was unreasonable, as is evident by the discussion above. Numerous published Sixth Circuit
cases make clear that intrusive measures like the use of handcuffs during a Terry stop are
appropriate “only where specific facts lead to an inference that the detainee poses a risk of flight
or of violence to the officers.” Brown, 779 F.3d at 415. And here, no such facts existed.
Further, this right is not overly broad or defined at a high level of generality. The high-
level right in question is the Fourth Amendment right to be free from unreasonable seizures. Had
Tarter framed the violation in this way, his case would be difficult to make. But here, the right in
question is much more specific: the right of a compliant, non-aggressive, non-fleeing individual
to be free from handcuffing during an investigation of a suspected non-violent offense. And the
case law explains clearly when the use of handcuffs is and is not appropriate during a Terry stop.
Here, it was not. See Brown, 779 F.3d at 414–15; Bennett, 410 F.3d at 836–37.
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Moreover, several other circuits have similarly articulated that in order to constitutionally
use handcuffs during an investigative detention, officers must believe that the detained individual
poses a risk of flight or violence, or was detained in connection with a crime generally associated
with violence or weapons. See United States v. Bailey, 743 F.3d 322, 340 (2d Cir. 2014)
(explaining that while handcuffs do not transform a detention into an arrest, officers must “have a
reasonable basis to think that the person detained poses a present physical threat and that
handcuffing is the least intrusive means to protect against that threat” and that the officers
presented no information that Bailey “pose[d] a present physical threat or flight risk warranting
handcuffing” (emphasis added)); El-Ghazzawy v. Berthiaume, 636 F.3d 452, 457–58 (8th Cir.
2011) (explaining that the use of handcuffs violated the Fourth Amendment when (1) there were
no facts suggesting the detained person was armed or dangerous; (2) the person was not detained
for a violent crime; and (3) the person was calm and cooperative during the stop and acted neither
erratically nor suspiciously); United States v. Acosta-Colon, 157 F.3d 9, 19 (1st Cir. 1998)
(determining that the use of handcuffs was unreasonable when none of the suspects were “being
uncooperative, belligerent, or showed any perceptible inclination to put up resistance or become
violent” and the officers failed to present evidence that they held “an actual suspicion that [the
detained individual] was armed or otherwise presented an appreciable danger”); Washington v.
Lambert, 98 F.3d 1181, 1192 (9th Cir. 1996) (noting that it was “clearly established that if the
Terry-stop suspects are cooperative and the officers do not have specific information that they are
armed or specific information linking them to a recent or inchoate dangerous crime,” the use of
intrusive measures including handcuffs was unwarranted).
What is more, Scott Harding, an MNAA lieutenant who assisted in the investigation into
Tarter and conducted the internal investigation of the officers following Tarter’s complaint,
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articulated the precise right in question, indicating that officers were in fact “on notice” of the
governing standard. When deposed on behalf of the MNAA, Harding was questioned about the
use of handcuffs during investigative detentions. Harding recalled his training from the “academy”
and explained that an officer might use handcuffs during a Terry stop “[i]f the officer has specific
facts known to them that would feel like the person in question would flee or fight or even the
nature of the–and/or the nature of the crime[.]” (Harding 30(b)(6) Dep. Excerpt, R. 66-3, PageID
704.) Given that Harding explained the governing standard nearly verbatim, it is reasonable to
conclude that officers were “on notice” of the right and should have recognized that the use of
handcuffs on Tarter contravened a clearly established constitutional right.
In sum, the case law at the time of Tarter’s detention clearly established that absent a
specific belief that Tarter posed a safety or flight risk, or was detained in connection with a crime
closely associated with violence or danger, it was unlawful for officers to use handcuffs during an
investigative detention.
C. Individual Officers
Finally, liability under § 1983 must be assessed as to each officer individually based on
their own actions. Pollard v. City of Columbus, 780 F.3d 395, 402 (6th Cir. 2015); Dorsey v.
Barber, 517 F.3d 389, 399 n.4 (6th Cir. 2008).
Lovell arrived on the scene at the beginning of the investigation, was present throughout,
and was the officer who placed the handcuffs on Tarter. Under governing case law, Lovell was
on notice that the use of handcuffs in these circumstances violated Tarter’s clearly established right
and can be held liable under § 1983 for his actions.
Engstrom is liable under a theory of supervisory liability because he instructed Lovell to
handcuff Tarter. Engstrom was on the scene from the outset of the investigation and observed
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Tarter throughout. By instructing Lovell to handcuff Tarter, Engstrom “authorized, approved or
knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Bennett, 410
F.3d at 818 (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)).
Finally, Robbins is liable for failure to intervene. Robbins was also present throughout the
investigation. He observed Tarter during the investigation and was the officer who assisted Tarter
when he complained that the handcuffs were too tight. Because Robbins “(1) observed or had
reason to know that [the constitutional harm] would be or was being used, and (2) had both the
opportunity and the means to prevent the harm from occurring,” he can be held liable for failure
to intervene. Sheffey v. City of Covington, 564 F. App’x 783, 793 (6th Cir. 2014) (cleaned up);
Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). So, Lovell, Engstrom, and Robbins all took
actions that support liability under § 1983.
D. State Law Claims
The disposition of Tarter’s state law claims turned on the grant of qualified immunity for
the federal allegations. But because the defendants are not shielded by qualified immunity on the
federal claims, I would also remand the state law claims for further consideration.
III. CONCLUSION
For the foregoing reasons, I would reverse the district court’s grant of summary judgment
to the defendants and remand for further proceedings. I respectfully dissent.
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