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Disciplinary Self-Help Litigation Manual

Sixth Circuit Reverses District Court’s Grant of Summary Judgment to Defendants in § 1983 Suit Against City and Police Officers

After observing Lamar Wright pull into the driveway of a suspected drug dealer and then leave, Flagg and Williams followed him in an unmarked car. Wright pulled into another residential driveway. Flagg and Williams approached Wright with guns drawn. Williams shouted to Wright, commanding him to turn off his engine and exit his SUV. Wright placed the SUV in park and raised his hands. The officers holstered their guns.

Flagg jerked the driver’s side door open and grabbed Wright’s left arm, twisting it around behind him. Flagg then attempted to grab Wright’s right arm in order to handcuff him. Unable to secure the right arm, Flagg began pulling Wright from the vehicle. Wright had a colostomy bag stapled to his abdomen as the result of a recent surgery. In order to assist Flagg, Wright placed his right hand on the center console for leverage to enable him to turn his body and exit the vehicle. Williams responded to Wright’s hand movement by pepper spraying him. At the same time, Flagg Tased him in the abdomen. Wright was then forcibly removed from the vehicle. A search of Wright’s person and vehicle revealed he had no weapons or other contraband. Due to blood leaking from the staples in his abdomen, Wright was transported to the hospital.

After a doctor tended to his wounds, the officers demanded he submit to an X-ray to find drugs they believed he had swallowed. Wright refused, believing the radiation from the X-ray would aggravate his wound from his surgery. The officers became enraged and said they were going to charge him because he refused to submit to an X-ray. Wright was booked at 10:45 p.m. on charges that included obstruction of official business and resisting arrest.

The officers designated Wright’s arrest as “stemming from a drug investigation.” Flagg later stated that he did this because he knew it would subject Wright to additional, more thorough searches. Wright posted bond before midnight, but the officers would not permit him to leave.

Because the officers had designated Wright’s arrest as stemming from a drug investigation, he was taken to the Cuyahoga County Jail (“Jail”) for a body scan to search for drugs concealed in his abdomen. The body scan revealed no drugs. Wright was not released from the Jail until 3:55 a.m. The prosecutor later dropped all charges.

At some point, Wright became aware that the use-of-force training that Flagg, Williams, and all Euclid police officers undergo included a video of comedian Chris Rock titled “How not to get your ass kicked by the police!” The video trivializes police beatings of citizens by presenting the beatings of Rodney King and other Black men in a “humorous” light. The training also included a PowerPoint slide that depicted a cartoon of a police officer in riot gear beating an unarmed civilian with a club emblazoned: “protecting and serving the poop out of you.” And the use of force training contained a meme depicting two officers with their guns drawn with a caption: “Bed bug! Bed bug on my shoe!”

Sergeant Murkowski was in charge of use-of-force training. The training that officers received consisted of reading the use-of-force policy to officers — including the video, PowerPoint, and meme described above — and a two-page quiz that was sometimes given.

Murkowski was also in charge of reviewing complaints of excessive force. He determined Flagg and Williams had not used excessive force against Wright. Notably, Murkowski had never found that a Euclid officer had ever used excessive force in any of the complaints he reviewed. Chief Meyer also stated that he had never found merit to any civilian complaint concerning use of force, false arrest, or illegal searches.

Wright filed his § 1983 complaint raising numerous allegations, including: excessive force, false arrest, malicious prosecution, extended detention, the City’s municipal liability, and a state law claim of malicious prosecution. The defendant’s filed a motion for summary judgment. The district court granted the motion based on qualified immunity for the officers and based on want of a constitutional violation as to the City. Wright appealed.

The Sixth Circuit observed “[s]ummary judgment is appropriate when ‘no genuine dispute as to any material fact’ exists and the moving party ‘is entitled to judgment as a matter of law.’” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if there is evidence to support a jury’s finding in favor of the nonmoving party. Peffer v. Stephens, 880 F.3d 256 (6th Cir. 2018). At the summary judgment stage, the evidence and all reasonable inferences are drawn in favor of the nonmoving party. Burgess v. Fischer, 735 F.3d 462 (6th Cir. 2013).

The Sixth Circuit analyzes whether an officer is entitled to qualified immunity using two steps: (1) whether the officer violated a constitutional right; and (2) whether that right was clearly established at the time of the violation. Fazica v. Jordan, 926 F.3d 283 (6th Cir. 2019).

Regarding Wright’s excessive force claims, officers are permitted to use some level of force when effectuating an investigatory stop or arrest, and the amount of force permitted is determined by examining “whether the totality of the circumstances justifies a particular level of force.” Coffey v. Carroll, 933 F.3d 577 (6th Cir. 2019).

Three factors guide this analysis: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386 (1989).

Police may approach a suspect with weapons drawn during an investigative stop if the officer reasonably fears for his safety. United States v. Heath, 259 F.3d 522 (6th Cir. 2001). And police may approach with weapons drawn if the suspect is engaged in drug activity as such suspects are often armed. Id. Police also may use Tasers and pepper-spray if a suspect actively resists but not if the suspect passively resists or offers no resistance. Goodwin v. City of Painesville, 781 F.3d 314 (6th Cir. 2015).

In the instant case, Wright had committed no crime when officers approached him with guns drawn. He was not a threat to anyone’s safety, and he did not attempt to evade arrest, the Court observed. All three Graham factors weighed in his favor. Merely because he pulled into the driveway of the home of a suspected drug dealer did not give police probable cause to believe he was engaged in drug activity, the Court stated. Consequently, Flagg and Williams used excessive force when they drew their weapons. The right not to be subjected to such excessive force was clearly established at the time Flagg and Williams drew their weapons. Binay v. Bettendorf, 601 F.3d 640 (6th Cir. 2010).

Likewise, construing the facts in Wright’s favor, when he placed his hand on the console to enable him to get out of the vehicle, it was, at most, passive resistance, and using pepper-spray and Taser on him was excessive force, the Court concluded. This right had also been clearly established. Brown v. Chapman, 814 F.3d 447 (6th 2016).

Addressing the false arrest claim, the officers argued that when Wright placed his hand on the console, he was resisting their efforts to remove him from the vehicle. Based on this, they arrested him for the offense of “obstructing official business.” Ohio Rev. Code § 2921.31. But that offense requires proof that the accused intended to obstruct. City of N. Ridgeville v. Reichbaum, 677 N.E. 2d 1245 (Ohio 1996). If a jury believed Wright’s claim that he was trying to assist Flagg in removing him from the vehicle, then there was no intent to obstruct, and the officers lacked probable cause to arrest Wright. Therefore, the arrest would have been unlawful.

Wright also was arrested for resisting that arrest. But it’s not a crime to resist an unlawful arrest. Hoover v. Garfield Heights Mun. Court, 802 F.2d 168 (6th Cir. 1986). And the right to be free from arrest without probable cause is a quintessential example of a clearly established right. Jones v. City of Elyria, 947 F.3d 905 (6th Cir. 2020).

Regarding the extended detention claim, the Fourth Amendment “establishes the minimum constitutional standards and procedures not just for arrest but also for the ensuing detention.” Manuel v. City of Joliet, 137 S. Ct. 911 (2017). The ultimate touchstone of the Fourth Amendment is reasonableness. Heien v. North Carolina, 574 U.S. 54 (2014).

Wright posted bond before midnight on the date he was arrested. Under Ohio law, he was to be released from custody. Ohio Rev. Code § 2713.13. But he wasn’t released until the following morning at 3:55 a.m. This extended detention of approximately four hours was due to Wright being held for a body scan to detect drugs hidden in his abdomen. And the body scan was required because Flagg and Williams had designated Wright’s arrest as drug related. But the officers knew there was no evidence of Wright possessing drugs, knew Wright was facing no drug-related charges, and knew there was no probable cause to believe Wright had hidden drugs in his abdomen. The Court concluded that the extended detention was unreasonable. Because the extended detention claim was a derivative of a false arrest claim, the right was clearly established. Jones.

Addressing Wright’s Fourth Amendment malicious prosecution claim, the Court observed he had to prove: (1) a criminal prosecution was initiated against him, and the defendant made, influenced, or participated in the decision to prosecute, (2) there was a lack of probable cause for the criminal prosecution, (3) as a consequence of a legal proceeding he suffered a deprivation of liberty apart from the initial seizure, and (4) the criminal proceeding was resolved in his favor. Fox v. Desoto, 489 F.3d 227 (6th Cir. 2007). As to the first factor, there must be some element of blameworthiness or culpability in the participation, i.e., truthful participation is not actionable. Johnson v. Moseley, 790 F.3d 649 (6th Cir. 2015). Filing a narrative report that falsely accuses a defendant may establish sufficient culpability for a federal malicious prosecution claim. Jones.

In the instant case, the officers falsely designated that Wright’s arrest was the result of a drug investigation. And the officers’ statements that they were charging him because he refused to be X-rayed were evidence of malice. The Court concluded that the district court erred in granting statutory immunity on this claim.

Regarding the claims against the City, a § 1983 cause of action may be brought against a person who subjects another person to the deprivation of a federal right. 42 U.S.C. § 1983. A city or municipality may be considered a legal “person” for § 1983 purposes. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). To prevail, a plaintiff must show a city, through its deliberate conduct, was the moving force behind the alleged injury. Alman v. Reed, 703 F.3d 887 (6th Cir. 2013). He may do this by showing that the city had a “policy or custom” that caused the violation of rights. Monell.

The Court explained that there are four methods of proving a Monell claim: the plaintiff may prove “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom or tolerance or acquiescence of federal rights violations.” Jackson v. City of Cleveland, 925 F.3d 793 (6th Cir. 2019). The first theory of liability requires proof that there were formal rules or understandings that were intended to, and did, establish fixed plans of action to be followed under similar circumstances consistently and over time. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). An official policy includes unwritten practices that are so permanent and well settled as to constitute a custom or usage with the force of law. Monell.

The Court concluded that the Chris Rock video, the cartoon, and the meme were sufficient evidence produced by Wright to support a jury’s finding that the City had a custom of allowing excessive force, this custom was so settled it had the force of law, and it was the moving force behind the violations of Wright’s constitutional rights.

Likewise, the City’s policy of simply reading the excessive-force training manual to officers, and then sometimes giving a two-page quiz, was evidence to support a finding that the City’s practices of inadequate training gave rise to a culture that encouraged, permitted, or acquiesced to the use of excessive force and was the moving force behind the use of such force on Wright, the Court ruled.

Finally, the Court stated that a jury could find that Murkowski and Meyer’s seeming failure to ever investigate even one complaint of excessive force rose to the level of ratification of unconstitutional conduct by a decision maker.

Having concluded that the district court erred in finding that the officers were entitled to qualified immunity and statutory immunity and erred in dismissing the claim against the City for want of a constitutional violation, the Court further concluded that the grant of summary judgment was in error.

Related legal case

Wright v. City of Euclid

 

 

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