Ashford v. Raby
Filing
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OPINION AND ORDER granting 14 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEYONTE ASHFORD, SR.,
Plaintiff,
Case No. 18-10813
v.
HON. GEORGE CARAM STEEH
MICHAEL RABY,
Defendant.
__________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (DOC. 14)
Before the court is Defendant’s motion for summary judgment, which
has been fully briefed. The court heard oral argument on May 21, 2019,
and took the matter under advisement. For the reasons explained below,
Defendant’s motion is granted.
BACKGROUND FACTS
Plaintiff Keyonte Ashford, Sr., contends that Southfield Police Officer
Michael Raby used excessive force by ordering his police dog to
apprehend him. On January 24, 2016, at about 1 a.m., Southfield Officer
Jordan Woodside was driving north on Northwestern Highway when a
white sport utility vehicle sped past him. Plaintiff was the driver of the SUV.
Woodside was traveling at about 70 miles per hour in a marked police car.
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He observed that the SUV’s speed was in excess of 100 miles per hour,
and that the driver changed lanes without signaling, straddled between
lanes, and swerved. After Woodside activated his overhead lights, the
vehicle slowed, but did not stop. Woodside then activated his siren. The
SUV continued northbound on Northwestern Highway, traveling at about 60
miles per hour. The SUV traveled in the right lane, then moved into the
Telegraph Road exit lane before abruptly continuing on Northwestern.
After a few minutes, three Southfield police vehicles were eventually able to
box in the SUV and it came to a stop at a traffic light in the left center lane.
Officer Raby arrived on the scene after the SUV was boxed in. Raby
is a trained K9 handler who was riding with his police dog, Ruger. Also on
the scene was Officer Maurer, who positioned his vehicle behind the
driver’s side door and whose dash camera recorded video of the incident.
See Doc. 14-5.
After being ordered to put his hands up, Plaintiff showed his hands
slightly outside the open window of the SUV. With his gun drawn, Maurer
again told Plaintiff to put his hands up, and Plaintiff raised his hands further
outside of the window. Maurer told Plaintiff to turn off the car; but Plaintiff
kept his hands visible outside of the window.
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As Raby approached the driver’s side of the SUV with Ruger, he had
the dog lie down. Raby also drew his weapon and pointed it at Plaintiff.
Maurer told Plaintiff not to move or he would be bitten by the dog, and then
told him to keep his hands outside of the window. Raby approached the
door and attempted to open it, but it was locked. Raby and Maurer ordered
Plaintiff to open the door, but he shook his head, keeping his hands up.
Raby reached into the vehicle, unlocked the door, and opened it. He
noticed that the SUV was running and was still in drive. Raby backed away
from the door and he and Maurer ordered Plaintiff out of the vehicle.
Maurer yelled at Plaintiff several times to come out with his hands on his
head. Plaintiff kept his hands in the air, and shook his head. See Doc. 14-7
(“[H]e shook his head no.”). He did not exit the vehicle. He appeared to be
speaking to the officers, but his words are not audible on the video above
the yelling of the officers and the barking of Ruger.
Plaintiff contends that he was explaining to the officers that he could
not get out of the car because his foot was on the brake and the car was in
drive. Plaintiff testified that he was afraid that if he moved his hands to put
the vehicle in park, the officers would shoot him. He was also afraid that if
he removed his foot from the brake, the car would move and he would be
accused of using his car as a weapon and shot.
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Raby warned Plaintiff that if he did not exit the vehicle, he would be
bitten by the dog. When Plaintiff did not comply, Raby commanded Ruger
to apprehend Plaintiff. Ruger jumped up and attempted to bite Plaintiff, but
missed because Plaintiff moved his arm into the SUV. Raby commanded
Ruger again, but the dog missed a second time. Raby then grabbed
Plaintiff’s left arm and pushed it down; Ruger latched on and pulled as
Raby also pulled Plaintiff out of the SUV and onto the ground. As Plaintiff
was pulled out of the car, the vehicle lurched forward slightly and hit the
police car directly in front of it.
Three officers then attempted to gain control of Plaintiff, who did not
comply with multiple commands to roll over. According to the officers,
Plaintiff pulled his arms away to the center of his body, resisting their efforts
to handcuff him. Once officers had control of Plaintiff’s arms, Raby
commanded Ruger to release Plaintiff, and the dog obeyed. Plaintiff
contends that Ruger was allowed to bite him unnecessarily for ten
additional seconds after he was removed from his vehicle.
Plaintiff was arrested and transported to the hospital. He was treated
for puncture wounds on his arm and consented to a blood draw. Plaintiff’s
blood alcohol level at the time of his arrest was .184, well over the legal
limit in Michigan of .08. Plaintiff was charged with fleeing/eluding police,
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resisting and obstructing, and operating a vehicle while intoxicated.
Plaintiff pleaded no contest to fleeing/eluding and operating while
intoxicated; the resisting/obstructing charge was dismissed. Plaintiff filed
this action on March 12, 2018, alleging that Raby violated 42 U.S.C. § 1983
and the Fourth Amendment by subjecting Plaintiff to excessive force in the
course of his arrest. He alleges that he continues to have residual pain and
numbness in his arm and that he receives psychiatric treatment as a result
of the emotional trauma of the incident.
LAW AND ANALYSIS
Raby has moved for summary judgment, arguing that he is entitled to
qualified immunity, which “protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted).
“Qualified immunity balances two important interests – the need to hold
public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Id.
In determining whether a government official is entitled to qualified
immunity, the court inquires as follows: “Taken in the light most favorable to
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the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201
(2001). “[I]f a violation could be made out on a favorable view of the
parties’ submissions, the next . . . step is to ask whether the right was
clearly established. . . . The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he
confronted.” Id. at 201-202. It is within the court’s discretion to determine
which prong of this analysis to address first, depending upon the
circumstances of the case. Pearson, 555 U.S. at 236.
I.
Constitutional Violation
The court will first consider whether Plaintiff has alleged sufficient
facts demonstrating a constitutional violation. Plaintiff alleges that Officer
Raby’s use of Ruger to apprehend him amounted to excessive force in
violation of the Fourth Amendment. The Fourth Amendment guarantees
individuals the right to be free from unreasonable seizures, including the
use of excessive force. U.S. Const. Amend. IV; Thomas v. City of
Columbus, 854 F.3d 361, 365 (6th Cir. 2017). A standard of “objective
reasonableness” governs whether an officer has used excessive force.
Thomas, 854 F.3d at 365 (citing Graham v. Connor, 490 U.S. 386, 388
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(1989)). “The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight. . . . The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make
split-second judgments – in circumstances that are tense, uncertain, and
rapidly evolving – about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396–97. In considering whether
an officer has acted reasonably, the court analyzes the totality of the
circumstances, “including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id. at 396.
In this case, Plaintiff was driving in excess of 100 miles per hour and
then evaded Officer Woodside’s signals to pull over, only bringing his
vehicle to a stop after it was boxed in by three patrol cars. When stopped,
Plaintiff did not put his car in park, turn off the engine, or open the door as
instructed by the officers.1 Although he kept his hands in the air, he did not
follow the officers’ orders to exit the vehicle. Officer Raby testified that it
Although Plaintiff characterizes these orders as “contradictory,” the video shows that
the officers’ commands were objectively neither contradictory nor confusing.
1
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appeared that Plaintiff’s “state of mind was, that he was not going to
willingly come out of the vehicle.” Doc. 14-7 at 40. Under similar
circumstances, the Sixth Circuit found the officers to be reasonably
apprehensive that the driver may have a weapon or use the vehicle as a
weapon, which was also Raby’s concern. See Dunn v. Matatall, 549 F.3d
348, 354-55 (6th Cir. 2008). In Dunn, the court held that “given the
heightened suspicion and danger brought about by the car chase and the
fact that an officer could not know what other dangers may have been in
the car, forcibly removing [the plaintiff] from the car to contain those
potential threats was objectively reasonable.” Id. at 355. Here, too, in light
of all the circumstances, it was objectively reasonable for officers to forcibly
remove Plaintiff from his vehicle. See also Ryan v. Hazel Park, 279 Fed.
Appx. 335, 338-39 (6th Cir. 2008) (reasonable for officers to forcibly
remove plaintiff from vehicle when she led them on a chase, refused to
follow officers’ directions, and resisted efforts to remove her from vehicle).
Plaintiff specifically takes issue with Raby’s use of Ruger to bite him
and pull him from the vehicle. Raby testified that, because the vehicle was
running and Plaintiff was refusing to exit, he believed it was dangerous for
an officer to attempt to physically remove Plaintiff from the car. Doc. 14-7
at 40. See generally Foos v. City of Delaware, 492 Fed. Appx. 582, 584
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(6th Cir. 2012) (“There are only so many ways that a person can be
extracted from a vehicle against [his] will, and none of them is pretty. Fists,
batons, choke holds, dogs, tear gas, and chemical spray all carry their own
risks to suspects and officers alike.”) (citation omitted).
The Sixth Circuit has issued several decisions regarding the use of
canines to apprehend suspects. The court has held that officers cannot
use “an inadequately trained canine, without warning, to apprehend two
suspects who were not fleeing.” Campbell v. City of Springboro, 700 F.3d
779, 789 (6th Cir. 2012). On the other end of the spectrum, the court has
also held that it was reasonable for officers to use a properly trained dog to
apprehend a suspect who was hiding in a darkened, unfamiliar area, and
who was warned that the dog would be released unless he surrendered.
Robinette v. Barnes, 854 F.2d 909, 913-14 (6th Cir. 1988); Matthews v.
Jones, 35 F.3d 1046, 1051 (6th Cir. 1994).
Here, although Plaintiff claims that he had “surrendered,” the video
makes clear that he made no attempt to exit the vehicle despite multiple
orders to do so. The fact that Plaintiff held his hands in the air, while
resisting all other instructions from the officers, would not necessarily lead
a reasonable officer to believe that Plaintiff had surrendered and posed no
further threat. See Baxter v. Bracey, 751 Fed. Appx. 869, 872-73 (6th Cir.
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2018) (suspect with hands raised after fleeing and hiding from police in an
unfamiliar location nonetheless posed an “unknown safety risk”). Indeed,
Plaintiff’s vehicle remained running and in gear; the officers were aware of
the risk that Plaintiff could move his foot to the gas, accelerate, and thus
drag or otherwise pose a danger to an officer trying to remove him from the
car. Plaintiff was warned several times that if he did not exit the vehicle,
the dog would be sent in and he would be bitten. Viewing the totality of the
circumstances, it was not unreasonable for Raby to conclude that Plaintiff
posed a threat and that the use of Ruger to apprehend him was an
appropriate use of force.2
Plaintiff’s claim that he explained to officers that he was unable to exit
the car because his foot was on the brake does not change the analysis.
Under the circumstances, in which Plaintiff had led police on a car chase
and had driven erratically, had his car running and in gear, and officers
were unable to see whether Plaintiff had a weapon, it was reasonable for
officers to determine that Plaintiff’s reasons for not wanting to exit should
not necessarily be given credence, or that the urgency of the situation
precluded deliberation. The officers reasonably perceived Plaintiff to be
resistant, and were reasonable in proceeding accordingly. Whether
2
Plaintiff does not allege that Ruger was not properly trained.
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Plaintiff had a good reason for failing to exit is not relevant to the analysis,
which is viewed from the officer’s perspective, not Plaintiff’s. See Ryan,
279 Fed. Appx. at 338 (“Thus, even if the force used was unreasonable
from Ryan’s perspective because she was not in full control of her actions
at the time, we do not judge the use of force from her perspective.”);
Blosser v. Gilbert, 422 Fed. Appx. 453, 458 (6th Cir. 2011) (even though
resistance in pulling driver from truck was caused by steering wheel,
officers could reasonably have perceived the resistance as purposeful,
“necessitating a higher level of force”); Estate of Brackens v. Louisville
Jefferson Cty. Metro Gov’t, 680 Fed. Appx. 362, 366-67 (6th Cir. 2017)
(“[T]he few seconds that elapsed between the order and Brackens’s
removal [from the vehicle] gave [the officers] little opportunity to appreciate
fully that Brackens was disabled and unarmed.”).
Plaintiff further argues that Raby gratuitously allowed Ruger to
continue biting him after he had been pulled from the vehicle. Once Ruger
bit Plaintiff, the dog held on until Raby gave him the order to let go. The
video shows that Raby commanded Ruger to release Plaintiff within a few
seconds of pulling Plaintiff from the vehicle. See Doc. 14-5. Under the
circumstances, it does not objectively appear that Raby allowed Ruger to
bite Plaintiff longer than necessary to ensure that the situation was under
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control. Raby’s use of Ruger to pull Plaintiff from the vehicle and briefly
hold him until Raby was sure the officers had the situation in hand was a
reasonable use of force.
II.
Clearly Established Law
Further, Raby’s use of force to extract Plaintiff from his vehicle was
not in violation of clearly established law. The “clearly established” prong is
an exacting standard; the plaintiff must show that “every reasonable official
would understand that what he is doing is unlawful.” District of Columbia v.
Wesby, __ U.S. __, 138 S.Ct. 577, 589 (2018). “It is not enough that the
rule is suggested by then-existing precedent,” rather, it must be “settled
law” and “beyond debate.” Id. at 589-90. The Supreme Court has
“repeatedly stressed that courts must not ‘define clearly established law at
a high level of generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular circumstances that he
or she faced.’” Id. (citation omitted). These principles ensure that qualified
immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Plaintiff cites no legal authority indicating that an officer in Raby’s
position should have understood that the use of a canine to apprehend
Plaintiff would be unlawful under the circumstances. Indeed, the cases
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cited above suggest that this use of force was reasonable. See, e.g.,
Baxter, 751 Fed. Appx. at 872 (no clearly established law stating that an
officer could not use canine to apprehend suspect hiding in an unfamiliar
location, after fleeing from police, and who posed an unknown safety risk);
Blosser, 422 Fed. Appx. at 459 (officers “could not have had fair notice”
that forcibly removing driver through open car window was unlawful).
CONCLUSION
For these reasons, the court finds that Defendant Raby is entitled to
qualified immunity. IT IS HEREBY ORDERED that Defendant’s motion for
summary judgment (Doc. 14) is GRANTED.
Dated: May 23, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 23, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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