Marbury et al v. Karish et al
OPINION and ORDER Denying in Part and Granting in Part Defendant's 30 MOTION for Summary Judgment Signed by District Judge Gershwin A. Drain. (TMcg)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MARBURY ET AL.,
Case No. 20-cv-10182
U.S. DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
KARISH ET AL.,
ORDER AND OPINION DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [#30]
On January 23, 2020,
Plaintiffs Theodore Marbury (“Theodore”),
Devonsalhine Williams (“Devonsalhine”), LaTanya Marbury (“LaTanya”), and
Lavasha Marbury (“Lavasha”), initiated this action against City of Detroit police
officers James Corsi and Ibrahim Karish.
ECF No. 1.
Plaintiffs filed their
Complaint pursuant to 42 U.S.C. § 1983, alleging both Defendants committed
seven counts of Fourth Amendment violations: (1) unlawful arrest of Theodore; (2)
excessive force against Theodore; (3) unlawful detention of LaTanya; (4)
excessive force against LaTanya; (5) unlawful detention of all Plaintiffs; (6)
unlawful entry into Plaintiffs’ home; and (7) unlawful seizure of property. Id.
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Presently before the Court is Defendants’ Motion for Summary Judgment,
filed on August 23, 2021. ECF No. 30, PageID.229. Defendants assert qualified
immunity as an affirmative defense to all counts in Plaintiffs’ Complaint. Id. at
On September 13, 2021, Plaintiffs submitted their Response in
Opposition. ECF No. 36. Defendants did not submit a Reply brief. The Court
heard oral argument on January 5, 2022. Additionally, the Court has reviewed the
deposition testimony and the Defendants’ body camera footage. For the reasons
discussed below, the Court will DENY IN PART and GRANT IN PART
Defendants’ Motion for Summary Judgment [#30].
The evening of May 15, 2019, City of Detroit police officers Karish and
Corsi received a radio dispatch about an alleged assault of a minor at 8087
Evergreen in Detroit, Michigan. ECF No. 30, PageID.236. The officers arrived at
the Marbury home without a warrant at approximately 9:24 p.m. ECF No. 31,
At the same time inside the Marbury residence, LaTanya was playing video
games in her room next to the front door. ECF No. 36-3, PageID.395. Her
father—Theodore Marbury—was watching local news in his pajamas upstairs.
ECF No. 36-5, PageID.421. LaTanya’s mother—Devonsalhine Williams—was
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finishing a shower upstairs as well, while LaTanya’s sister Lavasha Marbury
watched television downstairs. ECF No. 36-7, PageID.468. Notably, Lavasha’s
parents confronted her earlier that day with a teacher on the phone because
Lavasha skipped a high school mathematics class. ECF No. 36-7, PageID.467.
Suddenly, LaTanya heard a knock at the front door.
ECF No. 36-3,
PageID.395. Flashlights began flashing in her bedroom window. Id. LaTanya
answered the door for the Defendant officers. Id. When Karish asked her if
someone called the police, LaTanya shook her head as if to say no. ECF No. 36-1,
PageID.386. Karish then asked for LaTanya’s father. Id. LaTanya called for her
dad, who quickly moved to the front entrance. Id. at PageID.396.
At the front door, Theodore asked Defendants if he could help them. ECF
No. 31, PageID.253; ECF No. 36-1, PageID.386. Karish responded, “Is everything
okay?” Id. Theodore repeated, “Can I help y’all?” before closing the door on
Defendants. Id. “What a prick!” Corsi exclaimed after his partner spoke to
Theodore. ECF No. 36-2, PageID.388. All parties agree that after this initial
encounter, the officers returned to their police vehicle.
Defendants began flashing lights into the Plaintiffs’ home from their vehicle.
ECF No. 36-1, PageID.386.
After watching the home briefly, Defendants
allegedly observed a young female attempt to leave the house before Theodore
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pulled her back inside. ECF No. 31, PageID.253; ECF No. 31-1, PageID.256.
Fearing an assault was taking place, the officers walked onto Plaintiffs’ porch and
ordered Theodore to “get the fuck out of [our] way.” ECF No. 36-2, PageID.388.
Corsi yelled, “Open up the fucking door!” to the Plaintiffs inside. Id. “If you want
to be a fucking big man get out here,” Corsi directed at Theodore. Id. “You are a
punk bitch is what you are.”1 Id. Theodore refused to open the door, citing his
Fourth Amendment protections. ECF No. 36-5, PageID.424.
At this point, Devonsalhine finished her shower and put on some clothes.
ECF No. 36-4, PageID.408–409. Hearing the commotion, she rushed downstairs
to speak with the officers herself. Id. Theodore and Devonsalhine discussed who
should speak to the officers as the Defendants observed them from the front door’s
small window. ECF No. 36-3, PageID.397. “I’m going to talk to y’all, hold on”
Devonsalhine told the Defendants.
ECF No. 36-2, PageID.388.
Devonsalhine moved past Theodore, the officers ordered him to keep his hands off
her. ECF No. 31, PageID.253; ECF No. 36-3, PageID.397. LaTanya states that
her parents were pushing past each other to speak with the officers to deescalate
the situation. ECF No. 36-3, PageID.398.
The Court notes that both Defendants used profanities throughout their
interaction with the Marbury family, including Corsi calling Theodore a “dumb
motherfucker” prior to entry. ECF No. 36-2, PageID.388.
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Defendants purportedly “observed an adult female[‘s back] being pushed up
against the door” and heard yelling from inside the home.
ECF No. 31,
PageID.253. “If you push [Devonsalhine] one more time I will make entry into
this fucking house,” Karish yelled at Theodore. ECF No. 36-1, PageID.386. Corsi
elaborated, “You’re hurting [Devonsalhine] so we can make entry” without a
warrant. ECF No. 36-2, PageID.388.
“Do you want to kick [the door] in,” Karish asked his partner. Id. “Yeah,
fuck it, if you want to,” Corsi replied. “He dragged the girl inside who wanted to
talk to us.” Id. Without immediate warning, the officers proceeded to kick open
the door. ECF No. 31, PageID.253; ECF No. 36-3, PageID.398; ECF No. 36-4,
Defendants drew their guns and entered the Marbury home. ECF No. 36-3,
PageID.398. “Get on the ground … get on the fucking ground!” both officers
screamed at the Plaintiffs. ECF No. 36-2, PageID.388. The Marbury daughters
shrieked in terror. Id. Seeing the weapons drawn, LaTanya bolted behind her
father for cover. ECF No. 36-3, PageID.398. Lavasha ran up the stairs, fearing
gunfire as well. ECF No. 36-7, PageID.470. After seeing the Marbury family,
Defendants holstered their guns. ECF No. 36-5, PageID.427.
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The parties exchanged verbal epithets before Defendants moved to detain
Theodore. ECF No. 36-4, PageID.409. “Shut the fuck up” Corsi and Theodore
said to one another during Theodore’s detainment. ECF No. 36-2, PageID.388.
Karish grabbed Theodore’s arm to handcuff him, pushing him against the wall.
ECF No. 31-1, PageID.256; ECF No. 36-5, PageID.427; ECF No. 36-7,
PageID.470. Theodore claims he “let [the officer] handcuff me cause I didn’t want
no incident.” ECF No. 36-5, PageID.426. LaTanya states that Karish tackled her
father, pushing her down in the process into a couch. ECF No. 36-3, PageID.398.
“I was kind of balled up” LaTanya testified during her deposition, describing how
the officers kept “pushing me trying to get to my daddy.” Id. LaTanya claims that
one officer kept elbowing her as she tried to move out of his way. Id.
Defendants offer a different account: that one of Theodore’s daughters tried
leaping on Karish’s back, which lead him to intercept her.
ECF No. 31,
PageID.253. LaTanya denies leaping on an officer’s back, and her sister Lavasha
sat on the stairs during her father’s detainment. ECF No. 36-3, PageID.398.
Once handcuffed, Defendants walked Theodore to their police vehicle. ECF
No. 36-5, PageID.426. Devonsalhine, LaTanya, and Lavasha followed to see
where the officers were taking him. ECF No. 36-4, PageID.410. Additional law
enforcement personnel began arriving on the scene. ECF No. 36-2, PageID.388.
All plaintiffs except Theodore stayed on the front lawn talking to officers, before
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returning into their home. Id. Defendants detained Theodore in the police vehicle
for two hours until their supervisor—Sergeant William O’Brien—arrived and
ordered his release without charges.
ECF No. 36-5, PageID.429.
O’Brien later determined that no assault took place in the Marbury residence. ECF
No. 36-6, PageID.439. Several months later, the Marbury family commenced this
III. LEGAL STANDARD
A. Summary Judgment
Federal Rule of Civil Procedure 56 permits parties to file a motion for
summary judgment when a claim, counterclaim, or crossclaim is asserted against
them. FED. R. CIV. P. 56(b). Summary judgment is appropriate when “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.” FED. R. CIV. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). No genuine dispute of material fact exists
where the record “taken as a whole could not lead a rational trier of fact to find for
the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
Ultimately, the court evaluates “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is
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so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986).
B. Qualified Immunity
Defendants’ Motion for Summary Judgment rests on their entitlement to
qualified immunity. “The doctrine of qualified immunity 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) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Public officials are immune
from suit unless they commit: (1) a constitutional violation; and (2) that the
constitutional right violated was “‘clearly established’” when the incident
occurred. See Martin v. Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013)
(quoting Pearson, 555 U.S. at 232). Plaintiffs must satisfy both prongs “for the
case to go to a factfinder to decide if each officer’s conduct in the particular
circumstances violated a plaintiff’s clearly established constitutional rights. If
either prong is not satisfied, qualified immunity will shield the officer from civil
damages.” Id. (citing Pearson, 555 U.S. at 236). When the “legal question of
qualified immunity turns upon which version of the facts one accepts, the jury, not
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the judge, must determine liability.” See McKenna v. Edgell, 617 F.3d 432, 437
(6th Cir. 2010).
Defendants contend they are entitled to qualified immunity on each count
Plaintiffs allege in their Complaint. ECF No. 30, PageID.234. In Count VI, all
Plaintiffs allege Defendants unlawfully entered the Marbury home. Counts I, III,
and V concern the Plaintiffs’ unlawful arrest and detention claims. In Counts II
and IV, Theodore and LaTanya respectively bring their excessive force claims.
Finally, in Count VII, Theodore and Devonsalhine bring their unlawful seizure
claim for property damage to their home. The Court analyzes how qualified
immunity applies to each claim below.
A. Warrantless Entry into the Home
Defendants assert qualified immunity on Plaintiffs’ warrantless entry
claim—Count VI in the Complaint.2
ECF No. 30, PageID.246.
searches of the home are presumptively unconstitutional. See Payton, 445 U.S. at
586. However, exceptions do exist. See Groh v. Ramirez, 540 U.S. 551, 564
As a threshold matter, the Court recognizes that all Plaintiffs residing in the
Marbury home have standing to assert their Fourth Amendment claim against
unlawful entry. See Payton v. New York, 445 U.S. 573, 584–85 (1980) (quoting
U.S. Const. amend. IV.).
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(2004) (“No reasonable officer could claim to be unaware of the basic rule, well
established by our cases, that, absent consent or exigency, a warrantless search of
the home is presumptively unconstitutional.”). Relevant here is the “emergency
aid exception” that authorizes officers to “enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from
imminent injury.” See Williams v. Maurer, 9 F.4th 416, 431 (6th Cir. 2021)
(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)); see also Michigan v.
Fisher, 558 U.S. 45, 47 (2009). The Government bears a “heavy burden” to satisfy
this exception due to warrantless entries’ presumptive unconstitutionality. See
United States v. McClain, 444 F.3d 556, 562 (6th Cir. 2005).
Courts assess the totality of circumstances when determining whether police
face an emergency justifying a warrantless entry. Williams, 9 F.4th at 432. The
“‘emergency aid exception’ does not depend on the officers’ subjective intent or
the seriousness of any crime they are investigating when the emergency arises.”
Fisher, 558 U.S. at 47 (quoting Brigham City, 547 U.S. at 404–05). Rather, “[i]t
requires only an objectively reasonable basis for believing that a person within [the
house] is in need of immediate aid[.]’” Id. (internal quotations omitted).
Both parties agree that Defendants entered Plaintiffs’ home without a
warrant or consent. Therefore, the constitutionality of Defendants entry turns on
whether the officers had an objectively reasonable basis to believe someone in the
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home was “seriously injured or threatened with such injury.” Brigham City, 547
U.S. at 403.
The Court finds that “[w]hether exigent circumstances existed is a question
of fact for the jury” because the underlying facts here are disputed. See Crabbs v.
Pitts, 817 F. App’x 208, 213 (6th Cir. 2020) (quoting Hancock v. Dodson, 958
F.2d 1367, 1375 (6th Cir. 1992)). Defendants state that Theodore pulled a young
woman into the home after she tried leaving. The officers allegedly feared an
assault was occurring based on that observation, which created exigent
circumstances for a warrantless entry. See Brigham City, 547 U.S. at 403 (“The
need to preserve life or avoid serious injury is justification for what would be
otherwise illegal absent an exigency or emergency.”) (internal citation omitted).
When Defendants reached the porch a second time, they also heard yelling from
inside the Marbury residence, and saw Theodore putting his hands on
Plaintiffs’ recitation of events indicates no threat of injury existed inside the
Marbury home. Neither Devonsalhine nor Theodore saw anyone leave or attempt
to leave the home. LaTanya and Lavasha both testified to staying in the home
from the time Defendants arrived, until their father’s detainment. Furthermore,
Defendants’ body camera footage does not show anyone trying to leave the home,
or Theodore pulling anyone into the residence. In the light most favorable to
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Plaintiffs’, this factual dispute prevents the Court from finding exigent
circumstances existed as a matter of law.
Supreme Court decisions concerning lawful warrantless entries in Brigham
City and Fisher supports the Court’s finding. In Brigham City, officers responded
to “a loud party … at 3 o’clock in the morning” when they heard “an altercation
occurring” from within the house. 547 U.S. at 406. Officers heard people yelling
“stop, stop” and “get off me.” Id. Since the yelling seemed to come from behind
the house, “officers proceeded around back to investigate further.” Id. Once
behind the house, officers could see inside. Id. Officers observed a child with
“fists clenched, [who] was being held back by several adults.” Id. The child then
broke free and struck “one of the adults in the face, sending the adult to the sink
spitting blood.” Id. As other adults tried restraining the child, officers made a
warrantless entry. Id. The Supreme Court upheld the entry’s constitutionality,
reasoning that “the officers had an objectively reasonable basis for believing both
that the injured adult might need help and that the violence in the [house] was just
Likewise, in Fisher, officers “found a household in considerable chaos: a
pickup truck in the driveway with its front smashed, damaged fenceposts along the
side of the property, and three broken house windows, the glass still on the ground
outside.” 558 U.S. at 45–46. Law enforcement saw “blood on the hood of the
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pickup and on clothes inside of it, as well as on one of the doors to the house.” Id.
at 46. Looking inside the home, officers witnessed a man with “a cut on his hand
… screaming and throwing things.” Id. An officer then made a warrantless entry.
Citing Brigham City, the Supreme Court held the entry lawful because: (1) the
officers “were responding to a report of a disturbance,” (2) “when they arrived on
the scene they encountered a tumultuous situation in the house,” and (3) “the
officers could see violent behavior inside.” Id. at 48.
Defendants here did not encounter a situation amounting to the chaos
supporting the lawful entries in Brigham City and Fisher. The Marbury home had
no indications of a “tumultuous situation” occurring inside when Defendants first
arrived. Unlike in Fisher, Defendants did not witness any blood on the scene.
And unlike Brigham City, the officers did not hear any yelling when they first
arrived. Only after Defendants began cursing at Theodore did the chaotic events
unfold and the situation escalated.
Sequencing here matters. What distinguishes the lawful entries in Brigham
City and Fisher from the present action is when the emergencies developed. A
reasonable juror could determine that the undisputed facts of Theodore and
Devonsalhine pushing past each other and the yelling that ensued occurred in
response to the officers’ behavior. Thus, Brigham City and Fisher illustrate that
Defendants lacked an objectively reasonable basis to make a warrantless entry
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based on the undisputed facts. Accordingly, the Court cannot hold as a matter of
law that the emergency aid exception applies.
unconstitutional. See Payton, 445 U.S. at 589–90 (“[A]t the very core [of the
Fourth Amendment] stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.”). Defendants claim their
warrantless entry was objectively reasonable because of the alleged assault.
Should a jury agree that an assault occurred, then the emergency aid exception
applies then the officers will be exonerated.
But Plaintiffs’ recollections support a different outcome. A reasonable jury
could conclude that Theodore properly exercised his Fourth Amendment rights if
Plaintiffs’ facts are deemed true. See Kentucky v. King, 563 U.S. 452, 469–70
(2011) (“When law enforcement officers who are not armed with a warrant knock
on a door … the occupant has no obligation to open the door or to speak. … And
even if an occupant chooses to open the door and speak with the officers, the
occupant need not allow the officers to enter the premises and may refuse to
answer questions at any time.”). The Court declines to find Defendants entitled to
qualified immunity on Count VI of Plaintiffs’ Complaint.
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B. Unlawful Arrest and Detainment
Next, Defendants assert qualified immunity as to Plaintiffs’ unlawful arrest
and detention claims—Counts I, III, and V—because the officers had probable
cause to arrest and detain Theodore, to detain LaTanya, and to detain the entire
Marbury family. ECF No. 30, PageID.250.
The Fourth Amendment guarantees individuals the right to be free from
“unreasonable seizures” and the right to be “secure in their persons.” U.S. Const.
amend. IV. Seizures of a person “can take the form of ‘physical force’ or a ‘show
of authority’ that ‘in some way restrain[s] the liberty’ of the person.” See Torres v.
Madrid, 141 S. Ct. 989, 1003 (2021) (quoting Terry v. Ohio, 392 U.S. 1, 17
(1968)). “[W]henever a police officer accosts an individual and restrains his
freedom to walk away, he has ‘seized’ that person.” Terry, 392 U.S. at 17. Indeed,
“the mere grasping or application of physical force with lawful authority”
constitutes an arrest. See California v. Hodari D., 499 U.S. 621, 625 (1991).
But officers can make a warrantless seizure when “the exigencies of the
situation” present a compelling law enforcement need. See King, 563 U.S. at 460;
see also United States v. Saari, 272 F. App’x 804, 809 (6th Cir. 2001) (holding “a
constructive in-home arrest where neither a warrant is obtained nor exigent
circumstances exists violates the Fourth Amendment.”).
suspects are removed from the [home], the Fourth Amendment requires probable
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cause for their seizure.” See Marcilis v. Twp. of Redford, 693 F.3d 589, 603 (6th
1. Count I and V – Theodore’s Unlawful Arrest and Detainment
The Court does not find Defendants entitled to qualified immunity from suit
on Theodore’s § 1983 false arrest claim—Count I of Plaintiffs’ Complaint. “[A]
warrantless arrest by a law officer is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “Whether probable
cause exists depends upon the reasonable conclusion to be drawn from the facts
known to the arresting officer at the time of the arrest.” Id. “Generally, probable
cause exists when the police have ‘reasonably trustworthy information …
sufficient to warrant a prudent man in believing that the petitioner had committed
or was committing an offense.’” Gardenhire v. Schubert, 205 F.3d 303, 315 (6th
Cir. 2000) (alteration in original) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
The arresting officers must “consider the totality of the circumstances” and cannot
focus exclusively on evidence of guilt while ignoring exculpatory evidence when
determining whether probable cause exists. Id. at 318. “In general, the existence
of probable cause in a § 1983 action presents a jury question, unless there is only
one reasonable determination possible.” See id. at 315 (quoting Pyles v. Raisor, 60
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F.3d 1211, 1215 (6th Cir. 1995)); see also Wilson v. Morgan, 477 F.3d 326, 334
(6th Cir. 2007).
For qualified immunity purposes, “it [is] ‘clearly established that arrest
without probable cause violates the Fourth Amendment.’” See Ouza v. City of
Dearborn Heights, 969 F.3d 265, 279 (6th Cir. 2020) (quoting Leonard v.
Robinson, 477 F.3d 347, 355 (6th Cir. 2007)); see also Welsh v. Wisconsin, 466
U.S. 740, 749–50 (1984) (“[W]arrantless felony arrests in the home are prohibited
by the Fourth Amendment, absent probable cause and exigent circumstances.”).
Just as officers need exigent circumstances to enter a home warrantless, the
officers must also have probable cause to make an arrest once inside the home.
See Welsh, 466 U.S. at 749.
The Court finds questions of fact exist as to whether Defendants had
probable cause to arrest Theodore. Facts supporting Defendants’ probable cause
determination are disputed between the parties. Namely, whether Theodore pulled
a young woman back into the Marbury home. In the light most favorable to
Theodore, a reasonable juror can find that Defendants lacked exigent
circumstances and probable cause to make a warrantless in-home arrest. A jury’s
resolution of the factual dispute must occur before the Defendants can be
exonerated on Count I of Plaintiffs’ Complaint.
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Additionally, the undisputed fact that Theodore and Devonsalhine were
pushing past each other is insufficient to establish probable cause as a matter of
law. Cf. Gardenhire, 205 F.3d at 315 (“Probable cause determinations involve an
examination of all facts and circumstances within an officer’s knowledge at the
time of an arrest.”) (quoting Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.
1999)). Without exigent circumstances and probable cause, Theodore’s arrest
violated the Fourth Amendment. See King, 563 U.S. at 460. And if his arrest
violates the Fourth Amendment, then Theodore’s subsequent detainment in the
Defendants’ police vehicle was also unconstitutional. See Marcilis, 693 F.3d at
603. Accordingly, the Court declines to grant Defendants’ qualified immunity
from suit on Counts I and V of Plaintiffs’ Complaint as applied to Theodore.
2. Count III – LaTanya Marbury’s Unlawful Detainment
The Court finds the undisputed facts do not support LaTanya’s claim of
unlawful detainment. Like an arrest, “an investigatory detention is a seizure that is
subject to Fourth Amendment scrutiny.” See United States v. Saari, 272 F. App’x
804, 809 (6th Cir. 2001).
Defendants seized LaTanya.
But the undisputed facts do not demonstrate that
At oral argument, Plaintiffs’ counsel stated that
Defendants only arrested Theodore. LaTanya’s deposition testimony does not
demonstrate that Defendants seized her either. To the extent that officers applied
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force against LaTanya, the Court finds her claim better characterized as one
alleging excessive force. In the light most favorable to Plaintiffs’ the Court finds
that Defendants are entitled to qualified immunity on Count III in Plaintiffs’
3. Count V – Marbury Family’s Unlawful Detainment
Similarly, the Court finds Defendants partially entitled to qualified immunity
on Count V of Plaintiffs’ Complaint—unlawful detention of the whole Marbury
family, except Theodore. Defendants did not seize Lavasha and Devonsalhine.
After Defendants walked Theodore outside in handcuffs, the Marbury family
followed to see where the officers were taking him. While outside, the family
spoke with officers about the situation before returning inside willingly. The
record fails to present a genuine issue of material fact supporting Lavasha and
Devonsalhine’s alleged unlawful detainment. The Court will therefore grant the
Defendants qualified immunity on Count V of Plaintiffs’ Complaint.
C. Excessive Force
Defendants also seek qualified immunity from Counts II and IV in Plaintiffs’
Complaint—the claims that Defendants applied excessive force against Theodore
and LaTanya. It is clearly established in the Sixth Circuit that people not resisting
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arrest have a right to be free from gratuitous violence. See Miller v. Sanilac Cty.,
606 F.3d 240, 252 (6th Cir. 2010). Deciding whether an officer’s use of force
amounts to gratuitous violence requires the Court to apply an objective reasonable
use of force standard. See Barton v. Martin, 949 F.3d 938, 953 (6th Cir. 2020); see
also Smith v. Stoneburner, 716 F.3d 926, 933 (6th Cir. 2013) (“A police officer
uses excessive force in arresting a subject if his actions are objectively
unreasonable given the nature of the crime and the risks posed by the suspect’s
actions.”) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). An officer’s
reasonable 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.” Graham, 490
U.S. at 396–97. Courts must balance “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the countervailing governmental
interests at stake.” See Goodwin v. City of Painesville, 781 F.3d 314, 321 (6th Cir.
2015) (quoting Graham, 490 U.S. at 396).
Three non-exhaustive factors guide the Court’s analysis of whether an
officer used reasonable force: (1) “the severity of the crime at issue,” (2) “whether
the suspect poses an immediate threat to the safety of the officers or others, and”
(3) “whether he is actively resisting arrest or attempting to evade arrest by flight.”
See Goodwin, 781 F.3d at 321 (citing Shreve v. Jessamine Cnty. Fiscal Court, 453
Case 2:20-cv-10182-GAD-DRG ECF No. 40, PageID.511 Filed 01/11/22 Page 21 of 25
F.3d 681, 687 (6th Cir. 2006)). Under the totality of the circumstances, the Court
decides whether the force used justified the seizure. Id.
1. Count II – Theodore’s Excessive Force Claim
The Graham factors lead the Court to decline granting Defendants’ qualified
immunity on Count II of Plaintiffs’ Complaint. First, the severity of Theodore’s
alleged crime weighs in Defendants’ favor. The officers here responded to a
domestic violence call that claimed Theodore physically abused his daughter. A
reasonable jury could conclude that a father assaulting his daughter is a violent
Although Sergeant O’Brien later determined no assault occurred,
Defendants did not know that during their forced entry. Because the Court must
look at an officer’s use of force from their “perspective of a reasonable officer on
the scene[,]” the Court finds the first Graham factor supports the Defendants. 490
U.S. at 396.
The second and third Graham factors weigh against the Defendants. Body
camera footage does not depict Theodore threatening the officers with violence.
Nor does the footage show Theodore actively resisting arrest. Moreover, Theodore
denies resisting arrest, instead stating that he allowed Defendants to handcuff him.
Other members of the Marbury family testified to that effect as well. In the light
most favorable to Theodore, a reasonable jury could conclude that Defendants use
Case 2:20-cv-10182-GAD-DRG ECF No. 40, PageID.512 Filed 01/11/22 Page 22 of 25
of force was objectively unreasonable. The Graham factors call for minimal, if
any, force to be exerted in Theodore’s situation. Since the evidence presents an
issue of fact for the jury, the Court concludes that the Defendants are not entitled to
qualified immunity on Count II of Plaintiffs’ Complaint—excessive force against
2. Count IV – LaTanya’s Excessive Force Claim
LaTanya presents a viable excessive force claim as well. The first Graham
factor—severity of the crime—supports LaTanya’s claim when viewed in the light
most favorable to her. Although Defendants allege LaTanya jumped on Karish’s
back, all Plaintiffs deny that happened.
Instead, Plaintiffs’ testimony depicts
Defendants pushing LaTanya into a couch and elbowing her, after she hid behind
her father. As such, the first Graham factor favors LaTanya.
Like Theodore, the second and third Graham factors favor LaTanya also.
Plaintiffs’ testimony does not illustrate LaTanya posing an immediate threat to
Defendants. In the Sixth Circuit, acts of physical and verbal resistance to law
enforcement can justify reasonable force in response. See, e.g., Goodwin, 781 F.3d
at 323 (“[A]ctive resistance can take the form of ‘verbal hostility’ or a ‘deliberate
act of defiance.’”); Eldridge v. City of Warren, 533 F. App’x 529, 533–34 (6th Cir.
2013) (“[A]n officer’s use of force was justifiable because it was in response to
Case 2:20-cv-10182-GAD-DRG ECF No. 40, PageID.513 Filed 01/11/22 Page 23 of 25
active resistance[.]”). But in the light most favorable to LaTanya, she was not
resisting Defendants’ commands. Likewise, LaTanya did not pose a threat to the
officers either. The pushing and elbowing LaTanya experienced can lead a
reasonable juror to find she was subjected to gratuitous violence in violation of the
Fourth Amendment. Therefore, the Court finds Defendants are not entitled to
qualified immunity on Count IV of Plaintiffs’ Complaint.
Taken collectively, Defendants conduct towards Theodore and LaTanya is
not clearly or objectively reasonable as to shield them from liability under
qualified immunity. The facts concerning Defendants use of force on Plaintiffs is
more appropriately left for the jury to resolve. Accordingly, Defendants are not
entitled to qualified immunity from Plaintiffs’ excessive force claims.
D. Unlawful Seizure – Count VII
Defendants next claim immunity from damages for the Marbury’s front door
being kicked open—Count VII of Plaintiffs’ Complaint. As the Court discussed
supra, “it is ‘clearly established’ law that ‘the fourth amendment forbids the
unannounced forcible entry of a dwelling in the absence of exigent
circumstances.’” Hall v. Shipley, 932 F.2d 1147, 1151 (6th Cir. 1991) (citing
United States v. Francis, 646 F.2d 251, 257 (6th Cir. 1981)). Like Defendants
other requests for qualified immunity, whether exigent circumstances supported a
Case 2:20-cv-10182-GAD-DRG ECF No. 40, PageID.514 Filed 01/11/22 Page 24 of 25
warrantless entry into the Marbury home must be determined. A jury must resolve
the factual disputes. The Court will deny the defendants qualified immunity as to
Count VII, Plaintiffs’ unlawful seizure of property claim.
For the reasons discussed herein, the Court will DENY IN PART and
GRANT IN PART Defendants’ Motion for Summary Judgment [#30].
The Court will DENY Defendants’ Motion for Summary Judgment seeking
qualified immunity on Count I, II, IV, VI, and VII of Plaintiffs’ Complaint.
The Court will GRANT Defendants’ Motion for Summary Judgment
seeking qualified immunity on Count III of Plaintiffs’ Complaint.
The Court will GRANT IN PART Defendants’ Motion for Summary
Judgment seeking qualified immunity on Count V of Plaintiffs’ Complaint, except
as applied to Theodore Marbury.
IT IS SO ORDERED.
Dated: January 11, 2022
/s/ Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Case 2:20-cv-10182-GAD-DRG ECF No. 40, PageID.515 Filed 01/11/22 Page 25 of 25
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 11, 2022, by electronic and/or ordinary mail.
/s/ Teresa McGovern
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