Quinn v. Novar et al
Filing
64
OPINION and ORDER granting Defendant Novar's Motion for Summary Judgment with respect to Plaintiff's unlawful arrest and exceessive force claims ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN QUINN,
Plaintiff,
CASE NO. 1:12-CV-361
v.
HON. ROBERT J. JONKER
DEBRA NOVAR et al.,
Defendants.
__________________________________/
OPINION and ORDER
This is a civil rights action alleging violations of the Fourth and Fourteenth Amendments.
On November 8, 2013, the Court heard oral argument on Defendants’ dispositive motions. The
Court granted in part and denied in part Defendants Novar and Habelitz’s motion for summary
judgment (docket #47) and granted Defendants Huff, Dally, Masters, and Pope’s motion for partial
dismissal, or in the alternative, motion for summary judgment (docket #49). (Docket #61.) The
Court reserved ruling on two claims against Defendant Novar pending supplemental briefing. (Id.)
The two remaining claims are (1) whether Novar arrested Plaintiff without probable cause, and (2)
whether Novar’s use of pepper spray in the course of arresting Plaintiff was excessive force. The
parties have filed supplemental briefs and Novar’s summary judgment motion is ready for decision.
For the reasons set forth below, the Court will grant Novar’s motion for summary judgment on these
two claims.
I. Background
At 1 a.m. on June 7, 2011, Emmet Township police officer Debra Novar was patrolling when
she spotted a truck that appeared to be parked behind a closed hair salon. (Docket # 54-3, Page ID
526.) Earlier in the week, after a storm, Emmet Township police had investigated reported copper
thefts of downed wires in the vicinity. (Id.) Finding the truck’s location suspicious, Novar made
a U-turn and pulled up near the truck. (Id. at 527.) She discovered that the truck was actually parked
at an apartment building. (Id. at 528.) She then saw people in the shadows of an adjacent carport
about 150 to 200 feet away. (Id.) The two people were Plaintiff Brian Quinn and his father, Arthur
Quinn.
Novar was in full uniform and a fully marked police SUV. She exited the SUV and shouted
to the Quinns something like “hey yous guys” or “yous should come over here.” (See id. at 529;
Docket #53-2, Page ID 450.) Novar did not use words to identify herself as a police officer, (docket
#54-3, Page ID 530), but she was in uniform by her marked SUV (id. at 529). According to Novar,
either Plaintiff or his father said “no” and said that she should come to them. (Id. at 529.) Novar
repeated her initial request more sternly. (Id.) According to Novar, the voices responded “see you
tomorrow” or “see you later” and walked through the carport toward the apartment door. (Id.) Novar
followed the men into the unlocked apartment building. (Id. at 530.) The hallway of the apartment
building was accessible from both the front and back through unlocked doors. The building has no
postings to keep people from using the doors to enter the hallway and knock on the doors of
particular units in the building. (See id.; see also docket #53-3, Page ID 483–84 (photos of hallway);
Docket #63-3, Page ID 733–39.)
Once in the publicly accessible hallway, Officer Novar saw Plaintiff standing at the top of
a short staircase in front of an apartment door. (See docket #54-3, Page ID 530; docket #53-3, Page
ID 483–84.) Novar was wearing a police uniform. (Docket #54-3, Page ID 530.) Plaintiff testified
that his father went into the apartment immediately and he never saw Novar in her police uniform.
(Docket #53-2, Page ID 456.) Plaintiff did identify Novar as an officer. Indeed, Plaintiff was
“relieved” to see Novar because he thought she was investigating the unidentified person outside.
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(Docket #53-2, Page ID 454.) Soon, however, that changed when it became clear Novar was after
him.
Plaintiff and Novar exchanged words, and Plaintiff told Novar that she was not supposed to
be in the building. (See id.; docket #54-3, Page ID 531.) Novar asked if the men lived in the
building and Plaintiff said—truthfully—they did not. (Docket #54-3, Page ID 531.) Novar asked
Plaintiff for identification. (Id.) Plaintiff flatly refused to provide it. (Id.) The Emmet Township
Municipal Code makes it a crime to “knowingly obstruct, resist, hinder or oppose” a member of the
police department “in discharge of his duties.” See § 38-221; see also Mich. Comp. Laws § 750.479.
Because Plaintiff’s refusal violated the law, Novar decided to arrest Plaintiff and reached out to his
wrist to effect the arrest. (Id.) Plaintiff pulled away and attempted to enter the apartment. (Id.) As
he stepped inside, Novar stuck her foot in the door to keep it from closing. (Id.) Someone—either
Plaintiff or his father—banged the door against Novar several times. (Id. at 535.) Plaintiff’s father
was later convicted of assaulting Novar. (See docket #53-2, Page ID 444; Hearing Tr., at page
42–43.) Novar reached her arm into the apartment and sprayed pepper spray behind the door at both
men. (Id. at 534–35). Back-up arrived and assisted in taking Plaintiff and his father into custody.
(Id. at 535–36.)
II. Legal Standards
Summary judgment is appropriate if there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). Material facts are
facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable
jury could return judgment for the non-moving party. Id. In deciding a motion for summary
judgment, the court must draw all inferences in a light most favorable to the non-moving party, but
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may grant summary judgment when “‘the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.’” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th
Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S. Ct. 1348, 1356 (1986)).
III. Discussion
The two remaining claims with respect to Novar’s motion for summary judgment are whether
Novar arrested Plaintiff without probable cause, and whether she used excessive force to secure the
arrest. Novar argues that the arrest was lawful, there was no excessive force, and she is entitled to
qualified immunity on both claims.
A.
Probable Cause for Arrest
The Fourth Amendment prohibits unreasonable searches and seizures and mandates that “no
Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. “The Supreme Court has
interpreted this as requiring officers to obtain a warrant supported by probable cause before they may
lawfully enter a home.” United States v. Watson, 489 F. App’x 922, 925 (6th Cir. 2012) (citing
United States v. United States Dist. Ct., 407 U.S. 297, 315–16 (1972)). However, where an officer
initiates an otherwise proper arrest outside of the home, a suspect may not thwart the arrest by
retreating into his home. United States v. Santana, 427 U.S. 38, 42–43 (1976).
An officer has probable cause to arrest if there is a fair probability that the individual to be
arrested has either committed or intends to commit a crime. Northrup v. Trippett, 265 F.3d 372, 379
(6th Cir. 2001). The burden is on the government to establish that there was probable cause
sufficient to justify a warrantless arrest. 1 Wright, et al., Fed. Prac. & Proc. Warrantless Arrests
§ 58, at 142 (4th ed. 2008). If the arrest was made without probable cause, neither subsequent events
nor later-acquired information can render the arrest lawful. Id.
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In this case, Novar arrested Plaintiff for violation of Emmet Township Ordinance § 38-221,
which prohibits the knowing obstruction, resistance, hindering, or opposing of a police officer in the
discharge of his duties. (See Novar Dep., docket #48-1, Page ID 313.) Plaintiff flatly refused to
provide identification in Novar’s presence. At that point, Novar had probable cause to arrest because
there was at least “a fair probability” that Plaintiff had committed a misdemeanor in her presence.
Northrup, 265 F.3d at 379. Once Novar had probable cause for arrest, Plaintiff could not defeat a
proper arrest by fleeing into the apartment. Santana, 427 U.S. at 42–43. Novar is therefore entitled
to summary judgment on Plaintiff’s unlawful arrest claim.
B.
Qualified Immunity for Arrest
Alternatively, Novar is entitled to qualified immunity on Plaintiff’s claim that Novar lacked
probable cause for arrest. “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)). “Qualified
immunity gives government officials breathing room to make reasonable but mistaken judgments,”
and “protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v.
al-Kidd, ___ U.S. __, 131 S. Ct. 2074, 2085 (2011) (internal quotation marks omitted). A case
directly on point is not required for a court to conclude that the law is clearly established, “but
existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at
2083.
In Risbridger v. Connelly, 275 F.3d 565 (6th Cir. 2002), the Sixth Circuit reviewed a district
court’s denial of qualified immunity to a police officer under similar facts. In that case, the suspect
refused to provide identification upon an officer’s request and the officer arrested the suspect in
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violation of a city ordinance which made it a misdemeanor to “[a]ssault, obstruct, resist, hinder, or
oppose any member of the police force . . . in the discharge of his/her duties as such.” Id. at 568.
The suspect brought a § 1983 claim for violation of his constitutional rights. Id. The Sixth Circuit
reversed the district court and granted the officer qualified immunity because it was not clearly
established that the suspect’s arrest for violation of the ordinance based on his refusal to provide
identification violated the suspect’s Fourth Amendment rights. Id. at 572.
But in effecting such an arrest, may the officer pursue her fleeing suspect into an apartment?
In Stanton v. Sims, the Supreme Court recently considered whether an officer was entitled to
qualified immunity where the officer injured a non-suspect while kicking in a fence gate in pursuit
of a misdemeanor suspect. No. 12-1217, slip op. at *1–2 (Nov. 4, 2013). The Court held that the
officer was entitled to qualified immunity, specifically observing that although a warrant is usually
required for home entry, there is no categorical rule for all cases involving minor offenses. Id. at *3.
It thus found that the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not
clearly established. Id. at *4–5. The case for lawful pursuit is even stronger when the fleeing
misdemeanant is attempting to evade lawful arrest already in progress. See Santana, 427 U.S. at
42–43.
The ordinance in this case is almost identical to the ordinance in Risbridger. Finding no
pertinent facts distinguishing Risbridger from the present case, Novar is entitled to qualified
immunity with respect to Plaintiff’s unlawful arrest claim because it is not clearly established that
Plaintiff’s arrest for violation of the ordinance based on his refusal to provide identification violates
his Fourth Amendment rights. Plaintiff refused to furnish identification while he was in the hallway,
not inside the apartment. Although Novar pursued Plaintiff into the apartment to effectuate a
warrantless arrest, Novar is still entitled to qualified immunity because the law is not clearly
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established that hot pursuit of a misdemeanant into a home violates his Fourth Amendment rights.
Stanton, slip op. at *4–5; Santana, 427 U.S. at 42–43.
Plaintiff argues that Risbridger is distinguishable because Novar did not have articulable
reasons to ask Plaintiff for identification. The Court disagrees. Novar had at least reasonable
suspicion necessary to conduct a Terry stop in the hallway of the building to gather additional
information. Terry v. Ohio, 392 U.S. 1 (1968). The basis for reasonable suspicion includes that
Plaintiff and his father were outside an apartment building at 1 a.m. in an area where there had
recently been reports of copper theft and Plaintiff admitted that he did not live in the building. Even
taking the evidence in a light most favorable to Plaintiff—therefore assuming that Plaintiff did not
know Novar was an officer until she entered the apartment building in her uniform—Novar had
articulable facts to support a reasonable suspicion that crime may be afoot. Thus, in that regard,
Risbridger is not factually distinguishable.1 Novar is entitled to qualified immunity on Plaintiff’s
unlawful arrest claim.
C.
Qualified Immunity on Excessive Force Claim
Plaintiff also alleges that Novar’s use of pepper spray constitutes excessive force even if the
arrest itself was lawful. Novar argues that she is entitled to summary judgment because her use of
pepper spray was not excessive force and she is entitled to qualified immunity. “[C]laims alleging
excessive force brought against law enforcement officials are to be analyzed under the objective
reasonableness standard of the Fourth Amendment.” Bass v. Robinson, 167 F.3d 1041, 1045 (6th
Cir. 1999) (internal quotation marks omitted). Proper application of this standard requires “‘careful
1
Plaintiff also now argues that the ordinance itself is unconstitutional. The parties have not,
however, briefed this issue, and it is not before the Court at this time. In light of Risbridger, even
if Plaintiff’s argument had merit for future cases, it could not prevent application of qualified
immunity in this case.
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attention to the facts and circumstances of each particular case, including (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.’” Id. (quoting
Graham v. Connor, 490 U.S. 386, 394 (1989)). The question is whether the totality of the
circumstances justifies a particular sort of seizure, and the question must be answered without regard
to the officer’s underlying intent or motivation. Id. Reasonableness must be judged from the
perspective of a reasonable officer on the scene, not hindsight. Id. “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. Prior decisions on
the use of pepper spray and similar chemical irritants are highly fact-specific. See 65 A.L.R. 6th 93,
When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation
of Constitutional Rights (West 2011) (surveying cases).
The Sixth Circuit in Greene v. Barber, 310 F.3d 889 (6th Cir. 2002), considered whether an
officer’s use of pepper spray was excessive force. There, the plaintiff and an officer engaged in a
verbal altercation at a courthouse regarding the plaintiff’s towed car. Id. at 892–93. The altercation
escalated, drawing the attention of other officers. Id. Eventually, after the plaintiff insulted the
officer, the officer stated that the plaintiff was under arrest, later charging the plaintiff with creating
a disturbance and hindering and opposing a police officer. Id. at 893. The plaintiff backed away
from the officer and resisted restraint. The officer then used pepper spray and handcuffed the
plaintiff. Id. The Sixth Circuit, applying an “objective reasonableness” test, found that although the
plaintiff had actively resisted arrest, the use of pepper spray may have been excessive because the
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offense was not severe and the plaintiff was not threatening anyone’s safety or attempting to evade
arrest by flight. Id. at 898. Nonetheless, the Sixth Circuit granted the officer qualified immunity
because there was no clearly established right to be free from the level of force used under the
circumstances. Id. at 898–99. Because the officer had used the pepper spray as directed by the
police department’s manual and the department’s use of force policy permitted an officer to spray
a person who aggressively resisted arrest, either verbally or physically, a reasonable officer would
not have known it might have been unlawful to use pepper spray. Id. at 899.
By contrast, the Sixth Circuit denied an officer qualified immunity for excessive force for
use of pepper spray in Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009). In that case, the plaintiff who
had just been in a bar fight approached a responding officer to explain what had happened. Id. at
306. As the plaintiff tried to explain, he reached for his injured head. Id. Each time he reached for
his head, the officer interrupted him and told him to put his hands down. Id. This agitated the
plaintiff and the plaintiff began to walk away from the officer. Id. As the man walked away, the
officer discharged pepper spray at the plaintiff. Id. The Sixth Circuit reasoned that a reasonable
police officer would have known that “using pepper spray on a suspect who has submitted, is not
resisting, and is no danger to anyone constitutes excessive force.” Id. at 314. Moreover, because
the suspect in that case lost consciousness as a result of the pepper spray, it was clearly established
that the force was excessive. Id.
In this case, the facts are at least as strong for Novar as those in Greene. Plaintiff’s alleged
criminal activity was not especially severe, but Plaintiff actively resisted Novar. He committed a
misdemeanor in her presence by refusing to provide identification. He then attempted to avoid
Novar’s lawful arrest by fleeing into an apartment in which he admittedly did not reside. All this
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occurred in the context of the officer’s investigation of recent thefts in the area in the wake of a
storm. Moreover, Plaintiff did not merely attempt to flee, he actively and physically engaged a
uniformed officer by personally, or through an accomplice, assaulting her with the apartment door.
This resulted in Plaintiff’s father’s conviction for assault. Novar was the only officer on the scene
at the time. Unlike the successful plaintiff in Grawey, Plaintiff in no way submitted to Novar. To
the contrary, he actively and physically resisted. Under these circumstances, as in Greene, a
reasonable officer would not violate any clearly established law by discharging pepper spray on a
plaintiff who was fleeing arrest and that, either on his own or through an accomplice, was assaulting
her with the apartment door. Novar is entitled to qualified immunity on the excessive force claim.
D.
Reasonable Expectation of Privacy in the Hallway
The Court previously ruled on the record at oral argument that Defendant Novar’s summary
judgment motion was granted with respect to Plaintiff’s claim for illegal search and seizure in the
apartment hallway. (See Order, docket #61, Page ID 672.) In his supplemental brief on unlawful
arrest and excessive force, Plaintiff now asks the Court to reconsider its prior ruling.
“In analyzing whether a subjective expectation of privacy is objectively reasonable, this court
considers a number of factors: (1) whether the defendant was legitimately on the premises; (2) his
proprietary or possessory interest in the place to be searched or the item to be seized; (3) whether he
had the right to exclude others from the place in question; and (4) whether he had taken normal
precautions to maintain his privacy.” United States v. Dillard, 438 F.3d 675, 682 (6th Cir. 2006).
In Dillard, the Sixth Circuit considered whether a defendant had an objectively reasonable
expectation of privacy in a common hallway in an apartment complex. The court held that the
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defendant’s expectation was unreasonable because the first floor doors were not only unlocked but
ajar, which “did nothing to indicate to officers that they were not welcome in the common areas.”
Id. Moreover, the court observed that there was no visible way for the police to alert the tenants of
their presence—no intercom system or doorbell. Id. By comparison, in United States v. Kimber, the
Sixth Circuit found a defendant’s expectation of privacy in a lobby area objectively reasonable where
the apartment building was locked and police forced the door open. 395 F. App’x 237, 248 (6th Cir.
2010). Similarly, in United States v. Carriger, the Sixth Circuit held that a tenant in an apartment
building had a reasonable expectation of privacy in common areas not open to the general public
where a government agent entered a locked building by slipping into the building without permission
when some workmen were leaving. 541 F.2d 545, 548, 550 (6th Cir. 1976).
In this case, the apartment door that the parties entered was unlocked. In fact, Novar had
previously visited the apartment building on patrol and was aware that the apartment building was
not normally locked. (Novar Dep., docket #54-3, Page ID 540.) It was a hallway accessible by either
the front or back through an unlocked door. This is strong evidence of a lack of a subjective
expectation of privacy. Further, there is no evidence of a doorbell, intercom, security guard, or other
barrier required for entry; rather, anyone could simply open the door.
At oral argument, Plaintiff argued that the front door—as opposed to the back door entered
by the parties—demonstrates Plaintiff’s expectation of privacy. For support, Plaintiff has attached
new photographs showing that there is a lock on the front door of the apartment building, but there
is still no evidence in the record that the door remains shut or the building remains locked. To the
contrary, Novar’s unrebutted testimony is that, in her experience as a police officer, she has
previously visited the building and found the outside door unlocked. (Id.) Moreover, the
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photographs do not show an intercom or other security system to keep solicitors or other visitors
from entering the hallway without permission. Plaintiff has not introduced affidavits or other
evidence from Plaintiff, his father, or apartment residents to support that the building remains locked,
or that there is a working intercom system or some other way for residents to control the flow of
entrants. In light of the record before the Court, Plaintiff has not established that he had a reasonable
expectation of privacy in the apartment hallway. Therefore, the Court will deny Plaintiff’s request
for reconsideration of the Court’s prior ruling.
IV. Conclusion
For the reasons stated above, the Court will grant Novar’s motion for summary judgment
with respect to the unlawful arrest and excessive force claims.2
ACCORDINGLY, IT IS ORDERED that Novar’s motion for summary judgment is
granted with respect to Plaintiff’s unlawful arrest and excessive force claims.
Dated: December 10, 2013
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
2
Plaintiff’s remaining claims in this action are (1) an excessive force claim against Defendant
Habelitz based on the handcuffing and other activity in arresting Plaintiff at the scene, and (2) an
excessive force claim against Defendants Huff, Dally, Pope, and Masters for an alleged beating at
the jail. All parties agreed at oral argument that the latter claim involves disputed issues of material
fact precluding summary judgment. As to the handcuffing claim, if the jury credits Plaintiff’s sworn
claim that Habelitz picked him up and dropped him several times after Plaintiff was already
restrained, the jury could find excessive force. The jury may well reject Plaintiff’s version of the
experience and conclude that Habelitz was simply trying to take Plaintiff from a face-down position
to his knees and then to his feet. But, as the Court intimated on the record at the hearing, this is a
jury question on the present record.
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