Von Herbert v. City of St. Clair Shores

SILER, Circuit Judge. In this interlocutory appeal, Defendants Robert Chester and Joe Chomiak (“the Officers”) appeal the district court’s (1) denial of qualified immunity regarding unlawful arrest claims, and (2) denial of summary judgment with respect to equal protection claims. In the event that we reverse the unlawful arrest decision with respect to the Officers, Defendant City of St. Clair Shores (“the City”) requests that we exercise pendent appellate jurisdiction and reverse the denial of summary judgment to the City. For the reasons stated below, we AFFIRM the denial of qualified immunity with respect to the unlawful arrest. Because we affirm the denial of qualified immunity with respect to the unlawful arrest, the City’s request for pen [135] dent appellate jurisdiction is moot. We do not have jurisdiction to consider the equal protection issue. I. In 1998, Connie Floyd presented First Federal Bank (“the bank”) with a fraudulent check made out to Elnora Pack and a driver’s license in the same name. As Floyd waited at the drive-through window with two children in the back seat of her car, the bank called the St. Clair Shores Police Department. After the police arrived, the bank notified the police that an unidentified woman who sounded African-American had called the bank to ask what would happen to Floyd, the car, and the children. Based on this information and their experience with fraudulent check cashing, the Officers believed that (1) an accomplice was in the area and (2) the accomplice matched the photograph on Pack’s drivers license. The Officers immediately began to search the area for Pack. Within minutes, Officer Chester located Plaintiff Cheryl Von Herbert (“Herbert”) and asked her name, why she was at the mall, and for identification. Herbert answered these questions and produced a Michigan state identification card. After running a warrant/lien check on her, Chester returned the card and permitted Herbert to go on her way. Chester then contacted Officer Chomiak and requested that he retrieve the Pack driver’s license so that they could compare that driver’s license with Herbert’s face and ID. Chomiak soon returned and the Officers approached Herbert as she waited at the bus stop. Herbert reluctantly produced her ID for further examination. As the Officers were examining the two IDs, Herbert’s bus arrived. When Chester waived the bus on, Herbert panicked. Herbert screamed loudly and demonstratively, both at the police and to onlookers from whom she requested help from her perceived prosecutors. The Officers arrested Herbert for disorderly conduct and took her to the police station. At the police station, the Officers determined that Herbert and Pack were not the same person. In Michigan state court, Herbert was prosecuted for disorderly conduct. The trial judge dismissed the charges, finding that the police “lacked an articulable reasonable suspicion to stop Herbert regarding an uttering and publishing incident.” On appeal, the Michigan circuit court affirmed that the investigative stop and subsequent arrest were improper because (1) there was “no articulable reasonable suspicion that linked Herbert to the uttering and publishing charge.” (2) there was “no reasonable evidence at the bank to suggest that two women had been involved in the crime of uttering and publishing,” and (3) the telephone conversation “failed to provide a reasonable basis for assuming that the suspect had an accomplice or that Herbert was an accomplice.” Herbert then filed this action in federal court against the Officers and the City. Her complaint alleges a Fourth Amendment violation, an equal protection violation, and various state law claims. The district court denied all defendants summary judgment on the Fourth Amendment claim and denied the Officers summary judgment on the equal protection claim. II. Review of the denial of qualified immunity is de novo. Risbridger v. Connelly, 275 F.3d 565, 568 (6th Cir.2002). As noted in Risbridger, “[a] district court’s decision rejecting an individual defendant’s claim to qualified immunity is immediately appeal-able to the extent that it raises a question of law, notwithstanding the absence of a final judgment.” Id. at 568 (citing Beh [136] rens v. Pelletier, 516 U.S. 299, 810-11, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Although an immediate interlocutory appeal may be taken from an order denying a claim of qualified immunity, defendants generally cannot immediately appeal a denial of summary judgment when qualified immunity is not at issue. See Archie v. Lanier, 95 F.3d 438, 442-43 (6th Cir.1996). Therefore, this court does not have jurisdiction to review the district court’s decisions on the equal protection claims, as qualified immunity was neither raised by defendants nor discussed by the district court with respect to those claims. A qualified immunity analysis consists of two questions: (1) taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right; and (2) if a violation could be made out on a favorable view of the parties’ submissions, was the right clearly established? Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Following Saucier’s two-step procedure for determining qualified immunity, the court must first address whether, given the facts alleged by Herbert, the Terry stop was constitutionally valid.1 In United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the Supreme Court for the first time approved use of a Terry stop “where police have been unable to locate a person suspected of involvement in a past crime.” Id. at 229, 105 S.Ct. 675. In doing so, the Court noted that “particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as promptly as possible.” Id. Here, viewing the facts alleged in the light most favorable to Herbert, we find that the Terry stop in this case was unlawful. At the time of the Terry stop, the Officers were aware of the following facts: (1) Floyd had attempted to cash a fraudulent check, (2) during the police’s detention of Floyd, the bank received an anonymous call inquiring about her status, (3) the bank employee who received the call believed it had been placed by a black woman, (4) the ID that Floyd had attempted to use identified a heavyset black woman, 5'4" tall, (5) Herbert was in the vicinity of the bank, (6) Herbert was a heavyset black woman, 5'4" tall, and (7) Herbert had produced an ID identifying her as Herbert (and not Pack). Given these facts, the Officers made the following inferences: (1) an accomplice was in the area, (2) the accomplice matched the photograph on Pack’s drivers license, and (3) Herbert may have been the accomplice. The third inference is problematic. Specifically, once Herbert produced her own ID, the police inquiry should have been [137] satisfied. The Officers have never testified that they doubted the validity of the ID. There is no testimony that they examined the ID to see whether it was a fake, and the warrant/lien check on the ID had come up clean. Furthermore, (1) there was no exigency; (2) the crime at issue (uttering and publishing) did not involve any threat to public safety; and (3) the link connecting Herbert to the crime was tenuous even before Herbert produced her valid ID. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), instructs that the suspect must be released once an officer determines the suspect’s identity and obtains information dispelling the officer’s suspicions. Id. at 439-40, 104 S.Ct. 3138. Considering the alleged facts in the light most favorable to Herbert, we find that after the initial Terry stop, it was unreasonable for the Officers to continue to investigate Herbert to determine whether she was Pack. Because the Terry stop was unlawful, the arrest was also unlawful. Officers cannot arrest someone for exercising her right to resist an unlawful restraint. See Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir.2001) (noting that under Michigan law, arrestees have the right to use physical force to resist an unlawful arrest). No reasonable officer with knowledge of these alleged facts would believe that the stop or arrest was supported by the requisite reasonable articulable suspicion or probable cause. We therefore uphold the district court’s denial of qualified immunity to the Officers. Having found that Herbert has alleged sufficient facts to make out a constitutional violation, the City’s request for pendent appellate jurisdiction is moot. AFFIRMED. KRUPANSKY, Circuit Judge, dissenting. Footnotes [1] The district court did not conduct the first part of the qualified immunity analysis. Instead, it found that collateral estoppel mandates deference to the Michigan courts' determination that the Officers violated Herbert's Fourth Amendment rights. We disagree. Specifically, because the Officers were not party to or in privity with a party to the earlier action, collateral estoppel does not apply. See Burda Brothers, Inc. v. Walsh, 22 Fed.Appx. 423 (6th Cir.2001) ("[t]his court has [at least] twice rejected an attempt to use collateral estoppel offensively against a defendant officer in a § 1983 action because the officer was not party to or in privity with a party to the earlier action”) (citing Kegler v. City of Livonia, No. 97-2206, 1999 WL 133110 (6th Cir. February 23, 1999); Wallace v. Mamula, No. 93-3603, 1994 WL 389197 (6th Cir. July 26, 1994)). As collateral estoppel does not apply here, we review anew the question of whether a constitutional violation has occurred on the facts alleged.