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Butler v. City of Detroit, Michigan

United States Court of Appeals, Sixth Circuit

August 22, 2019

LeRod Butler, Plaintiff-Appellee,
v.
City of Detroit, Michigan, Defendant, Radames Benitez; David Meadows, Defendants-Appellants.

          Argued: March 15, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-14272-Stephen J. Murphy, III, District Judge.

         ARGUED:

          Sheri L. Whyte, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellants.

          David A. Robinson, ROBINSON & ASSOCIATES, PC, Southfield, Michigan, for Appellee.

         ON BRIEF:

          Sheri L. Whyte, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellants.

          David A. Robinson, ROBINSON & ASSOCIATES, PC, Southfield, Michigan, Thomas E. Kuhn, THOMAS E. KUHN, P.C., Detroit, Michigan, for Appellee.

          Before: MERRITT, LARSEN, and READLER, Circuit Judges. [*]

          OPINION

          LARSEN, CIRCUIT JUDGE.

         LeRod Butler's home was the subject of an allegedly misguided search as part of a drug investigation in which Butler was not charged with any crimes. Butler sued the City of Detroit and two police officers under 42 U.S.C. § 1983 for claims arising from the search. The district court denied qualified immunity on summary judgment, and the police officers appealed. We AFFIRM in part and REVERSE in part.

         I.

         "[A] defendant challenging the denial of summary judgment on qualified immunity grounds must be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal," Hooper v. Plummer, 887 F.3d 744, 757 (6th Cir. 2018) (alteration omitted). Accordingly, we present the facts in that light.

         In December 2015, Detroit police officer Radames Benitez swore out an affidavit for a warrant to search a home located at 12011 Bramell. In the first paragraph of the affidavit, Benitez averred that he was an experienced narcotics investigator and that he had been working with a confidential informant, who "ha[d] provided [Benitez] with information on over four other narcotic investigations." These investigations "resulted in felony and misdemeanor arrests and the confiscation of narcotics, weapons, U.S. currency and vehicles." Additionally, the informant was "familiar with the appearance and packing of all types of narcotics."

         In the second paragraph, Benitez averred that this informant had told him in October 2015 that the informant had "be[en] at" three addresses, "9542 Burnette, 9561 Burnette and 12011 BRAMELL, (Hereafter referred to as the Target Location), within the last twenty four hours and numerous times in the past," and that a certain drug dealer "ha[d] been selling cocaine and heroin out of 9542 Burnette for several months." Furthermore, this informant told Benitez that the dealer "use[d] target location"-defined just sentences prior as 12011 Bramell-"and 9561 Burnette to stash large amounts of narcotics and U.S. currency." The informant identified the dealer and his two cars, a "blue Chevy pickup" and a "gray Hyundai." The informant also identified an associate of the drug dealer who drove a "brown Chevy van."

         Two days later, the same informant let Benitez know that he had again "be[en] at 9542 Burnette . . . within the [previous] twenty four hours" and had watched someone buy cocaine from the dealer. Benitez discovered that the dealer had previous convictions for assault and homicide. He also discovered that both cars the informant had identified (the blue Chevy pickup and the gray Hyundai) were registered to the dealer, whose residence was listed as 9561 Burnette Street. A few days later, the informant told Benitez that he had witnessed another cocaine sale at 9542 Burnette Street. Apart from the initial tip about 12011 Bramell, the informant supplied no new information about activity at 12011 Bramell.

         Based on this information, Benitez decided to look into the three addresses. According to the affidavit, one day in November 2015, Benitez "sat near 9542 [Burnette] in an undercover capacity for approximately thirty minutes," during which he "observed [the] above mentioned green[1] Chevy pickup parked in front of the target location and the gray Hyundai parked in the rear of 9542 Burnette." There was also a "brown van parked in front of 9542 Burnette." But something is off here. Recall that the affidavit had said in the second paragraph (describing the informant's tip) that "target location" would refer to 12011 Bramell. And now consider that Burnette Street and Bramell are eight miles apart. Considering these two facts, Benitez could not possibly have "sat near 9542 [Burnette]" and simultaneously "observed" a car parked in front of 12011 Bramell, the "target location." Yet so says the affidavit.

         The affidavit then describes what appeared to Benitez to be a drug transaction: a man matching the informant's description of the drug dealer got out of the associate's brown van and "walk[ed] to the rear of the target location," briefly disappeared, and then returned to the brown van. The dealer, the associate, and a driver who arrived in a black Dodge went in and out of 9542 Burnette Street. Then another driver, who Benitez recognized from previous narcotics investigations, arrived in a white Chevrolet and handed a brown bag to the associate, who was sitting in the brown van. The white Chevrolet drove off, and the associate went into 9542 Burnette Street again with the brown bag. "Seconds later," he "exited without the brown bag at hand and drove off in the brown van." Benitez followed the associate to 12011 Bramell and watched him "enter the target location." The first usages of "target location" in this paragraph must be mistaken because Burnette and Bramell are eight miles apart and Benitez could not have seen both simultaneously. The last usage in this paragraph, on the other hand, involving the associate's drive to the Bramell house, seems facially consistent with Bramell as the "target location"; Benitez avers that he followed the associate's van from Burnette Street to Bramell.

         A few weeks later, in December 2015, Benitez conducted another round of surveillance. The affidavit (repeating the same inaccurate shorthand as before) states that he "sat near the target location in an undercover capacity for approximately thirty minutes," and during that time he "observed above mentioned blue Chevy pickup parked in front of the target location and the gray Hyundai parked in the rear of 9542 Burnette." He watched another elaborate ritual of cars pulling up in rapid succession and the drug dealer going back and forth between 9542 Burnette Street and "the target location." But again, this cannot be correct as written. If "target location" refers to 12011 Bramell, as the affidavit had previously stated that it would, Benitez would be averring that he sat "near" 12011 Bramell and watched goings-on on Burnette Street, eight miles away-not possible. But that is what the affidavit says.

         After the December stakeout, Benitez's informant let him know that he or she had witnessed a heroin sale at 9542 Burnette Street. Benitez decided to have the informant conduct a controlled drug purchase at 9542 Burnette Street two days later. On the day of the controlled buy, Benitez searched the informant for drugs and money, and gave him (or her) cash to buy drugs from the dealer. The affidavit states that Benitez then watched the informant walk into "the target location" for the controlled buy. (Again, if "target location" means 12011 Bramell, this conflicts with the statement earlier in the same paragraph that the plan was to conduct a controlled purchase at 9542 Burnette Street.) After a short time, the informant "returned directly back" to Benitez and handed him heroin that he had purchased from the dealer.

         Benitez swore out his affidavit the day after the controlled buy; a state magistrate issued a search warrant based on the affidavit, and the Detroit police executed the warrant at 12011 Bramell.[2] As it turned out, the owner of 12011 Bramell was LeRod Butler, a fifty-one year old retiree with no prior convictions or links of any kind to drug operations. Butler was at a car wash when the police entered his home, and he received a phone call from his home security company informing him of a break-in. He returned home and, finding several police officers and vehicles outside his home, parked across the street. Butler approached the officers, saying he was the homeowner. The officers asked for his ID, which he willingly provided; he also informed them he had a concealed pistol license and was carrying a weapon. The officers took his wallet and pistol.

         Butler was then handcuffed and brought inside the house, where Sergeant Meadows "slammed" him "against the wall" face first. Unbeknownst to Sergeant Meadows, Butler had sustained a serious neck injury during previous military service, resulting in a spinal fusion operation and, later, a disability-based retirement from Chrysler. The "slam" reinjured Butler's neck and lower back. From the house, the police recovered $3, 702 cash, weapons, ammunition, a bulletproof vest, and a bottle of pills that ultimately turned out to be ibuprofen. The police also seized $1, 640 cash from Butler's person. The state never filed charges against Butler based on the evidence seized. Butler was fully cooperative throughout the encounter.

         Butler filed a § 1983 lawsuit against the City of Detroit, three named Detroit police officers (Benitez, Meadows, and Joi Gaines, who participated in the search), and several unknown police officers. Butler brought claims for excessive force against him, excessive force in executing the search warrant, unreasonable search based on misrepresentations in the warrant affidavit, unreasonable seizure (Butler claims the cash was never returned after the search), First Amendment retaliation, and municipal liability for unconstitutional procedures. The district court granted summary judgment for Gaines on all claims; for Benitez on all claims except unreasonable search; and for Meadows on all claims except the excessive force claim relating to the "slam." The district court denied the City's summary judgment motion, and the City did not appeal. Only the unreasonable search and excessive force claims against Benitez and Meadows, respectively, are at issue in this appeal.

         II.

         We review the district court's summary judgment decision de novo, applying the same standards the district court used. Franklin Am. Mortg. Co. v. Univ. Nat'l Bank of Lawrence, 910 F.3d 270, 275 (6th Cir. 2018). "[S]ummary judgment is warranted only if 'there is no genuine issue as to any material fact' and 'the movant is entitled to judgment as a matter of law.'" Id. (quoting Fed.R.Civ.P. 56(a) and Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)). We also review de novo the grant or denial of qualified immunity. Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001).

         "Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (per curiam). When an officer raises a qualified immunity defense, we determine "(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established." Harris v. Klare, 902 F.3d 630, 637 (6th Cir. 2018).

         "While most denials of summary judgment are nonfinal orders which cannot be appealed pursuant to 28 U.S.C. § 1291, it is well established that an order denying qualified immunity is immediately appealable." Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008). The general rule is that this court only has appellate jurisdiction to entertain legal challenges in this interlocutory posture. See generally Johnson v. Jones, 515 U.S. 304 (1995). Thus, a defendant challenging a denial of summary judgment on qualified immunity grounds must "be willing to concede the most ...


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