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Bey v. Falk

United States Court of Appeals, Sixth Circuit

December 31, 2019

Christopher Lee-Murray Bey, Plaintiff-Appellee,
v.
Adam Falk and Charter Township of Canton, Ohio (18-1376); Andrew McKinley, Eric Eisenbeis, and Megan McAteer (18-1285), Defendants-Appellants.

          Argued: January 31, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:14-cv-13743-Denise Page Hood, Chief District Judge.

         ARGUED:

          Eric S. Goldstein, CITY OF LIVONIA, Livonia, Michigan, for Appellants in 18-1285.

          Holly S. Battersby, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hills, Michigan, for Appellants in 18-1376.

          Joel B. Sklar, JOEL B. SKLAR LAW, Detroit, Michigan, for Appellee.

         ON BRIEF:

          Eric S. Goldstein, CITY OF LIVONIA, Livonia, Michigan, for Appellants in 18-1285.

          Holly S. Battersby, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hills, Michigan, for Appellants in 18-1376.

          Joel B. Sklar, JOEL B. SKLAR LAW, Detroit, Michigan, for Appellee.

          Before: CLAY, COOK, and LARSEN, Circuit Judges.

          OPINION

          LARSEN, CIRCUIT JUDGE.

         Christopher Lee-Murray Bey filed a lawsuit under 42 U.S.C. § 1983, alleging that: (1) several police officers stopped him without reasonable suspicion of criminal activity, in violation of the Fourth Amendment; and (2) they investigated and ultimately stopped him because of his race, in violation of the Fourteenth Amendment. The officers moved for summary judgment based on qualified immunity; the court below denied the motion. We DISMISS in part, AFFIRM in part, REVERSE in part, and REMAND.

         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). Accordingly, we present the facts in that light.

         At approximately 2:30 a.m. on March 16, 2013, Bey and two friends went out in Bey's minivan to purchase space heaters for their apartment. Bey had purchased the older minivan just a few days before, so it had a temporary registration tag but no license plate. The three first went to a Meijer store in Livonia, Michigan, a western suburb of Detroit, but came away empty-handed. So they drove across the street and sat in the parking lot of a closed Livonia Walmart while they tried to locate a nearby store that would be open at that time of night. They then drove to a Walmart in neighboring Canton, where they found and purchased the space heaters they wanted. Just as they were about to drive home, they were surrounded and stopped by Canton police officers.

         Unbeknownst to Bey and his friends, while en route to the Livonia Meijer the minivan they were driving had caught the eye of an undercover Livonia police officer, Sergeant Andrew McKinley. McKinley led an undercover team of Livonia police officers called the Special Operations Unit (SOU), which conducted surveillance in the interest of crime prevention. Livonia had recently experienced an unusual number of break-ins at cellphone stores, so the SOU officers on duty that night-McKinley, Megan McAteer, and Eric Eisenbeis, each driving a separate unmarked vehicle-were paying particular attention to possible retail crimes.

         When Sergeant McKinley observed Bey's "beat-up" minivan at the early morning hour, he started to follow it on "a hunch"; according to his training and experience, criminals often use stolen, older vehicles for retail crimes so that police cannot trace the vehicles back to them. At some point before Bey and his friends entered Meijer, the officers noted that the minivan's passengers were black. While Bey and his friends were in Meijer, McKinley approached the minivan and observed a paper temporary registration taped to the window. McKinley later testified that one of the SOU officers ran the registration through the Michigan state database but found no matching records.[1] Eisenbeis, on the other hand, recalled that McKinley said over the radio that the problem with the temporary license plate was that "it was unreadable." According to Bey, the temporary license plate was valid and clearly visible.

         The officers continued to follow Bey's minivan from a distance as it drove from the Livonia Meijer to the Livonia Walmart parking lot, and then finally to the Canton Walmart. At one point, the minivan got on a northbound freeway, took the first exit, and then immediately reentered the southbound freeway. To the SOU officers this resembled a "cleaning move," a tactic used to draw out or shake off officers who might be following.

         When the minivan arrived at the Canton Walmart and its occupants (Bey and his friends) entered the store, Officer McAteer followed them in on foot, at McKinley's direction, to observe them. She passed information to McKinley via cell phone as she followed them through various areas inside Walmart, and McKinley then passed some of the information along to the rest of the SOU team via radio. McAteer told McKinley that she watched the young men separate, with one of the three going into the hunting section and looking at guns. The three then proceeded to the electronics section, where McAteer saw nothing unusual. Though at one point she might have relayed that she thought the three were contemplating a "pushout," she never saw the three leave or attempt to leave Walmart without paying for the merchandise in the shopping cart. To the contrary, she relayed to McKinley that Bey and his friends stood in line at the cash register, "flipped[] through some [credit] cards to . . . pick a card," and paid for the items in their shopping cart using the card.

         Meanwhile, the SOU officers outside had called the Canton Police Department and requested that uniformed Canton officers be nearby; the SOU officers did not want to contact Bey and his friends, if possible, because they were in plain clothes and protocol generally dictates that uniformed officers approach suspects. The Canton Police Department dispatched several uniformed officers to Walmart, including Adam Falk. When Falk arrived at Walmart, he spoke briefly with Eisenbeis, who told him that McAteer and the suspects were in the store. Eisenbeis gave him a "prep radio" so he could hear McKinley's instructions, and Eisenbeis told Falk to wait nearby so he could make contact with Bey and his friends when they came out of the store.

         Falk waited outside Walmart for fewer than six minutes before McKinley notified Falk that Bey and his friends had exited the store and directed him to stop them. Falk and the other Canton police officers surrounded Bey's van and ordered him out of the vehicle. Since Bey was carrying a concealed weapon, he properly notified Falk that he was armed and pointed to his holster so Falk could remove the weapon; Bey also produced a concealed weapon license. Falk asked to see Bey's receipts for the space heaters, which showed no signs of fraud. However, Falk discovered that Bey's concealed weapon license had expired and so arrested him.

         Bey was charged in Michigan state court with the felony offense of unlawfully carrying a concealed weapon. He moved to suppress the evidence against him, asserting that the stop was unreasonable under the Fourth Amendment. For unknown reasons, the county prosecutor presented only Falk's testimony (and not McKinley's) at the suppression hearing, even though Falk had stopped Bey at McKinley's direction. Falk truthfully testified that he personally had seen no suspicious activity. The state court found the stop unconstitutional and suppressed the evidence; the case was later dismissed with prejudice.

         Bey then filed this civil rights action against McKinley, Eisenbeis, McAteer, and Falk, alleging violations of his Fourth Amendment and equal protection rights. The officers moved for summary judgment based on qualified immunity; the district court denied that motion as well as the officers' subsequent reconsideration motions. The officers timely appealed.

         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) (citation omitted). 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) (quotation marks omitted). We may grant qualified immunity on either basis and may address the prongs in any order. Pearson v. Callahan, 555 U.S. 223, 241-42 (2009).

         This case's interlocutory posture limits our appellate jurisdiction. The Supreme Court has interpreted 28 U.S.C. § 1291's grant of appellate jurisdiction over "final decisions" to include some summary judgment orders denying qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985); Harrison v. Ash, 539 F.3d 510, 516-17 (6th Cir. 2008). The general rule is that we do not have statutory jurisdiction to entertain interlocutory challenges to a district court's factual findings and may only address "neat abstract issues of law." Johnson v. Jones, 515 U.S. 304, 317 (1995) (citation omitted). For this reason, "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, 887 F.3d at 757 (alteration omitted). Taking the facts in that light, we assess whether Bey has carried his burden of showing that the officers are not entitled to qualified immunity as a matter of law. Hayden v. Green, 640 F.3d 150, 152-53 (6th Cir. 2011).

         III.

         We first address the Fourth Amendment claims arising out of the allegedly unlawful stop. For the reasons that follow, we conclude that McAteer, Eisenbeis, and Falk are entitled to qualified immunity against these claims. The claim against McKinley, however, must go to a jury.

         A.

         McKinley argues that he is entitled to qualified immunity because he had reasonable suspicion of criminal activity to order the stop. We have said that the Fourth Amendment divides police-citizen interactions into three tiers, which must be justified by correspondingly increasing levels of suspicion: "(1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause." United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010) (quotation marks omitted). Considering the facts in the light most favorable to Bey, what happened was a non-consensual investigative detention, [2] and so there must have been reasonable suspicion for the stop. See United States v. Jones, 562 F.3d 768, 773 (6th Cir. 2009).

         "[R]easonable suspicion exists when, based on the totality of the circumstances, a police officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Gross, 662 F.3d 393, 399 (6th Cir. 2011). This standard requires "more than a mere hunch," but at the same time "is satisfied by a likelihood of criminal activity less than probable cause" and far less than "a preponderance of the evidence." Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (quoting Smoak v. Hall, 460 F.3d 768, 778-79 (6th Cir. 2006)). "In considering all the circumstances, the question is not whether there is a possible innocent explanation for each of the factors, but whether all of them taken together give rise to reasonable suspicion that criminal activity may be afoot." United States v. Marxen, 410 F.3d 326, 329 (6th Cir. 2005).

         Taking the version of the events most favorable to Bey, McKinley violated Bey's Fourth Amendment rights by directing a stop without reasonable suspicion.[3] When McKinley directed Falk to initiate the stop, he knew only that three young men had driven an old minivan to three different stores in the early morning, at one time reversing direction on the highway. McAteer had followed them around the third store and had not observed any criminal, or even suspicious, behavior; in fact, she had watched them stand in line at the cash register, "flip[] through some [credit] cards to . . . pick a card," and pay for the items in their shopping cart with the card. And she had relayed this information to McKinley. There was simply nothing here to give a reasonable officer in McKinley's shoes the impression that criminal activity "may be afoot" such that an investigative stop would be constitutionally reasonable. United States v. Arvizu, 534 U.S. 266, 273 (2002).

         True, we must "allow[] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.'" Id. (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). And McKinley presents several reasons why some of Bey's actions could have been consistent with more devious motives. For example, McKinley testified that "[c]riminals frequently use stolen old vehicles that cannot be traced to them if they flee the scene," and points to his testimony that the paper registration on the van's window did not appear in a records search. He likewise contends that Bey's reversal on the interstate was "consistent with a cleaning maneuver." But even taken together, these meager observations are not enough to constitute reasonable suspicion. The deference we owe to police officers on the ground can only stretch so far, and here McKinley had seen nothing constituting an "objective manifestation" that Bey "[wa]s, or [wa]s about to be, engaged in criminal activity." Cortez, 449 U.S. at 417. Driving from store to store, even at 2:30 a.m. (when the stores were, after all, open to customers), in a "beat-up" minivan, would not generate reasonable suspicion to stop a suspect when that series of events culminated in a normal credit card purchase.[4] Every reasonable officer would recognize that ordering a stop in this situation, to investigate possible shoplifting after the officer learned that the suspect had paid, would violate clearly established Fourth Amendment rights. See District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018). As such, McKinley is not entitled to qualified immunity on this claim.

         Lastly, McKinley argues that he could have lawfully stopped Bey independent of the retail fraud investigation. The temporary tag number did not appear in the state database and so, McKinley says, he had probable cause to stop Bey for driving an unregistered vehicle. It is true that an officer's subjective motivations for initiating a stop are "irrelevant to the existence of probable cause," or, in this case, reasonable suspicion. Devenpeck v. Alford, 543 U.S. 146, 153 (2004). So long as there were facts known to McKinley that objectively constituted probable cause of a civil infraction or reasonable suspicion of a criminal offense, United States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012), the stop would not violate the Fourth Amendment, see id. at 154-55; Alman v. Reed, 703 F.3d 887, 900 n.3 (6th Cir. 2013) ("Indeed, a wrongful-arrest claim can fail if probable cause existed for a crime other than the crime for the which the individual was arrested or charged.").[5] But viewing the record in Bey's favor, there is a genuine issue of material fact on whether there was evidence from which a reasonable officer could justifiably believe Bey's van was unregistered. On the one hand, McKinley testified that one of the officers, though he was not sure who, had asked the dispatcher to run the temporary license plate and it came back "no record." On the other hand, McKinley affirmatively testified that Bey "hadn't done anything wrong" and that he had "absolutely not" committed any crime in Livonia. And Bey points out that, besides these conflicting statements, there is nothing else in the record-like a search printout or a recording of the call to dispatch, for example-to directly indicate that any registration search came up empty-handed. Eisenbeis recalled the license plate situation a little differently as well; he testified that McKinley told the SOU that the problem with the temporary license plate was that "it was unreadable." Taking the evidence in the light most favorable to Bey, a material question of fact remains, and it would be inappropriate to resolve this issue on summary judgment.

         B.

         On the other hand, McAteer and Eisenbeis are entitled to summary judgment because Bey has not shown that they personally participated in the actions that violated his Fourth Amendment rights. Bey's Fourth Amendment arguments consistently lump the SOU officers together. But "[t]o establish liability against an individual defendant acting under color of state law, a plaintiff must show that the defendant was 'personally involved' in [unlawful conduct]." Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir. 2013) (quoting Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)).

         The district court denied qualified immunity to McAteer because (1) she was present throughout the events and (2) she conducted surveillance inside the Canton Walmart and described the events to the other SOU officers, including "suggesting that a 'pushout' or other retail fraud and credit card fraud-was possible, even likely." This conduct, however, does not amount to a Fourth Amendment violation. First, "mere presence at the scene of a search, without a showing of direct responsibility for the action, will not subject an officer to liability." Burley, 729 F.3d at 620. Second, conducting nonintrusive surveillance in places open to the public does not violate the Fourth Amendment. See, e.g., United States v. Houston, 813 F.3d 282, 289 (6th Cir. 2016) ("[P]olice may view what the public may reasonably be expected to view."); United States v. Ellison, 462 F.3d 557 (6th Cir. 2006) (holding that a motorist has no reasonable expectation of privacy in his license plate number because "[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection" (second alteration in original) (quoting Katz v. United States, 389 U.S. 347, 351-52 (1967))); Kyllo v. United States, 533 U.S. 27, 31-32 (2001) (stating that "the lawfulness of warrantless visual surveillance of a home has still been preserved" despite other developments in Fourth Amendment doctrine). It necessarily follows that communicating those observations to other officers likewise does not implicate any Fourth Amendment interests. Cf. Ellison, 462 F.3d at 563 ("[S]o long as the officer had a right to be in a position to observe the defendant's license plate, any such observation and corresponding use of the information on the plate does not violate the Fourth Amendment." (emphasis added)). McAteer's suggestion that she thought it possible that Bey and his friends would attempt a "pushout" or other "retail fraud" cannot violate the Fourth Amendment; indeed, it is undisputed that she also reported that Bey and his friends in fact paid for the merchandise before they left the store. And there is no evidence that McAteer personally participated in or directed the stop. McAteer's conduct did not violate Bey's Fourth Amendment rights.

         The same goes for Eisenbeis. The district court denied qualified immunity to Eisenbeis because (1) he was present throughout the events and (2) he "drafted a police report that indicates that the dispatched offense, the subject and verified offense were 'Suspicious Circumstances' but does not contain any criminal activity committed by Plaintiff or his friends- except for the possession of the firearm by Plaintiff discovered after the stop." As explained above, mere presence is not enough. Burley, 729 F.3d at 620. As for the police report, it is a mere after-the-fact summary of the events that occurred on the night of Bey's arrest; we fail to see its significance for determining whether Eisenbeis's involvement in the events leading to the stop amounted to a Fourth Amendment violation. In addition, Eisenbeis's role in the events leading to Bey's stop was minimal. He surveilled Bey and his friends on the public street; he did not personally participate in or direct the stop. This conduct does not amount to a Fourth Amendment violation. Houston, 813 F.3d at 289; Burley, 729 F.3d at 619-20. As such, both McAteer and Eisenbeis are entitled to qualified immunity.

         C.

         Finally, we conclude that Falk, the Canton uniformed officer who executed McKinley's direction to stop Bey, is also entitled to qualified immunity. The district court found that a genuine issue of material fact remained as to whether Falk had reasonable suspicion to stop Bey because there was evidence that (1) Falk knew that Bey and his friends had completed their purchase at the Canton Walmart; (2) Falk had not been told that Bey and his friends had engaged in any illegal activity since the SOU officers' surveillance began; and (3) Falk did not make the stop based solely on McKinley's request.

         On appeal, Falk tries try to dispute these findings, but our limited jurisdiction over appeals from denials of qualified immunity precludes us from reviewing the district court's factual determinations. See DiLuzio v. Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). Accepting them as true for the purposes of this appeal, however, we may decide whether Falk's conduct violated Bey's clearly established Fourth Amendment rights. Id.

         The collective-knowledge doctrine permits an officer to "conduct a stop based on information obtained from fellow officers." Brown v. Lewis, 779 F.3d 401, 412 (6th Cir. 2015). Because police officers "'must often act swiftly [and] cannot be expected to cross-examine their fellow officers about the foundation of transmitted information,' we impute collective knowledge among multiple law enforcement agencies." United States v. Lyons, 687 F.3d 754, 766 (alteration in original) (quoting United States v. Hensley, 469 U.S. 221, 230-31 (1985)). The doctrine applies "even when the evidence demonstrates that the responding officer was wholly unaware of the specific facts that established reasonable suspicion for a stop." Id.; see also United States v. Kaplansky, 42 F.3d 320, 327 (6th Cir. 1994) (en banc) ("It was permissible for [the officers] to rely upon the dispatcher's conclusion that Kaplansky was 'suspicious' without inquiring into the basis of the dispatcher's knowledge."). It also applies when the information the officers receives is quite skimpy. See United States v. Butler, 223 F.3d 368, 371 (6th Cir. 2000) (concluding that a stop was lawful even though the officers who stopped the car were only told "there was a drug investigation going on and [the state trooper] wanted ...


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