Binay v. Bettendorf

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0111p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MARION BINAY; JOSELITO BINAY; SB, a

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minor child, by Marion Binay and Joselito

Binay, Next Friends, -

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Nos. 09-1249/1400

Plaintiffs-Appellees, ,>

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v.

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BETTENDORF, Officer (09-1249),

Defendants-Appellants. -

PONGRACZ, Officer (09-1400),

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-15160—Bernard A. Friedman, District Judge.

Argued: March 3, 2010

Decided and Filed: April 20, 2010

Before: KEITH, CLAY, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C.,

Livonia, Michigan, Stephon B. Bagne, KUPELIAN, ORMOND & MAGY, Southfield,

Michigan, for Appellants. Michael M. Wachsberg, PEDERSEN, KEENAN, KING,

WACHSBERG & ANDRZEJAK, P.C., Commerce Township, Michigan, for Appellees.

ON BRIEF: Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C.,

Livonia, Michigan, for Appellants. Michael M. Wachsberg, PEDERSEN, KEENAN,

KING, WACHSBERG & ANDRZEJAK, P.C., Commerce Township, Michigan, for

Appellees.

1

Nos. 09-1249/1400 Binay, et al. v. Bettendorf, et al. Page 2

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OPINION

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CLAY, Circuit Judge. Defendants, Officers Pongracz and Bettendorf, appeal the

district court’s orders denying summary judgment to Defendants on the basis that they

are not entitled to qualified immunity under federal law or governmental immunity under

Michigan law. For the reasons set forth below, we AFFIRM the district court’s orders.

BACKGROUND

Plaintiffs Marion Binay, Joselito Binay, and Sean Binay brought this suit against

Defendants, Downriver Area Narcotics Division (“DRANO”), Lieutenant Menna, and

Officers Jones, Bettendorf, Brown and Pongracz, alleging violations of 42 U.S.C. § 1983

and various Michigan state laws in connection with Defendants’ execution of a search

warrant at Plaintiffs’ apartment. DRANO is a multijurisdictional law enforcement task

force under the authority of the Michigan State Police.

Marion and Joselito Binay, along with their son Sean Binay, were living at an

apartment located at 11320 Burlington, Apartment 460 in Southgate, Michigan, when

Officer Pongracz, a member of DRANO, received an anonymous call that narcotics

trafficking was occurring at Plaintiffs’ apartment. Acting on this tip, several DRANO

officers, a canine handler from the Southgate Police Department, and his dog, Apollo,

went to the apartment on December 13, 2006 and January 9, 2007.1 On both occasions,

Apollo indicated positive for narcotics on the outside of the door to Plaintiffs’ apartment.

On the same visits, Apollo sniffed other apartment doors and a couple of storage doors,

but only made positive indications on Plaintiffs’ door.

Based on the two positive dog indications and the anonymous call, Officer

Pongracz determined that he had probable cause for a search warrant, and he informed

1

Apollo is a full service narcotics detection dog. The DRANO search team gained entry to the

common area of Plaintiffs’ apartment complex using a key that the building’s management gave to Officer

Pongracz for conducting narcotics investigations.

Nos. 09-1249/1400 Binay, et al. v. Bettendorf, et al. Page 3

Lieutenant Menna that he wanted to request a warrant. On January 9, 2007, Assistant

Prosecuting Attorney Sarah De Young reviewed and authorized Officer Pongracz’s

affidavit, and Judge James A. Kandrevas of the 28th District Court signed the search

warrant.2

A DRANO search team composed of the individual Defendants executed the

warrant for Apartment 460 on January 10, 2007 and found no evidence of narcotics

trafficking. Pursuant to DRANO policies, Officer Pongracz prepared a “Confidential

Operation Plan” prior to the raid of Plaintiffs’ apartment, which outlined procedures and

problems anticipated during the search of Plaintiffs’ residence. The Confidential

Operation Plan indicated that the officers did not anticipate the presence of firearms.

Plaintiffs and Defendants dispute the facts surrounding the execution of the

search warrant. Mr. Binay testified that at approximately 8:20 p.m. he heard a knock at

the door of Plaintiffs’ apartment and was walking the seven to ten steps to answer the

door when six masked men knocked down the door. Defendants brandished weapons

as they entered the apartment and forced Mr. and Mrs. Binay to the floor. Defendants

pointed their guns at Mr. and Mrs. Binay, instructed them not to look at the officers, and

handcuffed them. Because the officers were wearing masks, Plaintiffs were unable to

see the faces of the officers who handcuffed them. Defendants secured the kitchen,

bathroom, and two bedrooms within moments, during which time the officers found Mr.

and Mrs. Binay’s son in a bedroom and forced him into the living room. Then the drug

sniffing dog went through the premises and found no scent or presence of narcotics

anywhere in the apartment. The dog was out of the apartment within 15 minutes.

Defendants then ransacked each room for the next few minutes but found nothing. The

officers who conducted the search reported the results to Lieutenant Menna and Officer

Pongracz. At that point, after completing the search, Defendants interrogated Plaintiffs,

who continued to be handcuffed and held at gunpoint. Plaintiffs submitted to the officers

2

On January 9, 2007, Defendants also obtained a search warrant for 11300 Burlington, Apartment

453, which was located adjacent to Plaintiffs’ residence. Defendants testified that they intended to execute

both search warrants on the same day, but Defendants only made it through a search of Apartment 453 on

January 9, 2007. At Apartment 453, DRANO officers seized, among other things, approximately 8,000

grams of marijuana, cash in excess of $6,000, and a stolen 9 mm handgun with ten rounds of ammunition.

Nos. 09-1249/1400 Binay, et al. v. Bettendorf, et al. Page 4

and cooperated throughout the entire ordeal. Defendants left after approximately an hour

without finding narcotics.

Defendants contest a number of these factual assertions. Relevant to this appeal

is Defendants’ claim that the facts are undisputed that the interrogation of Plaintiffs and

the search of the apartment occurred simultaneously. Defendants argue that Mr. and

Mrs. Binay’s testimony concerning the timeline of events supports Defendants’ position

by showing that even Plaintiffs admit that the search and interrogation happened at the

same time. Mr. Binay testified that after the police knocked down the door, ordered

Plaintiffs to the floor, and handcuffed them, “I was actually asking this guy what was

going on and they just ignore [sic] us. And there is this guy who approached us and

asked us to lead us to the dining area. And we were seated there. And I think that was

the leader. At that time, he started interrogating us . . .” (R.E. 51 Ex. G at 17). Mrs.

Binay testified that after being handcuffed Plaintiffs were “taken to the dining room” and

after that the “leader [of the officers] talked to us.” (R.E. 51 Ex. I at 50). In addition,

Defendants rely on the testimony of Lieutenant Menna, Officer Pongracz, Officer

Bettendorf, and Officer Brown to support their argument that it is undisputed that the

interrogation occurred at the same time as the search. In particular, Defendants note that

Officer Jones testified that he was still searching his area when Lieutenant Menna, who

was conducting the interrogation, told him that “we were wrapping it up.” (R.E. 72 Ex.

T at 34).

Plaintiffs also allege that Officer Pongracz was armed with a shotgun during the

raid. Officer Bettendorf admitted in his deposition testimony to carrying a pistol during

the raid and to searching the master bedroom. Officer Pongracz admitted in his

deposition testimony to executing a “hard entry” based on orders from Lieutenant Menna

and to ordering Mr. Binay to the ground in the hallway of the apartment with his shotgun

drawn. He also admitted to conducting a hand search of Mr. and Mrs. Binay’s master

bedroom and to seizing a “Wow!” cable bill from Plaintiffs’ residence. Both Officer

Bettendorf and Officer Pongracz testified that Officer Pongracz was the leader of the

raid.

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On November 6, 2007, Plaintiffs filed this lawsuit in Wayne County Circuit

Court, alleging state torts of false arrest, false imprisonment, and assault and battery, as

well as federal and state constitutional violations. On December 5, 2007, Defendants

removed Plaintiffs’ lawsuit to the United States District Court for the Eastern District

of Michigan. On February 26, 2008, the district court dismissed Plaintiffs’ state

constitutional claim pursuant to Jones v. Powell, 612 N.W.2d 423 (2000).

On January 9, 2009, the district court denied in part and granted in part Officer

Pongracz’s motion for summary judgment. At a hearing on January 27, 2009, the district

court denied in part and granted in part Officer Bettendorf’s motion for summary

judgment. The court denied both officers’ motions for summary judgment as to

Plaintiffs’ federal excessive force claim, finding that the officers were not entitled to

qualified immunity. The court denied both officers’ motions for summary judgment as

to Plaintiffs’ state law claims of assault and battery, finding that the officers were not

entitled to governmental immunity. The court granted both officers’ motions for

summary judgment as to Plaintiffs’ unlawful search claim under the Fourth Amendment,

finding that there was probable cause for the search. The court also granted both

officers’ motions for summary judgment as to Plaintiffs’ false arrest and false

imprisonment claims under Michigan state law. Thus, those claims were dismissed from

the case.

On January 22, 2009, Officer Pongracz sought reconsideration of the district

court’s rulings with respect to whether he was entitled to summary judgment on

Plaintiffs’ remaining claims based on qualified immunity and governmental immunity.

On February 25, 2009, Officer Bettendorf filed a timely notice of appeal. On March 10,

2009, the district court denied Officer Pongracz’s motion for reconsideration. On

March 27, 2009, Officer Pongracz filed a timely notice of appeal.

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DISCUSSION

I. Qualified Immunity

A. Jurisdiction

We have jurisdiction pursuant to 28 U.S.C. § 1291 over Defendants’ appeal of

the district court’s denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). However, “[i]n considering the denial of a defendant’s claim of qualified

immunity, . . . our jurisdiction is limited to resolving pure questions of law.” Moldowan

v. City of Warren, 578 F.3d 351, 369 (6th Cir. 2009) (citing Mitchell, 472 U.S. at 530

(addressing denial of a claim of qualified immunity, but only “to the extent that it turns

on an issue of law”)). Thus, if “the defendant disputes the plaintiff’s version of the story,

the defendant must nonetheless be willing to concede the most favorable view of the

facts to the plaintiff for purposes of the appeal.” Moldowan, 578 F.3d at 370 (quoting

Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998)). See also Meals v. City of

Memphis, 493 F.3d 720, 726-27 (6th Cir. 2007) (“[A] defendant is required to limit her

argument to questions of law premised on facts taken in the light most favorable to the

plaintiff.”); Sheets v. Mullins, 287 F.3d 581, 585 (6th Cir. 2002) (“In this circuit, it is

well established that, for appellate jurisdiction to lie over an interlocutory appeal, a

defendant seeking qualified immunity must be willing to concede to the facts as alleged

by the plaintiff and discuss only the legal issues raised by the case.”).

B. Standard of Review

We review a district court’s grant of summary judgment de novo. Wuliger v.

Mfrs. Life Ins. Co., 567 F.3d 787, 792 (6th Cir. 2009). Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, “show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

must view the evidence in the light most favorable to Plaintiffs to determine whether a

genuine issue of material fact exists. Birgell v. Bd. of Comm’rs of Butler County, Ohio,

125 F.3d 948, 950 (6th Cir 1997). “The central issue is ‘whether the evidence presents

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a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.’” In re Calumet Farm, Inc., 398 F.3d 555,

558 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986)).

The fact that Defendants’ motions for summary judgment were based on claims

of qualified immunity does not affect our standard of review. Moldowan, 578 F.3d at

374 (internal citation omitted). The question of whether a defendant is entitled to

qualified immunity from liability under 42 U.S.C. § 1983 is a legal question that we

review de novo. Id.

C. Analysis

“[G]overnment officials performing discretionary functions generally are

shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The central purpose of

affording public officials qualified immunity from suit is to protect them ‘from undue

interference with their duties and from potentially disabling threats of liability.’” Elder

v. Holloway, 510 U.S. 510, 514 (1994) (quoting Harlow, 457 U.S. at 806).

In reviewing claims for qualified immunity, we conduct a two-step analysis. See

Scott v. Harris, 550 U.S. 372, 377 (2007). First, we consider whether “[t]aken in the

light most favorable to the party asserting the injury, . . . the facts alleged show the

officer’s conduct violated a constitutional right.” Id. at 377 (quoting Saucier v. Katz,

533 U.S. 194, 201 (2001)). If the answer is yes, we next ask “whether the right was

clearly established . . . in light of the specific context of the case.” Id. (quoting Saucier,

533 U.S. at 201).3 “For a right to be clearly established, the contours of the right must

3

“Some panels of the Sixth Circuit have employed a third step requiring the court to determine

whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was

objectively unreasonable in light of the clearly established constitutional right.” Grower v. Drury, 567

F.3d 302, 309 (6th Cir. 2009) (citing Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003); Sample v. Bailey,

409 F.3d 689, 696 (6th Cir. 2005)). However, in excessive force cases, the third step is redundant because

the defendant’s conduct must be objectively unreasonable to find a constitutional violation under the first

step. Grower, 567 F.3d at 309 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Thus, qualified

immunity is a two-step inquiry in excessive force cases. Grower, 567 F.3d at 309.

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be sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal

citations omitted). While the sequence of this two-step inquiry is often appropriate, it

is no longer mandatory. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

“Once the qualified immunity defense is raised, the burden is on the plaintiff to

demonstrate that the officials are not entitled to qualified immunity.” Silberstein v. City

of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Barrett v. Steubenville City Schs.,

388 F.3d 967, 970 (6th Cir. 2004)).

1. Fourth Amendment Violation

Because the Saucier sequence is appropriate here, we first ask whether, under the

facts that Plaintiffs have alleged, a constitutional violation occurred. Specifically, the

relevant question is whether Plaintiffs have alleged sufficient facts to show that

Defendants violated Plaintiffs’ Fourth Amendment rights by using excessive force in the

execution of a valid search warrant at Plaintiffs’ apartment.

The use of excessive force in the execution of a search warrant constitutes a

Fourth Amendment violation. See Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009);

Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008). To determine whether a

constitutional violation based on excessive force has occurred, this Court applies “the

objective-reasonableness standard, which depends on the facts and circumstances of each

case viewed from the perspective of a reasonable officer on the scene and not with 20/20

hindsight.” Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2007) (citing Graham v. Connor,

490 U.S. 386, 395-96 (1989)). “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. “Relevant

considerations include ‘the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.’” Fox, 489 F.3d at 236 (quoting

Graham, 490 U.S. at 396).

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In Michigan v. Summers, 452 U.S. 692, 705 (1981), the Supreme Court held that

“for Fourth Amendment purposes . . . a warrant to search for contraband founded on

probable cause implicitly carries with it the limited authority to detain the occupants of

the premises while a proper search is conducted.” The Court described the rationale for

this limited authority as follows:

In assessing the justification for the detention of an occupant of premises

being searched for contraband pursuant to a valid warrant, both the law

enforcement interest and the nature of the “articulable facts” supporting

the detention are relevant. Most obvious is the legitimate law

enforcement interest in preventing flight in the event that incriminating

evidence is found. Less obvious, but sometimes of greater importance,

is the interest in minimizing the risk of harm to the officers. Although no

special danger to the police is suggested by the evidence in this record,

the execution of a warrant to search for narcotics is the kind of

transaction that may give rise to sudden violence or frantic efforts to

conceal or destroy evidence. The risk of harm to both the police and the

occupants is minimized if the officers routinely exercise unquestioned

command of the situation.

Id. at 702-03.

In Muehler v. Mena, 544 U.S. 93, 98 (2005), the Supreme Court clarified that

“[i]nherent in Summers’ authorization to detain an occupant of the place to be searched

is the authority to use reasonable force to effectuate the detention.”

In the instant case, the district court identified at least two open fact questions

that bear on whether the officers’ use of force in the execution of the search warrant was

objectively reasonable under the circumstances: (1) how quickly the officers should

reasonably have realized that there were no narcotics in Plaintiffs’ apartment, and

(2) whether the amount of force that the officers used to secure and detain Plaintiffs was

reasonable under the circumstances. In regard to the first question, the district court

identified the sub-question of whether the interrogation of Plaintiffs occurred at the same

time as the search of the apartment or extended beyond the time when the officers

concluded the search and found no drug paraphernalia or activity. The district court

found that, if the interrogation extended beyond the time when the officers completed

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the search, a question of fact remains for the jury as to whether it was excessive to

interrogate Plaintiffs at gunpoint after finding no evidence of drug activity.

With respect to the first question, Plaintiffs allege that Defendants completely

ransacked their apartment and did not complete the search and interrogation until

approximately an hour after arriving. With respect to the second question, Plaintiffs

testified that Defendants continued to hold Plaintiffs at gunpoint and keep them

handcuffed throughout the hour long ordeal, despite the fact that the Confidential

Operation Plan anticipated no firearms on the premises and that Plaintiffs immediately

submitted to and cooperated with the officers.

In Hill v. McIntyre, 884 F.2d 271 (6th Cir. 1989), as in the instant case, the

plaintiffs brought a lawsuit under § 1983 after the defendants searched the plaintiffs’

apartment for narcotics on the basis of a valid search warrant but found no evidence of

illegal activity. This Court held that the plaintiffs raised questions of fact for a jury

concerning whether the manner in which the defendants conducted a search of the

plaintiffs’ apartment was reasonable. Id. at 277. Specifically, the Court found that the

following questions were ones of fact that must be decided by a jury: whether the

officers were reasonable in breaking open the front door of the apartment shortly after

knocking, whether the officers were reasonable in detaining the occupant of the premises

at gunpoint, and whether the extensive nature of the search of the premises was

reasonable. Id.4

4

Defendant Pongracz argues that Hill is distinguishable from this case based on six separate

grounds. Specifically, Officer Pongracz argues that Hill is inapplicable because: (1) in Hill there was a

question of fact as to whether the officer lied to obtain the search warrant; (2) the police officers in Hill

searched the wrong home; (3) the occupants of the home in Hill were both minors who were either asleep

or in bed reading when the officers entered the wrong home; (4) Hill was not an excessive force or assault

and battery case; (5) there was evidence that at least one officer had suspicions concerning whether the

house was a drug house within the first few minutes of the search; and (6) Hill did not address whether the

officers were entitled to qualified immunity or governmental immunity. (See Def. Pongracz’s Br. at 31-

33). However, distinctions (1), (2), (3), and (5) are irrelevant on their face. As for distinctions (4) and (6),

we note that we rely on Hill simply to show the types of factual questions that we have said must be

decided by a jury before we can make a determination as to whether officers have violated the Fourth

Amendment in executing a search warrant. The question of what types of facts a jury must decide to

determine whether an officer acts reasonably in the execution of a search warrant is equally relevant here,

even though Hill is not a qualified immunity or excessive force case.

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Defendants go to great lengths to argue that the evidence is undisputed that the

interrogation of Plaintiffs did not continue after the search was completed. However,

as the district court found:

Plaintiffs state otherwise, and the deposition testimony presented to the

Court does not resolve this question of fact. For example, page 55 of

Exibit [sic] D to Defendant Pongracz’s underlying Motion for Summary

Judgment states that the interrogation took place during the search.

However, it does not address whether the interrogation continued beyond

the time of the search, as Plaintiffs contend in their response. Plaintiffs

state that they were not only detained and handcuffed at gunpoint during

the search, but they were kept in a handcuffed position and held at

gunpoint until well after the search was completed.

(R.E. 82 at 3).

In addition, the testimony of Mr. and Mrs. Binay, which Defendants claim

supports their argument that the search and interrogation happened simultaneously, does

not in fact concede Defendants’ position. Mr. Binay testified that after he was

handcuffed, “I was actually asking this guy what was going on and they just ignore [sic]

us. And there is this guy who approached us and asked us to lead us to the dining area.

And we were seated there. And I think that was the leader. At that time, he started

interrogating us . . .” (R.E. 51 Ex. G at 17). Mrs. Binay testified that after being

handcuffed Plaintiffs were “taken to the dining room” and after that the “leader [of the

officers] talked to us.” (R.E. 51 Ex. I at 50). Neither of these statements supports

Defendants’ characterization as to the timing of the events that they describe. The only

phrase that places these comments into the context of a timeline is Mr. Binay’s use of

the phrase “[a]t that time.” However, there is nothing that indicates that Mr. Binay was

referring to a time before the search was completed. While Plaintiff’s testimony could

have been more explicit, this deposition testimony does not support Defendants’

contention that the fact of when the interrogation occurred in relation to the search is

undisputed, especially in light of Plaintiffs’ allegations that the officers interrogated

them after they searched the apartment. Thus, the factual determination of when

Defendants conducted the interrogation in relation to the search remains for the jury to

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decide before a court can determine whether Defendants’ conduct in executing the

warrant was objectively reasonable under the circumstances.

Both Defendants have cited to a number of cases in which courts have found the

use of handcuffs and guns in detaining suspects not to constitute excessive force. See,

e.g., Neague v. Cynkar, 258 F.3d 504, 508 (6th Cir. 2001); Ingram v. City of Columbus,

185 F.3d 579, 591-92 (6th Cir. 1999); Crisp v. City of Kenton, No. 97-3192, 1998 WL

180561, at *5 (6th Cir. 1998); Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 469

(S.D.N.Y. 2008); Parsons v. United States, 360 F. Supp. 2d 1083, 1091 (E.D. Ca. 2004).

However, the fact that it is sometimes reasonable to use handcuffs and guns when

detaining suspects does not support Defendants’ argument that the amount of force used

in this case was objectively reasonable. Whether an exercise of force is excessive will

vary depending on the facts and circumstances of the specific case. See Fox, 489 F.3d

at 236.

The relevant question here is whether the amount of force that the officers used

to secure and detain Plaintiffs was objectively reasonable given the circumstances of this

search. In this case, Plaintiffs had no criminal record, cooperated throughout the ordeal,

posed no immediate threat to the officers, and did not resist arrest or attempt to flee, all

of which are factors that tend to weigh against Defendants’ contentions regarding the

amount of force that was appropriate. See id. See also McDowell v. Rogers, 863 F. 2d

1302, 1307 (6th Cir. 1988) (finding “the need for the application of force” to be

“nonexistent” when police have already detained suspects who are handcuffed and not

trying to flee or hurt anyone); Robinson v. Solano County, 278 F.3d 1007, 1015 (9th Cir.

2002) (en banc) (pointing a gun at an unarmed suspect who poses no danger constitutes

excessive force); Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995) (detaining

suspect using guns and handcuffs violated the Fourth Amendment as there was “simply

no evidence of anything that should have caused the officers to use the kind of force they

are alleged to have used”). Furthermore, the Confidential Operation Plan anticipated no

firearms on the premises, and no narcotics were found in the apartment.

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Questions remain as to whether Defendants continued to detain Plaintiffs at

gunpoint long after the risk of flight and risk to the officers subsided, particularly in light

of the rationale behind the limited authority to detain the occupants of a premises during

a proper search–to prevent flight and minimize the risk to the officers. See Hill, 884

F.2d at 277. Furthermore, questions remain as to whether the officers’ wearing of masks

during the entry and search, which Plaintiffs claim violates DRANO policy, added to an

environment of intimidation and terror such that it contributed to a use of excessive

force. A jury must determine these facts before a court can decide whether the amount

of force used in executing the detention was excessive under the circumstances. See id.

Accordingly, viewing the evidence in the light most favorable to Plaintiffs, we

find that Plaintiffs have alleged sufficient facts to show that Defendants’ conduct

violated the Fourth Amendment.

2. Liability of Individual Officers

Having determined that Plaintiffs have alleged sufficient facts to show that

Defendants’ conduct violated the Fourth Amendment, we must determine whether

Plaintiffs have alleged sufficient facts that Defendants Pongracz and Bettendorf were

personally involved in the constitutional violations.

Each defendant’s liability must be assessed individually based on his own

actions. Dorsey v. Barber, 517 F.3d 389, 399 n.4 (6th Cir. 2008) (citing Ghandi v.

Police Dep’t of the City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984)). To hold an

officer liable for the use of excessive force, a plaintiff must prove that the officer

“(1) actively participated in the use of excessive force, (2) supervised the officer who

used excessive force, or (3) owed the victim a duty of protection against the use of

excessive force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) (internal citations

omitted). “As a general rule, mere presence at the scene of a search, without a showing

of direct responsibility for the action, will not subject an officer to liability.” Ghandi,

747 F.2d at 352 (internal citations omitted).

Nos. 09-1249/1400 Binay, et al. v. Bettendorf, et al. Page 14

a. Officer Pongracz

Officer Pongracz argues that he did not personally participate in the alleged use

of excessive force based on the handcuffing of Plaintiffs, because he did not personally

handcuff Plaintiffs or have the opportunity or means to prevent the handcuffing of

Plaintiffs. Officer Pongracz also argues that he did not have control over the decision

concerning whether Plaintiffs were to be held at gunpoint during the duration of search.

According to Officer Pongracz, Lieutenant Menna made both of these decisions.

However, Officer Pongracz admitted to being the leader of the raid and to

ordering Mr. Binay to the ground in the hallway of the apartment with his shotgun

drawn. In addition, Plaintiffs allege that Officer Pongracz, as the leader of the raid,

sanctioned the continued use of force against Plaintiffs throughout the duration of the

search and the interrogation. Mr. Binay also testified that the officer with the shotgun

was the one who pointed his gun at Plaintiffs throughout the interrogation. Officer

Pongracz admitted to carrying a shotgun during the raid, and Officer Bettendorf testified

that only one officer would carry a shotgun on a raid. Thus, Plaintiffs have advanced

ample evidence that Officer Pongracz held Plaintiffs at gunpoint, at least during some

portion of the raid.

Based on these facts, we find that Plaintiffs have alleged sufficient facts to show

that there is a disputed issue of material fact as to whether Officer Pongracz was

personally involved in the conduct that violated the Fourth Amendment.

b. Officer Bettendorf

Officer Bettendorf argues that he had no personal involvement in the alleged use

of excessive force beyond mere presence at the scene. According to Officer Bettendorf,

his role in the raid was the same as Officers Jones and Brown, both of whom were

granted qualified immunity in the district court on the basis that they were not involved

in the alleged excessive force.

However, the district court found that because Officer Bettendorf was in the

room with Plaintiffs during the interrogation and at the time Plaintiffs were handcuffed,

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a question of fact remains as to whether he was involved in the constitutional violation.

In addition, Office Bettendorf admitted in his deposition testimony to carrying a pistol

during the raid, to speaking with Lieutenant Menna in the hallway, and to searching the

master bedroom. Thus, there is a question of fact as to whether he was one of the

officers pointing a gun at or securing Plaintiffs during some part of the raid.

Furthermore, the fact that Defendants wore masks during the raid made it exceedingly

difficult for Plaintiffs to identify with precision which officers engaged in which

conduct. Thus, Plaintiffs have alleged sufficient facts to show that there is a disputed

issue of material fact as to whether Officer Bettendorf was personally involved in the

conduct that violated the Fourth Amendment.

3. Clearly Established Constitutional Right

After determining that Plaintiffs have raised sufficient facts to support a Fourth

Amendment violation, we next ask “whether the right was clearly established . . . in light

of the specific context of the case.” Scott, 550 U.S. at 377 (quoting Saucier, 533 U.S.

at 201). “For a right to be clearly established, the contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Feathers, 319 F.3d at 848 (internal citations omitted). “[A]n

action’s unlawfulness can be apparent from direct holdings, from specific examples

described as prohibited, or from the general reasoning that a court employs.” Id. at 848.

“[I]n an obvious case, [general] standards can ‘clearly establish’ the answer, even

without a body of relevant case law.” Sample v. Bailey, 409 F.3d 689, 699 (6th Cir.

2005) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). “[T]here need not be

a case with the exact same fact pattern or even ‘fundamentally similar’ or ‘materially

similar’ facts; rather, the question is whether the defendants had ‘fair warning’ that their

actions were unconstitutional.” Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir.

2005) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Thus, “officials can still be

on notice that their conduct violates established law even in novel factual

circumstances.” Hope, 536 U.S. at 741. “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

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reasonable officer that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202.

“This court has held that the right to be free from excessive force is a clearly

established Fourth Amendment right.” Neague, 258 F.3d at 507 (citing Walton v. City

of Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993)). “As the Supreme Court observed

in Saucier, ‘there is no doubt that Graham v. Connor clearly establishes the general

proposition that use of force is contrary to the Fourth Amendment if it is excessive under

objective standards of reasonableness.’” Vance v. Wade, 546 F.3d 774, 784 (6th Cir.

2008) (quoting Saucier, 533 U.S. at 201-02). Furthermore, the law is clearly established

that the authority of police officers to detain the occupants of the premises during a

proper search for contraband is “limited” and that officers are only entitled to use

“reasonable force” to effectuate such a detention. Summers, 452 U.S. at 705; Muehler,

544 U.S. at 98. This Court has long recognized “that the Fourth Amendment permits

detention using only ‘the least intrusive means reasonably available.’” Burchett v.

Kiefer, 310 F.3d 937, 946 (6th Cir. 2002) (quoting United States v. Sanders, 719 F.2d

882, 887 (6th Cir. 1983)).

Thus, based on the caselaw that existed on January 10, 2007, the date of the

alleged use of excessive force in executing the search warrant, Defendants were on

notice that their detention of Plaintiffs during the search using means that were more

forceful than necessary would constitute a Fourth Amendment violation.

Accordingly, we hold that the district court did not err by finding that Defendants

Pongracz and Bettendorf were not entitled to qualified immunity as to Plaintiffs’ Fourth

Amendment claim.

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II. Governmental Immunity

A. Jurisdiction

Pursuant to MCR 7.202(6)(a)(v), “an order denying governmental immunity to

a governmental party, including a governmental agency, official, or employee” is

defined as a “final judgment” or “final order.” Thus, we have jurisdiction over

interlocutory appeals concerning pendent state law claims of governmental immunity.

See Livermore v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007).

B. Standard of Review

We review a district court’s grant of summary judgment de novo. Wuliger, 567

F.3d at 792. The fact that Defendants’ motions for summary judgment were based on

governmental immunity does not change our de novo standard of review. See Richerson

v. United States, No. 95-2391, 1996 WL 733136, at *2 (6th Cir. 1996) (citing Pinney

Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir. 1988), cert.

denied, 488 U.S. 880 (1988)).

C. Analysis

Under Michigan law, an assault is defined as “an attempt to commit a battery or

an unlawful act which places another in reasonable apprehension of receiving an

immediate battery.” Grower v. Drury, 567 F.3d 302, 315 (6th Cir. 2009) (citing People

v. Nickens, 685 N.W.2d 657, 661 (2004)). A battery is defined as “an unintentional,

unconsented and harmful or offensive touching of the person of another, or of something

closely connected with the person.” Id. In the instant case, Plaintiffs allege that the

officers’ continued use of handcuffs and guns in detaining Plaintiffs well beyond the

time when there was any potential threat posed to the officers and well beyond the time

when the residence was secured constitutes an assault and battery under Michigan law.

To qualify for governmental immunity under Michigan state law for intentional

torts such as assault and battery, a governmental employee must establish that: (1) the

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employee undertook the challenged acts during the course of his employment and was

acting, or reasonably believed he was acting, within the scope of his authority, (2) the

employee undertook the challenged acts in good faith or without malice, and (3) the acts

were discretionary, rather than ministerial, in nature. Odom v. Wayne County,

760 N.W.2d 217, 228 (2008) (citing Ross v. Consumers Power Co., 363 N.W.2d 641,

647 (1984)).

1. Officer Pongracz

As discussed above, Officer Pongracz admitted to being the leader of the raid and

to ordering Mr. Binay to the ground in the hallway of the apartment with his shotgun

drawn. In addition, Plaintiffs allege that Officer Pongracz, as the leader of the raid,

sanctioned the continued use of force against Plaintiffs throughout the duration of the

search and the interrogation. Mr. Binay also testified that the officer with the shotgun

was the one who pointed his gun at Plaintiffs throughout the interrogation. Officer

Pongracz admitted to carrying a shotgun during the raid.

In finding that Officer Pongracz was not entitled to state governmental immunity

from Plaintiffs’ assault and battery claims, the district court found that “while state law

allows officers to utilize force to effectuate an arrest and to execute a search warrant,

there is a question of fact regarding the necessity of the continued use of weapons and

handcuffs once it was determined that drugs were not on the premises.” (R.E. 69 at 8).

In denying Officer Pongracz’s motion for reconsideration, the district court further

stated:

Here, while Defendant’s acts were undertaken during the course of his

employment, if Plaintiffs’ allegations are found to be true, the Court does

not find that it was reasonable for Defendant to believe that he was acting

within the scope of his authority. There is a question of fact regarding

whether it should have been immediately apparent that the Binay

residence was not a drug house, and/or how long it should have taken to

make that determination. Once such determination was made, it should

no longer have been necessary to use the sort of force alleged. These

facts, coupled with the Confidential Operation Plan which indicates that

there was not an expectation that weapons would be in Plaintiffs’ house,

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make it difficult to find that Defendant’s belief that he was acting within

the scope of his authority is reasonable.

(R.E. 82 at 7).

We agree with the district court that, if Plaintiffs’ allegations concerning Officer

Pongracz’s continued use of force against Plaintiffs are true, there is a disputed question

of material fact as to whether he reasonably believed that he was acting within the scope

of his authority. Accordingly, Officer Pongracz is not entitled to governmental

immunity.

2. Officer Bettendorf

Likewise, given that Officer Bettendorf may have been involved in the continued

use of force against Plaintiffs, including pointing a gun at or securing Plaintiffs during

some part of the raid, there is a disputed question of material fact as to whether he

reasonably believed that he was acting within the scope of his authority. Accordingly,

Officer Bettendorf is not entitled to governmental immunity.

Accordingly, we hold that the district court did not err by finding that Defendants

Pongracz and Bettendorf were not entitled to governmental immunity as to Plaintiffs’

assault and battery claim.

CONCLUSION

Because Officers’ Pongracz and Bettendorf were not entitled to qualified

immunity or governmental immunity, we AFFIRM the district court’s orders denying

summary judgment.