Dorsey v. Barber

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0086p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

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JELINI O. DORSEY and KEVIN L. CLARK,

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Plaintiffs-Appellees,

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No. 05-4235

v.

,

>

JOHN BARBER, et al., -

Defendants-Appellants. -

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Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 04-02151—James S. Gwin, District Judge.

Argued: October 24, 2006

Decided and Filed: February 21, 2008

Before: GIBBONS and McKEAGUE, Circuit Judges; TARNOW, District Judge.*

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COUNSEL

ARGUED: Nick Tomino, Medina, Ohio, for Appellants. Edward L. Gilbert, SLATER, ZURZ &

GILBERT, Akron, Ohio, for Appellees. ON BRIEF: Nick Tomino, Medina, Ohio, for Appellants.

Edward L. Gilbert, SLATER, ZURZ & GILBERT, Akron, Ohio, for Appellees.

McKEAGUE, J., delivered the opinion of the court, in which GIBBONS, J., joined.

TARNOW, D. J. (pp. 13-16), delivered a separate opinion concurring in part and dissenting in part.

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OPINION

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McKEAGUE, Circuit Judge. This case presents civil rights claims against various law

enforcement officers for unlawful arrest and use of excessive force. Now before the court is an

appeal from an interlocutory order of the district court denying two defendants’ motions for

summary judgment on the basis of qualified immunity. In particular, the district court held that, due

to outstanding questions of fact, defendants Portage County Sheriff’s Deputy Duane M. Dawson and

Village of Brady Lake Police Officer Allen C. Begin were not entitled to qualified immunity. Both

defendants appealed this ruling. Dawson’s appeal (No. 05-4234) was dismissed on joint motion of

*

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by

designation.

1

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 2

the parties on March 2, 2007. Now, for the reasons that follow, we hold that the district court erred

in ruling that Officer Begin is not entitled to qualified immunity.

I. FACTUAL AND PROCEDURAL BACKGROUND

The claims against Officer Begin stem from his participation in the temporary detention of

plaintiffs Jelini O. Dorsey and Kevin L. Clark, who were identified as suspects in an investigation.

As it turned out, plaintiffs were totally and unquestionably innocent of the charges under

investigation. They were released by the police approximately 54 minutes after they were initially

stopped by Officer Begin. In the meantime they had been made to lie face-down on the ground at

gunpoint, were handcuffed, and were transported in patrol cars to a police station for identification

by an eye-witness. Begin’s role in this sequence of events was not insignificant, but was short-

lived. The question posed by his motion for summary judgment based on qualified immunity is

whether a reasonable officer in his position would have known that his conduct violated plaintiffs’

civil rights.

On Saturday, October 10, 2004, Officer Begin was assigned to provide traffic control for the

Captain Brady Day Parade in the Village of Brady Lake, southeast of Cleveland. At approximately

10:34 a.m., while driving his police cruiser, he heard a broadcast from the Portage County Sheriff

Department instructing all law enforcement officers to “be on the lookout” (a “BOLO”) for two

suspects wanted by the Ohio State Highway Patrol in connection with an auto theft. Begin aff. ¶ 5,

JA 97. The suspects were described as “two black males, one with cornrows, one wearing a blue

jersey and one wearing a white jersey.” Dispatch audiotape tr., JA 873 (italics in original). They

were reported to have last been seen at the intersection of Westshore Drive and Merrill Road in

Brady Lake, the very location where Begin happened to be as he heard the BOLO. Id. The State

Highway Patrol was said to have a unit en route to that area. Id.

Moments later, Begin observed two young men who matched the suspects’ description

walking on Westshore Drive. Begin aff. ¶ 6, JA 98. He reported to the sheriff department that he

had located the suspects on Westshore. Dispatch audiotape tr., JA 873; Begin dep. pp. 78-79, JA

544-45. Begin was told by a Sergeant Faddis to “stop and hold for 67” (“67” being the highway

patrol unit that was already en route). Dispatch audiotape tr., JA 873. Begin turned his cruiser

around and approached the subjects from behind as they walked along the road. He exited his

cruiser and, from a distance of 15-20 feet, told the subjects, plaintiffs Jelini Dorsey and Kevin Clark,

to stop. Begin dep. at 53-57, JA 521-25. Dorsey and Clark turned around and looked surprised, but

continued walking. Id. at 57, JA 525. Begin called out to them a second time, telling them to stop,

put down the clipboards they were carrying, and lie down on the ground. Id. They still looked

surprised. Id. Again, Begin told them to put down the clipboards and get down on the ground.

Dorsey and Clark objected, asking why, and saying they hadn’t done anything wrong. Id. at 58, JA

526.1

Because they remained noncompliant, disregarding two orders, Begin drew his service

weapon from its holster to control the situation until a back-up unit arrived: “At that time I felt the

best way to contain them from walking away or doing anything is to have them lay on the ground

with their hands spread out.” Id. at 59-60, JA 527-28. As Dorsey and Clark continued to object,

Begin told them everything would be explained shortly. He ordered them a third time, weapon

drawn, to get down on the ground. Id. at 62-63, JA 530-31. This time they obeyed. Id. at 63. Begin

instructed them to lie on their stomachs with hands outstretched over their heads. Begin continued

to display his firearm until back-up arrived, in the person of Lieutenant Duane Dawson of the

1

As it turned out, Dorsey and Clark were college students employed by the “America Coming Together” voter

registration project and were attending the parade to register citizens to vote. They tried to explain this to Begin, but

he refused to listen.

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 3

Portage County Sheriff Department, at approximately 10:36 a.m. Dawson then handcuffed Dorsey

and Clark, and Begin holstered his weapon. Id. at 63-64, JA 531-32.

On his arrival, Dawson took control of the scene. Id. at 68-69, JA 536-37. Dorsey and Clark

remained handcuffed, lying on their stomachs until the highway patrol unit arrived, eight to ten

minutes later. Id.2 According to the sheriff department dispatch radio log report, Highway Patrol

Trooper Lindsey Woodward arrived at the scene at 10:41 a.m. Feigert dec. ¶ 8, JA 151. By 10:48

a.m., both suspects were being transported—Clark in Woodward’s patrol car and Dorsey in

Dawson’s—to the highway patrol post in nearby Ravenna. Id. at ¶ 9, JA 151. They arrived at the

Ravenna Post by 11:03 a.m. Id. at ¶ 10, JA 151.

There they were shown to Robert Robinson, a concerned citizen who had provided a

description of the suspects that became the subject of the BOLO. Robinson statement, JA 182-86.

At approximately 8:00 a.m. that morning, Robinson had picked-up two “nervous” African-American

hitch-hikers (one being about 20 years old and the other about 15 years old) in the area where two

stolen cars had been abandoned after their drivers had eluded a high-speed police chase at

approximately 6:15 a.m. As Robinson traveled in a westerly direction toward Ravenna, he happened

to drive past each of the two abandoned cars. A state highway patrol cruiser was parked at the site

of each abandoned car. As he passed each site, Robinson noticed that his young passengers “began

to panic.” Robinson statement, JA 182. On passing the second abandoned car, he observed that the

“younger boy got scared and was breathing heavy.” Id. Robinson drove his passengers to Ravenna,

in the direction of Brady Lake, where he dropped them off. Shortly thereafter, Robinson reported

his observations to the state highway patrol at its Ravenna post.

Robinson’s description of the two hitch-hikers was arguably consistent with observations

made by State Highway Patrol Trooper Charles Mendenhall, who, at about 6:15 a.m., had

encountered two red Dodge Neons traveling side-by-side and speeding toward him. Mendenhall

statement, JA 171; Mendenhall investigation report, JA 404. Mendenhall initially gave chase to the

Neon that had almost collided with his patrol car. He noted that the driver of that vehicle was “a

black male with a white t-shirt and and a light colored hat or dew rag on his head.” Mendenhall

statement, JA 171. Mendenhall terminated the pursuit, which had reached speeds of 90-95 mph,

because hills and curves made for hazardous conditions. Shortly thereafter, both Neons were found

to be abandoned at different locations in the vicinity. Both were determined to be stolen.

Robinson’s report of having encountered two young black men on foot in the vicinity of the

area where the cars had been abandoned less than two hours earlier, who reacted with visible

nervousness on passing the vehicles, was deemed to be possibly related to Mendenhall’s earlier

encounter. Hence, Robinson’s report gave rise to the initial BOLO, which included his description

of the subjects. However, when Robinson viewed Dorsey and Clark at the highway patrol post, he

confirmed that they were not the same young men he had picked up earlier in the day. That they

happened to be black males of about the same ages as, and dressed similarly to, the hitch-hikers he

had picked up appears to have been merely an unfortunate coincidence. Dorsey and Clark were

released at 11:28 a.m. and returned to Brady Lake. Investigation report, JA 408.

Barely three weeks later, plaintiffs commenced this action, filing their four-count complaint

in the Northern District of Ohio. Named as defendants are five named and other unnamed police

officers as well as several municipal, county and state governmental entities. The only claims

relevant for present purposes are plaintiffs’ civil rights claims under 42 U.S.C. § 1983 that Officer

2

Although Dorsey and Clark do not materially dispute Begin’s version of these facts, they contend they were

forced to lie on the ground handcuffed for at least 20 minutes. Dorsey aff. ¶ 10, JA 598; Clark aff. ¶ 10, JA 596. This

time-discrepancy is immaterial to the question of Begin’s liability because, by the time Dorsey and Clark were

handcuffed, control of the scene had passed from Begin to Dawson.

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 4

Begin unlawfully detained and arrested them and used excessive force in the process. The district

court denied Begin’s motion for summary judgment on the basis of qualified immunity, finding there

to be questions of fact regarding the objective reasonableness of Begin’s conduct. On appeal, Begin

insists that, even accepting plaintiffs’ allegations as true, he is entitled to qualified immunity

because, considering the information that he possessed at the time of his encounter with plaintiffs,

a reasonable officer in his position could have believed that he was justified in conducting an

investigatory stop and that his use of a firearm to effectuate the two-minute detainment (until control

of the scene was assumed by a superior officer) was not violative of plaintiffs’ clearly established

civil rights.

II. ANALYSIS

A. Standard of Review

We review a district court’s denial of qualified immunity de novo. Gregory v. City of

Louisville, 444 F.3d 725, 742 (6th Cir. 2005). The appeal of a denial of qualified immunity at

summary judgment is an interlocutory appeal that we hear as a final decision of the district court

under 28 U.S.C. § 1291 pursuant to the “collateral order” doctrine. Id. (citing Forsyth v. Mitchell,

472 U.S. 511, 525-27 (1985)). We may only review the denial of qualified immunity to the extent

that the “appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff

constitute a violation of clearly established law.” Id. (quoting Berryman v. Rieger, 150 F.3d 561,

563 (6th Cir. 1998)).

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. Only if the undisputed facts or the evidence viewed in the

light most favorable to the plaintiff fail to establish a prima facie violation of clear

constitutional law may we decide that the defendant is entitled to qualified immunity

on an interlocutory appeal.

Berryman, 150 F.3d at 563 (citations omitted).

Hence, although the district court couched its ruling in terms of factual disputes, the pure

legal issue legitimately before us on appeal concerns whether Begin’s display of his firearm in

conjunction with ordering plaintiffs to lie face-down on the ground for a period of time undisputedly

no greater than two minutes—until additional law enforcement support arrived and control of the

scene was assumed by a superior officer—constituted an unreasonable seizure or an excessive use

of force in violation of plaintiffs’ clearly established rights, of which a reasonable officer would

have known. See Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (recognizing propriety of

interlocutory appeal notwithstanding district court’s fact-based rationale where defendant-appellant

accepts plaintiff’s version of facts for purpose of presenting a “neat abstract issue of law”).

B. Qualified Immunity Standard

In order to prevail on a civil rights claim under 42 U.S.C. § 1983, plaintiffs must establish

that a person acting under the color of state law deprived them of a right secured by the Constitution

or laws of the United States. Smoak, 460 F.3d at 777. Plaintiffs must also overcome the defense

of qualified immunity, which shields 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.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).

In determining whether qualified immunity applies, we employ a two-part test, asking

“(1) whether, considering the allegations in a light most favorable to the party injured, a

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 5

constitutional right has been violated, and (2) whether that right was clearly established.” Id.

(quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 310-311 (6th Cir. 2005). “The concern

of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal

constraints on particular police conduct.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)).

The doctrine protects “all but the plainly incompetent or those who knowingly violate the law.”

Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). Plaintiffs have the burden of demonstrating that Officer Begin is not entitled to qualified

immunity. Id. at 846.

C. Unreasonable Seizure

1. Reasonable Suspicion?

Plaintiffs allege they were victims of an unreasonable seizure, i.e., that Officer Begin did not

have reasonable suspicion to justify stopping them in the first place, and that the manner in which

he conducted the seizure was unreasonable because he used more intrusive means than were

necessary under the circumstances. The Fourth Amendment secures our freedom from

“unreasonable searches and seizures.” A person is “seized” by a law enforcement officer when, “in

view of all the circumstances surrounding the incident, a reasonable person would have believed that

he was not free to leave.” Smoak, 460 F.3d at 778 (quoting United States v. Mendenhall, 446 U.S.

544, 554 (1980)). When an officer has “reasonable suspicion” that criminal activity may be afoot,

the officer may conduct a limited seizure and briefly detain a person for investigative purposes.

Terry v. Ohio, 392 U.S. 1, 30-31 (1968). “Reasonable suspicion” is an abstract concept:

It requires more than a mere hunch, but is satisfied by a likelihood of criminal

activity less than probable cause, and falls considerably short of satisfying a

preponderance of the evidence standard. If an officer possesses a particularized and

objective basis for suspecting the particular person of criminal activity based on

specific and articulable facts, he may conduct a Terry stop. Courts must examine the

totality of the circumstances to determine whether reasonable suspicion existed to

justify a Terry stop.

Smoak, 460 F.3d at 778-79 (quotation marks and citations omitted).

In examining the totality of the circumstances, it is important to note that the officer’s

reasonable suspicion need not arise exclusively from his own direct observations. Rather, it can be

derived from such sources as informant tips, dispatch information, and directions from other officers.

Id. at 779 (citing United States v. Hensley, 469 U.S. 221, 231-32); Humphrey, 482 F.3d at 848-49.

“A seizure conducted in reliance on a flyer or dispatch does not violate the Fourth Amendment if

the law enforcement officer who issued the information possessed the necessary reasonable

suspicion.” Smoak, 460 F.3d at 779. Elaborating on this point, the Supreme Court has explained:

[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting a

reasonable suspicion that the wanted person had committed an offense, then reliance

on the flyer or bulletin justifies a stop to check identification . . . , to pose questions

to the person, or to detain the person briefly while attempting to obtain further

information. . . . . If the flyer has been issued in the absence of a reasonable

suspicion, then a stop in the objective reliance upon it violates the Fourth

Amendment. In such a situation, of course, the officers making the stop may have

a good-faith defense to any civil suit.

Hensley, 469 U.S. at 232 (citations omitted). Hence, in a case such as this, “where one officer’s

claim to qualified immunity from the consequences of a constitutional violation rests on his asserted

good faith reliance on the report of other officers, we consider: (1) what information was clear or

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 6

should have been clear to the individual officer at the time of the incident; and (2) what information

that officer was reasonably entitled to rely on in deciding how to act, based on an objective reading

of the information.” Humphrey, 482 F.3d at 848.

The district court summarily concluded that plaintiffs’ clearly established right to be free

from unreasonable seizure was violated because nothing in the BOLO heard by Officer Begin could

be construed to give rise to reasonable suspicion sufficient to support stopping plaintiffs. The

district court went on to observe that even if the BOLO were deemed to have given rise to

reasonable suspicion, it justified only a brief detention, to make inquiry of plaintiffs regarding their

identities and their reasons for being at the parade. Because Officer Begin and Lieutenant Dawson,

collectively, were allegedly responsible for detaining plaintiffs as long as twenty minutes, a period

of time that exceeded the justified scope of detention, the district court concluded there was at least

a question of fact regarding the reasonableness of the seizure. The district court held this question

of fact also precluded a holding that Begin was entitled to qualified immunity.

The district court’s reasoning is flawed in two respects. First, in relation to its reasonable

suspicion determination, the district court failed to give due regard to Begin’s right to rely on

dispatch information and direction from other officers. Second, in evaluating Begin’s entitlement

to qualified immunity, the court failed to consider his role in the encounter individually.

Police officers may rely on police bulletins or flyers to detain persons based on reasonable

suspicion that criminal activity is afoot “to whatever extent the bulletin itself was based on

articulable facts that would support reasonable suspicion.” Feathers v. Aey, 319 F.3d 843, 849 (6th

Cir. 2003)(citing Hensley, 469 U.S. at 232). In this case, plaintiffs insist that the BOLO heard by

Begin was not based on articulable facts supporting reasonable suspicion.

The BOLO description heard by Begin—“two black males, one with cornrows, one wearing

a blue jersey and one wearing a white jersey”—was derived most immediately from the observations

of Portage County Park Ranger John Barber at the scene of the Brady Lake parade. At

approximately 10:15 - 10:25 a.m. on July 10, 2004, Barber had heard a BOLO announcing that “the

State Patrol was looking for two black males dressed in sports clothing involved in an incident of

a stolen vehicle in a crash.” Barber dep. p. 41, JA 281. Within 10 minutes thereafter, he saw two

African-American males wearing sports clothing—the only two African-Americans among the

hundreds of people along the parade route—on Westshore Boulevard just north of Merrill Road in

Brady Lake. The two black males were not running or acting suspiciously. Barber called the state

highway patrol post in Ravenna and reported his sighting of the two black males in sports clothing.

Id. at 52-55, JA 287-90.

The state highway patrol dispatcher relayed this information to the Portage County Sheriff

Department, which in turn, issued the BOLO heard by Begin. Dispatch log, JA 189. Although

Barber, when deposed, could not remember giving a description any more detailed than that the two

black males were wearing sports clothing, the BOLO subsequently issued by the sheriff department

and heard by Begin included substantially the same description that Robinson had given to the state

highway patrol dispatcher hours earlier: “two black men . . . one had cornrows in his hair and was

wearing dark jersey, the other was wearing a white shirt and shorts.” Id.

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 7

Was the BOLO issued by the Portage County Sheriff Department, derived from the recent

observations of Park Ranger Barber as well as the earlier observations of Robert Robinson and

Trooper Mendenhall, “issued on the basis of articulable facts supporting a reasonable suspicion” that

plaintiffs, who generally matched the description in the BOLO, had been involved in the earlier

speeding, high-speed chase, and abandonment of stolen vehicles? We conclude that it was.

Plaintiffs argue to the contrary, contending (1) that they were stopped in a totally different area from

where the stolen cars were abandoned; (2) that the description contained in the BOLO was too

vague; and (3) that they were not doing anything suspicious when they were stopped, but were

encouraging their fellow citizens to vote.

Addressing these objections in turn, first, we acknowledge that plaintiffs were stopped

several miles west of Ravenna, whereas the stolen vehicles were abandoned several miles east of

Ravenna four hours earlier. Yet, the location of their seizure in Brady Lake is entirely consistent

with the movement, actual and anticipated, of the hitch-hikers Robinson picked up east of Ravenna

and dropped off in Ravenna. Brady Lake, being west of Ravenna, is along the way to Akron, which

according to Robinson, was the hitch-hikers’ desired destination and the direction in which they

walked after he dropped them off. Robinson statement, JA 182-86. In other words, considering that

offenders are generally not inclined to stay put at the site of their crime, the location of plaintiffs’

seizure at about 10:34 a.m. (a mere four hours after abandonment of the vehicles), being entirely

consistent with the suspects’ anticipated movement (i.e., anticipated as a result of Robinson’s report,

as of 8:00 a.m.), actually supports the finding of reasonable suspicion.

Second, we also agree with plaintiffs’ observation that the amount of detail in the suspects’

descriptions in the BOLO left much to be desired. Yet, unhappily for plaintiffs, the few details that

were provided by witness Robinson, and repeated in the BOLO heard by Officer Begin, happened

to closely match plaintiffs’ appearance when Begin identified them along the parade route: two

young black males, one with corn rows, and one wearing a blue jersey and one wearing a white

jersey. Begin dep. p. 73, JA 539. Thus, again, although the physical description of the suspects

provided in the BOLO and relied on by Begin was not definitive, the available details supported the

formation of reasonable suspicion that plaintiffs were the same two young black males who

Robinson had picked up and who had reacted so suspiciously when they passed the scenes of the

abandoned stolen cars.

Third, we acknowledge that plaintiffs were not acting suspiciously when they were first

observed by Begin. Yet, the notion that fleeing offenders might try to avoid detection by attempting

to blend inconspicuously into a large crowd is not implausible. In other words, plaintiffs’

unsuspicious behavior does not necessarily overrule the significance of the other articulable indicia

of reasonable suspicion. Certainly, the other articulable facts that prompted the BOLO justified a

brief investigatory stop. Moreover, after spotting the two black males who matched the BOLO

description, Begin did not precipitously conduct a Terry stop based on the BOLO alone. Rather, he

took the further step of contacting the sheriff department and requesting directions from the BOLO-

issuing agency, which was presumptively more familiar with the facts supporting the BOLO and the

current status of the investigation and was in a better position to assess reasonable suspicion. Only

after receiving direction from Sergeant Faddis to “stop and hold” did he effectuate the stop.

The instant facts are materially indistinguishable from those found sufficient to establish

reasonable suspicion in Smoak, 460 F.3d at 774-75, 780. In Smoak, a Terry stop was conducted

based on a state highway patrol BOLO announcement of an identified witness’s report of a green

station wagon speeding down the interstate with money flying out of it. A second BOLO mentioned

that the station wagon may have been involved in a robbery. Responding to the BOLOs, a state

trooper followed the station wagon for some eight miles and observed no suspicious behavior.

Before pulling the vehicle over, the trooper requested direction from the local highway patrol post

and was directed to stop the vehicle. After the stop was effectuated, in a none-too-gentle manner,

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 8

the Smoak family occupying the station wagon was found to be totally innocent of any wrongdoing.

Based on the totality of the circumstances, the court held that the troopers had a reasonable suspicion

sufficient to conduct a Terry stop. Id. at 780.

Here, we reach the same conclusion, finding that the BOLO heard by Begin, together with

Sergeant Faddis’s order to stop the suspects and hold them until the State Highway Patrol unit

arrived, were based on articulable facts supporting reasonable suspicion.3 It follows that Begin’s

act of stopping plaintiffs, in reliance on the BOLO and the “stop and hold” order, did not violate

their Fourth Amendment rights. To the extent plaintiffs’ unreasonable seizure claim against Begin

is based on an asserted lack of reasonable suspicion, Begin is therefore entitled to qualified

immunity.

2. Unlawful Arrest?

Plaintiffs also contend, and the district court agreed, that even if the Terry stop is deemed

to have been supported by reasonable suspicion, the seizure was carried out in an unreasonable

manner, amounting to a de facto arrest without probable cause. Indeed, a Terry stop must be

“reasonably related in scope to the circumstances which justified the interference in the first place.”

United States v. Perez, 440 F.3d 363, 372 (6th Cir. 2006) (quoting Terry, 392 U.S. at 20). The

detention “must be temporary and last no longer than is necessary to effectuate the purpose of the

stop.” Id. (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). “The investigative means used

should also be the least intrusive means reasonably available to verify or dispel the officer’s

suspicions in a short period of time.” Id.

When the nature of a seizure exceeds the bounds of a permissible investigative stop, the

detention may become an arrest that must be supported by probable cause. Smoak, 460 F.3d at 780-

81. Yet, there is no litmus test for determining when the line is crossed. We consider such factors

as the length of the detention, the manner in which it is conducted, and the degree of force used in

determining whether an investigative stop is reasonably related to the basis for the original intrusion.

Id. at 781.

The district court concluded that this detention was unreasonable, or at least that a question

of fact was presented, and that Officer Begin was not immune from liability for it. In its analysis,

the district court did not distinguish between the actions of Officer Begin and Lieutenant Dawson,

but lumped them together. Most significant in the district court’s reasoning were plaintiffs’

allegations that during the time they were held at gunpoint, handcuffed and face-down on the

pavement, the officers did not even ask them questions designed to confirm or dispel suspicions.

It is undisputed, however, that Begin was responsible only for the first two minutes of the stop;

thereafter, Lieutenant Dawson had arrived and assumed responsibility.4 During the first two

minutes, Begin, reasonably relying on, and carrying out, the “stop and hold” order he received from

the sheriff department, brandished his firearm to secure compliance only after plaintiffs had

disregarded his first two commands. In other words, inasmuch as Begin’s first two lawful

3

This case is factually distinguishable from Feathers v. Aey, 319 F.3d 843 (6th Cir. 2003). In Feathers, the

court held that dispatch information based on an unsubstantiated anonymous tip from a tipster who offered no evidence

of reliability was not sufficient to support a finding of reasonable suspicion. Id. at 848-50. Here, in contrast, witness

Robinson was not anonymous. He not only identified himself, but left his phone number with the dispatcher so that he

could be contacted for more information if necessary. Moreover, his reported encounter with the hitch-hikers and

observations of their demeanor were consistent with and complemented Trooper Mendenhall’s report of his experience

earlier in the day. Here, considering the totality of the circumstances, the articulable facts within the collective

knowledge of the officers more strongly supported reasonable suspicion than the facts presented in Feathers.

4

Each defendant’s liability must be assessed individually, based on his or her own actions. See Ghandi v. Police

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

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 9

commands had gone unheeded, he reasonably perceived that a show of force was necessary to secure

compliance. He ordered plaintiffs to lie face-down on the pavement, believing that was the best way

to stabilize the situation until more law enforcement support arrived. When Dawson arrived, two

minutes later, Dawson applied handcuffs, permitting Begin to holster his weapon, as they waited for

the highway patrol unit to arrive.

Did Begin violate plaintiffs’ clearly established Fourth Amendment rights by displaying his

firearm and ordering them to lie on the ground for two minutes? It is well-recognized that “the right

to make an arrest or investigatory stop necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989).

“During a Terry stop, officers may draw their weapons or use handcuffs ‘so long as circumstances

warrant that precaution.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 309 (6th Cir. 2005)

(quoting Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir. 1999)).

Viewing the situation with hindsight, it is clear that plaintiffs were innocent of any wrongdoing and

that none of the coercive measures were actually necessary. Yet, it is not for us to judge the

reasonableness of a particular use of force with the benefit of 20/20 hindsight. Rather, we are to

judge it from the perspective of a reasonable officer on the scene. Williams v. City of Grosse Pointe

Park, 496 F.3d 482, 486 (6th Cir. 2007).

In assessing reasonableness, we acknowledge “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.” Id. (quoting Graham, 490 U.S. at 396-

97). “The reasonableness of a particular use of force requires careful attention to the facts and

circumstances of each particular case, including: (1) the severity of the crime at issue, (2) the

immediacy of the threat posed by the suspect to the officers or others, and (3) whether the suspect

is actively resisting arrest or attempting to evade arrest by flight.” Id. (quoting Graham, 490 U.S.

at 396) (interior quotation marks omitted).

Applying these standards, we have no trouble concluding that Begin made a mistake.

Considering that the suspects were wanted in connection with an auto theft investigation,5 and that

plaintiffs did not manifestly pose an immediate threat to anyone’s safety or a risk of flight, Begin

should have been able to “stop and hold” them without brandishing his firearm and ordering them

to lie face-down on the pavement. Begin’s response to the apparent demands of the situation seems

to have been exaggerated and the resultant seizure, though supported by reasonable suspicion, 6was,

due to the unnecessarily intrusive means employed by Begin, at least arguably unreasonable.

Yet, it does not follow that Begin’s mistake necessarily disqualifies him from qualified

immunity. Qualified immunity protects “all but the plainly incompetent or those who knowingly

5

There is no evidence that Begin was aware that at least one of the suspects had earlier fled the police and

forced Trooper Mendenhall to pursue him in a high-speed chase.

6

Unlike the district court, we are not troubled by Begin’s failure to ask plaintiffs any questions during the two-

minute period he detained them. The district court faulted Begin for not asking them what they were doing in the area

or what they had been doing earlier, questions that, the district court speculated, “surely would have dispelled suspicion

that plaintiffs were involved in the car theft.” This line of reasoning ignores the fact that Begin stopped the plaintiffs

not because he had personally formed a reasonable suspicion of criminal activity, but because he was reasonably relying

on the assessment of other officers, together with the order to stop and hold. Inasmuch as he was unfamiliar with the

state of the ongoing investigation, he was in no position to dispel or confirm suspicions. His job was to stop and

hold—until a trooper conversant with the investigation arrived to pursue appropriate means of dispelling or confirming

suspicions. Until Dawson arrived and assumed responsibility for the detention, Begin had no prerogative to release

plaintiffs on the basis simply of their answers to his questions. It was, therefore, not unreasonable for Begin to refrain

from asking plaintiffs questions or to disregard their protestations of innocence during the short time he was responsible

for their detention.

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 10

violate the law.” Humphrey, 482 F.3d at 847. There is no support for the notion that Begin

knowingly and deliberately violated plaintiffs’ right to be free from unreasonable seizure. Nor can

his mistake be fairly characterized as so egregious as to suggest outright incompetence. At worst,

Begin made an error of judgment, erring on the side of public safety. Not knowing the seriousness

of the criminal activity for which the suspects were wanted, but knowing that the persons before

him, who matched the BOLO description, had first disregarded and then resisted his orders to stop,

Begin chose to stabilize the situation by acting with a preemptive show of authority. This approach

turned out to be unnecessary, but cannot be said to have been plainly incompetent or objectively

unreasonable. See Maryland v. Wilson, 519 U.S. 408, 414 (1997) (recognizing that risk of harm to

police and others during a traffic stop is minimized if officers routinely exercise unquestioned

command of the situation). When Begin confronted plaintiffs, they were among a crowd of people.

Had he equivocated in response to their challenge to his authority, tensions might quickly have

escalated into a confrontation difficult to manage without the use of force, as opposed to a mere

show of force. By acting firmly and without hesitation, Begin appears to have acted in the good

faith belief that he was minimizing the risk of harm.

The conclusion that Begin is, despite his mistake, nonetheless entitled to qualified immunity

is supported by other recent Sixth Circuit rulings. In Smoak, 460 F.3d at 782, although officers’ use

of guns and handcuffs in conducting a Terry stop was held to be overly intrusive, the officers were

deemed protected by qualified immunity because the right to freedom from such coercive measures

had not been so clearly established by prior case law. Similarly, in Humphrey, 482 F.3d at 849,

officers who reasonably relied on confused information in forcibly removing an innocent suspect

from his car at gunpoint and handcuffing him were also held to be protected by qualified immunity.

In both cases, the district court’s denial of qualified immunity was reversed.

Here, too, even upon viewing the facts in the light most favorable to plaintiffs, we cannot say

that no reasonably competent officer in Begin’s position would have thought that his actions were

justified. See Humphrey, 482 F.3d at 847 (noting that qualified immunity should be recognized if

officers of reasonable competence could disagree on the legality of the action). Hence, viewing the

situation from the perspective of a reasonable officer in Begin’s shoes and applying due deference

to the exercise of law enforcement discretion, we hold that he is entitled to qualified immunity even

though the7means he used to initially effectuate the Terry stop may have been more intrusive than

necessary.

3. Excessive Force?

Plaintiffs also contend the means used by Begin to effectuate the arrest were unreasonable

in that he used excessive force. Under the Fourth Amendment, individuals have a right to be free

of excessive force when police make an arrest or seizure. Graham, 490 U.S. at 394-95. The

standards governing this unreasonable seizure claim are essentially the same as those set forth above

in connection with plaintiffs’ claim that they were subjected to a de facto arrest because the means

used were more intrusive than necessary. See Williams, 496 F.3d at 486; Humphrey, 482 F.3d at

849; Smoak, 460 F.3d at 783. Determining whether a use of force was unreasonable and therefore

excessive requires “a ‘careful balancing’ of the individual interest in being free from unreasonable

seizures and the governmental interest in protecting the safety of its peace officers and the public.”

Williams, 496 F.3d at 486 (citing Graham, 490 U.S. at 396). Again, we consider the facts and

7

The district court’s contrary conclusion is premised in part on the fact that plaintiffs were unnecessarily

handcuffed and left lying on the ground until Trooper Woodward arrived, some 10-20 minutes after the Terry stop began.

It is undisputed, however, that responsibility for the temporary detention had passed from Begin to Lieutenant Dawson

when Dawson arrived. It was Dawson who cuffed plaintiffs and made the decision to leave plaintiffs on the ground.

While these measures may have been more intrusive than necessary, they are not actions for which Begin, a subordinate

officer who remained present at the scene, can be held liable.

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 11

circumstances of the particular case, including (1) the severity of the crime, (2) the immediacy of

the threat posed by the suspects, and (3) whether the suspects were actively resisting or attempting

to evade arrest. Id. “This standard contains a built-in measure of deference to the officer’s on-the-

spot judgment about the level of force necessary in light of the circumstances of the particular case.”

Smoak, 460 F.3d at 783 (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)).

Plaintiffs claim that Begin used excessive force when he ordered them to the ground at

gunpoint and held them there despite their unsuspicious, nonthreatening behavior. The district court

held that the level of force used by Begin was at least arguably excessive. For the reasons set forth

above, we do not disagree. See Pray v. City of Sandusky, 49 F.3d 1154, 1159 (6th Cir. 1995)

(holding that officers’ mistake in forcing innocent suspects to the floor at gunpoint could be deemed

excessive). Yet, for the reasons also set forth above, we hold that Begin is nonetheless entitled to

qualified immunity on this claim, too.

In reaching this conclusion, we find additional guidance in several recent Sixth Circuit

rulings. In Pray, for instance, a question of fact defeated the defendants’ invocation of qualified

immunity because there was evidence potentially supporting the finding that defendant officers

“manhandled” the elderly plaintiffs in their home by forcing them to the floor, causing physical

injuries, after having become aware that they were searching the wrong residence. Id. at 1159-61.

Here, in contrast, it is undisputed that neither Begin nor any other officer involved became aware

that plaintiffs were not the suspects wanted in connection with the auto thefts until Robinson

confirmed this, long after Begin’s two-minute role in the detention had been completed.

The instant facts are also materially distinguishable from those presented in Smoak, where

the defendant officers were denied qualified immunity on an excessive force claim. In Smoak, the

defendants had pulled-over a vehicle whose occupants were innocent of any wrongdoing. In the

course of the Terry stop, the defendants forcibly subdued one of the plaintiffs, who was handcuffed

and otherwise compliant, when he jumped up in horror upon seeing an officer shoot and kill the

family dog. The defendants allegedly “knocked his legs out from under him, and threw him to the

pavement face-first,” causing injuries that required surgery. 460 F.3d at 783. The court affirmed

the denial of qualified immunity on the excessive force claim, holding that the alleged use of force,

if proved, was not reasonable. Here, in contrast, the alleged “force” implicated by the excessive

force claim against Begin does not even approach this level. It was rather a mere show of force that

did not result even in his touching of plaintiffs, much less any physical injury. We cannot hold that

no reasonable officer in Begin’s position would have thought such actions justified under the

circumstances of this case.

The instant facts are more analogous to those presented in Humphrey, where qualified

immunity was granted to officers who forcibly removed the innocent plaintiff from his vehicle at

gunpoint, conducted a pat-down, and partially handcuffed him. 482 F.3d at 849. Noting that the

plaintiff was not harmed, the court held that, considering the information they relied on, the

defendants could have reasonably believed that their conduct was lawful, not a use of excessive

force. Here, too, the reasonableness of Begin’s conduct must be measured in light of the limited

information on which he reasonably relied. While we acknowledge that the means used by Begin

were more intrusive than necessary, a reasonable officer in his shoes could certainly believe that his

actions—brandishing a firearm and ordering two suspects (who were wanted by the state highway

patrol and who had twice disregarded his lawful commands to stop) to lie on the ground for a period

of two minutes, without firing the weapon or physically injuring them in any way or even touching

them—were not violative of the suspects’ constitutional rights. The contours of the right to freedom

from the use of excessive force were not so clearly established in a particularized sense that a

reasonable officer would have known that such conduct was unlawful. See Brosseau v. Haugen, 543

U.S. 194, 198-99 (2004) (making it clear that, to overcome qualified immunity, the right allegedly

violated must be shown to have been clearly established in a particularized and relevant sense).

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 12

Accordingly, we conclude that defendant Begin is entitled to qualified immunity on

plaintiffs’ excessive force claim as well.

III. CONCLUSION

Based on the foregoing analysis, we hold that the district court erred when it denied

defendant Begin’s motion for summary judgment on plaintiffs’ claims that Begin unlawfully

detained and arrested them and used excessive force in the process. The district court’s judgment

is in this respect REVERSED and the matter is REMANDED to the district court for entry of

judgment in favor of defendant Begin.

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 13

________________________________________________

CONCURRING IN PART, DISSENTING IN PART

________________________________________________

TARNOW, District Judge, concurring in part and dissenting in part. I concur in the court’s

decision on the Terry stop but respectfully dissent from its ruling on plaintiffs’ claims of excessive

force and unlawful arrest.

I. Terry stop in reliance on dispatch

The majority concludes that defendant Begin did not violate the Fourth Amendment when

he stopped Dorsey and Clark. I disagree. Nevertheless, because Begin executed the stop in good-

faith reliance on the dispatch, he is entitled to qualified immunity as to the Terry stop.

It is a factually intensive question whether there was a constitutional violation. Such an

inquiry would need to examine (1) whether Officer Barber’s report identifying Dorsey and Clark

as the suspects was unwarranted, as Barber had picked them out – in response to the dispatch he had

heard – based on the generic, overly broad characteristic that they were two black men wearing

sports clothing. Next, the constitutional analysis under United States v. Hensley, 469 U.S. 221, 232-

33 (1985), would require one to consider (2) whether Barber’s unwarranted report left the Portage

County Sheriff Department dispatcher without enough of a basis in articulable facts to support

reasonable suspicion, thus rendering Begin’s stop in reliance on the dispatch unconstitutional.

In concluding that Begin’s stop was indeed based on reasonable suspicion, the majority’s

reliance on Smoak v. Hall, 460 F.3d 768 (6th Cir. 2006), is misplaced. Majority opinion at 8.

Smoak’s ruling on reasonable suspicion is distinguishable from the instant case, because the

dispatcher in Smoak had warranted facts pointing to a possible crime. In Smoak, a witness had

called the state highway patrol when she saw a green station wagon cruising down the highway with

money flying out of it. Troopers met her at the scene and reported to the dispatcher that “they found

a lot of loose currency.” Id. at 774. Without any basis in fact, subsequent BOLOs indicated that the

green station wagon may have been involved in an armed robbery. Id. at 780. The stopping officers

relied on these BOLOs, and conducted a highly intrusive felony stop. With regard to reasonable

suspicion, the Smoak panel merely determined that the dispatchers had reasonable suspicion “that

some mishap had occurred.” Id. at 780. And of course the dispatchers did have this suspicion,

because there was a witness report of lots of money flying out of a car, and this report was verified

by state troopers. Smoak held that the dispatcher had enough articulable facts to support a

reasonable suspicion that something was up. But Smoak did not say that there were enough facts

to support reasonable suspicion of anything more than a mishap. In contrast, the dispatch targeting

Dorsey and Clark had a weak basis in objectively warranted facts for the reasons already suggested.

In the end, though, whether there actually was a constitutional violation is a question that the

court does not need to resolve. Even assuming that the dispatch that Begin relied upon was issued

unconstitutionally, Begin has a “good-faith defense” to Dorsey and Clark’s suit, because he

“defensibly act[ed] in reliance” on the “be on the look out” dispatch (BOLO) issued by the Portage

County Sheriff Department. See Hensley, 469 U.S. at 232-33.

In particular, the court is to examine “(1) what information was clear or should have been

clear to the individual officer at the time of the incident; and (2) what information that officer was

reasonably entitled to rely on in deciding how to act, based on an objective reading of the

information.” Humphrey v. Mabry, 482 F.3d 840, 848 (6th Cir. 2007). This is an easy issue,

because the description of the clothes and physical attributes in the BOLO that Begin heard did in

fact match what he observed about Clark and Dorsey, because Robinson’s description was

incorporated into the dispatch issued by the Portage County Sheriff Department. See District court

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 14

opinion at 7, JA 35 (one of the plaintiffs was wearing a light blue t-shirt, black pants, a white do-rag,

and white tennis shoes, and had cornrows in his hair, while the other was wearing a white t-shirt,

yellow or white shorts, a black baseball cap, and white tennis shoes). The information in the BOLO

was clear and provided a reasonable basis for Begin to identify Clark and Dorsey as the men

announced in the dispatch. Therefore, I ultimately concur in the majority’s decision that Begin is

entitled to qualified immunity regarding the Terry stop.

II. Excessive force

The majority concludes that although Begin’s show of force was arguably excessive, he

acted in an objectively reasonable manner, given the facts and circumstances he confronted. I

respectfully dissent.

A. Two segments

For the excessive force analysis in this case, it is helpful to carve Officer Begin’s actions into

two segments. The first segment consists of the two minutes from the moment Begin confronted

plaintiffs to just before the time of Dawson’s handcuffing. The time following Dawson’s

handcuffing through Trooper Woodward’s appearance on the scene comprises the second segment.

As the district court noted, Dorsey and Clark contend that Begin “continued to point his weapon for

an unspecified of time” even after they were handcuffed until Trooper Woodward arrived to take

them to the police station. District court opinion at 8-9, JA 36-37. Begin, on the contrary, says he

holstered his gun once Dawson finished handcuffing Clark and Dorsey. Begin aff. ¶ 7, JA 98. For

this appeal, the court must credit plaintiffs’ version of the facts. Berryman v. Rieger, 150 F.3d 561,

563 (6th Cir. 1998).

B. Second segment

With regard to the second segment, it would not have been reasonable for an officer to

continue pointing his gun at the plaintiffs. Because the plaintiffs were already handcuffed, there was

no reason to subject them to the threat embodied in keeping the gun drawn. Nor does qualified

immunity shield Begin’s post-handcuffing show of force, because no reasonable officer would find

it necessary to employ such an overly intrusive level of force.

C. First segment

As for the first segment, this presents a somewhat closer question, because, as the majority

states, Begin was only in charge of the situation for a mere two minutes. Nonetheless, the majority

decides that the facts-and-circumstances analysis under Graham v. Connor, 490 U.S. 386, 396

(1989), compels the conclusion that Begin’s use of force was unreasonable and violated the Fourth

Amendment. Majority opinion at 11, 9. Ultimately, though, the majority determines that Begin is

entitled to qualified immunity.

Qualified immunity does not protect Officer Begin for this first segment. There is no

evidence that Begin deliberately violated the law, but his actions are an instance of plain

incompetence. See Humphrey, 482 F.3d at 847 (qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law”). True, courts must give deference to the

split-second, tough calls that police men and women have to make. But this is not a close case.

Officer Begin had no reason to believe that the suspects announced in the BOLO would be armed

or a flight risk. This is why Smoak and Humphrey are distinguishable. Those cases involved

situations where the stopping officers were confronting suspects they initially thought might be

armed. Smoak, 460 F.3d at 780; Humphrey, 482 F.3d at 848-849. And although Begin did not know

what crime the BOLO targets were suspected of, we should not let a stopping officer’s lack of

knowledge of the crime give room for the officer to employ such an intrusive, threatening show of

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 15

deadly force. Rather, the burden should be on the officers to indicate during dispatch that there may

be reason to exercise caution or additional force, as was the case in Smoak and Humphrey.

The majority seems to argue that an officer has to do something worse than what Begin did

in order to lose the protection of qualified immunity. Majority opinion at 11. For instance, the

defendants in Pray v. City of Sandusky, 49 F.3d 1154, 1159 (6th Cir. 1995), who were not protected

by qualified immunity, behaved even worse than Begin. But that does not mean that this court

should decide that Begin gets qualified immunity. Nor does Smoak purport to outline the lower

threshold of constitutional violation required for the court to withdraw the shield of qualified

immunity. For the majority’s point to be supported, it would need cases arising out of conduct much

more egregious than Begin’s where the defendants nevertheless received qualified immunity.

It is understandable that plaintiffs’ non-compliance with Begin’s first two orders may have

given him pause, especially since Begin was the lone officer at the scene. JA 525-26. But, as the

district court observed, Officer Begin recognized the plaintiffs’ disbelief and surprise when he

ordered them to stop while their behavior was manifestly innocuous. Id.; see also District court

opinion at 7, JA 35. There is no indication in the record that the nature of plaintiffs’ protestations

were defiant, aggressive, or showed the potential for physical confrontation.

Furthermore, it was not necessary to draw a weapon to demonstrate command of the

situation. Begin had other means to avoid escalating the scene, means that did not require a show

of force. The majority notes that Begin himself was not conducting the investigation, that Begin was

merely under orders to stop and hold Dorsey and Clark until an officer who was familiar with the

investigation of the car theft could arrive. Majority opinion at 9 n.6. True, Begin may not have had

the authority to release the plaintiffs. And Begin himself may not have needed to elicit answers to

confirm or dispel suspicion, as is the norm for a Terry stop, because he was simply holding plaintiffs

in reliance on the BOLO. But some simple questions or a cursory inspection of plaintiffs’

clipboards, voter registration materials, as well as their six other colleagues’ corresponding effects,

would have put a reasonable officer on notice that Begin’s level of force was unnecessary. In other

words, the majority rightly reasons that Begin didn’t need to assess the situation as to whether there

was enough reasonable suspicion for the Terry stop. But such an assessment would still be

reasonable to discern the appropriate level of force to employ. Begin’s choice was unreasonable and

unconstitutional.

Therefore, I would affirm the district court’s ruling that Begin is not shielded by qualified

immunity as to Dorsey and Clark’s excessive force claim.

III. Unlawful arrest

To determine whether Begin’s Terry stop escalated into an arrest, we “must determine

whether the use of force was reasonably related to the situation at hand, or, in other words, whether

the degree of intrusion was necessary in order to effectuate the Terry stop.” Feathers v. Aey, 319

F.3d 843, 851 (6th Cir. 2003). As discussed above, Begin’s use of force before Dawson’s

handcuffing was not necessary to effectuate the stop. That is why the stop ripened into an arrest.

The BOLO was issued without facts supporting reasonable suspicion, and neither did Begin

observe anything that would give him probable cause to arrest Dorsey and Clark. Therefore, Begin’s

arrest was also unlawful, because it was executed without reasonable suspicion, let alone probable

cause.

However, Begin cannot be held liable for unlawful arrest once Dawson arrived, because

Dawson’s handcuffing from that point onwards was the determinative restraint on the plaintiffs.

No. 05-4235 Dorsey, et al. v. Barber, et al. Page 16

Again, I respectfully dissent from the majority’s conclusion that Begin is entitled to qualified

immunity for the same reasons I do not think qualified immunity should shield him from the

excessive force claim.

I would affirm the district court’s denial of qualified immunity for Officer Begin as to the

unlawful arrest claim before Dawson handcuffed the plaintiffs.