Dwain Barton v. Officer Martin

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0039p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DWAIN DAVID BARTON, ┐

Plaintiff-Appellant, │

│

│

v. > No. 18-1614

│

│

OFFICER MARTIN, et al., │

Defendants, │

│

OFFICER DEAN VANN, │

│

Defendant-Appellee.

│

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:16-cv-13898—George Caram Steeh, III, District Judge.

Argued: May 8, 2019

Decided and Filed: February 7, 2020

Before: SILER, GIBBONS and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit,

Michigan, for Appellant. Julie McCann O’Connor, O’CONNOR, DEGRAZIA, TAMM &

O’CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee. ON BRIEF: Hugh M. Davis,

Cynthia Heenan, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan,

for Appellant. Julie McCann O’Connor, O’CONNOR, DEGRAZIA, TAMM & O’CONNOR,

P.C., Bloomfield Hills, Michigan, for Appellee.

No. 18-1614 Barton v. Martin, et al. Page 2

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Dwain Barton’s neighbor, Jill Porter, falsely

reported to police that Barton had shot a stray cat in his backyard in Lincoln Park, Michigan.

Shortly thereafter, police officers, without a warrant for entry or arrest, forcibly entered Barton’s

home and arrested him for animal cruelty. Barton was brought to the police station, booked, and

then released on a $500 cash bond three hours later. Barton subsequently sued the officers under

42 U.S.C. § 1983, alleging violations of the Fourth Amendment for illegal entry into his home,

arrest and prosecution without probable cause, and excessive force, as well as First Amendment

retaliation. The district court granted summary judgment for Officer Dean Vann, one of the

officers at the scene. The court held that Vann was entitled to qualified immunity on the illegal

entry, wrongful arrest, and retaliatory arrest claim, and that Barton failed to raise a genuine issue

of material fact on the excessive force claim (presumably entitling Vann to judgment as a matter

of law). Barton challenges the district court’s grant of summary judgment in favor of Vann on

the illegal entry, wrongful arrest, and excessive force claims. We reverse.

I.

On November 3, 2014, Dwain Barton fixed his backyard door while his wife washed

dishes and his daughter jumped on the trampoline in the backyard of their Lincoln Park,

Michigan home. Around noon, Barton’s wife yelled to him “Hey, babe, [our daughter] is being

attacked in the backyard by a cat. It’s clawing her.” DE 28-3, Barton Dep. Tr., PageID 178.

Barton opened the door and saw a “huge” cat, “sitting there[,] clawing, and biting at [his]

daughter.” Id. Intending to “make a loud noise and to scare it away,” Barton grabbed a nearby

BB gun and shot at one of the trampoline’s legs, about five feet away from the cat. Id. Still

holding the BB gun in his own backyard, Barton yelled to his neighbor, Jill Porter, who stood in

her backyard three doors down.

Porter routinely fed stray cats. She habitually left food scraps outside, which, according

to Barton, resulted in forty to fifty stray cats “invading the entire block.” Id. at 177. As a result,

No. 18-1614 Barton v. Martin, et al. Page 3

Barton had complained to the Lincoln Park animal control in the past. On the day in question,

Barton said, “Hey, Jill, the next cat that I see in my yard will be a dead one.” Id. at 178. Barton

then put the BB gun away, made sure his daughter was okay, and returned to fixing his door.

Porter called 911. She provided her name and address, and said that Barton had told her

that “just to inform you, your grey cat just peed on my furniture and he got shot in the head.”

DE 28-2, Mot. for Summ. J., 911 Audio, 0:40–1:05. She said she did not “know if it was with a

BB gun or what.” Id. When the dispatcher asked whether Porter had seen the injured cat, she

said she had not. The dispatcher then said that since Porter had “no proof” that Barton had shot a

cat, there was nothing for the police to do. Id. at 2:09–2:16. In response, Porter repeated that

Barton told her that he “just shot [her] grey cat because he peed on [his] furniture.” Id. at 2:17–

2:34. She then clarified, however, that the cat could not have actually been hers, because she had

just seen her cat, so it must have been a different cat. Porter described Barton as a bald, white

male with glasses, who was about thirty-four years old. The dispatcher ended the call by saying

she would send someone to talk to Porter.

The dispatcher then relayed the following information over radio: a woman had called to

say that her neighbor was “shooting cats,” that she wanted to speak to someone about this, and

that she was not sure what type of weapon was used. The dispatcher also reported that the

woman had not seen any injured or wounded animals.

About forty minutes after the initial BB gun incident, Animal Control Officer Adam

Manchester arrived at Barton’s door; they spoke to each other through a screen. Manchester

identified himself and asked Barton to come outside to speak with him. When Barton asked

whether he was suspected of committing a crime, Manchester responded, “No, you are not.” DE

28-3, Barton Dep. Tr., PageID 180; DE 28-15, Jennifer Barton Dep. Tr., PageID 278. Barton

refused to come outside or provide identification. He denied shooting at a cat and instead

relayed that he had shot only at a trampoline pole with a BB gun to scare the cat away. In his

written report following the incident, however, Manchester, stated that Barton told him that he

“shot [a cat] in the head with a BB[] gun.” DE 28-6, Reporting Officer Narrative, PageID 221.

Manchester nonetheless testified that he saw neither weapons on or near Barton nor injured cats

at the scene.

No. 18-1614 Barton v. Martin, et al. Page 4

Manchester retreated to his car and radioed the police department. He relayed that “the

[suspect] [was] not giving [him] information” and that he “admitted to shooting animals.” DE

28-2, Mot. for Summ. J., Dispatch Radio 10.36.04, 0:08–0:22. About ten minutes later, four

police cars, with two officers in each car, showed up at Barton’s home. The officers pulled

“what looked like assault rifles” out of their trunks and “surrounded” Barton’s house. DE 28-3,

Barton Dep. Tr., PageID 182. While the officers surrounded Barton’s home, Manchester again

asked Barton for his identification. Barton passed his identification through the screen door to

his mother-in-law,1 who was on his porch, to hand to the officers.

Moments later, “fearing that [Barton] was grabbing a gun,” DE 28-7, Vann Dep. Tr.,

PageID 228, Vann2 “ripped [their] screen door off [and barged] into [their] house.” DE 28-15,

Jennifer Barton Dep. Tr., PageID 282. Vann testified that when he entered Barton’s home, he

saw Barton “standing in the kitchen” and “at that point,” did not perceive a threat from him

because Barton did not have “anything in his hands” and was not “in control of any type of a

weapon.” DE 28-7, Vann Dep. Tr., PageID 229. Nonetheless, Vann “threw [Barton] up against

the counter like a linebacker.” DE 28-15, Jennifer Barton Dep. Tr., PageID 282. Barton

explained that Vann “lifted [him] up with his elbows underneath [his] body and [his] arm and

literally picked [him] up and slammed [him] up against [the] kitchen cupboards, at which point

all of the other officers, like ants, followed in, and at which point they all surrounded [him].” DE

28-3, Barton Dep. Tr., PageID 186.

Although both Barton and his wife testified that Barton never resisted arrest, Vann then

told Barton to “stop resisting” and to place his hands behind his back because he was under

arrest. DE 28-3, Barton Dep. Tr., PageID 187; DE 28-7, Vann Dep. Tr., PageID 229. In

response, Barton stated that he could not put his hands or shoulders behind his back due to a

previous shoulder injury. Vann responded, “Oh, we’ll make it fit.” DE 28-3, Barton Dep. Tr.,

PageID 187. Vann then “grabbed both of [Barton’s] wrists and took them both behind [his]

1It is unclear exactly who was at Barton’s home on the day in question. But Vann testified that there were

multiple family members on the porch, creating “a very animated scene.” DE 28-7, Vann Dep. Tr., PageID 228.

2Throughout Dwain and his wife Jennifer Barton’s depositions, they refer to Vann as “Dino.” This

nickname presumably refers to Vann’s large stature. See DE 28-15, Jennifer Barton Dep. Tr., PageID 282 (“[T]he

gentleman that we like to call Dino . . . the big one that looks like a steroid freak.”).

No. 18-1614 Barton v. Martin, et al. Page 5

back[,] . . . shoved them both together[,] and put the handcuffs on [him] as tight as he possibly

could.” Id. None of the officers involved had a warrant to enter Barton’s home or to arrest him.

Vann then “shoved” Barton outside his home, down his porch steps, and into a patrol car.

DE 28-3, Barton Dep. Tr., PageID 189. During the drive to the police station, Barton

complained that Vann had injured his shoulder when he slammed him against the kitchen

cabinets. Id. at 190. Upon arriving at the station, Barton was strip searched with one hand

handcuffed to the wall, about three feet above his head. Id. He continued to tell officers that his

shoulder hurt and “that [Officer Vann] had injured [him],” to which Barton was told to “shut the

f*** up unless [he] want[ed] to spend the night there.” Id. at 191. Officers told him that he was

being charged with animal cruelty and issued a citation. Approximately three hours after his

arrest, Barton was released on a $500 cash bond. The charge against him was later dismissed.

In November 2017, Barton filed his first amended complaint against Officers

Manchester,3 Martin, and Vann in the Eastern District of Michigan. Under 42 U.S.C. § 1983,

Barton alleged violations of the Fourth Amendment for illegal entry into his home, unreasonable

arrest and prosecution without probable cause, and excessive force, as well as First Amendment

retaliation. He also brought Michigan state law claims for illegal search and seizure, assault and

battery, false arrest and imprisonment, and malicious prosecution.

In January 2018, Vann filed a motion for summary judgment. Vann argued both that

there were no constitutional violations and that, even if there were, he was entitled to qualified

immunity. In response, Barton challenged the summary judgment motion and argued that Vann

was not entitled to qualified immunity.

The district court granted Vann’s motion for summary judgment on Barton’s federal

claims for illegal entry, wrongful arrest, excessive force, and retaliatory arrest. The court held

that Vann was entitled to qualified immunity with respect to the illegal entry, wrongful arrest,

and retaliatory arrest claims, and that Barton failed to raise a genuine issue of material fact on the

excessive force claim (presumably entitling Vann to judgment as a matter of law). Declining to

exercise supplemental jurisdiction, the district court then dismissed the remaining state law

3In January 2018, the district court dismissed Manchester from the lawsuit.

No. 18-1614 Barton v. Martin, et al. Page 6

claims. Barton timely appealed the district court’s grant of summary judgment on the illegal

entry, wrongful arrest, and excessive force claims.

II.

This court reviews a district court’s grant of summary judgment on grounds of qualified

immunity de novo. Baynes v. Cleland, 799 F.3d 600, 606 (6th Cir. 2015). Summary judgment is

only appropriate when there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (citing

Fed. R. Civ. P. 56(c)). A dispute is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986), and a fact is “deemed material only if it might affect the outcome of the lawsuit under the

governing substantive law.” Baynes, 799 F.3d at 607. In reviewing a motion for summary

judgment, this court must view the evidence in the light most favorable to the nonmoving party.

Anderson, 477 U.S. at 248. In the qualified immunity context, if the facts alleged and evidence

produced, viewed in the light most favorable to the plaintiff, would permit a reasonable juror to

find that the officer violated a clearly established constitutional right, dismissal by summary

judgment is inappropriate. Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir.

2009).

III.

We reverse the district court’s grant of summary judgment in favor of Vann based on

qualified immunity. Based on the facts alleged and the evidence produced, viewed in the light

most favorable to Barton, a reasonable juror could find that Vann violated Barton’s Fourth

Amendment rights to freedom from warrantless entry into his home, use of excessive force, and

arrest without probable cause. These violations were of clearly established law. Vann, therefore,

is not entitled to qualified immunity for all three federal claims.

Qualified immunity shields government officials performing discretionary functions

“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). Created to protect government officials from interference

No. 18-1614 Barton v. Martin, et al. Page 7

with their official duties, qualified immunity “is an immunity from suit rather than a mere defense

to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It allows police officers “breathing

room to make reasonable but mistaken judgments and protects all but the plainly incompetent or

those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)) (internal quotation marks omitted).

After a defending officer initially raises qualified immunity, the plaintiff bears the burden of

showing that the officer is not entitled to qualified immunity. Burgess v. Fischer, 735 F.3d 462,

472 (6th Cir. 2013).

Qualified immunity involves a two-step inquiry, and courts exercise discretion in

deciding in what order to address the questions. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

First, viewing the facts in the light most favorable to the plaintiff, the court must determine

whether the officer committed a constitutional violation. Burchett v. Kiefer, 310 F.3d 937, 942

(6th Cir. 2002). Second, if there is a constitutional violation, the court must determine whether

that constitutional right was clearly established at the time of the incident. Id. A right is clearly

established when the “contours of the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Morrison v. Bd. of Trs. of Green

Twp., 583 F.3d 394, 400 (6th Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). While there need not be “a case directly on point” for the law to be clearly established,

“existing precedent must have placed the statutory or constitutional question beyond debate.”

Ashcroft, 563 U.S. at 741.

A.

Barton argues that the district court erred when it granted summary judgment on the basis

of qualified immunity to Vann on the Fourth Amendment illegal entry claim. Vann is entitled to

qualified immunity unless Barton has shown that a reasonable jury could find that Vann violated

his Fourth Amendment right against warrantless entry and that the right was clearly established

at the time of the violation. We hold that a reasonable jury could find that Vann’s warrantless

entry violated the Fourth Amendment, and that the right was clearly established. We therefore

reverse the district court’s grant of summary judgment on the basis of qualified immunity on the

illegal entry claim.

No. 18-1614 Barton v. Martin, et al. Page 8

“A police officer’s entry into a home without a warrant is presumptively unconstitutional

under the Fourth Amendment.” Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002).

Indeed, warrantless entry of one’s home is the “chief evil” against which the Amendment is

designed to guard. United States v. U.S. District Court, 407 U.S. 297, 313 (1972). When

“exigent circumstances” exist, however, warrantless entries are permissible. Hancock v. Dodson,

958 F.2d 1367, 1375 (6th Cir. 1992). Exigent circumstances exist when a reasonable officer

could believe that there are “‘real immediate and serious consequences’ that would certainly

occur were a police officer to ‘postpone action to get a warrant.’” Ewolski, 287 F.3d at 501

(quoting O’Brien v. City of Grand Rapids, 23 F.3d 990, 997 (6th Cir. 1994)). Thus, exigent

circumstances may exist when “the suspect represent[s] an immediate threat to the arresting

officers and public.” Hancock, 958 F.2d at 1375.

Here, Barton argues that “under [his] version [of the facts], there was no exigency that

could excuse the officers from obtaining a warrant before entering his home.” CA6 R. 20,

Barton Br., at 23. We agree. Barton does not dispute that Vann arrived at his home under the

(false) belief that Barton had shot a stray cat. Barton also does not dispute that he declined to

come out of his house or that the presence of multiple family members on the porch created “a

very animated scene.” DE 28-7, Vann Dep. Tr., PageID 228. But according to Barton, by the

time Vann entered his home, Barton had told Manchester that he had only shot at a trampoline

pole with a BB gun. Barton also testified that he had complied with Manchester’s directions by

passing his identification through the screen door. Thus, the relevant inquiry is whether a

suspect who possibly shot a stray cat, but has denied doing so, and is inside his home but

cooperating with police, “represent[s] an immediate threat to the arresting officers and public,”

Hancock, 958 F.2d at 1375, such that there are “‘real immediate and serious consequences’ that

would certainly occur were a police officer to ‘postpone [] action to get a warrant.’” Ewolski,

287 F.3d at 501 (quoting O’Brien, 23 F.3d at 997).

Viewing these facts from a reasonable officer’s perspective at the time of the incident,

and drawing all inferences in favor of Barton, see id. at 500–02, the facts fall short of showing

that exigent circumstances precluded the officers from seeking a warrant before entering

Barton’s home as a matter of law. “Evidence that firearms are within a residence, by itself, is not

No. 18-1614 Barton v. Martin, et al. Page 9

sufficient to create an exigency . . . .” United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996).

Rather, the government must show that the police “possessed information that the suspect was

armed and likely to use a weapon or become violent.” Id. Thus, officers responding to a shots-

fired report must have additional evidence of an immediate threat before entering a home without

a warrant. See, e.g., Hancock, 958 F.2d at 1375.

Without additional evidence of a threat against the police or bystanders, a report of an

armed suspect inside his home does not justify warrantless entry. See O’Brien, 23 F.3d at 997–

98 (finding no immediate threat of danger where armed suspect retreated to his home and did not

make any verbal threats toward officers or point gun at anyone outside home); United States v.

Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984) (finding no immediate threat of danger where

police received report of suspect shooting into a clay bank at park, heard gunshots, saw suspect

load guns into car, saw suspect bring guns into home, and suspect later raised gun before

complying with police’s order to put it down); cf. Causey v. City of Bay City, 442 F.3d 524, 529–

31 (6th Cir. 2006) (finding immediate threat of danger when officers relied on information that

gunshots were fired from residence, that no one had left or entered since the gunshots, and that

no one answered the door); Dickerson v. McClellan, 101 F.3d 1151, 1159–60 (6th Cir. 1996)

(finding immediate threat of danger to potential victims inside house where police received

report of nine shots fired at residence at 1:00 a.m. and heard male voice screaming when they

approached front door).

Here, the only threat Barton made was that “the next time [he saw] a cat in [his] yard

attacking [his] children, it [would] be a dead one.” DE 28-3, Barton Dep. Tr., PageID 177. And

when Manchester questioned Barton about the incident, prior to Vann’s warrantless entry, Barton

told Manchester that he had shot at a trampoline pole with a BB gun, not the marauding cat.

Vann never heard Barton threaten the officers or any neighbors. See O’Brien, 23 F.3d at 997.

Vann never observed Barton with a weapon. Cf. Morgan, 743 F.2d at 1163. Vann never

suspected that someone inside the house was in peril. Cf. Causey, 442 F.3d at 524. And Vann

did not see any evidence of an injured animal.

As the police must have more than just a shots-fired report to justify warrantless entry

into one’s home, Vann’s belief that Barton had shot at a stray cat did not indicate “‘real

No. 18-1614 Barton v. Martin, et al. Page 10

immediate and serious consequences’ that would certainly occur were a police officer to

‘postpone action to get a warrant.’” Ewolski, 287 F.3d at 501 (quoting O’Brien, 23 F.3d at 997).

Evidence that someone has shot at a stray cat does not indicate willingness to shoot at a human

being, and there was no indication that Barton was shooting at strays inside his home; thus,

Vann’s belief that there was an exigency that precluded procuring a warrant before entering

Barton’s home was unreasonable. Taking all inferences in Barton’s favor, a reasonable jury

could therefore find that Vann’s warrantless entry into Barton’s home violated the Fourth

Amendment’s prohibition against unreasonable searches.

Moreover, it was clearly established that warrantless entry into a home without an

exception to the warrant requirement violated clearly established law. See Armstrong v. City of

Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (“Having determined that there was a

constitutional violation, the question now becomes whether the Fourth Amendment right violated

by Defendants was clearly established.”). “[I]f there can be reasonable disagreement” about

whether the officer’s conduct was unlawful based on the law at the time of the incident, “then the

right cannot be considered ‘clearly established.’” Id. at 701. The plaintiff bears the burden of

showing that a right was clearly established at the time of an alleged injury. T.S. v. Doe, 742

F.3d 632, 635 (6th Cir. 2014). Here, Barton has met that burden.

Existing precedent has placed the constitutional question at issue “beyond debate.”

Ashcroft, 536 U.S. at 741. It has long been established that an officer may not enter a home

absent a warrant or an exception to the warrant requirement. See Welsh v. Wisconsin, 466 U.S.

740, 748 (1984); Payton v. New York, 445 U.S. 573, 585–86 (1980); Coffey v. Carroll, 933 F.3d

577, 587 (6th Cir. 2019); Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005);

Ewolski, 287 F.3d at 501. Barton’s retreat into his home was not an exigent circumstance posing

a risk to the safety of the officers or bystanders. See O’Brien, 23 F.3d at 997–98. The bedrock

Fourth Amendment principles announced in Payton and Welsh demonstrate that Vann’s forced

warrantless entry into Barton’s home was presumptively unreasonable, and Vann had no

objectively reasonable basis for believing the warrantless entry was supported by exigent

circumstances. Therefore, Vann is not entitled to qualified immunity on the unlawful entry

claim.

No. 18-1614 Barton v. Martin, et al. Page 11

B.

Barton’s next § 1983 claim is that Vann arrested him without probable cause. Whether or

not the district court properly granted summary judgment to Vann on the basis of qualified

immunity turns on whether a reasonable jury could find that Vann violated Barton’s Fourth

Amendment right to freedom from arrest without probable cause, and if so, whether it could find

that the violation was of clearly established law at the time of the incident. We conclude that a

reasonable jury could find that Vann lacked probable cause to arrest Barton and that the right to

be free from arrest without probable cause was clearly established. We therefore reverse the

district court’s grant of summary judgment on the basis of qualified immunity with respect to the

wrongful arrest claim.

A warrantless arrest is reasonable under the Fourth Amendment if the arresting officer

has probable cause for the arrest. See District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018).

“In general, the existence of probable cause in a § 1983 action presents a jury question, unless

there is only one reasonable determination possible.” Fridley v. Horrighs, 291 F.3d 867, 872

(6th Cir. 2002) (quoting Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995)). But under § 1983,

an officer “is entitled to qualified immunity if he or she could reasonably (even if erroneously)

have believed that the arrest was lawful, in light of . . . the information possessed at the time by

the arresting agent.” Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir. 2008) (citing Hunter v.

Bryant, 502 U.S. 224, 227 (1991)). Thus, “even if a factual dispute exists about the objective

reasonableness of the officer’s actions, a court should grant the officer qualified immunity if,

viewing the facts favorably to the plaintiff, an officer reasonably could have believed that the

arrest was lawful.” Kennedy v. City of Villa Hills, 635 F.3d 210, 214 (6th Cir. 2011).

An officer has probable cause “when, at the moment the officer seeks the arrest, ‘the facts

and circumstances within [the officer’s] knowledge and of which [he] had reasonably

trustworthy information [are] sufficient to warrant a prudent man in believing that the [plaintiff]

had committed or was committing an offense.’” Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir.

2015) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Under a totality-of-the-circumstances

analysis, “probable cause exists only when the police officer ‘discovers reasonably reliable

information that the suspect has committed a crime.’” Courtright v. City of Battle Creek, 839

No. 18-1614 Barton v. Martin, et al. Page 12

F.3d 513, 521 (6th Cir. 2016) (quoting Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir.

2000)). “A probable cause determination . . . must take account of ‘both the inculpatory and

exculpatory evidence’ then within the knowledge of the arresting officer” at the time of the

arrest. Id. (quoting Wesley, 779 F.3d at 429). An officer “cannot simply turn a blind eye toward

potentially exculpatory evidence.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (quoting

Ahlers v. Schebil, 188 F.3d 365, 372 (6th Cir. 1999)).

A phone call reporting criminal activity, without any corroborating information, does not

provide probable cause for an arrest. Courtright, 839 F.3d at 522; see also Wesley, 779 F.3d

at 429–30; United States v. McClain, 444 F.3d 556, 563 (6th Cir. 2005); Logsdon, 492 F.3d at

341–42. Information from a caller that is not an eyewitness to the events lacks indicia of

trustworthiness and reliability. Courtright, 839 F.3d at 522.

Here, taking all factual inferences in favor of Barton and viewing the information

possessed by Vann at the time of the arrest, a reasonable jury could find that Vann lacked

probable cause to arrest Barton for animal cruelty under Michigan law.4 Barton’s neighbor

called to report Barton was shooting at cats. Barton’s neighbor was not an eyewitness to the

attack on Barton’s daughter or Barton’s shooting his BB gun at the cat; rather, she called 911

after her confrontation with Barton. Manchester responded to the 911 call and, after speaking

with Barton, relayed over police radio that Barton admitted to shooting animals. Upon arriving

at Barton’s home, Vann did not see a weapon or an injured cat. Nor did any other officer at the

scene see any physical evidence of wrongdoing. Additionally, Vann’s interaction with Barton

did not lead to further corroboration of the neighbor’s call prior to the arrest. And, taking

Barton’s story as true, before Barton was arrested, he denied the allegation that he was shooting

at cats and instead told Vann that he had only shot his BB gun at a trampoline pole. Viewing the

evidence in Barton’s favor, the neighbor’s call, by itself without further corroborating evidence,

was not enough to establish probable cause for arrest. Based on the information Vann had at the

time, including the exculpatory statement offered by Barton, no reasonable officer would have

concluded that there was probable cause for arrest.

4Michigan law prohibits someone from knowingly or recklessly “kill[ing], tortur[ing], mutilat[ing],

maim[ing] or disfigur[ing] an animal” without “just cause.” Mich. Comp. Laws § 750.50b(2).

No. 18-1614 Barton v. Martin, et al. Page 13

Vann’s conduct also violated clearly established law. It is well settled that the Fourth and

Fourteenth Amendments require probable cause to justify arresting an individual. See, e.g., Beck

v. Ohio, 379 U.S. 89, 91 (1964); Courtright, 839 F.3d at 520 (“The constitutional right to

‘freedom from arrest in the absence of probable cause’ is clearly established within our circuit.”);

Parsons v. City of Pontiac, 533 F.3d 492, 504 (6th Cir. 2008) (“The law was therefore clearly

established that arrests without probable cause violated the Constitution at the time of [the

plaintiff’s] arrest in 2004.”); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 310 (6th Cir.

2005) (“It is beyond doubt that in 2001 ‘the law was clearly established that,

absent probable cause to believe that an offense had been committed, was being committed, or

was about to be committed, officers may not arrest an individual.”). More specifically, it was

clearly established that a non-eyewitness neighbor’s call reporting criminal activity without

further corroborating information does not provide probable cause for an arrest. Courtright, 839

F.3d at 521; McClain, 444 F.3d at 562–63. We therefore reverse the district court’s grant of

summary judgment on the basis that Vann is not entitled to qualified immunity on the wrongful

arrest claim.

C.

Barton argues that the district court erred in granting summary judgment to Vann on the

excessive force claim. To find Vann entitled to qualified immunity, we must find that Vann’s

use of force under the circumstances was objectively reasonable. The district court granted

summary judgment for Vann because it found that Barton failed to raise a genuine issue of

material fact (presumably entitling Vann to judgment as a matter of law). Although the district

court analyzed the excessive force claim under the broader umbrella of qualified immunity, see

DE 39, Order, PageID 491–92 (“The court considers each claim below [with respect to qualified

immunity].”), it did not reach an explicit holding regarding whether, in light of finding no

genuine issues of material fact, Vann was entitled to summary judgment on the basis of qualified

immunity as a matter of law.

Looking to the facts and circumstances of the present case, Barton has presented

sufficient evidence to create a genuine issue of material fact as to whether Vann’s use of force

was reasonable. “A reviewing court analyzes the subject event in segments when assessing the

No. 18-1614 Barton v. Martin, et al. Page 14

reasonableness of a police officer’s actions.” Morrison, 583 F.3d at 401. Thus, we make

separate qualified immunity determinations for each of the two grounds offered by Barton for

excessive force: (1) Vann’s picking up Barton and slamming him against the kitchen cupboard

and wrenching his arms behind his back to handcuff him; and (2) Vann’s throwing Barton down

the front porch steps while he was handcuffed. Vann is not entitled to qualified immunity on

either excessive force claim.

1.

The Fourth Amendment prohibits the use of excessive force during arrest. Getz v.

Swoap, 833 F.3d 646, 652 (6th Cir. 2016). Barton contends that Vann “lifted [him] up with his

elbows underneath [his] body and [his] arm and literally picked [him] up and slammed [him]

against [their] kitchen cupboards.” DE 28-3, Barton Dep. Tr., PageID 186. He also claims that

Vann “wrenched [his] arms behind his back to handcuff him in response to [his] complaint that

he wasn’t able to put his arms behind his back,” CA6 R. 20, Barton Br., at 39. Barton alleges

that he “suffered physical injuries to his wrist from overly tight handcuffs.” DE 22, Am. Compl.,

PageID 90. He testified that Vann “grabbed both of [his] wrists and took them both behind [his]

back and literally just shoved them both together and put the handcuffs on [him] as tight as he

possibly could” and that, as a result, he was “cut around both of [his] wrists for several days

after.” DE 28-3, Barton Dep. Tr., PageID 187.

Whether an officer exerts excessive force is determined under an “objective

reasonableness” standard. Morrison, 583 F.3d at 401 (quoting Kostrzewa v. City of Troy, 247

F.3d 633, 639 (6th Cir. 2001)). In analyzing objective reasonableness, “courts must balance the

consequences to the individual against the government’s interests in effecting the seizure,” Getz,

833 F.3d at 652 (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)), and consider the

“facts and circumstance 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). To

determine the objective reasonableness of an officer’s use of force, we “pay particular attention

to ‘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.’” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 174 (6th Cir. 2004) (quoting

No. 18-1614 Barton v. Martin, et al. Page 15

Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)) (finding that throwing the plaintiff into a

wall and forcibly handcuffing her was unreasonable where the crime was a minor offense, the

plaintiff posed no apparent threat, and the plaintiff complied with the officers’ instructions). In

applying these considerations to the facts at hand, it would be clear to a reasonable officer that

the amount of force used by Vann against Barton was unlawful.

First, Barton was being arrested for animal cruelty, not a crime that would justify the

amount of force used here. It was contested as to whether Barton shot the cat, and even if he did,

whether he would have been justified in doing so given the attack on his daughter. There was no

threat to human safety from Barton’s actions.

Second, Barton did not pose an immediate threat to the safety of the officers or others.

Vann testified that although he was unsure whether Barton was armed when he initially arrived

at the scene, when he entered Barton’s home, he saw Barton “standing in the kitchen” and “at

that point,” did not perceive a threat from him because Barton did not have “anything in his

hands” and was not “in control of any type of a weapon.” DE 28-7, Vann Dep. Tr., PageID 229.

Thus, Vann testified that he realized, at least upon entering Barton’s home, that Barton was not

armed. Hence, while some use of force may have been reasonable when Vann was unsure

whether Barton had a weapon, see Dunn v. Matatall, 549 F.3d 348, 354 (6th Cir. 2008) (noting

that when officer is unsure whether suspect is armed, suspect poses greater threat to officer’s

safety), slamming Barton against the cabinet was no longer reasonable once Vann realized that

Barton was not holding anything in his hands. See Wells v. City of Dearborn Heights, 538 F.

App’x 631, 638 (6th Cir. 2013) (explaining that how much force is reasonable may evolve as an

incident progresses and an officer learns new information).

Third, the facts do not suggest that Barton was resisting arrest or attempting to flee. Both

Barton and Vann testified that Barton did not resist or evade arrest. Rather, when Vann told

Barton to put his hands behind his back, Barton “complied and was placed under arrest” and

“there was no struggle.” DE 28-7, Vann Dep. Tr., PageID 229. That Barton did not attempt to

evade arrest or flee is corroborated by the fact that he passed his identification through the screen

door to his mother-in-law, who was on his porch, to hand to the officers before Vann crashed

through the door.

No. 18-1614 Barton v. Martin, et al. Page 16

Viewed in the light most favorable to Barton, a reasonable jury could find that Vann’s

actions violated Barton’s right to be free from excessive force during the arrest. A reasonable

jury could find that by the time Vann “threw [Barton] up against the counter like a linebacker,”

DE 28-15, Jennifer Barton Dep. Tr., PageID 282, Vann knew, or should have known, that Barton

was not in control of any weapon and was not attempting to evade arrest or flee. There was no

reasonable basis to believe that Barton was armed, posed an immediate threat, or was resisting

arrest. Vann’s observations after entry into the home confirmed any concern about Barton being

armed was unfounded. Barton’s allegation that Vann “lifted [him] up with his elbows underneath

[his] body and [his] arm and literally picked [him] up and slammed [him] against [their] kitchen

cupboards,” plausibly makes out an excessive force violation. DE 28-3, Barton Dep. Tr., PageID

186.

“Having determined that there was a constitutional violation, the question now becomes

whether the Fourth Amendment right violated by Defendants was clearly established.”

Armstrong, 432 F.3d at 700. “If there can be reasonable disagreement” about whether the

officer’s conduct was unlawful based on the law at the time of the incident, “then the right

cannot be considered ‘clearly established.’” Id. at 701. The plaintiff bears “the burden of

showing that a right was clearly established at the time of an alleged injury.” T.S., 742 F.3d at

635. Qualified immunity thus “protects actions in the ‘hazy border between excessive and

acceptable force.’” Mullenix, 136 S. Ct. at 312 (quoting Brosseau, 543 U.S. at 198).

The right to be free from excessive force was clearly established in 2014. The Supreme

Court has held that use of force that is not objectively reasonable violates the Fourth

Amendment. Graham v. Connor, 490 U.S. 386, 396 (1989). A compliant, non-threatening

individual’s right to be free from excessive force during arrest was also clearly established in this

circuit. See Baker v. City of Hamilton, 471 F.3d 601, 607–08 (6th Cir. 2006); Solomon, 389 F.3d

at 173; Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681, 688 (6th Cir. 2006). The facts here

do not present one of the hazy cases where an officer should be entitled to qualified immunity for

making an objectively reasonable mistake as to the amount of force that was necessary. Vann’s

use of force occurred after he saw that Barton was unarmed, non-threatening, and compliant.

No. 18-1614 Barton v. Martin, et al. Page 17

We conclude that no reasonable officer would find that the circumstances surrounding the arrest

of Barton required the level of force used here.

2.

A reasonable jury could also conclude that Vann used excessive force after arresting

Barton. Once he was handcuffed, Barton claims that Vann “tossed [him] down” his front porch,

elevated about three feet from the sidewalk, to Manchester. DE 28-3, Barton Depo Tr., PageID

188–89. This was after Barton told Vann of a prior shoulder injury. Id. The court has “held

repeatedly that the use of force after a suspect has been incapacitated or neutralized is excessive

as a matter of law.” Baker, 471 F.3d at 608. “The reason for this is that once the detainee ceases

to pose a threat to the safety of the officers or others, the legitimate government interest in the

application of significant force dissipates.” Morrison, 583 F.3d at 404–05. “‘Gratuitous

violence’ inflicted upon an incapacitated detainee constitutes an excessive use of force, even

when the injuries suffered are not substantial.” Id. at 407. As Barton was incapacitated after

being handcuffed, Vann tossing Barton down his front porch stairs was unreasonable. There

were no officer safety concerns or other legitimate government interests justifying this use of

force. This circuit’s case law has long recognized the unconstitutionality of using gratuitous

force against an incapacitated suspect. See, e.g., Coley v. Lucas County, 799 F.3d 530, 540 (6th

Cir. 2015); Phelps v. Coy, 286 F.3d 295, 302 (6th Cir. 2002). Vann was on notice that his

conduct was a violation of Barton’s constitutional right to be free from excessive use of force as

it was obvious that Vann could not shove a handcuffed detainee off a front porch about three feet

off the ground when there was no threat to the safety of the officers or others. Accordingly,

Vann is not entitled to qualified immunity on Barton’s excessive force claims.

IV.

For the reasons stated, we reverse the district court’s grant of summary judgment on the

basis of qualified immunity for the illegal entry, wrongful arrest, and excessive force claims

against Vann.