Catrena Green v. Adam Throckmorton

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0175p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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CATRENA GREEN,

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Plaintiff-Appellant,

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No. 10-4487

v.

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Defendant-Appellee. -

ADAM THROCKMORTON,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:09-cv-995—Norah McCann King, Magistrate Judge.

Decided and Filed: June 13, 2012

Before: COLE, GILMAN, and WHITE, Circuit Judges.

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COUNSEL

ON BRIEF: Stephen R. Felson, Cincinnati, Ohio, for Appellant. Bridget C. Coontz,

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Following an evening traffic stop in

Chillicothe, Ohio for failing to dim her high beams in the face of oncoming traffic,

Catrena Green was arrested for driving under the influence of drugs or alcohol. The

arrest was based on Green’s responses to a series of field sobriety tests administered by

State Highway Patrol Trooper Adam Throckmorton. But when a more definitive

test—Green’s urine sample—later came back clean, all charges against her were

dropped.

1

No. 10-4487 Green v. Throckmorton Page 2

Green subsequently brought suit under 42 U.S.C. § 1983 against Trooper

Throckmorton, alleging that he had violated her Fourth Amendment rights by

(1) conducting the field sobriety tests without having a reasonable suspicion that she was

impaired, and (2) arresting her without probable cause. The district court granted

summary judgment in favor of Throckmorton on both counts and dismissed the case.

Green has appealed. For the reasons set forth below, we REVERSE the judgment of the

district court and REMAND the case for further proceedings consistent with this

opinion.

I. BACKGROUND

Green lives in Goose Point, South Carolina. On a Sunday in August 2008, she

drove approximately 600 miles from her home in South Carolina to a popular motorcycle

event taking place at the Ross County fairgrounds in Chillicothe, Ohio. She arrived at

the fairgrounds around 8:30 p.m., leaving a couple of hours later to pick up food at a

nearby Walmart. The roads at the time were wet from a recent rain, making visibility

somewhat worse than normal. Green turned on her high beams while driving to help her

see better.

Traveling in the opposite direction was Trooper Throckmorton. Throckmorton

saw that Green was violating an Ohio traffic law by failing to dim her high beams as she

approached oncoming traffic, see Ohio Rev. Code Ann. § 4513.15, so he made a U-turn

and began trailing Green. His in-car video camera recorded the events that followed.

As shown by the video, Green briefly crossed over a shoulder lane marker while

turning onto an exit ramp. Throckmorton then signaled Green to stop by activating his

lights. Green pulled over immediately. After exiting his patrol car, Throckmorton asked

Green for her license and registration. She asked what she had done wrong, to which

Throckmorton replied: “I’m trying to figure out why you picked me of all people to

bright coming down the highway there. You brighted me as you were coming down the

highway.” Green responded by stating, “Oh, because I can’t see.” She explained that

the reason she could not see was because of the wet road conditions. Green then asked

No. 10-4487 Green v. Throckmorton Page 3

if she had done anything else wrong, and Throckmorton said, “No, not really. You just

brighted me and blinded me.” He did not mention the brief lane violation.

Around this time, Throckmorton momentarily pointed his flashlight inside

Green’s vehicle. Throckmorton stated in his deposition testimony that he aimed the

flashlight’s beam toward the floor of the vehicle so as to illuminate Green’s face without

shining the light directly into her eyes. He “noticed that her pupils were constricted,”

which he thought “was kind of abnormal” because his training had taught him that a

person’s pupils will typically dilate in a dark setting. But, as he noted during his

deposition, “different chemicals or different types of drugs [can] hamper this process.

So. . . if you shine a light into somebody’s eyes, their pupils may stay completely dilated,

they won’t react to the light. Or else . . . they may be constricted, and you put them in

a low lighting and they won’t dilate.”

In response to a question about where she was coming from, Green answered that

she had just left the fairgrounds and was heading to Walmart. She told Throckmorton

that her license was inside her purse in the trunk of her sport utility vehicle (SUV).

Throckmorton allowed Green to exit the vehicle in order to retrieve her license. But

before she did so, Green apologized for activating her high beams and explained: “It’s

so dark, and it’s no streetlights like we have in South Carolina. And I was trying to see

and be careful.” Green apologized once again and then opened her driver’s side door to

get her license from the trunk.

As she stepped out of the SUV, Green either forgot to completely remove her

seatbelt or became entangled in it. She must have already unfastened the seatbelt,

however, because her foot touched the outside pavement before Throckmorton

commented that she “might want to take [her] seatbelt off.” Green was able to remove

her seatbelt quickly and easily.

Throckmorton followed Green to the back of her vehicle, where she opened the

trunk. Being an SUV, the trunk was not a separately enclosed compartment, but instead

part of the vehicle’s interior. Throckmorton used his flashlight to look into the SUV and

could see that it was full of various items—presumably camping equipment and other

No. 10-4487 Green v. Throckmorton Page 4

materials for Green’s road trip. He did not notice anything suspicious. Nor did

Throckmorton see or smell alcohol or drugs at any time during the stop.

Green retrieved her driver’s license from her purse and handed it to

Throckmorton. After reviewing the license, he asked whether Green had had anything

to drink that evening. She said, “Nope. Water.” He also asked whether she had taken

any drugs or medication. She stated that she had not.

Throckmorton then immediately began conducting a series of field sobriety tests.

He began with the horizontal-gaze nystagmus test (HGN test), which involves moving

a stimulus from side to side while the subject follows it with her eyes. The purpose of

the test is twofold: it checks a person’s ability to follow directions and also detects

nystagmus, “an involuntary jerking of the eye” that is a common indicator of

impairment.

Throckmorton instructed Green “to follow the tip of my pen back and forth with

your eyes.” He started moving the pen, but Green apparently could not follow it.

Throckmorton repeated the instructions and started over. He stopped after

approximately 20 seconds and again asked Green whether she had taken any drugs or

medication. She again said that she had consumed “just water.”

Suspecting otherwise, Throckmorton told Green: “You’ve taken something else.

I mean, you’re, you’re just completely dazed off there for a second.” Green explained

that she was tired, and Throckmorton said that she should be able to perform the test

regardless. Throckmorton tried once more to administer the HGN test, but without

success. As a result, he testified that he “was never able to observe whether she had any

nystagmus in her eyes or not.” Throckmorton noted in his “impaired driver report” that

Green “could not follow pen.” Green does not recall even taking the HGN test.

Throckmorton then tried another way to help determine whether Green was

impaired. He administered what are known as the alphabet and numbers tests.

Throckmorton first instructed Green to recite the alphabet, beginning with the letter “L”

and ending with the letter “S.” She did so without difficulty. Throckmorton next asked

No. 10-4487 Green v. Throckmorton Page 5

Green to count backward from 57 to 42. She was able to do this too, although she

hesitated slightly between a few of the numbers. Throckmorton also “noticed that she

talked slowly” and that “[t]here was a slight slur to her words.” But the video’s sound

recording does not indicate that Green’s speech was either unusually slow or slurred.

The next sobriety test was the one-leg-stand test, which requires a person to stand

on one leg while counting up from the number one. This test usually lasts for a period

of 30 seconds and is known as a “divided attention skills test” because it ascertains

whether the subject can maintain balance while following instructions. According to

Throckmorton, Green “was able to count in sequential order” during the test, but “[s]he

was off balance, she was unstable on her feet, and she kept setting her foot down for

balance.” Throckmorton “documented that [Green] set her foot down nine times.” His

report also indicated that she hopped, raised her arms for balance, and swayed.

The video basically corroborates this description. Green was given the

instructions, acknowledged that she understood them, and then raised her foot and began

counting. She struggled to maintain her balance throughout the test but did not sway

badly. Her foot appears to have touched the ground on multiple occasions, and she

skipped the number 19 while counting.

The final field sobriety test that Throckmorton administered was the walk-and-

turn test. In his deposition testimony, Throckmorton described this test as follows:

I instruct Ms. Green to stand with her arms down to her side,

place her right foot in front of her left, heel to toe, and just hold that

position while I finish the instructions.

I instruct Ms. Green to walk as straight as practical, walking heel

to toe, counting each step out loud, keeping her arms down at her side.

I instruct her to take nine steps down. I instruct her to stop, leave her left

foot planted, turn around 180 degrees with her right foot, taking small

steps.

And I demonstrate all this for her, as well.

I instruct her to turn around 180 degrees and then do the same

thing coming back, keep her arms down at her side, touch heel to toe, and

counting steps out loud for a series of nine steps.

No. 10-4487 Green v. Throckmorton Page 6

The video does not clearly depict Green’s performance on this test. It reveals

that she swayed very slightly as she walked, used her arms for balance, and turned right

instead of left. But because Green’s feet are not shown, the video does not indicate

whether she “move[d her] feet to keep balance while listening to instructions” or failed

to “touch heel to toe,” as noted in Throckmorton’s report.

After the walk-and-turn test, Throckmorton tried one last time to examine

Green’s eyes using the HGN test. Again he was unsuccessful. Throckmorton told her,

“You’re still not following my pen. What are you on, ma’am?” Green said that she was

on “nothing.” Throckmorton then placed her under arrest for driving under the influence

of alcohol or drugs.

While Green was seated in the back of Throckmorton’s patrol car, Throckmorton

and several other troopers who had just arrived on the scene searched Green’s SUV and

found no evidence of drugs or alcohol. A dog sniffed the SUV as well and did not alert.

Green was then taken to the local jail for booking and testing. She ended up spending

over two days in jail before she found a bail bondsman who would take her credit card.

When her urine test later came back negative for both alcohol and drugs, all charges

against her were dismissed.

Green filed the instant action in November 2009. She alleged that Throckmorton

had violated her constitutional rights by (1) conducting field sobriety tests without

having a reasonable suspicion that she was impaired, and (2) arresting her without

probable cause. The case was referred to a magistrate judge for disposition by consent

of the parties.

Following discovery, Throckmorton moved for summary judgment on both

claims. He argued that he had not violated Green’s constitutional rights during the stop

and that, even if he had, he is nevertheless entitled to qualified immunity. The district

court, after concluding that no constitutional violations had occurred, granted summary

judgment in favor of Throckmorton. This appeal followed.

No. 10-4487 Green v. Throckmorton Page 7

II. ANALYSIS

A. Standard of review

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

Priest, 636 F.3d 211, 216 (6th Cir. 2011). Summary judgment is proper where “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for summary judgment,

the district court must construe the evidence and draw all reasonable inferences in favor

of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). But where, as here, there is “a videotape capturing the events in

question,” the court must “view[] the facts in the light depicted by the videotape.” Scott

v. Harris, 550 U.S. 372, 378-81 (2007). The central issue is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986).

B. Green’s § 1983 claims

Green’s claims are predicated upon 42 U.S.C. § 1983, which provides for the

vindication of federal rights. “To prevail on a § 1983 claim, a plaintiff must establish

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

the Constitution or laws of the United States.” Waters v. City of Morristown, Tenn., 242

F.3d 353, 358-59 (6th Cir. 2001).

Green asserts that Throckmorton—unquestionably “a person acting under color

of state law” during the traffic stop—violated her constitutional rights twice: first by

detaining her for field sobriety tests without having a reasonable suspicion that she was

impaired, and then again by arresting her based on the results of those tests, which she

contends did not supply the necessary probable cause. Both claims were dismissed by

the district court on the ground that no constitutional violation occurred. Each will now

be addressed in turn.

No. 10-4487 Green v. Throckmorton Page 8

1. Green’s detention for field sobriety tests

Green’s first claim is based on her detention for field sobriety tests, which came

after she had been stopped for failing to dim her high beams in the face of oncoming

traffic. The lawfulness of the initial stop is not in question. An officer may stop and

detain a motorist without contravening the Fourth Amendment’s prohibition against

unreasonable searches and seizures “so long as the officer has probable cause to believe

that the motorist has violated a traffic law.” United States v. Bell, 555 F.3d 535, 539 (6th

Cir. 2009). Throckmorton clearly had such probable cause here because Green admits

that she failed to dim her high beams in the face of oncoming traffic, and the failure to

do so is a violation of an Ohio traffic law. See Ohio Rev. Code Ann. § 4513.15.

But probable cause to detain a motorist for one violation of the law does not

ordinarily provide probable cause to detain the motorist for another violation. Thus,

“[o]nce a stop begins, . . . detaining the motorist any longer than is reasonably necessary

to issue the traffic citation requires reasonable suspicion that the individual has engaged

in more extensive criminal conduct.” United States v. Smith, 601 F.3d 530, 542 (6th Cir.

2010) (internal quotation marks omitted). Throckmorton concedes that detaining an

individual for field sobriety tests is not reasonably necessary to issue a citation for the

failure to dim one’s high beams. But he argues that he had a reasonable basis for

suspecting that Green had committed the crime of driving while impaired.

a. Reasonable suspicion

Although less demanding than the probable-cause standard, the reasonable-

suspicion standard still “requires more than a mere hunch.” United States v. Campbell,

549 F.3d 364, 370 (6th Cir. 2008) (internal quotation marks omitted). It “requires

specific and articulable facts, which, taken together with rational inferences from those

facts, reasonably warrant the continued detention of a motorist after a traffic stop.”

United States v. Ellis, 497 F.3d 606, 612-13 (6th Cir. 2007) (internal quotation marks

omitted). In conducting a reasonable-suspicion analysis, “[r]eviewing courts must look

at the totality of the circumstances of each case to see whether the detaining officer has

a particularized and objective basis for suspecting legal wrongdoing,” while bearing in

No. 10-4487 Green v. Throckmorton Page 9

mind that officers are permitted “to draw on their own experience and specialized

training to make inferences from and deductions about the cumulative information

available to them.” Id. at 613 (internal quotation marks omitted). This totality-of-the-

circumstances inquiry requires courts to “determine whether the individual factors, taken

as a whole, give rise to reasonable suspicion, even if each individual factor is entirely

consistent with innocent behavior when examined separately.” United States v. Perez,

440 F.3d 363, 371 (6th Cir. 2006) (internal quotation marks omitted).

The district court in this case reviewed the totality of the circumstances and

concluded that Throckmorton had a particular and objective basis for suspecting that

Green had been driving while impaired. This conclusion was based on a variety of

factors, including Throckmorton’s claims that

(1) [Green]’s pupils were constricted even though it was dark outside;

(2) she appeared to be confused; (3) her reactions were slow; (4) she had

activated her high beams; (5) she crossed over the white fog line on the

side of the road; and (6) she was unsteady on her feet.

Green v. Throckmorton, No. 2:09-CV-995, 2010 WL 4279191, at *7 (S.D. Ohio Oct. 22,

2010) (unpublished opinion).

The district court analyzed each factor individually. As to the first,

Throckmorton testified that Green’s pupils were constricted despite the darkness and

that, based on his specialized training, he knew that such constriction can be a sign of

impairment. The court considered this testimony to be undisputed because Green could

not prove otherwise. As a result, the court was “persuaded that the constriction of

[Green]’s pupils was one of the factors creating a basis for reasonable suspicion.” Id.

Turning to the second factor—Green’s apparent confusion—the district court

reasoned that this too contributed to a reasonable suspicion that Green was driving while

impaired. Video evidence shows that Throckmorton had to remind Green to completely

remove her seatbelt before stepping out of the SUV. And Green “conceded in her

deposition that being tired could have made it more difficult for her to understand what

No. 10-4487 Green v. Throckmorton Page 10

was going on when she was pulled over by [Throckmorton].” Id. at *8. The court found

that this concession also supported the third factor (her slow reactions).

Regarding the fourth and fifth factors—the traffic violations—the district court

determined that they were uncontroverted and relevant to the totality-of-the-

circumstances analysis because Throckmorton was “entitled to rely on his own training

and experience as well as factors that are consistent with innocent behavior in forming

a reasonable suspicion.” Id. at *9. The district court concluded that the traffic violations

fell under this description.

Only the sixth factor (being unsteady on her feet) was not credited by the district

court as helping to form a basis for reasonable suspicion. With respect to that factor, the

court simply could not “say one way or the other whether [Green] was unstable on her

feet while exiting her vehicle” because the video was inconclusive. Id. at *10. But the

court concluded that, even without this factor, the totality of the circumstances justified

Throckmorton’s decision to administer the field sobriety tests. The court reached this

conclusion despite the fact that Throckmorton “did not smell or see alcohol or drugs on

her person or vehicle,” a fact that the court found relevant but insufficient to tilt the

balance of factors against reasonable suspicion. Id. “Under these facts,” the court held,

Throckmorton “had a reasonable suspicion that [Green] was engaged in criminal

activity, i.e., driving while impaired, and was therefore justified in further detaining her

in order to administer sobriety tests.” Id.

Green argues on appeal that the district court erred by deciding this question as

a matter of law rather than submitting it to a jury. Her argument relies primarily on the

analogous case of Miller v. Sanilac County, 606 F.3d 240 (6th Cir. 2010), which the

district court did not cite. The plaintiff in Miller was stopped around midnight by a

police officer for driving through a stop sign on an icy road. During the stop, which was

not recorded on video, the officer detected what he claimed was “a slight odor of alcohol

coming from Miller’s breath.” Id. at 245 (brackets and internal quotation marks

omitted). The officer then learned that Miller had a prior drunk-driving arrest on his

record and ordered him to perform a series of field sobriety tests. According to the

No. 10-4487 Green v. Throckmorton Page 11

officer, Miller’s eyes appeared “glazed or glassy,” although the officer admitted that

Miller did not stagger or stumble as he walked. Id. The officer proceeded to administer

the sobriety tests and determined that Miller failed all but one. After Miller refused to

take a breathalyzer test, he was arrested for driving while impaired and for reckless

driving. A later blood test for drugs and alcohol came back negative.

Miller brought suit against the officer under § 1983, alleging, among other

things, that the arrest was made without probable cause. He did not, however, challenge

the lawfulness of the field sobriety tests. Miller instead denied that he had failed any of

the tests and contested whether the officer smelled alcohol on his breath. He also

explained that the reason he refused to take the breathalyzer test was because he did not

trust the officer. In granting summary judgment for the officer, the district court rejected

Miller’s arguments.

This court reversed. After reviewing the totality of the circumstances, our

colleagues in Miller determined that the results of the blood test “cast[ ] doubt on [the

arresting officer]’s claims that Miller smelled of alcohol and failed the field sobriety

tests.” Id. at 248. The court reasoned:

Although [the officer’s] claims, if believed, would constitute probable

cause to arrest for driving under the influence of alcohol, a jury could

reasonably conclude, in light of the 0.00% blood alcohol result and

Miller’s testimony, that [the officer] was being untruthful generally about

his observations and did not have probable cause to believe Miller was

drinking. In light of the conflict in the evidence, the jury could conclude

that [the officer] was lying.”

Id. at 249.

Green contends that the same is true in the present case. Just as the result of the

blood-alcohol test in Miller called into question the credibility of the officer in that case,

Green claims that the result of the urine test in her case “casts doubt on Trooper

Throckmorton’s claim that her pupils were constricted.” And just as Miller’s probable-

cause inquiry turned on the credibility of the officer, Green argues that the reasonable-

No. 10-4487 Green v. Throckmorton Page 12

suspicion inquiry here turns on Throckmorton’s credibility. She therefore contends that

the question should go to the jury.

We find her argument persuasive. Having carefully “viewed the facts in the light

depicted by the videotape,” Scott v. Harris, 550 U.S. 372, 381 (2007), we cannot say as

a matter of law that Throckmorton had a reasonable suspicion, prior to administering the

field sobriety tests, to believe that Green was under the influence of drugs or alcohol.

Yes, he testified that her pupils were constricted and that this feature suggested possible

impairment. But the video provides no evidence to support his claim that Green’s pupils

were constricted at the time of the traffic stop. And we cannot, consistent with Miller,

take such testimony on faith. Nor can we penalize Green for failing to produce any

evidence directly rebutting Throckmorton’s stated observation. After all, Green cannot

speak to the appearance of her pupils any more than Miller could speak to the odor of

his own breath (or to whether his eyes were “glazed or glassy”). What matters here,

rather, is what mattered in Miller: that a subsequent test for drugs and alcohol showed

that the driver was in fact sober. That evidence alone is sufficient to cast doubt on the

truthfulness of Throckmorton’s testimony regarding Green’s pupils.

Throckmorton nevertheless attempts to distinguish Miller. By discussing Miller

only in the section of his brief arguing that he had probable cause to arrest Green,

Throckmorton implies that the case, which involved a probable-cause determination, has

no application in the reasonable-suspicion context. But Throckmorton offers no reason

why this is so, and none is apparent to us. To the contrary, Miller’s rationale—that an

officer’s unsupported and contested observations regarding a driver’s signs of

impairment are called into question when a subsequent blood or urine test shows that the

driver was not actually impaired—applies with as much force to a detention governed

by the reasonable-suspicion standard as to one governed by the probable-cause standard.

In both cases, when considering such clear exculpatory evidence, “the jury could

conclude that [the officer] was lying.” See Miller, 606 F.3d at 249. The only difference

at the summary-judgment stage concerns the standard of proof that the additional

evidence, when viewed in the light most favorable to the nonmoving party, must meet

No. 10-4487 Green v. Throckmorton Page 13

in order to justify the detention. We therefore decline to limit Miller’s reasoning to

probable-cause determinations.

Throckmorton also points out that there was no video in Miller, and that is indeed

a difference. But stating a difference is not the same as explaining why it matters. Here,

the video sheds no light on the question of whether Green’s pupils were constricted.

And it reveals no additional information, as we are about to discuss, that would allow

us to conclude as a matter of law that Throckmorton had a reasonable suspicion to detain

Green for field sobriety tests.

Because we decline to consider Green’s potentially constricted pupils as a factor

justifying the grant of summary judgment for Throckmorton, we must look to the other

factors identified by the district court: Throckmorton’s somewhat vague claims of

Green’s confusion and her slow reaction times, plus the two traffic violations. These

factors, when taken together, might be enough to give rise to a “hunch” that Green was

impaired, but whether they are the kind of “specific and articulable facts” necessary to

“reasonably warrant [the] intrusion” on her liberty—the standard for reasonable

suspicion under Terry v. Ohio, 392 U.S. 1, 21-22 (1968)—is a question for the jury.

As for Green’s alleged confusion and slowness, we simply do not detect any

confirmation of these conditions from the video. The district court faulted Green for not

citing a particular part of the video to show that there was no confusion and for

“conced[ing] in her deposition that being tired could have made it more difficult for her

to understand what was going on when she was pulled over by defendant.” Green v.

Throckmorton, No. 2:09-CV-995, 2010 WL 4279191, at *8 (S.D. Ohio Oct. 22, 2010)

(unpublished opinion). But the critical question is whether “specific and articulable

facts” supported Green’s detention for field sobriety tests, not whether Green could

ultimately disprove or explain her alleged confusion. And a reasonable jury could

conclude that the video contains no such facts; that it instead shows that Green

responded directly to Throckmorton’s questions, that her speech was not slurred, and

that she was completely lucid and rational throughout the traffic stop.

No. 10-4487 Green v. Throckmorton Page 14

As for the traffic violations, they are certainly relevant as part of the totality-of-

the-circumstances inquiry, but the ones in question here do not on their own constitute

reasonable suspicion of driver impairment. See, e.g., Amundsen v. Jones, 533 F.3d 1192,

1199 (10th Cir. 2008) (“[A]n isolated incident of crossing into another lane will not

ordinarily create reasonable suspicion of driving while impaired. Nor will weaving

within a lane, without more, ordinarily create reasonable suspicion of driving under the

influence.” (citation omitted)). This is particularly true in the present case because the

sky was dark, the roads were wet, Green only momentarily crossed over the white

shoulder marker while turning onto an exit ramp, she was unfamiliar with the area, and

Throckmorton did not see or smell any drugs or alcohol during the stop. Nor did

Throckmorton contend that Green’s high-beam violation was an indication of

impairment, especially in light of his concession that “generally . . . we give [drivers] a

warning for failure to dim.” Moreover, Green had a completely rational explanation for

using the high beams on the night in question.

Under these circumstances, a reasonable jury could find that Green’s conduct did

not create a reasonable suspicion that she was driving under the influence. We therefore

conclude that the district court erred in determining as a matter of law that

Throckmorton’s detention of Green for field sobriety tests was not a violation of her

Fourth Amendment rights.

b. Qualified immunity

Having reached this conclusion, we must reverse the district court’s grant of

summary judgment unless Throckmorton is entitled to such judgment based on the

defense of qualified immunity. Qualified immunity is a doctrine that “protects

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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation

marks omitted). The Supreme Court has made clear that “qualified immunity is an

immunity from suit rather than a mere defense to liability.” Id. at 231 (internal quotation

marks omitted). On the other hand, “where the legal question of qualified immunity

No. 10-4487 Green v. Throckmorton Page 15

turns upon which version of the facts one accepts, the jury, not the judge, must determine

liability.” McKenna v. Edgell, 617 F.3d 432, 437 (6th Cir. 2010) (internal quotation

marks omitted).

The question of qualified immunity in this case turns upon which version of the

facts one accepts. A reasonable jury could find, for example, that Green acted rationally

throughout the stop, that her relatively minor traffic violations were not indicative of

impairment, and that Throckmorton fabricated the alleged constriction of Green’s pupils

to create an after-the-fact justification for the detention. On these facts, Throckmorton’s

conduct would be “plainly incompetent” and thus strip him of qualified immunity. See

Kennedy v. City of Cincinnati, 595 F.3d 327, 336-38 & n.7 (6th Cir. 2010) (internal

quotation marks omitted) (denying qualified immunity at the summary-judgment stage

because the reasonableness of the officer’s conduct depended on disputed facts to be

determined by the jury). The district court’s grant of summary judgment on Green’s first

claim must therefore be reversed.

2. Green’s arrest for driving under the influence of drugs or alcohol

Green’s second claim under § 1983 asserts that Throckmorton did not have

probable cause for her arrest. “An officer has probable cause when ‘the facts and

circumstances known to the officer warrant a prudent man in believing that an offense

has been committed.’” Miller v. Sanilac Cnty., 606 F.3d 240, 248 (6th Cir. 2010)

(quoting Henry v. United States, 361 U.S. 98, 102 (1959)). “In general, the existence of

probable cause in a § 1983 action presents a jury question, unless there is only one

reasonable determination possible.” Parsons v. City of Pontiac, 533 F.3d 492, 501

(6th Cir. 2008) (internal quotation marks omitted).

But a lack of probable cause is not necessarily fatal to an officer’s defense

against civil liability for false arrest. Rather, an officer is entitled to qualified immunity

under § 1983 “if he or she could reasonably (even if erroneously) have believed that the

arrest was lawful, in light of clearly established law and the information possessed at the

time by the arresting agent.” Id. (internal quotation marks omitted).

No. 10-4487 Green v. Throckmorton Page 16

Throckmorton arrested Green based on her allegedly poor performance on the

field sobriety tests. Specifically, Throckmorton determined that Green (1) could not

follow the pen when he attempted to administer the HGN test, (2) performed well on the

alphabet test but hesitated twice during the numbers test, and (3) had difficulty

maintaining her balance throughout the one-leg-stand and walk-and-turn tests. These

factors led him to conclude that probable cause existed to support his belief that Green

was impaired.

Green responds by pointing out completely innocuous conditions that excused

her less-than-perfect performance on the tests. She argues that she was tired from

driving all day, had trouble concentrating due to passing traffic and the noise from

Throckmorton’s radio, and swayed at times during the tests because she was 42 years

old at the time and overweight. Green contends that these exculpatory factors, when

considered as part of the totality of the circumstances, negate any probable cause. She

also relies heavily on Miller, arguing that it requires that her claim be submitted to a

jury.

The principal problem with Green’s argument is that “[o]ften, innocent behavior

will form the grounds for probable cause.” See United States v. Wright, 16 F.3d 1429,

1438 (6th Cir. 1994). Indeed, whether probable cause for a crime exists is “based on an

examination of all facts and circumstances within an officer’s knowledge at the time of

an arrest.” Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (emphasis

in original) (internal quotation marks omitted). And here, Throckmorton did not know

that Green had been driving all day because she did not tell him. Nor did he know,

because he could not have known, that she was actually sober at the time of the arrest.

He knew only what he could observe during the field sobriety tests.

Still, we are ultimately convinced that Green’s performance on the tests was

sufficiently ambiguous to submit the probable-cause question to the jury. She completed

several of the tests without any apparent difficulty and others with only minor mistakes.

And the video does not show whether she could follow the pen with her eyes when

Throckmorton tried to administer the HGN test. Because reasonable jurors could

No. 10-4487 Green v. Throckmorton Page 17

interpret the video evidence differently, we conclude that the district court erred in

deciding as a matter of law that Throckmorton had probable cause to arrest Green. We

further conclude that the question of qualified immunity turns on disputed

facts—namely, on Green’s ambiguous performance on the field sobriety tests and on

whether Throckmorton was being truthful when he claimed that Green could not follow

the pen—and thus “the jury, not the judge, must determine liability.” See McKenna v.

Edgell, 617 F.3d 432, 437-38 (6th Cir. 2010) (holding that whether two police officers

were entitled to qualified immunity was a question for the jury).

The case of Jolley v. Harvell, 254 F. App’x 483 (6th Cir. 2007), upon which

Throckmorton relies, does not require a different result. In that case, Jolley was pulled

over at 2:23 a.m. because he paused at a stop sign for 30 seconds for no apparent reason.

The officer claimed to have smelled marijuana during the stop and proceeded to

administer several field sobriety tests, all of which were recorded on video. Jolley

performed well on most of the tests, but he failed to complete the one-leg-stand test. He

was then placed under arrest for driving while impaired and, after a subsequent test for

drugs or alcohol revealed that he was sober during the stop, he brought suit against the

arresting officer.

In an opinion that was issued prior to Miller, a panel of this court held that the

arrest was lawful. The lead opinion reasoned as follows:

Although there are certainly facts that militate against a finding of

probable cause, there are sufficient facts to support the arrest. We would

be hard-pressed to conclude that no reasonably prudent officer would

have made the same decision, especially when balanced against the

potential consequences of an incorrect call had Jolley ultimately proven

to be impaired. A drunk driver is a severe threat to the safety of others.

Jolley’s ultimate innocence is irrelevant.

Id. at 489 (citations omitted).

We do not know whether Jolley would have been decided differently had Miller

come before it, and we note that the concurring opinion in Jolley was unwilling to join

in the reasoning of the lead opinion. But even putting these reservations to one side,

No. 10-4487 Green v. Throckmorton Page 18

Jolley is an unpublished, nonbinding case that can be distinguished on its facts. The

arrest in that case took place in the middle of the night, after the driver exhibited unusual

driving behavior and failed to complete the one-leg-stand test. Here, in contrast, Green

was pulled over for committing two fairly common traffic violations, Throckmorton did

not claim to have seen or smelled any drugs or alcohol during the stop, and Green was

able to substantially complete all the field sobriety tests given to her except for the HGN

test—and her performance on that test cannot be ascertained from the video because her

back was facing the camera. These differences, when combined with Green’s seemingly

rational behavior during the stop, could lead a jury to conclude that there was no

probable cause to arrest Green for driving while impaired and that Throckmorton was

plainly incompetent in thinking that there was.

We understand, of course, the difficulty inherent in making on-the-fly

determinations regarding possible driving impairments, just as we recognize the severity

of drunk driving and “the potential consequences of an incorrect call had [Green]

ultimately proven to be impaired.” See id. But this difficulty and these consequences

always exist when an officer stops someone for a traffic violation. Yet officers do not

have free rein to administer field sobriety tests to whomever they please and then to

arrest that person for making the slightest misstep while performing the tests. Whether

that is what happened in this case is a question for the jury.

III. CONCLUSION

For all the reasons set forth above, we REVERSE the judgment of the district

court and REMAND the case for further proceedings consistent with this opinion.