NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0758n.06
No. 12-3796
FILED
UNITED STATES COURT OF APPEALS Aug 15, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
SHANYA RAINEY; ANTWAN ROLAND, )
)
Plaintiffs-Appellants, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
JEFF PATTON, In his individual capacity; )
BRANDON GOFF, In his individual capacity, ) OPINION
)
Defendants-Appellees. )
)
BEFORE: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Plaintiffs Shanya Rainey and Antwan Roland appeal
the magistrate judge’s grant of summary judgment in favor of Officers Jeff Patton and Brandon Goff
in this civil rights action filed under 42 U.S.C. § 1983. For the reasons set forth below, we
REVERSE and REMAND for further proceedings.
This case arises out of a traffic stop in Cheviot, Ohio, on September 23, 2010. Prior to the
stop, Officers Patton and Goff had responded to a domestic call at Rainey’s apartment. Although
a physical altercation had not occurred, Rainey and her boyfriend were arguing continuously, and
she requested that the officers escort the boyfriend from her residence. Rainey also left the
apartment and was pulled over moments later by Patton for failing to yield to oncoming traffic.
Rainey testified at her deposition that Patton then forced her to exit the car and get on the ground;
No. 12-3796
Rainey, et al. v. Patton, et al.
pointed his firearm at her face while yelling at her to do so; and eventually retrieved his canine from
the vehicle1 and brought it over to where she was lying on the ground. The canine then bit her.
Roland, who happened to be riding his scooter nearby, saw the dog bite Rainey and watched Patton
and Goff place her under arrest. The officers directed Roland to leave. After Roland refused, Goff
cited him for disorderly conduct. An Ohio municipal court acquitted Roland after a bench trial.
Rainey and Roland subsequently filed this § 1983 action against Patton and Goff, claiming
excessive force, false arrest, and malicious prosecution. The parties consented to the magistrate
judge’s jurisdiction. Following discovery, Patton and Goff filed a motion for summary judgment,
which the magistrate judge granted. As to Rainey’s excessive force claim, the magistrate judge
determined that Patton’s actions were reasonable under the circumstances because Rainey admitted
that she did not immediately pull her vehicle over after Patton turned on his cruiser lights; did not
immediately comply with Patton’s instruction to lie on the ground and put her cell phone down; and
attempted to use the cell phone during the stop. The magistrate judge found that this “evasive
behavior” and failure to obey orders would “lead a reasonable officer to conclude that [she] was
evading arrest and/or posed [a] threat to . . . Patton’s safety.” The magistrate judge also
distinguished excessive force cases involving police dogs where qualified immunity had been denied
because they “involved an intentional commanded deployment of the canine by the Officer handler
and/or involved allegations of inadequate canine training.” The magistrate judge found the
1
This is disputed by Patton, who claims that the dog escaped out of the car window.
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“undisputed evidence” established that Patton did not command the dog to bite Rainey. This timely
appeal followed.
We review de novo the magistrate judge’s decision to grant summary judgment. Brooks v.
Rothe, 577 F.3d 701, 705 (6th Cir. 2009). Summary judgment is appropriate when, viewing the
evidence in the light most favorable to the non-moving party, “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); see
also Barker v. Goodrich, 649 F.3d 428, 432 (6th Cir. 2011).
I. ANALYSIS
The magistrate judge granted summary judgment in favor of Patton and Goff on qualified-
immunity grounds. Qualified immunity shields an officer from § 1983 liability unless “the facts
alleged show the officer’s conduct violated a constitutional right,” and “the right was clearly
established” such that “it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001), abrogated in part by
Pearson v. Callahan, 555 U.S. 223, 236 (2009). In order to prevail, a plaintiff “must establish that
the defendant acted knowingly or intentionally to violate his or her constitutional rights, such that
mere negligence or recklessness is insufficient.” Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir.
1999).
A. Rainey’s Claim
We begin with Rainey’s excessive force claim. “A seizure must occur before an excessive
force claim is cognizable under the Fourth Amendment.” Dunigan v. Noble, 390 F.3d 486, 492 (6th
Cir. 2004) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 844–45 & n.7 (1998)). Rainey
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alleges that Patton “intentionally releas[ed] his police dog onto her,” in order to effectuate an
unlawful seizure. “A seizure within the meaning of the Fourth Amendment . . . ‘requires an
intentional acquisition of physical control.’” Id. (quoting Brower v. Inyo Cnty., 489 U.S. 593, 596
(1989)). In other words, the Fourth Amendment is implicated “only when there is a governmental
termination of freedom of movement through means intentionally applied.” Brower, 489 U.S. at
597. This court has applied the Fourth Amendment intent requirement to excessive force claims
involving police dogs. See Neal v. Melton, 453 F. App’x 572, 577 (6th Cir. 2011); Dunigan, 390
F.3d at 492. However, “claims involving proof of a defendant’s intent seldom lend themselves to
summary disposition” and “rarely will be supported by direct evidence of such intent.” Holzemer
v. City of Memphis, 621 F.3d 512, 525 (6th Cir. 2010) (internal quotation marks omitted); see Walker
v. Davis, 643 F. Supp. 2d 921, 928–29 (W.D. Ky. 2009) (explaining that a sheriff’s intent to seize
a motorist by striking his motorcycle with the sheriff’s police cruiser could be proved through
circumstantial evidence).
The magistrate judge, as well as the defendants, put weight on the fact that Patton did not
give the dog any type of verbal command,2 and that Rainey’s non-expert testimony alleging that
Patton did, in fact, “command” the dog to bite her cannot be used to create a genuine issue of
material fact. Although Rainey’s affidavit contends that the release of the choke chain “most
2
Officer Patton explained that his dog is not trained to “attack” suspects, but was instead
trained to bite and hold a suspect when: (1) the dog is sent to track and apprehend the suspect or (2)
the suspect moves defensively.
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certainly was a command to the dog to attack” under the circumstances,3 her deposition testimony
more clearly states that Patton “let the chain go, he loosened up on the chain because [the dog] was
like barking and . . . he was choking hisself [sic] barking at me and the officer let him go a little bit
and that’s when he bit me because he was that close to me with the dog.” Patton admits that he
brought the dog just two feet away from Rainey while she was on the ground. While Rainey turned
her head just before she was bitten, her testimony indicates that she could hear the dog straining
against the chain, and could also hear the chain loosened right before the bite.
Construing the testimony in the light most favorable to her, Rainey is alleging that while
Patton was yelling at her, he brought an agitated dog over, placed it in extremely close proximity to
her, and intentionally loosened the choke chain that was keeping the dog from reaching her. Roland
also testified that he saw Patton release the choke chain, and while his assertion of knowledge as to
what this meant in terms of dog-training is dubious, his testimony on what he saw bolsters Rainey’s
assertions. Further, a reasonable jury could infer Patton’s intentionality from Rainey’s testimony that
3
She specifically states as follows:
[W]hile it is true I did not hear defendant Patton give any specific verbal command
to the dog to attack me it is not true that I did not hear Patton give such a command
at all. Patton yelled at me, thus causing the dog to become agitated, and advanced
the dog to me while I was laying face down and flat on the ground. Patton took the
agitated and frantically barking dog directly over to me while Patton continued
shouting, and then Patton released the ‘choke chain’ on the dog’s collar just after I
turned my head away from the dog. The dog then bit me. The release of the choke
chain under these circumstances most certainly was a command to the dog to attack
me.
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Patton was loudly yelling at her while she was getting on the ground and pointed a gun at her face.
Based on these allegations and the totality of the circumstances, we do not think that expertise in dog
training is necessary to establish that a factual dispute exists. This dispute is undoubtedly material,
as it goes to whether Patton’s actions were intentional as opposed to reckless or negligent.
In order to establish that Patton’s intentional seizure involving the dog constituted an
excessive use of force, Rainey must show that such force was objectively unreasonable under the
circumstances. See Graham v. Connor, 490 U.S. 386, 395 (1989); Dunigan, 390 F.3d at 493. A
court “consider[s] not the ‘extent of the injury inflicted’ but whether an officer subjects a detainee
to ‘gratuitous violence.’” Miller v. Sanilac Cnty., 606 F.3d 240, 252 (6th Cir. 2010) (quoting
Morrison v. Bd. of Tr. of Green Twp., 583 F.3d 394, 407 (6th Cir. 2009)). This analysis requires a
court to balance “the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396
(internal quotation marks omitted). The court “pay[s] 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 [s]he is actively resisting arrest or attempting to evade arrest by flight.’” Kostrzewa v.
City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (quoting Graham, 490 U.S. at 396). The
reasonableness of a police officer’s use of force “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.
at 396. In assessing such claims, the court construes the facts in the light most favorable to the
plaintiff. Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010).
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Viewing the facts in the light most favorable to Rainey, we conclude that Patton’s decision
to employ his canine during the course of the traffic stop was unreasonable. Rainey committed a
minor traffic offense. Patton had just come from responding to a domestic call placed by Rainey,
and nothing in the record indicates that Rainey was a person Patton would have considered a threat
to his safety or that of others such that it would be necessary to employ a canine. Moreover, Patton
was a 6', 220-pound man, whereas Rainey was around 5'6" and between 150 and 175 pounds. While
admitting that she did not stop immediately, Rainey’s testimony indicates that it would not have been
appropriate to stop on the road so she drove to a nearby parking lot. She also testified that she drove
very slowly in the parking lot while finding a place to park. Although Rainey did not get on the
ground initially when Patton commanded her to do so, there was not an inordinate delay in her
compliance and she was on the ground by the time the dog was brought over. We therefore cannot
consider her to have been “actively resisting arrest or attempting to evade arrest by flight” at that
point. Viewed in the light most favorable to Rainey, we cannot conclude that a “reasonable officer
on the scene” with Patton’s years of experience would perceive Rainey to be such a safety threat or
such a flight risk that the use of a police dog would be necessary to detain her. In sum, Rainey
established that a reasonable jury could find that a Fourth Amendment violation occurred.
The next question in the qualified immunity analysis is “whether or not [Rainey’s] Fourth
Amendment protections against excessive force, as it relates to the use of police dogs, was clearly
established at the time the incident[] occurred.” Campbell v. City of Springboro, 700 F.3d 779, 788
(6th Cir. 2012). In order to be clearly established, “‘[t]he contours of th[e] right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.’” Id.
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(quoting Wheeler v. City of Lansing, 660 F.3d 931, 938 (6th Cir. 2011)) (alteration in original).
“However, ‘there need not be a case with the exact same fact pattern, or even fundamentally similar
or materially similar facts; rather, the question is whether the defendants had fair warning that their
actions were unconstitutional.’” Norton v. Stille, No. 12-1778, 2013 WL 1955889, at *4 (6th Cir.
May 13, 2013) (quoting Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005)) (internal
apostrophes omitted).
Campbell outlined the contours of the right to be free from excessive force in police canine
cases. There we noted the range of developed law, observing that summary judgment in favor of the
officer has been upheld when there were “potentially dangerous” suspects who exhibited “irrational
behavior” and when the suspects were in unlit buildings or heavily wooded areas where the “police
were vulnerable to ambush.” Campbell, 700 F.3d at 789.4 On the other end of the spectrum, we
noted that summary judgment on qualified immunity grounds was denied in cases in which the
officer “allowed a little-trained canine, who had previously bitten someone, to bite a handcuffed
suspect.” Id. The magistrate judge determined that the facts of this case “more closely aligned” with
4
These cases also involved properly trained dogs, and warnings were given prior to the
release of the dogs. The magistrate judge specifically noted that no allegations had been made
regarding the dog’s training in this case. Although courts have considered this particular factor in
other cases, they have done so in response to plaintiffs’ allegations. See, e.g., Matthews v. Jones,
35 F.3d 1046, 1049 (6th Cir. 1994) (considering plaintiff’s claims that the police department had a
policy or practice of using deadly force in the form of police dogs and that there was a policy of
inadequately training the dogs). Here, there was no claim of improper training; instead, there is
simply an allegation that a police officer brought an agitated dog to stand over a suspect on the
ground; continued to yell at the suspect; and intentionally loosened the chain that was restraining the
dog. Although an allegation of improper training may frequently be asserted in these types of cases,
we do not find it necessary to avoid summary judgment under the facts presented here.
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the former category based on Rainey’s failure to pull over immediately, failure to obey Patton’s
commands, at least initially, and due to the fact that she was not handcuffed.
We disagree. As previously noted, there is nothing to indicate that Rainey was considered
dangerous. Patton had just left Rainey’s apartment where he was responding to her request that
police intervene in a domestic dispute. He pulled her over for a minor traffic violation—failure to
yield to oncoming traffic. Although Rainey was not yet handcuffed when Patton brought the canine
over to her, she was on the ground, and there is no suggestion in any deposition testimony that she
was attempting to flee at the point that she was on the ground. Although Rainey appears to have had
her cell phone in hand, she alleged that she did not try to make a call until she was bitten and she was
not texting anyone, which directly contradicts Patton’s testimony that Rainey “would not stop
texting.” The interaction occurred in a parking lot with an overhead street light, so there was no risk
that Patton would be “ambushed.” Moreover, nothing indicates that Rainey was a physically
intimidating female or that she was in a position to flee such that Patton, a veteran police officer,
needed the assistance of a canine. These facts stand in stark contrast to the cases in which summary
judgment was granted. See Matthews v. Jones, 35 F.3d 1046, 1048, 1051–52 (6th Cir. 1994) (finding
employment of canine reasonable where plaintiff, who was speeding and driving recklessly, tried to
evade police in marked car, and eventually ran into the woods and failed to surrender after being
commanded to do so); Robinette v. Barnes, 854 F.2d 909, 913–14 (6th Cir. 1988) (finding
employment of canine to apprehend suspect reasonable because suspect likely “knew the building
was surrounded, . . . [and] had been warned . . . . that a dog would be used, and . . . gave every
indication of unwillingness to surrender”).
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The cases granting qualified immunity to the officer highlight the importance of facts
establishing that a suspect has failed to surrender or has yet to be apprehended and has been given
the opportunity to avoid an encounter with a dog before its employment. When such facts have not
been present, use of a police canine has been deemed unreasonable. See White v. Harmon, 65 F.3d
169, 1995 WL 518865, at *3 (6th Cir. 1995) (finding officer’s actions unreasonable where he
brought a dog “into the immediate presence of the handcuffed plaintiff the dog was ‘tracking’[] close
enough to permit the dog to bite the plaintiff”).
Based on the principles articulated in these cases, it would be clear to a reasonable officer
that employing a police dog against an unarmed suspect detained on the basis of a traffic offense,
who was on the ground and not attempting to flee, would constitute excessive force. Thus, in the
case brought by Rainey, the magistrate judge’s grant of summary judgment on qualified immunity
grounds was inappropriate.
B. Roland’s Claims
Roland brought a § 1983 claim for false arrest against both defendants and for malicious
prosecution under Ohio law against Officer Goff. (On appeal, Roland presses these claims only
against Officer Goff, thus abandoning his false arrest claim against Officer Patton. See Music v.
Arrowood Indem. Co., 632 F.3d 284, 286 n.1 (6th Cir. 2011). ) The magistrate judge concluded that
both claims failed as a matter of law because probable cause existed for Roland’s arrest.
To state a claim for false arrest, a plaintiff must prove that the arresting officer did not have
probable cause to arrest the plaintiff. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302, 307
n.12 (6th Cir. 2005). To state a claim for malicious prosecution under Ohio law, a plaintiff must
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show that the charging officer did not have probable cause to charge the plaintiff. Harris v.
Bornhorst, 513 F.3d 503, 520 (6th Cir. 2008). An officer has probable cause to arrest if the
information he possessed at the time of the arrest was “sufficient to lead a reasonable officer to
conclude that the arrestee has committed or is committing a crime.” Id. at 511. Likewise, an officer
has probable cause to prosecute if, at the time he initiated criminal proceedings, the information he
possessed would lead a reasonable officer to conclude that the arrestee had committed the charged
offense. Sykes v. Anderson, 625 F.3d 294, 310–11 (6th Cir. 2010).
Officer Goff cited Roland for disorderly conduct under Ohio Revised Code § 2917.11(A)(5),
which prohibits a person from “recklessly caus[ing] inconvenience, annoyance, or alarm to another
by . . . [c]reating a condition that is physically offensive to persons or that presents a risk of physical
harm to persons or property, by any act that serves no lawful and reasonable purpose of the
offender.” The facts, viewed in the light most favorable to Roland, do not indicate that he created
a condition that was physically offensive or presented a risk of physical harm. According to Roland,
he stood on a sidewalk about 100 feet away from the officers while they arrested Rainey. Unlike the
arrestees in the cases cited by Officer Goff, Roland did not move toward the officers or anyone else
or loudly protest Rainey’s arrest. Cf. Wheeler v. Newell, 407 F. App’x 889, 892 (6th Cir. 2011);
State v. Fant, 607 N.E.2d 548, 549–50 (Ohio Ct. App. 1992). To the extent Roland spoke loudly
to the officers, it was because of his distance from them. And although Officer Goff said that Roland
was on his cell phone and that he feared that Roland was summoning others, Roland denied that he
had his cell phone out.
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The officers argue that the municipal court’s denial of Roland’s Ohio Rule of Criminal
Procedure 29 motion for acquittal is “probative evidence” of probable cause. Rule 29 states that
“[t]he court on motion of a defendant . . . , after the evidence on either side is closed, shall order the
entry of a judgment of acquittal of one or more offenses charged . . . if the evidence is insufficient
to sustain a conviction[.]” “When considering a [Rule] 29 motion for acquittal, the trial court must
construe the evidence in a light most favorable to the state[.]” State v. Cash, 951 N.E.2d 486, 492
(Ohio Ct. App. 2011). During the state-court proceedings, Roland moved for acquittal at the close
of the state’s case. The prosecutor argued that the motion should be denied because, viewing the
evidence in the light most favorable to the state, Roland had his cell phone out and the officers
reasonably feared that a crowd might form. The court denied the motion. Here, in contrast, the
evidence must be viewed in the light most favorable to Roland, and he denies having his cell phone
out. The state court’s denial of the motion therefore has no probative value here. See Sykes, 625
F.3d at 310 n.8; see also Brunswick v. City of Cincinnati, No. 1:10-cv-617, 2011 WL 4482373, at
*5–6 (S.D. Ohio Sept. 27, 2011).
The officers also argue that probable cause existed to cite Roland for obstructing official
business in violation of Ohio Revised Code § 2921.31(A). Probable cause to arrest can be based on
an officer’s belief that the arrestee committed a crime, even if it is not the crime eventually charged.
Radvansky, 395 F.3d at 307 n.12. In Ohio, a conviction for obstruction of official business requires:
“(1) the performance of an unprivileged act (2) with the purpose of preventing, obstructing or
delaying the performance by a public official of an authorized act within his official capacity (3)
which hampers or impedes the public official in the performance of his lawful duties.” Lyons v. City
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of Xenia, 417 F.3d 565, 573 (6th Cir. 2005). The officers contend that Roland interfered with their
lawful arrest of Rainey. But the record belies their contention. During Roland’s trial, Patton
testified that Roland did not interfere with Rainey’s arrest. R. 10-5, PageID# 152 (“Q. Did Mr.
Roland interfere with your arrest of Miss Rainey? A. No”).
The officers respond that Roland’s refusal to leave the scene was an affirmative act. But the
case they cite for support—State v. Foster, No. 13-97-09, 1997 WL 576353 (Ohio Ct. App. Sept. 17
1997)—could hardly be more different. There, the court upheld a defendant’s conviction for
obstructing official business where the evidence showed that he yelled at a police dispatcher in a
police station for approximately half an hour. During that time, the dispatcher was attempting to
“address citizens who entered the police station, answer the phones, listen to police radio
transmissions, make radio calls to police officers, and monitor calls to the fire department and
ambulance.[.]” Id. at *1. The defendant was also repeatedly told that his conduct was interfering
with the dispatcher’s ability to do her job. Id. Here, in contrast, Roland was 100 feet away from
Goff and Patton during Rainey’s arrest. His only communication with them was in response to their
queries. And he was never told that he was interfering with police business.
In sum, viewing the facts in the light most favorable to Roland, Goff did not have probable
cause either to arrest Roland or to charge him with disorderly conduct. And it was clearly
established at that time that such actions, in the absence of probable cause, violate the Fourth
Amendment. Spurlock v. Satterfield, 167 F.3d 995, 1006–07 (6th Cir. 1999); Donovan v. Thames,
105 F.3d 291, 297–98 (6th Cir. 1997). Goff therefore is not entitled to qualified immunity.
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II. CONCLUSION
The magistrate judge’s decision as to Rainey’s excessive-force claim and Roland’s false-
arrest and malicious-prosecution claims is REVERSED, and the case REMANDED for further
proceedings consistent with this opinion.
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KETHLEDGE, Circuit Judge, concurring in part and dissenting in part. I would affirm
the judgment granting qualified immunity to Officer Patton, but otherwise concur with the Court’s
Opinion.
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